-MAIN-MENU-
Home
Email
Links
Search
Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

-MAIN-MENU-
Join Us
Photo/Audio
About KRC
PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Opposes Permit To Dam War Fork In Jackson County  Posted: September 12, 2004

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone

(502) 875-2845 fax

e-mail FitzKRC@aol.com

September 10, 2004

U.S. Army Corps of Engineers

Louisville District

Attn: Mr. Jerry Sparks, CELRL-OP-FS

845 Sassafras Creek Road

Sassafras, Kentucky 41759

Re: Jackson County Water Association (JCWA)

Request for Authorization under Clean Water Act

Section 404 to Construct Reservoir In War Fork,

Jackson County, Kentucky

Dear Mr. Sparks:

These comments are submitted concerning the proposal by the Jackson County Water Association (JCWA) to construct a reservoir in the War Fork watershed in Jackson County, Kentucky. The comments are in response to the solicitation of public comment in Public Notice No. 200400646. I appreciate the extension of time in which to develop and prepare these comments.

After review of the authorization in light of the governing regulations through which your agency reviews applications for placement of dredged or fill material in waters of the United States, KRC believes that the application has not satisfied the rigorous requirements of the Section 404(b)(1) guidelines. Further, KRC does not believe that the project satisfies the public interest review requirements of the Corps of Engineers. For either and both of these reasons, KRC respectfully suggests that the application be denied without prejudice to resubmit a proposal consistent with those statutory and regulatory requirements at a future date.

Introduction

KRC, as an successor to the Kentucky Rivers Coalition, an organization of rural landowners and urban environmentalists who organized in opposition to proposed dam projects in the Red, Licking, and Salt River basins of the Commonwealth, the Council historically has maintained an extremely skeptical posture with respect to water resources projects. The Council believes strongly that the development of any water resources project is not a matter to be lightly undertaken, since the alteration of the natural environment is seldom, if ever, without consequence (both short-term and immediately ascertainable, and other more subtle ecological consequences). The Council does not have a blanket policy of opposition to water resources projects, but believes strongly that each proposed project must be scrutinized carefully to assure: (1) that the project addresses a real and legitimate “need;” (2) that the project has a broad base of support among those most directly affected by the proposal, including those whose lands might be directly taken, or those whose lands might be burdened by the project (including landowners within the watershed whose activities might be curtailed, as well as those living below the impoundment who might be placed at greater risk of loss of life or limb, or whose utilization or enjoyment of the water resources might be affected by changes in hydrologic response, flow, aquatic life, and other aspects of the river and watershed); and (3) that the proposal is the “least-cost” alternative in ecological and social terms.

The Council believes that the “lake of dreams”1 approach to water resources projects that characterized the 1960’s and 70’s projects can no longer be afforded - and hat in order to properly determine whether a project is “feasible” and the “least-cost alternative” in social/ecologic-economic terms, a clear-headed assessment of needs and alternatives to meeting legitimate needs must be undertaken.

KRC has previously commented to the Rural Utilities Service concerning a draft and final Environmental Impact Statement on the proposed Jackson County Lake Project. The previous comments submitted to Mark Plank of the RUS, USDA concerning the draft and final EIS are attached here and incorporated herein by reference as if fully set forth below.

I. THE APPLICATION FAILS TO DEMONSTRATE COMPLIANCE WITH THE SECTION 404(B)(1) GUIDELINES

The Corps of Engineers regulations at 33 C.F.R. 320.4(a)(1) demand that:

For activities involving 404 discharges, a permit will be denied

if the discharge that would be authorized by such permit would

not comply with the Environmental Protection Agency’s 404(b)(1)

guidelines.

33 C.F.R. 320.4(a)(1).

Those “guidelines,” actually substantive regulations adopted by the U.S. Environmental Protection Agency on December 24, 1980 and being the “substantive criteria used in evaluating discharges of dredged or fill material under Section 404 of the Clean Water Act”, 45 Federal Register 85336 (December 24, 1980), impose significant step-wise analytical and demonstrative requirements on an applicant seeking to place dredged or fill material in a jurisdictional water.2

The 404(b)(1) guidelines establish a heavy burden on an applicant, centered around the principle that there should be no discharge into a water of the United States unless it can be demonstrated that “such a discharge will not have an unacceptable adverse impact[.]” 40 C.F.R. 230.1(c). In determining whether a discharge will have such an effect, the guidelines establish a three-tiered framework – avoidance, minimization and mitigation. If practicable alternatives exist that will satisfy the overall project purposes, no amount of minimization of the impact or mitigation will support issuance of a Section 404 authorization. If the substantial thresholds of avoidance and the presumption of availability of alternatives is crossed, and the project impact minimized, the mitigation must fully compensate for the impacts to the entire reach of waterbody affected, including not merely those areas directly impacted by the placement of material, but those waters isolated in a physical, biological and chemical manner from downstream reaches and those downstream reaches whose chemistry, water quality, nutrient and material transport, and other functions or composition is altered by converting flowing stream to a flatwater habitat. The Clean Water Act and Section 404(b)(1) guidelines are not neutral on the conversion of streams to artificial lakes, but rather require that such a conversion fully mitigate for losses of stream values and functions throughout the affected reach.

A. PRACTICABLE ALTERNATIVES AND PROJECT PURPOSES

The first and most rigorous threshold requirement of the Section 404(b)(1) guidelines is the mandate to prohibit the discharge of dredged or fill material:

if there is a practicable alternative to the proposed discharge

which would have less adverse impact on the aquatic ecosystem, so

long as the alternative does not have other significant adverse

environmental consequences.

40 C.F.R. 230.10(a).

The phrase “practicable alternatives” includes those alternatives that do not involve a discharge of dredged or fill material, as well as discharges of dredged or fill material at other locations. 40 C.F.R. 230.10(a)(1)(i), (ii). An alternative is considered practicable if

it is available and capable of being done after taking into consideration

cost, existing technology, and logistics in light of overall project

purposes. If it is otherwise a practicable alternative, an area not presently

owned by the applicant that could reasonably be obtained, utilized, expan-

ded or managed in order to fulfill the basic purpose of the proposed

activity may be considered.

40 C.F.R. 230.10(a)(2).

Additionally, in evaluating the existence of practicable alternatives, a presumption is created that such alternatives exist in cases where the activity is proposed for a special aquatic site and does not require access or proximity to or siting with the special aquatic site in question to fulfill its basic purpose (i.e. is not “water dependent.”) 40 C.F.R. 230.10(a)(3). Finally, as provided in that regulation, all practicable alternatives that do not involve discharges into special aquatic sites are presumed to have less adverse impact on the aquatic environment.3

The intent of the requirement that no discharge be permitted if there is a practicable alternative which would have less adverse impact on the aquatic ecosystem in question, according to the preamble that accompanied issuance of the regulation, is that:

[T]he Guidelines . . . prohibit discharges where there is a practicable, less damaging alternative . . Thus, if destruction of an area of waters of the United States may reasonably be avoided, it should be avoided.

45 F. R. 85,340 (Dec. 24, l980).

In parsing the “basis purpose” or “overall project purpose” of the proposed dam and lake, the Corps is guided by court decisions and prior determinations of the Corps respecting 404 permit applications. Invariably, a project applicant will couch a project purpose in terms that appear to compel a conclusion that practicable alternatives do not exist. Project purposes will be “bundled” so as to create necessity where the purposes in truth can be met in ways that do not involve disruption to aquatic ecosystems.

The Corps is responsible for controlling every aspect of the

404(b)(1) analysis. While the Corps should consider the views of the

applicant regarding his project's purpose and the existence (or lack of)

practicable alternatives, the Corps must determine and evaluate these matters itself, with no control or direction from the applicant, and without undue deference to the applicant's wishes.

Permit Elevation, Plantation Landing Resort, Inc., (April 21, l989) at 4. (Emphasis original) (Hereafter "Plantation Landing"). The Corps has a plain, mandatory and non-delegable obligation, (in this and all of the other guidelines), to independently frame the "basic purpose" of the project and to determine the availability (or lack) of less damaging practicable alternatives.

Since this application involves a proposed discharge into a special aquatic site, the presumption of availability of alternatives applies if the proposed activity is "non-water-dependent". Non water-dependent activities are those

which do not require access or proximity to or siting within the

special aquatic site to fulfill their basic purpose. An example is a fill

to create a restaurant site, since restaurants do not need to be in wetlands

to fulfill their basic purpose of feeding people.

45 Fed. Reg. 85,339 (December 24, l980).

In reviewing "water dependency," the Corps is required to look to the most fundamental purpose of the project, rather than to a characterization of the purpose wrapped in obligations that have been made in anticipation of the project going forward. In rejecting the "fully integrated" development proposal in Plantation Landings, the Corps made clear that the "basic purpose" doctrine is intended to look to the most fundamental characterization of the project. Thus, the basic purpose of a riverfront restaurant is to feed people, 45 Fed. Reg. 85,339; the basic purpose of a waterfront recreational housing development is shelter, Report on Application for Department of the Army Permits to Dredge and Fill at Marco Island, Collier County, Florida, 6th Ind., (April 15, l976), at pp. 9l-92. While multiple purposes are typically bundled together by an applicant in order to bolster the necessity of a project, the agency must disaggregate those “purposes” in order to determine whether, individually and together, the overall project purposes can be met through other less destructive means.

A classic example of this phenomenon is the use of the phrase “lake-based recreational opportunities” to describe the ancillary project purpose. While the identified recreational deficits – hiking, picnicking, swimming and camping facilities, can each and all be met through non-lake alternatives, they are packaged in a context that appears to lend credibility to the “need” for an additional impoundment.

Against this regulatory background, it is apparent that the proposed project fails to demonstrate the lack of practicable alternatives to satisfying the overall project purpose, and thus fails to establish the necessity of the discharge and attendant adverse impacts on waters of the United States.

1. The Application Fails To Demonstrate That Water Supply Needs

Cannot Be Met Through The Practicable Alternative Of One or Both of Two Pipelines

The FEIS assessed the viability of two pipeline alternatives, and it is clear from the FEIS analysis that either of the pipeline projects – to Wood Creek Lake or Lock 14 on the Kentucky River, could supply Jackson County’s water demand at the assumed 1.1 to 1.3 mgd level, at costs roughly equivalent to those projected for comparable water supply from the War Fork/Steer Fork impoundment. The total project cost of $16,213,000 for a 1.3 mgd Wood Creek pipeline and $20,183,000 for a 2.2 mgd Wood Creek pipeline, and $15,368,000 and $17,313,000 for a 1.3 and 2.2 mgd pipeline, respectively, from Lock 14, are roughly comparable to the projected $14,188,000 to $16,723,000 for a 1.3 or 2.2 mgd impoundment in War Fork/Steer Fork, without consideration of mitigation costs, which would drive up the cost of the impoundment significantly. 4

The FEIS notes as an issue but does not appear to quantify, the need for mitigation. Assuming (and it is a generous assumption, given the virtual impossibility of surmounting the practicable alternative hurdle in light of the data presented in the FEIS on the viability of pipeline alternatives) that a dam and reservoir could be lawfully permitted under Section 404(b)(1) in this case, the guidelines would demand that the impacts be minimized and that any areal and temporal losses of the functions and values of these waters of the United States be fully mitigated through either “in-lieu” payments or off-site mitigation. These losses would include not only the area directly impacted by dam construction, but the loss of flowing stream resources above the dam, degradation in the resource downstream due to changes in water chemistry and flow, and any losses of wetlands and other resources dependent on flowing conditions. At a minimum ratio of 2:1, and probably much higher, given the high quality of the resource, the significant costs of mitigation of any dam proposal would make the pipeline alternative much more attractive both from an implementation standpoint (since utility crossings generally are regulated under Nationwide Permits) and economically.

Assuming for the moment the economic equivalence of the projected costs for a dam and pipeline alternative, the environmental consequences of the various proposals also militates against construction of the dam and reservoir. The pipeline alternative would result in short-term, moderately significant degradation of water quality at stream crossings, and short-term terrestrial impacts at the time of construction; impacts that are minor in comparison to the long-term degradation of the War Fork watershed due to dam construction – impacts that the FEIS acknowledges include “moderately significant short and long-term harm to aquatic biota and riparian vegetation due to altered water quality and reduced water flows downstream,” and adverse effects on habitat and species dependent on free-flowing conditions.

The FEIS presents a compelling case for denial of a Section 404 permit for any dam and reservoir alternative given the demonstrated comparability (or advantage, once mitigation is considered) in cost and the significantly less uncertain and more transitory ecological impacts of laying a pipeline compared to inundation of over 17,000 linear feet of flowing stream and 111 acres of forest, and damage to surface and groundwater hydrology below the dam. Either of the two pipeline alternatives fully meets the projected demand for Jackson County, at a lower cost in money and environmental damage than the proposed dam and reservoir.

In reviewing the proposal, the Corps must also independently assess the extent to which the projected water supply “need” is realistic, and whether the consideration of alternatives was as broad as the proposed area to be served. The project purpose is projected as providing an adequate water supply for the needs of Jackson County and parts of some neighboring counties. In the Council’s comments on the DEIS, we challenged whether the project need was inflated and the projected demand based on reasonable estimates. The FEIS made several adjustments in the water demand numbers, but still persisted in including speculative regional demand without having properly scoped the full range of alternatives available to address that demand. In the DEIS comments, the Council argued for use of actual historic changes and trends in populations and the adoption of moderate, rather than high, values for projected changes in future population. The FEIS projection to 2050 based on actual demographic changes in the 1990-1999 period is a more reasonable assumption than the use of the unrealistic 1.3 percent growth rate projected in the Final Water Needs Analysis.

The Council also argued that it was inappropriate to base the projected “need” on the possible demand from Berea College or the Madison County residents. The FEIS adjusted downward the water needs projection for the “region” from 60% to 42% in order to eliminate Berea College.

The FEIS, however, still projects that there is a regional demand in Clay, Rockcastle and Owsley Counties, and it projects a regional demand that is 42% (almost half again) that of the Jackson County need, without specifying the basis for the projection of regional demand. In determining the proper sizing of this project, or alternatively stated, the real “need,” it is not appropriate to include Rockcastle County, Clay County and Owsley County nor any other “regional demand” into the equation unless the EIS is re-scoped and broadened significantly to define the project purpose in multi-county terms and identify the alternatives in and outside of Jackson County available to best serve the needs of the three counties. If the project purpose is to serve Jackson County, then the projected need must be based on county population and demand, which is estimated in the range of 1.1 to 1.3 mgd, rather than on theoretical regional demand or needs, which inflate the need to between 1.9 and 2.2 mgd.

Additionally, unless there is a firm contractual commitment to purchase water from the Jackson County Water District the projected demand for the “region” should not be included. As argued in the comments on the DEIS, any consideration of alternatives beyond that needed to meet the water needs of Jackson County must be rescoped, since the available alternatives have been limited to dam/reservoir combinations in Jackson County or pipelines running to the county. The Record of Decision should have eliminated consideration of the Sturgeon Creek Dam and Reservoir and the 3.5 mgd reservoirs in War Fork, Sturgeon Creek and Steer Fork as being excessive to meet the projected need. The proposed project was represented as a Jackson County project to meet its water needs, with recreation as an ancillary purpose. The use of these other counties “needs” to inflate the demand is inappropriate unless the project is rescoped as a regional project and the full range of regional alternatives explored.

Concerning the choice of values for the projected industrial, commercial and residential water demand, the Council previously questioned the use of a high residential per capita water use of 67 gal/day/person, and the selection of the low end 10% value for water conservation, which can reduce water use by 10-30%, with an average of 20%. The Council believes that, after calculating the actual Jackson County demand, removing Clay, Rockcastle, Owsley and Madison Counties (Berea) theoretical demand, adjusting for actual water demand based on local water use rather than statewide averages, and reasonable demand projections, and adding water conservation at a median 20%, the demand is substantially lower than projected. Even accepting the 1.1 – 1.3 mgd as a reasonable 2050 demand projection, however, it is clear that all but the two pipeline and the War Fork and Steer Fork 1.3 mgd proposal are in excess of the projected demand and are unreasonable alternatives entailing unnecessary expense and environmental damage above that necessary to address the project purpose under a lake approach.

In sum, the FEIS documented the viability of two pipeline options, either of which would provide adequate water supply at a roughly comparable capital and consumer cost, while avoiding significant adverse environmental impacts and significant uncertainties concerning effects on hydrology, geology, and fish and wildlife values in the watershed of a national designation study river. The pipeline alternatives appear to be practicable, and thus must be chosen since under the Section 404(b)(1) guidelines, any other feasible alternative that will meet the essential project purpose (water supply) must be selected over an alternative that will result in placement of dredged or fill material into a water of the United States in order to impound that water.

2. The Applicant Has Failed To Demonstrate That The Recreational “Need” Cannot

Be Met Through Other Alternatives That Do Not Involve Destruction of Special

Aquatic Habitat

As the Council noted in the DEIS comments, it is no secret that among the supporters of this project are those who believe strongly that a “lake and a lodge” are the economic development ticket for Jackson County, and as between alternatives that would supply water to Jackson County, they favor a lake over a pipeline for that reason. It is equally clear, however, that the proposal to construct a water supply source is inconsistent in many respects with creation of a recreational lake, and that the identified needs for “additional camping, picnicking, hiking and swimming” can be met without construction of a new lake. The obligation of the applicant is to demonstrate that the project lacks alternatives, and since the water supply component can be met through pipelines at comparable cost and significantly less environmental damage and uncertainty, the recreational needs cannot support the dam and reservoir unless the deficits in camping, picnicking, hiking and swimming cannot be met elsewhere.

The potential conflict between a lake proposed for water supply and recreational use is apparent. The project is proposed to have a 300’ foot horizontal buffer for protection of the water quality of the lake, but it is also proposed that the project would include a boat ramp, boat dock, public beach, hiking trails, picnic area and a primitive campground, all of which present potential sources of contamination to the water supply. The FEIS notes that the available supply from Wood Creek Lake is capped in order to avoid adverse impact to recreational facilities (boating), yet proposes the same types of facilities for the Jackson County dam and reservoir without consideration of how such uses might compromise the ability to draw down the lake for water supply. Unstated but also likely in a community with no zoning or planning, is private development that could occur if the surrounding lands are privatized, development that would rely on on-site septic systems in the absence of a publicly-owned sewer system, and would add contaminated base flow to the lake.

The proposal to use the impoundment for multiple purposes creates a conflict between the interests of maintaining water quality, and allowing recreational uses which may degrade that quality. Recreational uses are not necessarily compatible with the projected purpose of water supply, since boating introduces raw sewage, garbage, petroleum compounds and other contaminants into a raw water supply, and the combination of swimming and sanitary wastewater discharges from boating introduce pathogens. Also, reservoir drawdown is not necessarily consistent with recreational use. Protection of the source of water supply should (and often does) entail a curtailment of the development of the resource for recreational purposes (including limits on swimming, boating, land development around the lake, etc.) In fact, Kentucky State regulations advise that water supply reservoirs should not allow swimming, water skiing and other contact sports and large motor-operated craft (401 KAR 8:020). Because of the potential conflict between recreational use and water supply, any recreational purpose of the project, and any projected need for water-based recreation, should be discounted in determining the real project need.

Based on the Recreational Needs Analysis, it is only picnicking, hiking, camping, and swimming will experience shortfalls above current facilities by the year 2020. None of these activities is necessarily related to or dependent on creation of a reservoir, since each can be met in ways other than lake-based recreation. Approximately one-quarter of Jackson County is comprised of the Daniel Boone National Forest. The Forest, and much of the landscape of this county lends itself to hiking trails, picnic facilities, and campgrounds that offer scenic views of the area's natural topography, without the need for a reservoir. Swimming opportunities can be created in constructed pools without damming free-flowing high quality streams. Swimming, it should be noted, is prohibited in Wood Creek Lake because of perceived incompatibility with the use of the lake as a water supply source. It is discouraged for water supply reservoirs. Regional lakes within a days drive exist for all of the proposed areas to be served by the dam and reservoir.

As the Corp of Engineers noted in March 30, 2001 comments, none of the projected recreational demands are dependent on the construction of a new lake, and each can be met without such construction. The inclusion of recreational needs into the equation as an ancillary “project purpose” was and remains an effort to bolster the lake alternative.

In sum, the recreational needs are not dependent on creation of a dam and reservoir, and should be eliminated from consideration in selection of a final preferred alternative in the Record of Decision. None of the proposed recreational needs are “water dependent” as that term is used in the Section 404(b)(1) guidelines,5 and the recreational demand should not be used to skew the choice among alternatives to meet the project purpose of water supply.

As KRC commented during the EIS process, if recreational opportunities are sought as an economic engine for the community, the bias towards flatwater recreation should be eliminated and attention should instead be paid to enhancing the utilization of the natural resource rather than altering it to replicate flatwater opportunities available elsewhere in the region on a larger scale. That bias pervaded the FEIS, which noted in describing the dam and reservoir alternatives, that “the appearance of the proposed reservoir would have a very significant, positive impact on the visual quality of the area.” This statement reflects a distinct bias towards managed flatwater recreation rather than recreation based on maintenance and enhancement of the natural beauty of a free-flowing water resource that, at its lower elevations, is a river acknowledged to be of superb wild and scenic values. In developing a flatwater recreational venue, Jackson County will be in competition with significant flatwater resources in the region, (calling into question whether there is a need for additional flatwater recreational opportunities). By recognizing the unique and scenic values of the area and highlighting, rather than seeking to inundate, those values, comparable economic opportunities can be developed without the significant alterations in the terrestrial and aquatic communities and stream quality and hydrology that the dam/reservoirs would inflict.

B. ASSUMING, ARGUENDO, THAT THE ALTERNATIVES THRESHOLD

CAN BE MET, THE APPLICANT HAS FAILED TO PROPERLY MITIGATE

THE IMPACTS OF THE PROPOSED PROJECT

Assuming, for the sake of argument alone, that the alternative analysis supported the conclusion that the only practicable alternative satisfying the overall project purposes was construction of this structure in this location, the project application fails to begin to address the mitigation requirements attendant to the Section 404(b)(1) guidelines.

The mitigation assessment is inadequate in several respects: first, in failing to fully identify and assess downstream hydrologic consequences of the project as impacts to be mitigated, and the upstream losses of function and value from conversion of the high quality stream to a flatwater habitat; and second, by using minimization of adverse effects as compensatory mitigation.

In 1989, a Memorandum of Agreement Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines was entered into between the Corps of Engineers and Environmental Protection Agency, in order to articulate the policy and procedures to be used in the determination of the type and level of mitigation necessary to comply with the section 404(b)(1) guidelines.

The three general types of mitigation identified in that memorandum are avoidance, minimization and compensatory mitigation. 54 F.R. 51320 (December 14, 1989). The determination of what level of mitigation is “appropriate” must be based on the “values and functions of the aquatic resource that will be impacted.” Id. at p. 51320. It is not to be based on the characteristics of the proposed project. Functional values must be assessed using aquatic site assessment techniques that fully consider each ecological function and value that will be lost by altering the natural aquatic community and habitat. 54 F.R. 51321.

Among the impacts that must be mitigated through replacement of functions and values are loss of nutrient transport to downstream reaches, increases in sedimentation in upstream waters and loss of cobble and changes in sediment below the dam (altering in turn substrate changes and changes in the interaction between surface flow and karst flow), isolation and loss of species above the dam and loss of refugia and spawning habitat for species below, and other functions that the free-flowing stream now provides. Secondary effects on the aquatic ecosystem downstream such as changes due to fluctuating water levels, septic tank leaching, and other functions and values that are identified in the guidelines.

As to the second point, replacement of free-flowing stream habitat with a flatwater habitat is an ecological loss to a water of the United States and is viewed by the applicable regulations and memoranda of agreement as such. Minimization of one aspect of that impact by constructing a Vegetated Shallow area throughout the proposed reservoir does not compensate for the other impacts, but instead merely lessens, for that one function, the amount of mitigation required.

The mitigation must evaluate all project impacts on the aquatic system, including the footprint of the structure and reservoir, downstream biological, habitat, and hydrogeologic changes, and all upstream impacts on the affected streams for the entire reaches that will be isolated by the damming of the War Fork. Absent a clear indication of what is lost, the compensation needed to account for the loss cannot be determined.

II. THE PROJECT APPLICATION FAILS TO DEMONSTRATE THAT

IMPOUNDMENT OF THIS HIGH QUALITY STREAM TO CREATE A

WATER SUPPLY AND RECREATIONAL LAKE IS CONSISTENT WITH

THE CORPS’ “PUBLIC INTEREST” TESTS

In addition to failing to satisfy the 404(b)(1) guidelines, the application does not appear to comply with the standards established in the “public interest review” process that must precede any decision of the Corps of Engineers to issue a permit under Section 404 of the Clean Water Act.

The Corps of Engineers has developed a policy applicable to the review of all applications for a Department of the Army permit, called the “public interest review.” 33 C.F.R. 320.4(a)(1). In addition to the obligations of the agency under the National Environmental Policy Act, and those imposed under the Section 404(b)(1) guidelines, the public interest review policy instructs that:

the decision whether to issue a permit will be based on an evaluation of the

probable impacts, including cumulative impacts, of the proposed activity and its

intended use on the public interest. Evaluation of the probable impact which the

proposed activity may have on the public interest requires a careful weighing of

all those factors which become relevant in each particular case. The benefits

which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to

authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process.

* * * *

All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economic, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people.

33 C.F.R. 320.4(a)(1).

The obligation to conduct a public interest review is not satisfied merely by undertaking the required analysis under the National Environmental Policy Act, but rather is an obligation distinct from both the NEPA mandate and the requirements of Section 404 of the Clean Water Act. The responsibility of the agency under the public interest review is distinct and separate from its obligations under NEPA and the 404(b)(1) guidelines, as recognized in Van Abbema v. Fornell, 807 F.2d 633, 637-8 (7th Cir. 1986):

[r]elative absence of significant environmental effects does not translate

directly into overall social benefit. The Corps must follow two distinct, if parallel, guidelines in issuing a permit after a FONSI. First, Section 102(2)(E) of NEPA, 42 U.S.C. 4332(2)(E), requires all federal agencies to ‘study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.’ And second, Corps regulations require that a permit shall issue only after a general ‘public interest review’ determines that the benefits outweigh the detriments of a proposal.

Id. at 638.

The Council believes that in this instance, the factors that must weigh most heavily in determining wherein lies the public interest are these:

* The exceptional quality of the aquatic resources that would be affected both upstream and downstream of the proposed impoundment, making the stream an “important resource” whose protection is consistent with national policy;

* The high degree of certainty of adverse effects and environmental damage from the project, including direct and indirect terrestrial and aquatic impacts of the construction and routine operation of the project, and the uncertainty concerning the extent of indirect effects on the karst hydrogeology and downstream species and habitat;

* The incompatibility of the proposed project with Section 404(b)(1) guidelines;

* The ready availability of cost-competitive pipeline alternatives for water supply that would avoid or minimize both terrestrial or aquatic impact; and

* The potential to satisfy recreational needs through alternatives that would avoid or minimize stream impacts.

For each and all of these reasons, KRC believes that the District Engineer should determine that issuance of a permit for the proposed project would be contrary to the public interest, as that term is used in 40 C.F.R. 320.4.

As a final matter, KRC would not that to the extent that the assumptions and scope of the project as defined in the EIS does not provide an alternatives and impact analysis consistent with the scope of the project as defined in the Section 404 application, additional documentation would be necessary to satisfy NEPA obligations.

Thank you in advance for your consideration of these comments, and of those comments previously provided as part of the EIS process which are attached and incorporated by reference.

Cordially,

Tom FitzGerald

Director

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone

(502) 875-2845 fax

e-mail FitzKRC@aol.com

July 4, 2001

Mark Plank, USDA

Rural Utilities Service

Engineering & Environmental Staff

1400 Independence Avenue

Mail Stop 1571,

Washington D.C. 20250 by email mplank@rus.usda.gov and by fax (202) 720-0820

Re: Final Environmental Impact Statement

Application for Financial Assistance

Jackson County Water Association

Dear Mr. Plank:

The Kentucky Resources Council, Inc., (Council), a non-profit environmental advocacy organization whose membership shares a commitment to prudent use and conservation of the natural resources of the Commonwealth, submits these comments in response to the public comment period on the final Environmental Impact Statement (FEIS) for the “Jackson County Lake Project.” The Council previously commented concerning the appropriate scope of the dEIS, and submitted comments on July 10, 2000 regarding the draft Environmental Impact Statement prepared by USDA RUS, with the cooperation of the United States Forest Service, in connection with the application of the Jackson County Water Association for financial assistance to construct a dam to create a reservoir in Jackson County, Kentucky.6

For the reasons outlined below, the Council believes that the FEIS has made a compelling case for not constructing a dam and reservoir to meet the reasonable future water supply needs of Jackson County. The FEIS documents the viability of two pipeline options, either of which provides adequate water supply at a roughly comparable capital and consumer cost, while avoiding significant adverse environmental impacts.

The Council believes that the FEIS has improved on several areas in which the DEIS was deficient. In the choice of preferred alternatives, however, the RUS continues to cling to a recommended alternative that will impose significant environmental and economic costs on the community and will face an insurmountable obstacle in attempting to secure a Section 404 permit under the Clean Water Act because of the availability of the pipeline alternatives.

It is clear from the FEIS that the dam and reservoir alternatives are non-starters, because the FEIS demonstrates that practicable alternatives exist to impounding high quality streams with attendant adverse ecological impacts on downstream waters. The U.S. Army Corps of Engineers has indicated in no uncertain terms that the pipeline alternatives appear to be practicable, and under the Section 404(b)(1) guidelines, the Corps is required to choose any other feasible alternative that will meet the essential project purpose (water supply) over an alternative that will result in placement of dredged or fill material into a water of the United States in order to impound that water.

While the National Environmental Policy Act does not compel the RUS to choose the most environmentally sound alternative among those considered, it is clear that any dam/reservoir option will not be consistent with Section 404(b)(1) because of the ready availability of two pipeline alternatives. Without meaning to do so, the text of the FEIS makes a compelling case for denial of a Section 404(b)(1) permit. Rather than spend further resources on a doomed attempt to expend the Empowerment Zone money on a dam and reservoir, RUS should recognize the infeasibility of any of the dam and reservoir options and instead should exercise leadership in selecting as the preferred alternative either or both of the pipeline options.

INTRODUCTION

When the Council commented on the scoping for this environmental impact statement and on the DEIS, we cautioned that the EIS (and subsequent applications under the Clean Water Act for a Section 404 permit) must include a thorough and clear-headed assessment of the project purpose and need, and justification for expenditures of public money on such a project.

The Council historically has maintained an extremely skeptical posture with respect to water resources projects. The development of any water resources project is not a matter to be lightly undertaken. The alteration of the natural environment is seldom, if ever, without consequence (both short-term and immediately ascertainable, and other more subtle ecological consequences), and the expenditure of public monies and appropriation of public waters carries with it an obligation of responsible stewardship.

Further, in utilizing federal “empowerment zone” monies to support a water resources project, there is an added obligation imposed under federal law to act in a fiscally prudent and environmentally responsible manner in expending those monies. The “lake of dreams”7 approach to water resources projects that characterized many of the 1960’s and 70’s water resources projects cannot be tolerated in this day and age. In order to properly determine whether a project is “feasible” and the “least-cost alternative” in social/ecologic-economic terms, a number of questions must be analyzed.

For these reasons, the Council urged that the proposed project be scrutinized carefully to assure (1) that the project addresses a real and legitimate “need;” and that the project is sized according to that need; (2) that the project has a broad base of support among those most directly affected by the proposal, including those whose lands might be directly taken, or those whose lands might be burdened by the project (including landowners within the watershed whose activities might be curtailed, as well as those living below the impoundment who might be placed at greater risk of loss of life or limb, or whose utilization or enjoyment of the water resources might be affected by changes in hydrologic response, flow, aquatic life, and other aspects of the river and watershed); and (3) that the proposal is the “least-cost” alternative in ecological and social terms, with all alternatives fully and fairly explored.

Water Need

In the Council’s comments on the DEIS, we challenged whether the project need was inflated and the projected demand based on reasonable estimates. The FEIS has made several adjustments in the water demand numbers, but still persists in including speculative regional demand without having properly scoped the full range of alternatives available to address that demand.

In the DEIS comments, the Council argued for use of actual historic changes and trends in populations and the adoption of moderate, rather than high, values for projected changes in future population. The FEIS projection to 2050 based on actual demographic changes in the 1990-1999 period is a more reasonable assumption than the use of the unrealistic 1.3 percent growth rate projected in the Final Water Needs Analysis.

The Council also argued that it was inappropriate to base the projected “need” on the possible demand from Berea College or the Madison County residents. The FEIS has adjusted downward the water needs projection for the “region” from 60% to 42% in order to eliminate Berea College.

The FEIS, however, still projects that there is a regional demand in Clay, Rockcastle and Owsley Counties, and it projects a regional demand that is 42% (almost half again) that of the Jackson County need, without specifying the basis for the projection of regional demand.

In determining the proper sizing of this project, it is not appropriate to include Rockcastle County, Clay County and Owsley County nor any other “regional demand” into the equation unless the EIS is re-scoped and broadened significantly to define the project purpose in multi-county terms and identify the alternatives in and outside of Jackson County available to best serve the needs of the three counties. If the project purpose is to serve Jackson County, then the projected need must be based on county population and demand, which is estimated in the range of 1.1 to 1.3 mgd, rather than on theoretical regional demand or needs, which inflate the need to between 1.9 and 2.2 mgd.

Additionally, unless there is a firm contractual commitment to purchase water from the Jackson County Water District the projected demand for the “region” should not be included.

As argued in the comments on the DEIS, any consideration of alternatives beyond that needed to meet the water needs of Jackson county must be rescoped, since the available alternatives have been limited to dam/reservoir combinations in Jackson County or pipelines running to the county. The Record of Decision should eliminate consideration of the Sturgeon Creek Dam and Reservoir and the 3.5 mgd reservoirs in War Fork, Sturgeon Creek and Steer Fork as being excessive to meet the projected need. The proposed project was represented as a Jackson County project to meet its water needs, with recreation as an ancillary purpose. The use of these other counties “needs” to inflate the demand is inappropriate unless the project is rescoped as a regional project and the full range of regional alternatives explored.

Concerning the choice of values for the projected industrial, commercial and residential water demand, the Council previously questioned the use of a high residential per capita water use of 67 gal/day/person, and the selection of the low end 10% value for water conservation, which can reduce water use by 10-30%, with an average of 20%. The Council believes that, after calculating the actual Jackson County demand, removing Clay, Rockcastle, Owsley and Madison Counties (Berea) theoretical demand, adjusting for actual water demand based on local water use rather than statewide averages, and reasonable demand projections, and adding water conservation at a median 20%, the demand is substantially lower than projected. Even accepting the 1.1 – 1.3 mgd as a reasonable 2050 demand projection, however, it is clear that all but the two pipeline and the War Fork and Steer Fork 1.3 mgd proposal are in excess of the projected demand and are unreasonable alternatives entailing unnecessary expense and environmental damage above that necessary to address the project purpose under a lake approach.

As argued below, either of the two pipeline alternatives fully meets the projected demand for Jackson County, at a lower cost in money and environmental damage than any of the dam, and reservoir alternatives.

The Recreational “Need” Should be Eliminated From Consideration In Selecting Among Alternatives

As the Council noted in the DEIS comments, it is no secret that among the supporters of this project are those who believe strongly that a “lake and a lodge” are the economic development ticket for Jackson County, and as between alternatives that would supply water to Jackson County, they favor a lake over a pipeline for that reason.

It is equally clear, however, that the proposal to construct a water supply source is inconsistent in many respects with creation of a recreational lake, and that the identified needs for “additional camping, picnicking, hiking and swimming” can be met without construction of a new lake.

The conflict between water supply and recreational use is apparent. The project is proposed to have a 300’ foot horizontal buffer for protection of the lake, but it is also proposed that the project would include a boat ramp, boat dock, public beach, hiking trails, picnic area and a primitive campground, all of which present potential sources of contamination to the water supply. The FEIS notes that the available supply from Wood Creek Lake is capped in order to avoid adverse impact to recreational facilities (boating), yet proposes the same types of facilities for the Jackson County Dam and Reservoir without consideration of how such uses might compromise the ability to draw down the lake for water supply. Unstated but also likely in a community with no zoning or planning, is private development that could occur if the surrounding lands are privatized, development that would rely on on-site septic systems in the absence of a publicly-owned sewer system, and would add contaminated base flow to the lake.

The proposal to use the impoundment for multiple purposes creates a conflict between the interests of maintaining water quality, and allowing recreational uses which may degrade that quality. Recreational uses are not necessarily compatible with the projected purpose of water supply, since boating introduces raw sewage, garbage, petroleum compounds and other contaminants into a raw water supply, and the combination of swimming and sanitary wastewater discharges from boating introduce pathogens. Also, reservoir drawdown is not necessarily consistent with recreational use. Protection of the source of water supply should (and often does) entail a curtailment of the development of the resource for recreational purposes (including limits on swimming, boating, land development around the lake, etc.) In fact, Kentucky State regulations advise that water supply reservoirs should not allow swimming, water skiing and other contact sports and large motor-operated craft (401 KAR 8:020). Because of the potential conflict between recreational use and water supply, any recreational “value” of the project, and any projected need for water-based recreation, should be discounted in determining the real project need.

In sum, the recreational aspects of the project “need” should be discounted. Based on the Recreational Needs Analysis, it is only picnicking, hiking, camping, and swimming will experience shortfalls above current facilities by the year 2020. None of these activities is necessarily related to or dependent on creation of a reservoir, since each can be met in ways other than lake-based recreation.

Approximately one-quarter of Jackson County is comprised of the Daniel Boone National Forest. The Forest, and much of the landscape of this county lends itself to hiking trails, picnic facilities, and campgrounds that offer scenic views of the area's natural topography, without the need for a reservoir. Swimming opportunities can be created in constructed pools without damming free-flowing high quality streams. Swimming, it should be noted, is prohibited in Wood Creek Lake because of perceived incompatibility with the use of the lake as a water supply source.

As the Corps of Engineers, who cannot lawfully approve a project under Section 404(b)(1) unless no practicable alternatives exist, noted in their March 30, 2001 comments, none of the projected recreational demands are dependent on the construction of a new lake, and each can be met without such construction. The inclusion of recreational needs into the equation as an ancillary “project purpose” was and remains an effort to skew the choice among alternatives towards a lake.

If recreational opportunities are sought as an economic engine for the community, the bias towards flatwater recreation should be eliminated and attention should instead be paid to enhancing the utilization of the natural resource rather than altering it to replicate flatwater opportunities available elsewhere in the region on a larger scale. That bias pervades the FEIS, which notes in describing the dam and reservoir alternatives, that “the appearance of the proposed reservoir would have a very significant, positive impact on the visual quality of the area.” This statement reflects a distinct bias towards managed flatwater recreation rather than recreation based on maintenance and enhancement of the natural beauty of a free-flowing water resource that, at its lower elevations, is a river acknowledged to be of superb wild and scenic values. In developing a flatwater recreational venue, Jackson County will be in competition with significant flatwater resources in the region. By recognizing the unique and scenic values of the area and highlighting, rather than seeking to inundate, those values, comparable economic opportunities can be developed without the significant alterations in the terrestrial and aquatic communities and stream quality and hydrology that the dam/reservoirs would inflict.

In sum, the recreational needs are not dependent on creation of a dam and reservoir, and should be eliminated from consideration in selection of a final preferred alternative in the Record of Decision. None of the proposed recreational needs are “water dependent” as that term is used in the Section 404(b)(1) guidelines,8 and the recreational demand should not be used to skew the choice among alternatives to meet the project purpose of water supply.

Consideration of Alternatives

The Council expressed concern regarding the DEIS that the full range of alternatives had not been properly assessed, in part because the demand values utilized for determining suitability of alternatives were inflated, and because of the interest of the project proponents in eliminating all non-lake alternatives.

The FEIS properly reassessed the viability of two pipeline alternatives, and it is clear from the FEIS analysis that either of the pipeline projects – to Wood Creek Lake or Lock 14 on the Kentucky River, could supply Jackson County’s water demand at the assumed 1.1 to 1.3 mgd level, at costs roughly equivalent to those projected for comparable water supply from the War Fork/Steer Fork impoundment. The total project cost of $16,213,000 for a 1.3 mgd Wood Creek pipeline and $20,183,000 for a 2.2 mgd Wood Creek pipeline, and $15,368,000 and $17,313,000 for a 1.3 and 2.2 mgd pipeline, respectively, from Lock 14, are roughly comparable to the projected $14,188,000 to $16,723,000 for a 1.3 or 2.2 mgd impoundment in War Fork/Steer Fork.

The FEIS notes as an issue but does not appear to quantify, the need for mitigation. Assuming (and it is a generous assumption, given the virtual impossibility of surmounting the practicable alternative hurdle in light of the data presented in the FEIS on the viability of pipeline alternatives) that a dam and reservoir could be lawfully permitted under Section 404(b)(1) in this case, the guidelines would demand that the impacts be minimized and that any areal and temporal losses of the functions and values of these waters of the United States be fully mitigated through either “in-lieu” payments or off-site mitigation. These losses would include not only the area directly impacted by dam construction, but the loss of flowing stream resources above the dam, degradation in the resource downstream due to changes in water chemistry and flow, and any losses of wetlands and other resources dependent on flowing conditions. At a minimum ratio of 2:1, and probably much higher, given the high quality of the resource, the significant costs of mitigation of any dam proposal would make the pipeline alternative much more attractive both from an implementation standpoint (since utility crossings generally are regulated under Nationwide Permits) and economically.

Assuming for the moment the economic equivalence of the projected costs for a dam and pipeline alternative, the environmental consequences of the various proposals also militates against construction of the dam and reservoir. The pipeline alternative would result in short-term, moderately significant degradation of water quality at stream crossings, and short-term terrestrial impacts at the time of construction; impacts that are minor in comparison to the long-term degradation of the War Fork watershed due to dam construction – impacts that the FEIS acknowledges include “moderately significant short and long-term harm to aquatic biota and riparian vegetation due to altered water quality and reduced water flows downstream,” and adverse effects on habitat and species dependent on free-flowing conditions.

In closing, the FEIS presents a more realistic appraisal of the non-dam pipeline alternatives than was previously presented in the DEIS, and makes a strong case for denial of a Section 404 permit for any dam and reservoir alternative. The Council believes that the Record of Decision should reflect as the preferred alternative one or both of the proposed pipelines, in order to guide the community towards a feasible and prudent solution to water supply needs rather than to further encourage the community towards a dam and reservoir – a path that is fraught with legal, environmental and economic problems that will doom any such proposal.

Thank you in advance for your consideration of these comments. The Council incorporates herein by reference the July 10, 2000 comments on the DEIS.

Cordially,

Tom FitzGerald

Director

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone

(502) 875-2845 fax

e-mail FitzKRC@aol.com

July 10, 2000

Mark Plank, USDA

Rural Utilities Service

Engineering & Environmental Staff

1400 Independence Avenue

Mail Stop 1571,

Washington D.C. 20250 by email mplank@rus.usda.gov

by fax (202) 720-0820

Re: Draft Environmental Impact Statement

Application for Financial Assistance

Jackson County Water Association

Dear Mr. Plank:

The Kentucky Resources Council, Inc., (Council), a non-profit environmental advocacy organization whose membership shares a commitment to prudent use and conservation of the natural resources of the Commonwealth, submits these comments in response to the public comment period on the draft Environmental Impact Statement (dEIS) for the “Jackson County Lake Project.” The Council previously commented concerning the appropriate scope of the dEIS, and submits these comments regarding the draft Environmental Impact Statement prepared by USDA RUS, with the cooperation of the United States Forest Service, in connection with the application of the Jackson County Water Association for financial assistance to construct a dam to create a reservoir in Jackson County, Kentucky.9

For the reasons outlined below, the Council believes that the dEIS falls short of the level of analysis and objective assessment of the project need, available alternatives, and environmental effects necessary to satisfy the requirements of the National Environmental Policy Act.

When the Council commented on the scoping for this environmental impact statement, we cautioned that the EIS (and subsequent applications under the Clean Water Act for a Section 404 permit) must include a thorough and clear-headed assessment of the project purpose and need, and justification for expenditures of public money on such a project.

The Council historically has maintained an extremely skeptical posture with respect to water resources projects. The development of any water resources project is not a matter to be lightly undertaken. The alteration of the natural environment is seldom, if ever, without consequence (both short-term and immediately ascertainable, and other more subtle ecological consequences), and the expenditure of public monies and appropriation of public waters carries with it an obligation of responsible stewardship.

Further, in utilizing federal “empowerment zone” monies to support a water resources project, there is an added obligation imposed under federal law to act in a fiscally prudent and environmentally responsible manner in expending those monies. The “lake of dreams”10 approach to water resources projects that characterized many of the 1960’s and 70’s water resources projects cannot be tolerated in this day and age. In order to properly determine whether a project is “feasible” and the “least-cost alternative” in social/ecologic-economic terms, a number of questions must be analyzed.

For these reasons, the Council urged that the proposed project be scrutinized carefully to assure (1) that the project addresses a real and legitimate “need;” and that the project is sized according to that need; (2) that the project has a broad base of support among those most directly affected by the proposal, including those whose lands might be directly taken, or those whose lands might be burdened by the project (including landowners within the watershed whose activities might be curtailed, as well as those living below the impoundment who might be placed at greater risk of loss of life or limb, or whose utilization or enjoyment of the water resources might be affected by changes in hydrologic response, flow, aquatic life, and other aspects of the river and watershed); and (3) that the proposal is the “least-cost” alternative in ecological and social terms, with all alternatives fully and fairly explored.

The Water “Need” For The Proposed Project Suffers From Inflated Estimates

As earlier stated, the first inquiry is whether the project addresses a real and legitimate “need” and whether the project is sized according to that need. No one would dispute that access to a safe and dependable water supply is a legitimate goal. There are, however, a number of questions under this heading that must be answered; each which may suggest different solutions:

* What is the anticipated need, over what time frame, what is the nature of the demand (domestic, industrial, commercial), where is the growth that is inducing the demand, how are the delivery systems configured and what is the anticipated further development of water delivery systems?

* To what extent, if at all, can the supply be augmented or demand

moderated by improving the delivery system to reduce transmission losses; through conservation measures; and what effect does this have on

the demand projections?

* What supply sources are available or can be developed to meet the

projected need. Are there other existing sources of supply that can be expanded to meet the demand through system consolidation, groundwater resource development, multiple small single-use reservoirs, or one larger reservoir.

The answer to each of these questions, fully and fairly addressed, begins to define the water supply demand and to provide a basis for definition of, evaluation of, and selection among, reasonable alternatives.

The dEIS raises a number of questions concerning the assumptions on which the project “need” is based. The Council is concerned with these particular areas:

I. The proposed population changes should rest on actual historic changes and trends and adopt moderate, rather than high, values for projected changes in future population.

2. It is inappropriate to utilize potential demand from Berea College or the Madison County residents, to bolster the “need” for a Jackson County reservoir. If the project purpose is to serve multi-county areas, then the range of alternatives needed to support that assessment would include areas far beyond Jackson County. Absent a firm contractual commitment from other communities to purchase X acre-feet of storage, the projected need cannot include those communities. Since the author recognizes that the interest if Berea is a “maybe,” it is inappropriate to inflate the Jackson County water “need” by almost 18 percent by counting those served by Berea College’s water utility.

3. Additionally, in determining the proper sizing of this project, it is not appropriate to include Rockcastle County, Clay County and Owsley County into the equation unless the geographic scoping is broadened significantly to identify the alternatives available to best serve the needs of the three counties; and unless there is a firm contractual commitment to purchase water from the Jackson County Water District and this proposed lake and unless the full range of alternatives available to those communities in terms of alternative water supply sources, is assessed. The damming of a free-flowing stream of the quality proposed here is not undertaken lightly, and if the project justification is being expanded to bolster demand numbers, the range of alternatives to meet those needs in their own counties must also be broadened to assure that all reasonable alternatives (including a smaller impoundment meeting only Jackson County’s needs) are assessed.

It appears that the proposal is to greatly expand the amount of water sold by Jackson County to other communities, rather than solely to develop a water resources project meeting the needs of Jackson County, as was initially proposed. If the proposal is to create a regional reservoir, as appears the case since the combined demand being projected from Clay, Madison, Owsley and Rockcastle counties accounts has been used to inflate the demand by sixty percent over the “Jackson County need,” the project must be rescoped, since the “alternatives” have been limited to Jackson County, yet the size of the projected reservoir is intended to serve a much wider area and thus, the most efficient and least environmentally-damaging alternatives have not been assessed (including more, smaller reservoirs; pumped storage; etc.) The proposed project was represented as a Jackson County project to meet its water needs, with recreation as an ancillary purpose. The use of these other counties “needs” to inflate the demand is inappropriate unless the project is rescoped as a regional project and the full range of regional alternatives explored.

4. The projected water demand includes a 15% multiple for unaccounted for water. It is unclear whether the values being used from the Public Service Commission already factored in “unaccounted for water,” so that the addition of the multiplier may have the effect of double-counting water loss.

5. The choice of industrial values in projecting demand also utilized values that are among the highest in the state for growth. The use of numbers from Louisville and Jefferson County is not reasonable, since there is no comparison between the two counties in terms of access to interstates, rail, airport, river access and a major population base. Also missing is any discussion of moderating industrial demand by attracting industries requiring less water use, and by water reuse among industrial sites.

6. The use of an average residential per capita water use of 67 gal/day/person, which is based on statewide data, is inappropriate since the local data from Jackson and surrounding counties indicates that average water use is nearer 52 gal/day/person.

7. The combination of inflated demand and failure to fully assess measures to moderate demand results in a higher projected need than is necessarily the case. Water conservation can reduce water use by 10-30%, with an average of 20%. By implementing water conservation measures, the amount of demand and necessary yield for any water source (and consequently the environmental impact of such a source) can be diminished by another 20%.

After calculating the actual Jackson County demand, removing Clay, Rockcastle, Owsley and Madison Counties (Berea), adjusting for actual water demand based on local water use rather than statewide averages, and reasonable demand projections, and adding water conservation, the demand is substantially lower than projected.

8. The scoping for this project focused on the development of a water reservoir in the Laurel Fork Watershed and the upgrading of the existing water treatment plant and for construction of a pipeline to transport the raw water for treatment and distribution.

The environmental consequences of these line extensions and the impacts associated both with the extension of water service, and the impact of the water extension on wastewater management, has not been thoroughly assessed. The existing wastewater treatment infrastructure, and the effect of provision of public water supplies to areas without proper wastewater treatment, must be assessed in public health and ecological terms.

In sum, the water demand is, in numerous areas, the product of inflated values which substantially overstate the project need. This inflation of need infects the analysis of alternatives, since smaller impoundments or excavated reservoirs, including those utilizing seasonal pumped storage, might be capable of meeting a more moderate and reasonable demand value.

The Recreational “Need” Cannot be Used To Bolster The Project “Demand”

It is no secret that among the supporters of this project are those who believe strongly that a “lake and a lodge” are the economic development ticket for Jackson County. The project is proposed to have a 300’ foot horizontal buffer for protection of the lake, but it is also proposed that the project would include a boat ramp, boat dock, public beach, hiking trails, picnic area and a primitive campground.

Unstated but also likely in a community with no zoning or planning, is private development that could occur if the surrounding lands are privatized, development that would rely on on-site septic systems in the absence of a publicly-owned sewer system.

The project assumes that flatwater recreation is the preferred form of water-related recreation, and proposes that this lake would be used for boating and swimming. The proposal to use the impoundment for multiple purposes creates a potential conflict between the interests of maintaining water quality, and allowing recreational uses which may degrade that quality. Recreational uses are not necessarily compatible with the projected purpose of water supply, since boating introduces raw sewage, garbage, petroleum compounds and other contaminants into a raw water supply, and the combination of swimming and sanitary wastewater discharges from boating introduce pathogens. Also, reservoir drawdown is not necessarily consistent with recreational use. Protection of the source of water supply should (and often does) entail a curtailment of the development of the resource for recreational purposes (including limits on swimming, boating, land development around the lake, etc.) In fact, Kentucky State regulations advise that water supply reservoirs should not allow swimming, water skiing and other contact sports and large motor-operated craft (401 KAR 8:020). Because of the potential conflict between recreational use and water supply, any recreational “value” of the project, and any projected need for water-based recreation, should be discounted in determining the real project need.

The recreational aspects of the project “need” should be discounted also because, based on the Recreational Needs Analysis (Appendix F), it is only picnicking, hiking, camping, and swimming will experience shortfalls above current facilities by the year 2020. None of these activities is necessarily related to or dependent on creation of a reservoir, since each can be met in ways other than lake-based recreation.

Approximately one-quarter of Jackson County is comprised of the Daniel Boone National Forest. The Forest, and much of the landscape of this county lends itself to hiking trails, picnic facilities, and campgrounds that offer scenic views of the area's natural topography, without the need for a reservoir.

Additionally, unless the watershed draining into the proposed lake is fully protected against development of any kind, the impact of land uses and activities in the watershed above and upstream of the lake on the water quality of the lake must be evaluated. Contributions of pollutants and contaminants into the lake, including such sources as development (sediment, pesticides); silviculture (sedimentation, chemicals) and agriculture (sedimentation, pesticides, fertilizers, animal wastes), and possible controls to mitigate such impacts, must be assessed, including acquisition of water quality easements within the remaining watershed land, and compensation of landowners for loss of utilization of those watershed land. The effects on the water quality in a lake of cryptosporidia, giardia, and coliform bacteria contributions from agriculture and residential occupancy must be assessed, to the extent any such uses are possible.

Inadequacy of the Consideration of Alternatives

The Council is concerned that the full range of alternatives has not been properly assessed, in no small part because the demand values utilized for determining suitability of alternatives are inflated.

The range of alternatives to be fully assessed, which to date have not been adequately explored, include the use of other hollows located off-stream into which pumped storage could occur during high-flow periods; purchasing raw or finished water from Berea College and/or Woods Creek Lake Water District, and jointly investing in creation of additional storage capacity at Woods Creek Lake.

The four non-reservoir alternatives addressed in the dEIS (groundwater, expansion of two existing Jackson County reservoirs, water supply from surrounding counties, and water conservation) were each eliminated from further review because, "[e]ach of these alternatives was investigated and found incapable of fully meeting the primary purpose and need of water supply and the secondary purpose and need of supplying lake-oriented outdoor recreation."

The dEIS fails, however, to consider whether any combination of these four alternatives would be capable of meeting the demand. Because of the inadequacy of this evaluation, and the inflated demand values, the dEIS should reassess these issues, and republish a dEIS for review with a more fully developed alternatives analysis and more reasonable demand projections.

Finally, with respect to the preferred alternative, the proposed impoundment structure will lie approximately one-half mile upstream of a segment that the U.S. Forest Service (USFS) has recommended to the Department of Interior/National Park Service be included in the National Wild and Scenic River system as a Scenic River. The proposed impoundment and operation of the water control structure will adversely affect this downstream reach by altering the significantly reducing downstream flow under drought conditions, and thereby influencing the existing aquatic ecology and faunal composition of this river. Yet the adverse effects are not fully explored, and the losses that will occur despite the maintenance of a low-flow as the sustained minimum flow, are not described fully. Finally, the dEIS fails to account for any mitigation of the significant adverse impacts to the streams directly affected by construction of the impoundment and the inundation of an unspecified length of War Fork and Steer Fork.

In conclusion, the Council questions the validity of the demand assumptions underlying the proposed project and the summary manner in which non-reservoir alternatives were dismissed without considering a combination of non-reservoir measures among the alternatives. The Council believes that the dEIS must be withdrawn, for the reasons stated above, and republished with more realistic assumptions and demand projections and more thorough alternatives analysis.

Cordially,

Tom FitzGerald

Director

1 “If you dam it, they will come.”

2 While phrased as “guidelines,” there is no question that discharges not in compliance with the guidelines are prohibited, as contemplated by Congress in Section 402(b)(2) of the Clean Water Act. 45 F.R. 85336 (December 24, 1980).

3 There is little question whether the watershed in question should be deemed a “special aquatic site” consistent with 40 C.F.R. 230.40, since it houses a significant assemblage of species. A survey conducted in Steer Fork within the footprint of the proposed lake in which the Division of Water participated, yielded some 60 taxa, 43 of which are in the pollutant intolerant group; an assemblage of species higher than reference reach streams such as Bad Branch and Coles and Clemons Forks in Robinson Forest.

The Kentucky Rivers Assessment, a Cooperative Statewide Rivers Assessment by the Kentucky Division of Water and the Rivers, Trails, and Conservation Assistance Program of the National Park Service, (1992) divided study rivers “into three value classes with Class 1 containing the most significant undeveloped rivers.” War Fork of Station Camp Creek was identified as being of comparable status (Class 2) with those Cumberland and Rockcastle River segments that have been recommended for inclusion into the National Wild and Scenic Rivers System. In Corridor Character, it was given Class 2 value, and in Ecological Resources, Fish Resources and Water Quality, Class 1. Volume 1 of the Station Camp Creek, Kentucky Reconnaissance Report conducted by the U.S. Army Corps of Engineers, Louisville District (March 1988) described the Creek in this manner:

The Station Camp Creek is one of the largest, highest quality, relatively undisturbed watershed in the Kentucky River drainage. The stream habitat of upper Station Camp, War Fork, and

South Fork serve as an example of the type which was once common in the Kentucky River basin prior to agricultural, urban, and mineral development. Upper Station Camp Creek, War Fork,

and South Fork, due to their high educational and research potential, outstanding water quality,

high quality sport fishery resource, and the presence of rare and unique aquatic species,

have been recommended by the Kentucky Department of Fish and Wildlife Resources and Kentucky Nature Preserves Commission for designation as Kentucky Outstanding Resource Waters.

As a special aquatic site that serves as an important refuge and spawning area for a significant assemblage

of species, the presumption of existence of practicable alternatives applies.

4 The FEIS noted as an issue but did not appear to quantify the costs for mitigation. Assuming that a dam and reservoir could be lawfully permitted under Section 404(b)(1) in this case, the guidelines would demand that the impacts be minimized and that any areal and temporal losses of the functions and values of these waters of the United States be fully mitigated through either “in-lieu” payments or off-site mitigation. These losses would include not only the area directly impacted by dam construction, but the loss of flowing stream resources above the dam, degradation in the resource downstream due to changes in water chemistry and flow, and any losses of wetlands and other resources dependent on flowing conditions. At a minimum ratio of 2:1, and probably much higher, given the high quality of the resource, the significant costs of mitigation of any dam proposal would make the pipeline alternative much more attractive both from an implementation standpoint (since utility crossings generally are regulated under Nationwide Permits) and economically.

5 Swimming, while obviously an activity occurring in water, is not “water dependent” in the context of the Section 404(b)(1) guidelines because it is an activity that can and does routinely occur in constructed pools and is not dependent on dredging or filling waters of the United States.

6 Commenter appreciates the RUS mailing of a copy of the FEIS directly to KRC.

7 “If you dam it, they will come.”

8 Swimming, while obviously an activity occurring in water, is not “water dependent” in the context of the Section 404(b)(1) guidelines because it is an activity that can and does routinely occur in constructed pools and is not dependent on dredging or filling waters of the United States.

9 Despite commenters’ request to be placed on the mailing list for all future actions related to the preparation of this EIS, and after submitting comments on the scoping, no notice of the availability of the dEIS was mailed, and the Council became aware of the comment period only through indirect means.

10 “If you dam it, they will come.”



Contact Information
Privacy Policy
Webmaster & Acknowledgments
Contributions