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

Water Quality Certification for Paducah Dock Project Challenged  Posted: May 19, 2011

May 5, 2011

Docket Coordinator
Office of Administrative Hearings
35-36 Fountain Place
Frankfort, Kentucky 40601

Sandy Gruzesky, Director
Division of Water
200 Fair Oaks Lane, 4th Floor
Frankfort, Kentucky 40601

Re: Request for Administrative Hearing Pursuant to KRS 224.10-420(2)
Water Quality Cert5ification WQC 2011-012-1
USACE Public Notice No. 2008-1267-SEW
AI No. 102251
Activity ID No. APE20100002
Ohio River, McCracken County, Kentucky


Dear Docket Coordinator:

This letter is filed on behalf of David L. Nickell, Ronald R. Cicerello, and the Center for Biological Diversity, and petitions the Cabinet for an administrative hearing on the Division of Water’s final determination of April 5, 2011 to issue a Water Quality Certification (WQC) regarding the above-referenced project pursuant to Section 401 of the Clean Water Act (CWA).

For the reasons stated below, the Petitioners are aggrieved, within the meaning of the relevant statues and regulations, by the final determination of the Division of Water, and believes that the final determination is contrary to law and fact.

Jurisdictional Statement And Background

1. This petition is filed pursuant to KRS 224.10-420(2), which provides in relevant part that:

"Any person not previously heard in connection with the . . . making of any determination arising under this chapter by which he considers himself aggrieved may file with the cabinet a petition alleging that the order or final determination is contrary to law or fact and is injurious to him, alleging the grounds and reasons therefore, and demand a hearing. . . . The right to demand a hearing pursuant to
this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the order or final determination complained of, or could reasonably have had such notice."

KRS 224.10-420(2).

2. The determination complained of herein is the issuance of a certification pursuant to Section 401 of the Clean Water Act for “Impacts to 2,200 linear feet of an OSRW (due to federally endangered and/or threatened mussel species) on the Ohio River bank”, identified as Agency Interest 102251, Activity No. APE20100002 on the Ohio River in McCracken County, Kentucky.

3. By letter dated April 5, 2011, Assistant Director of the Division of Water Peter Goodmann notified Mr. Rick Murphy, City of Paducah, that

"Pursuant to Section 401 of the Clean Water Act (CWA), the Commonwealth of Kentucky certifies it (sic) has reasonable assurances that applicable water quality standards under Kentucky Administrative Regulations Title 401, Chapter 10, established pursuant to Sections 301, 302, 303, 304, 306 and 307 of the Clean Water Act, will not be violated by the above referenced project provided that the U.S. Army Corps of Engineers authorizes the activity under 33 CFR Part 330, and the attached conditions are met…. The attached document is your official Water Quality Certification[.]"

April 5, 2011 Letter, attached as Appendix A and incorporated herein by reference.

4. On December 6, 2010, the City of Paducah made application, through Redwing Ecological Services, Inc., for Section 401 Water Quality Certification for a project described as “Paducah Riverfront Development Phase 1/Transient Dock, McCracken County, Kentucky.” The December 6, 2010 Application occurred after a November 9, 2010 Determination by the Kentucky Division of Water to deny an earlier request for water quality certification for the same project.

5. In denying the water quality certification on November 9, 2010, the KDOW stated this:

"The Kentucky Division of Water (KDOW) has reviewed your application to construct a riverfront development project at Ohio River Mike 934, including a 200-boat floating dock, fueling station and gangway system for the above-referenced project. Unavoidable impacts associated with this project as proposed would be 4.9 acres of fill placed into 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 cooperrianus (orangefoot pimpleback) and Lampsilis abrupta (pink mucket) are assumed by the U.S. Fish and Wildlife Service (USFWS) to occur in this area.

Due to the known presence of a federally-endangered species, this reach has been categorized as an Outstanding State Resource Water (OSRW) pursuant to 401 KAR 10:L031 Section 8(1)(a). As such, 401 KAR 10:031 Section 8 mandates that “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.

KDOW asserts that the proposed project will have adverse impacts to the habitat in this OSRW and will have a harmful effect on the species. Therefore, the Cabinet is unable to certify that the discharge you proposed will comply with Kentucky’s water quality standards and is hereby denying the Water Quality Certification."

November 9, 2010 Letter, attached as Appendix B.

6. The November 9, 2010 Water Quality Certification denial was not appealed and became final thirty days thereafter by operation of law.

7. The issuance of the April 5, 2011 “water quality certification” is an “order or final determination” within the meaning of KRS 224.10-420(2), for which administrative review is available.

8. This petition for hearing is timely filed, since it is filed within thirty (30) days of April 5, 2011 issuance of the water quality certification challenged herein.

Petitioners’ Interests

9. The persons requesting the hearing on the above-mentioned determination are:

a. David L. Nickell, who resides at 1079 US 60W, Ledbetter, KY 42058, who is a sixth generation resident on the inland peninsula formed by the Ohio, Tennessee, and Cumberland River. The Ohio River is within sight of his farm in Livingston County, which is just across the Tennessee River from Paducah, Kentucky.

He is an Associate Professor of Sociology and Philosophy and has published scholarly works on the cultural heritage associated with this river system. He files this petition as an individual and not in his work capacity. He has been actively involved with efforts to preserve the cultural heritage of this region for many years and recognizes that the integrity of the cultural heritage is dependent upon the health of the river system that gave rise to that heritage. He is also a member of environmental organizations dedicated to preserving the ecological health and biological diversity of the area, including the Ohio River.

His drinking water comes from this river system and he regularly uses the river in the Paducah area for recreation and educational purposes. He was a volunteer for two years in a water quality sampling program for the stream systems that feed into the Ohio and Tennessee Rivers.

He is at the Ohio and Tennessee rivers on a frequent basis (and intends to continue to use and enjoy these river areas, including the Ohio River above and below the proposed project site, in the foreseeable future), and boats on them regularly, and is employed in Paducah, where the proposed construction is to take place. He is also the father of two daughters (the seventh generation on that peninsula) and has deep concerns for the degradation of the environmental and cultural systems that will be passed to them, and hopefully to future generations.

The proposed project and in particular the destruction of more than seven acres of habitat for federally-endangered and threatened mussel species, as well as increased sedimentation associated with the filling associated with the project, will negatively impact his interest in and use and enjoyment of the river system. The harm to his interests is directly causally related to the activities approved under the water quality certification, and revocation of that certification would redress the harm, inasmuch as no Section 404 authorization can be issued absent a water quality certification.

b. Ronald Cicerello, who resides at 576 Hopi Trail in Frankfort, Kentucky 40601. Mr. Cicerello is a resident of Frankfort, Kentucky and objects to the issuance of a water quality certification for the proposed Paducah Riverfront Development that will destroy habitat for at least one federally endangered freshwater mussel species.

Prior to retiring nearly six years ago, he worked as an aquatic biologist for the Kentucky State Nature Preserves Commission (KSNPC) for 25 years. Beginning in the 1980s colleagues and he observed and collected freshwater mussels from the lower Ohio River, both up- and downstream from Paducah on many occasions. Their goal was to determine what species were present in the river and their habitat. Among the species found were Potamilus capax and Plethobasus cooperianus, both federally protected mussels. KSNPC shared this information with the Kentucky Division of Water, and Mr. Cicerello believes it became part of the justification for designating a short segment of the lower Ohio River, including the area where the project is proposed, as Outstanding State Resource Water (OSRW).

Mr. Cicerello has scientific, aesthetic and enjoyment interests in protection of endangered and threatened mussel species in the Commonwealth’s rivers. The rivers of Kentucky once harbored more kinds of mussels than were found in all but three other states. Many species are gone now and many of those remaining in Kentucky are rare. Mussels are a part of Kentucky’s natural heritage, which Mr. Cicerello believes we are morally and legally entrusted to protect. Mussels are indicators of good or improving water quality, they clean our waters, and they are important components of river communities.

Since his retirement, Mr. Cicerello still enjoys visiting rivers, including the area of the Ohio River in which the proposed project would be located, to look for mussels and to enjoy their beauty. Their continued existence is dependent on habitat protection, and to the extent that the Division of Water allows this or any other habitat for protected mussel species to be destroyed in direct violation of state regulation requiring protection and maintenance of the existing water quality and habitat, Mr. Cicerello’s use and enjoyment is adversely affected and threatened with harm. The harm to his interests is directly causally related to the activities approved under the water quality certification, and revocation of that certification would redress the harm, inasmuch as no Section 404 authorization can be issued absent a water quality certification.

c. The Center for Biological Diversity is a tax-exempt, non-profit, membership organization with approximately 320,000 members and online activists, including members in Kentucky who are concerned about the ecological health of the Ohio River and the well being of the mussel species found there.

The Center is dedicated to the preservation, protection, and restoration of biodiversity, native species, and ecosystems. The Center is one of the leading conservation groups advocating for the protection and recovery of threatened and endangered species.

Without limitation, Center biologist Tierra Curry is a native Kentuckian and a naturalist who is personally interested in freshwater mussels in the southeast, including the mussel populations threatened by the project and by the misinterpretation by the Division of Water of its mandatory obligations to protect and maintain existing water quality and habitat for federally-listed mussel species. She visits the state annually and looks for mussels in waters where she has recreated for the past 30 years, and has an intention to continue to do so in waters of the Commonwealth. The Center, on behalf of Ms. Curry and members in Kentucky, and Ms. Curry, have aesthetic, biological, educational, scientific, moral, spiritual, and recreational interests in the endangered species in the Ohio River, including in the location proposed to be adversely affected by the proposed project for which the WQC was approved. Those interests of the Center’s members and staff would be adversely affected were the endangered mussel species in the Ohio River to be harmed. The harm to these interests is directly causally related to the activities approved under the water quality certification, and revocation of that certification would redress the harm, inasmuch as no Section 404 authorization can be issued absent a water quality certification.

Errors Alleged And Grounds For Hearing

10. Specifically, and without limitation, Petitioners state that the Cabinet’s action in issuing a water quality certification for the proposed Paducah Dock Project and associated impacts to 2,200 linear feet of a segment of the Ohio River identified as a “State Outstanding Resource Water” due to the presence of federally protected mussel species, was arbitrary, capricious, and otherwise contrary to and inconsistent with law and fact for these grounds and reasons:

a. Issuance of the Water Quality Certification Was Contrary To Law

1) As noted by the Cabinet in the November 9, 2010 denial of the request for certification of this project as being consistent with state water quality standards, the presence of the federally-protected mussel 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.”

2) 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.

3) The Application acknowledges, and the agency has previously concluded in the December 1, 2010 letter that 4.9 acres of habitat for federally-protected endangered species will be destroyed and some and that “the proposed project will have adverse impacts to the habitat in this OSRW and will have a harmful effect on the species.”

4) Those findings should have precluded issuance of the second requested WQC as a matter of law.

5) 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”, no such demonstration was made in this case

6) The use of the word “shall” in 401 KAR 10:031 Section 8(2)2 imposes a mandatory obligation on the KDOW.

7) The KDOW breached that mandatory duty in issuing the requested WQC, in that it has acknowledged the proposed project will not maintain and protect “[e]xisting water quality and habitat[.]”

b. Issuance of the Water Quality Certification Failed To Include Monitoring Conditions Sufficient To Allow A Determination OF Whether, During Active And Post-Construction Activity, The Project Is Having An Adverse Effect On Existing Water Quality Or Habitat

The Division of Water failed to include monitoring conditions for pre-construction, active construction, and post-construction phases of the project sufficient to allow a reasoned determination as to whether the proposed activity would have an adverse effect on the existing water quality and habitat of the OSRW, and acted in a manner that is arbitrary, capricious, and inconsistent with law and applicable regulation in so doing.

c. The Issuance of A Water Quality Certification Was Otherwise Arbitrary, Capricious and Inconsistent With Law.

Petitioners reserve the right to amend this petition for review as provided by the Cabinet’s regulations.

Request for Relief

11. For the reasons stated herein, Petitioners respectfully request that the Office of Administrative Hearings accept jurisdiction over this appeal, and that the determination of the Division of Water to issue the water quality certification be reversed and remanded to the agency, and for any and all other relief to which Petitioners may appear entitled.

Respectfully submitted,


_____________________
Tom FitzGerald, Esq.
Kentucky Resources Council, Inc.
P.O. Box 1070
213 St. Clair Street Suite 200
Frankfort, Kentucky 40602
(502) 875-2428

Counsel for Petitioners



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