Council asks U.S. Army Corps of Engineers to re-notice project that would take over 500 of a federally-designated endangered mussel species

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Council asks U.S. Army Corps of Engineers to re-notice project that would take over 500 of a federally-designated endangered mussel species  Posted: January 24, 2011

January 21, 2011

Jim Townsend, Regulatory Branch
U.S. Army Corps of Engineers, Louisville District
P.O. Box 59
Louisville, Kentucky
By email

Re: City of Paducah Dock Project
Ohio River Mile 934

Dear Jim:

I am writing to you in regards to the application of the City of Paducah, Kentucky for approval under the Section 404 program for the construction of a dock. The project proposes to construct a riverfront development at Ohio River Mile 934, including a 200-boat floating dock, a fueling station and a gangway system for the project.

According to the denial of the 401 water quality certification on December 1, 2010 by the Kentucky Division of Water, the project would result in the filling of 4.9 acres of ?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 denied 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[]” and in so doing would violate state water quality standards, specifically 401 KAR 10:031 Section 8(1)(a).

On information and belief, the original Public Notice issued by your agency did not include reference to the existence of federally protected mussel species in the area to be affected by the project. If I am mistaken in this regard, I apologize, but in the event that I am correct, I would ask that your agency publish a supplemental Public Notice in order to invite public comment regarding the compliance of the proposed project with the 404(b)(1) Guidelines, the “Public Interest Review” requirements of 33 C.F.R. 320.4, and the COE regulations implementing the National Environmental Policy Act in light of the discovery of a significant assemblage of a federally-protected species.

33 C.F.R. 325.3 provides in relevant part that “The public notice is the primary method of advising all interested parties of the proposed activity for which a permit is sought and of soliciting comments and information necessary to evaluate the probable impact on the public interest. The notice must, therefore, include sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment.” (Emphasis added). With respect to endangered species, the COE regulations require that the public notice contain “[a] statement of the district engineer’s current knowledge on endangered species[.]”

The presence of such a high quality habitat in the area to be directly affected by the project is certainly a significant factor in reviewing the permit under NEPA, under the 404(b)(1) guidelines and your agency’s “Public Interest Review”, and as has been seen, under the 401 Water Quality Certification process. 33 C.F.R. 325.2(a)(2) accords the District Engineer discretion to direct that a Supplemental Public Notice be issued if “in his view there is a change in the application data that would affect the public’s review of the proposal.”

I respectfully request that the agency re-notice the proposed project and include in that notice the information contained in the 2008 mussel survey indicating the presence of one federally-listed species and the likely presence of two federally-listed species, and the biological opinion (BO) of the U.S. Fish and Wildlife Service that the project would result in the taking of 7.5 acres of habitat, including 3.0 acres of direct impacts and 4.5 acres of indirect impacts. While the District Engineer has discretion in the first instance to determine whether to re-notice a project, that discretion is not without its legal limits, and the significance that the presence and protection of endangered species has in the various regulatory programs, suggests plainly that the fact of the existence of this “prime freshwater mussel habitat in which a significant mussel assemblage occurs,” would clearly affect the public’s review of the proposal, raising heightened concern as to the degree to which such impacts could be avoided, minimized, and whether any unavoidable impacts will be adequately mitigated.

Thank you in advance for your consideration of these concerns, and please let me know if you need additional information in support of re-noticing the project under the 404(b)(1) Guidelines, the 320.4 Public Interest Review and NEPA.

All best regards,

/Tom FitzGerald/
Tom FitzGerald
By Kentucky Resources Council on 01/24/2011 5:32 PM
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