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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Requests Denial of Water Quality Certification in Dock Project  Posted: January 24, 2011

January 24, 2011

Alan Grant, Supervisor
Water Quality Certification Section
Division of Water
200 Fair Oaks Lane, Fourth Floor
Frankfort, Kentucky 40601
By email

Re: City of Paducah Dock Project
Ohio River Mile 934

Dear Mr. Grant:

I am writing to provide comment on the December 6, 2010 Application from the City of Paducah, through Redwing Ecological Services, Inc., for Section 401 Water Quality Certification for Paducah Riverfront Development Phase 1/Transient Dock, McCracken County, Kentucky. The acknowledged presence in the immediate project area of a population of federally-listed endangered mussel, and the conclusion of the United States Fish and Wildlife Service (USFWS) that the project will result in destruction of 7.5 acres of habitat for the species and will cause an “incidental take” of 546 of the protected species, obligates your agency to deny the requested water quality certification pursuant to 401 KAR 10:031 Section 8(2)2.

According to a June 30, 2010 draft Biological Opinion sent by the Kentucky office of the U.S. Fish and Wildlife Service to the U.S. Department of Transportation (the final BO was issued on July 6, 2010) and bearing the subject line “FWS #2010-B-0327; Draft Biological Opinion on the Paducah Riverfront Development Project, McCracken County, Kentucky, and its effects on federally listed mussels”, the USFWS

"expects that 7.5 acres of habitat could be taken as a result of this proposed action. The 7.5 acres of habitat estimated to be taken includes 3.0 acres from direct fill, and 4.5 from indirect impacts including marina construction and operation, potential long-term sedimentation, and habitat disturbance."

The BO indicates further, with respect to adverse effect on the protected species:

"The Service expects that 546 fat pocketbook mussels, nine pink mucket mussels, and 18 orangefoot pimpleback mussels will be taken as a result of this proposed action.
In the “Analyses for effects of the action” section above, the Service determined that the proposed action would result in incidental take through (a) direct mortality as a result of the Schultz Park expansion fill area and relocation of any fat pocketbook, pink mucket, and orangefoot pimpleback mussels; (b) harm from construction activities that will likely result in (1) physical harm (i.e., cracked shell, bruising) to mussels that were not included in the relocation, (2) negative effects of sedimentation that could entomb, starve, and/or suffocate individuals, (3) loss and/or degradation of habitat, (4) relocation efforts, and (5) disruption of host fish availability at key times during the reproductive cycle; and (c) harassment as a result of disruption in reproductive capabilities by, but not limited to, the spontaneous abortion of glochidia during relocation and/or monitoring efforts, individuals being dislodged downriver into unsuitable habitat, and potentially low dissolved oxygen levels."

In reviewing the cover letter accompanying the re-application (the initial request for water quality certification having been denied on November 9, 2010), it appears that the applicant’s consultant is under the belief that a water quality certification could be issued for the project provided that “if additional mussel surveys in the upstream portion of the OSRW reach identify additional fat pocketbook (Potamilus capax) mussels, the KDOW can proceed with WQC issuance.” (Cover Letter at p. 2.).

The applicant’s, and perhaps your agency’s, understanding of the governing regulation appears to be at some variance with the plain and mandatory language of the regulation. The area that would be directly affected has been acknowledged by your agency’s December 1, 2010 letter to be “4.9 acres of existing prime freshwater mussel habitat in which a significant mussel assemblage occurs, including the federally-endangered Potamilus capax (the fat pocketbook). Additionally, two federally-listed species, Plethobasus cooperianus (orangefoot pimpleback) and Lampsilis abrupta (pink mucket) are assumed by the U.S. Fish and Wildlife Service (USFWS) to occur in this area.”

The Division of Water acted in the only manner that is consistent with the state water quality regulations in denying the water quality certification on the basis that the “substantial change in the existing mussel assemblage habitat through the destruction of the substrate and alteration of water flow conditions would exert considerable harm to P. capax[]”.

The presence of the federally-protected species makes this segment of the Ohio River mainstem an “Outstanding State Resource Water” pursuant to 401 KAR 10:031 Section 8(1)(a)4, which automatically includes waters “that support federally recognized endangered or threatened species under the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531-1544.”

As an OSRW, the Cabinet is obligated to maintain and protect the existing water quality and habitat by 401 KAR 10:031 Section 8 (2)2:

"Existing water quality and habitat shall be maintained and protected in those waters designated as outstanding state resource waters that support federally threatened and endangered species of aquatic organisms, unless it can be demonstrated that lowering of water quality or a habitat modification will not have a harmful effect on the threatened or endangered species that the water supports."

401 KAR 10:031 Section 8(2)2.

Inasmuch as the US FWS Biological Opinion concluded (and your agency’s December 1, 2010 letter acknowledged) that 4.9 acres of habitat for this federally-protected endangered species will be destroyed and some 2.5 acres of additional habitat (and some 546 of the mussels themselves) will be killed due to the project, one would be hard pressed to argue that the existing habitat is being maintained and protected. While an applicant has the opportunity to demonstrate “that lowering of water quality or a habitat modification will not have a harmful effect on the threatened or endangered species that the water supports”, that demonstration cannot be satisfied by identifying other existing habitat upstream of the impact zone, and the Biological Opinion persuasively forecloses the argument that the filling of 4.9 acres of the mussel habitat would not be “harmful” to the 546 mussels anticipated to be extirpated in the impact zone, nor to the 4.9 acres of habitat that would be directly eliminated.

The Council is aware that the USFWS Biological Opinion concluded that “this level of expected take is not likely to result in jeopardy to the species or adverse modification of critical habitat” for the fat pocketbook mussel. With respect to the “adverse modification of critical habitat,” the USFWS has not designated critical habitat for this species, thus the conclusion is a matter of law rather than necessarily one of biological science, and is not conclusive of the quality of the habitat nor the significance of this population within this watershed. The conclusion of no jeopardy to the continued existence of a species is based on the existence of the species across its range, and a conclusion of “no jeopardy” is not equivalent to the Division of Water’s obligation to prevent “a harmful effect on the threatened or endangered species” in the particular water for which a project certification has been requested.

Leaving aside for the moment the remarkable conclusion of the USFWS that there is no jeopardy to the continued existence of the species from a single project that proposes to take almost as many of the federally-protected mussel species as were authorized under the fourteen prior formal consultations involving the fat pocketbook combined, the determination that an agency action is “not likely to jeopardize the continued existence” of a species cannot be equated with the Cabinet’s obligation to protect this population of mussels from any harmful effect due to lowering of water quality or habitat destruction. The use of the word “shall” in 401 KAR 10:031 Section 8(2)2 imposes a mandatory obligation on your agency to protect the existing water quality and habitat in this OSRW, and irrespective of whether the project would jeopardize the continued existence of the species as a whole, the acknowledged harmful effect on this habitat and this population of that species demands a denial of the requested water quality certification.

Thank you in advance for your consideration of these comments.

Cordially,

/Tom FitzGerald/
Tom FitzGerald
Director

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