July 4, 2001
Mark Plank, USDA Rural Utilities Service Engineering & Environmental Staff 1400 Independence Avenue Mail Stop 1571, Washington D.C. 20250 by email firstname.lastname@example.org 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.
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.
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? 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.
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, 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.
Tom FitzGerald Director