Source: Plan Philly
Date: June 2, 2009
Byline: Kellie Patrick Gates
SugarHouse may withdraw application
SugarHouse Casino officials may withdraw an application for a permit from the U.S. Army Corps of Engineers — a step which would end the federally mandated historic review process that has led to the discovery of Native American and other artifacts on the Delaware Avenue site.
"They've talked to us about it as a possibility," said Corps spokesman Ed Voigt.
SugarHouse hasn't yet made a decision about withdrawing their application, said spokeswoman Leigh Whitaker.
In early April, SugarHouse unveiled a new plan for their Fishtown casino project. The Pennsylvania Gaming Control Board approved that plan — which includes design changes and an interim casino — in May. Whitaker said that neither the interim casino nor the completed first phase (the interim facility would be incorporated into Phase I) require any construction that needs an Army Corps permit. That's what's leading SugarHouse officials to consider withdrawing their permit request, she said. But a permit would be required in order to build Phases I or II.
If SugarHouse decides to continue pursuing a permit at this time, it would have to amend its application with the new plans. "We have to make a decision whether we modify the application or withdraw it and then re-submit in the future, at the time that it would become necessary," Whitaker said. "As we move forward in conversations with the city and tweak our modified plan, we will make some decision on what we need to do."
But an archaeologist who has been advising the Corps on the historic review process says the Corps should not allow SugarHouse to withdraw.
"If the Corps agrees ... there is no longer a federal involvement, and SugarHouse can do whatever they want to with impunity," Douglas Mooney, President of the Philadelphia Archaeological Forum, said. Whitaker's pledge that SugarHouse would continue with the historic preservation work the Corps has recommended even if the Corps no longer has jurisdiction over the project did not appease Mooney. He said the casino's promises were not enough when the agency that would be in charge of any historic preservation, the Pennsylvania Historical and Museum Commission, has limited power to make anyone do anything.
Before SugarHouse could withdraw its license application, casino officials would have to provide the Corps with both the new construction plans and city approvals for those new plans, Voigt said. The Corps would study the plan and determine whether it agrees with SugarHouse that what it intends to build now would not impact the river or wetlands, and thus would not require a Corps permit.
While the redesign plan does not officially have city approval, Mayor Michael Nutter and top administration officials have praised it. Nutter originally had hoped to convince SugarHouse to move off of the waterfront, but in recent months gave up on that to focus on pushing them for a redesign that better fits in with the city's long-range waterfront goals. While critics have said the redesign doesn't make enough changes — or, in some cases, that nothing can be done to make a casino fit in any neighborhood — the Nutter administration likes the direction SugarHouse is now taking.
The casino has spent more than a year doing archaeology on the site because of a federal statute that requires historical review and preservation before a federal permit can be issued. The statute requires the historical review of the entire project site, not just the portion that necessitates a permit. But if SugarHouse drops its application, the Corps has no say on historical preservation anywhere on the site.
"If we have no jurisdiction, we can't be involved," Voigt said.
Even if the Corps agrees with SugarHouse that the interim and Phase I stages would not require a permit, Mooney questions how the Corps would be okay with SugarHouse withdrawing their application when future phases would require a permit.
"It would set a dangerous precedent," he said, encouraging other waterfront developers to build in phases to avoid the federal historic review and associated expense on their entire planned project area.
When asked about this, Voigt said that SugarHouse would essentially be treating the later phases as separate projects. "They could withdraw for now, but then, with a later phase, need to resubmit with us."
In addition to Mooney, historians, preservationists and neighborhood activists make up the team advising the Corps on the historical preservation of the SugarHouse site. Called consulting parties, members of the group have provided The Corps and SugarHouse archaeology consultant A.D. Marble with reams of evidence about the history of the site and convinced SugarHouse to do more work even after The Corps was satisfied. After the latest round of digging, the Corps again decided that SugarHouse had done more than enough pre-construction work, but should do further exploration for Native American and other artifacts during construction. This includes the exploration of the ground beneath Penn Street.
Mooney is among those who've been less than satisfied with the archaeology that was done on the site. But he also thinks its very important to look for more artifacts beneath Penn Street and in other places. The trove of Native American artifacts found so far is said to be the most significant find of this kind in Philadelphia.
Voigt said that the Pennsylvania Historical and Museum Commission — which has advised the Corps on the SugarHouse case, as it does on all matters of preservation in this state — would be the agency responsible for preservation on the site. "What kind of leverage they have, I don't know," Voigt said.
Not so much, said Mooney. Mooney said there used to be "all kinds of archaeology done for state-level permits," and SugarHouse needs some. But then a law passed in the 1990s shifted the burden for paying for that work from permit-seekers to the PHMC, and the archaeology "all but dried up." Mooney noted that the state's current proposed budget would cut PHMC funding by 25 percent.
During testimony during the April Gaming Control Board hearing where SugarHouse's request for a two-year extension on the deadline by which they must open and their modified plan was approved, chief investor Neil Bluhm said he's been told SugarHouse has spent a record amount on archaeology, and he was proud of that.
Whitaker said that even if SugarHouse withdraws its permit application, the casino will continue with the further archaeological exploration the Corps suggested when it decided SugarHouse had completed all needed pre-permit archaeology. The PHMC has approved the Corps' suggestions — all that remains is formalizing the preservation plan in a memorandum of agreement, which is not yet complete. "We want to have a good relationship with PHMC," Whitaker said. "If the Army Corps were no longer involved, we would still work with the state preservation office."
This did not convince Mooney. "The bottom line here is that if they withdraw their permit, there is no longer a federal tie-in," he said. "PHMC is virtually powerless to do anything. SugarHouse could do whatever they want to."
Whitaker said she was uncertain whether SugarHouse officials would proceed with the recommendations for further archaeological investigation before building the interim casino. During the interim phase, the areas in question would be covered with parking lots.
Even if SugarHouse waits to do the work, no artifacts would be destroyed by the parking areas, Whitaker said. "We are just paving over it; there would be no earth-disturbing activity," she said.
While federal law requires the historic review, its far from the Corps' only consideration when deciding whether to issue a permit. The Corps must consider environmental and other impacts on the river and wetlands. If the SugarHouse permit application is withdrawn, the Corps would still monitor the portion of the property under their jurisdiction for any actions that violate federal law, and for actions those that cannot be done without a permit, Voigt said. They do this on all riverfront properties, he said.