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By Kellie Patrick Gates
The Army Corps of Engineers says SugarHouse Casino should have sought permission before driving test piles on the southern end of its Delaware Avenue site earlier this month, but the casino is likely to face few consequences for not doing so.
The pile driving may have compromised artifacts from Philadelphia’s early shipyards, say preservationist Torben Jenk and archaeologist Douglas Mooney, both of whom are consulting parties – a group of citizens that is advising the Corps on the casino project permit.
The historical review process is required by federal law because SugarHouse needs an Army Corps of Engineers permit to build the casino as planned.
SugarHouse officials did not believe they needed the Corps’ permission for the pile driving. SugarHouse spokeswoman Leigh Whitaker said the developer had all the permits necessary to do the work. It was done under the supervision of an archaeologist, she said, so no artifacts were in danger. “Nothing that is part of (the federally required historical review process) is at risk.” The work turned up only dirt, no artifacts, she said.
Sam Reynolds, application section chief in the regulatory branch of the Corps’ Philadelphia District, said SugarHouse’s action has consequences, but because of where the work took place, the Corps cannot find them in violation nor seek any fines.
Reynolds said the Corps must investigate to see whether any historic resources were harmed, and if they were, SugarHouse will have to make remittances. Based on discussions the Corps has had with SugarHouse, Reynolds does not think SugarHouse was trying to circumvent the historic preservation process, but that is something the investigation will examine, he said.
Even if that intent were proven, however, it would not necessarily mean SugarHouse would be denied its permit. The investigation would have to show that damage was done to historic resources, and “that the impact was so great, it was contrary to public interest. That’s a pretty high bar,” Reynolds said. All of that is so unlikely to happen in this case, he said, that he would “bet my career on it.”
The investigation will create a delay in the permitting process that is always painful to an applicant, Reynolds said, and he will write a letter to Terry McKenna, project executive for SugarHouse’s general contractor.
The fact that SugarHouse did the work without consulting the Corps first also means the Corps will trust SugarHouse a little less, he said – and it gives the consulting parties more reasons to be distrustful, too.
“If somebody tells us they are not going to do (something), and they do … it just puts a little doubt into your mind. And that’s what happened,” Reynolds said. “The consulting parties are already questioning the quality and the capability. It just raises more questions for them.”
When SugarHouse wanted to do test piling and obstruction work this summer, it asked the Corps’ permission, and presented a detailed plan of how the work would be done. The Corps gave its blessing.
Reynolds said his expectation was that a similar request would precede any additional work of that nature.
The permit decision rests with the Corps, but the Corps is receiving advice on the historic preservation aspect of the permit from the Pennsylvania Historical and Museum Commission and the federal Advisory Council of Historic Preservation.
Whitaker said SugarHouse officials did not think they needed permission this time because the Corps has written a letter to the Pennsylvania Historical and Museum Commission outlining the areas in which the Corps believes SugarHouse should do further archaeology, and the section where the test pilings were driven, called H-4 on site maps, is not among them.
“We are following the Army Corps’ direction,” she said.
Mooney, who is president of the Philadelphia Archaeological Forum, bristled at this. The Historical and Museum Commission has not yet signed off on the Corps’ letter. “What happens if the PHMC comes back and says more work needs to be done?” he said. “There is no PHMC concurrence, and no separate proposal for doing additional test pilings. It would seem that SugarHouse is exceeding their authority on this.”
Jenk, the preservationist, says the H-4 area has not been adequately explored. “There is a great possibility of an 18th Century shipyard down there,” he said, but SugarHouse has never looked in the right place.
McKenna, the project executive for SugarHouse’s general contractor, recently volunteered to do some digging at three places Jenk specified. At a location he pinpointed, a foundation was discovered. Jenk says this is the remains of an 18th Century Social Club called Batchelor’s Hall. SugarHouse says it’s a much newer, residential building. Both sides have compiled reports trying to prove their positions, and those reports are also under review by the Corp, the Advisory Council and the PHMC.
Jenk says he also specified a location in H-4 to look for a shipyard. He believes SugarHouse “never looked there” because they didn’t want to find anything.
Whitaker said Jenk never provided any specific locations to dig in H-4. “We made that offer as a courtesy of Torben. He was responsible for identifying the exact location on the map that he wanted us to dig. He gave one location, and we dug in that location.”
It was Jenk who brought the pile driving to the Corps’ attention. He saw the huge crane and workers driving test pilings while walking his dog, and Wednesday emailed the Corps, saying that the consulting parties were not told of approvals for the test piling, and asking when the work was authorized.
Jenk said that as of Thursday afternoon, he had heard no response to his email from The Corps.
But it was Jenk’s email that has prompted the Corps’ review of SugarHouse’s actions. As part of that review, SugarHouse has been asked to compile a complete report of the work that was done and how it was done.
“HSP Gaming, and its consultants are fully confident that no archaeological resources were impacted by the minor modification of a few indicator pile locations due to unanticipated site conditions,” Whitaker said. “We have demonstrated this to the Corps, and we expect that the Corps will come to the same conclusion at the completion of their review.”
SugarHouse’s latest pilings were driven outside of the Corps’ regulational jurisdiction, Reynolds said.
The Corps’ jurisdiction ends at the average high tide line or where wetlands end if the applicant wants to drive a pile or erect a dock, Reynolds said. This boundary is close to the river on the SugarHouse site, he said, because there are no wetlands and the land is fairly high-lying.
The Corps’ permit area consists of the entire site, he said – and that means the Corps is responsible for ensuring an attempt is made to save historic resources over the whole site. But outside the jurisdictional area, the Corps recourses are limited, especially since a change in the historic preservation law that was made within the past five years. Prior to that, if an applicant intentionally destroyed historic resources, the permit was automatically denied.
If SugarHouse is granted a permit, conditions for handling historic resources will be attached to it, Reynolds said. If a permit holder doesn’t follow the rules attached to their permit – even in areas outside of the Corps’ jurisdiction – they are violating the permit and the Corps can seek punitive damages.
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