SENT VIA FAX AND REGULAR MAIL
February 15, 2004
Mr. Charles E. Bush
Envir. Planning & Permits
Suite 900, J.K. Polk
505 Deaderick Street
Nashville, TN 37343-0443
Re:
Comments on Draft EIS, Project No. 70004-1282-62,
ADHS Corridor K (Relocated U.S. 64) in Polk County, TN
Dear Mr. Bush:
These comments on the Draft EIS for the proposed relocation of U.S. 64 in Polk
County, Tennessee are submitted on behalf of the Sierra Club, Cherokee Forest Voices
and its member organizations, and the Southern Environmental Law Center. These
comments should be considered supplemental to any other comments submitted by any of
these organizations.
The Draft EIS is woefully inadequate. The Tennessee Department of
Transportation (“TDOT”) is proposing a new, four-lane highway, essentially to interstate
standards, right through the southern portion of the Cherokee National Forest, one of the
largest remaining blocks of forest in the State (and in the Southeast), which also contains
some the most mountainous terrain in the State and is underlain by acid-producing
pyretic rock. According to the Tennessee Wildlife Resources Agency, “[b]uild
alternatives for this project will destroy the ecological integrity of the Ocoee Unit of the
Cherokee Wildlife Management Area,” with “permanent negative effects on wildlife
populations, including black bear.” TWRA comments dated June 18, 2003, at 1-2
(emphasis added). Moreover, comparable past highway projects in Tennessee “have
historically resulted in catastrophic pollution of streams,” id. at 2 (emphasis added).
Further pollution that would be unacceptable here because (1) affected streams are
already listed as water-quality impaired for acidity and sediment under Section 303(d) of
the Clean Water Act, and (2) four of the affected streams hold about half of the known
population in the world of the Tennessee Dace, so pollution from this project would drive
the Dace drive toward extinction. Thus, the likely environmental impacts of this
proposed highway on ecosystems, wildlife, and streams are extremely severe. Moreover,
the projected financial cost of at least $1.5 billion is exorbitant.
In view of these extreme environmental and financial impacts, it is incumbent on
TDOT to produce a thorough EIS that fully documents and considers these impacts,
weighs the choices to be made in the context of a reasonable range of alternatives, and
either carefully justifies the need to incur these impacts and costs, or chooses a different
alternative that is less damaging and less expensive, or chooses the no actions
alternative.
This Draft EIS meets none of these requirements. To the contrary, it provides no
compelling need or justification, fails to consider a reasonable range of alternatives, and
provides inadequate analyses of the likely environmental impacts and measures that
would mitigate these impacts. In addition, the Draft EIS fails to meet Section 4(f), 49
U.S.C. § 303(c), and fails to demonstrate or analyze adequately how this project and its
likely impacts to the area’s streams possibly can comply with Section 303(d) and 313 of
the Clean Water Act (33 U.S.C. §§ 1313 and 1323).
For these reasons, we urge TDOT either to develop new alternatives that would
remedy the congestion and safety problems on Route 64 but without the extreme
environmental damage or expense, or to select the no action alternative. If the TDOT is
determined to proceed with consideration of this project, NEPA requires that the agency
produce a supplemental Draft EIS that adequately addresses the multiple environmental
impacts and that considers a reasonable range of alternatives, including alternatives that
would improve the existing roadway and implement other measures to relieve congestion
during period of heavy use in the summer without constructing a new, four-lane highway
through the Cherokee National Forest.
I.
THE DRAFT EIS VIOLATES NEPA.
A.
The Draft EIS Provides No Compelling Need That Would Justify The
Costs.
The primary “need” set forth for this project is described almost entirely in terms
of generalities about the Appalachian Development Highway System (“ADHS”), rather
than in specifics about this particular segment of that System and whatever benefits might
be gained that could justify the enormous financial and environmental costs. Draft EIS at
1-4, 1-6 to 1-9. This is unacceptable in a project of this magnitude.
Although more specific information is provided concerning safety and congestion,
Draft EIS at 1-9 to 1-16, this much of this information either undercuts the rationale for
the project or tends to support alternatives that were not considered. For example,
concerning safety, the fundamental fact is that the overall accident rate on this segment of
highway is lower than the statewide average for comparable roads. Draft EIS at 1-9, 110. Moreover, the data show that accidents tend to be concentrated within certain areas
of the existing road, which would support an alternative approach of targeted
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improvements and other measures to improve safety. Id. As to congestion, most the
problem arises from the influx of summer traffic to the Ocoee River combined with
through trucks and commercial traffic. There are other measures to alleviate these
problems, such as targeted, seasonal transit and redirecting truck and commercial traffic,
that would not “destroy” the ecological integrity of the southern Cherokee National
Forest and would cost far less than $1.5 billion.
The Draft EIS fails to justify the enormous financial expense and destructive,
potentially catastrophic environmental impacts of this proposal. In the absence of an
overriding purpose and need, this project should not proceed as currently planned.
B.
The Draft EIS Failed To Consider A Reasonable Range Of Alternatives.
NEPA requires 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.” 42 U.S.C. § 4332(2)(E). NEPA
regulations require that
Federal agencies shall, to the fullest extent possible: [u]se the NEPA process to
identify and assess the reasonable alternatives to proposed actions that will avoid
or minimize adverse effects of these actions upon the quality of the human
environment.
40 C.F.R. § 1500.2(e) (emphasis added).
Accordingly, the Draft EIS must consider a broad range of reasonable
alternatives. Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988),
cert. denied 489 U.S. 1066 (1989). The failure to consider a “’viable but unexamined
alternative’” renders an EIS inadequate. Alaska Wilderness Recreation and Tourism
Association v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995); accord Dubois v. USDA, 102
F.3d 1273, 1289 (1st Cir. 1996), cert. denied 521 U.S. 1119 (1997).
The recent case of Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002), illustrates
these principles in the context of a proposed new highway. In Davis, the court held that
an Environmental Assessment for a highway was inadequate because it failed to consider
reasonable alternatives, including (1) expansion or shifting of the existing alignment, (2)
transportation system management, (3) transit, and (4) combining these options into a
cumulative alternative. 302 F.3d at 1121-22. According to Davis, “this was one of the
most egregious shortfalls of the EA.” Id.
This Draft EIS suffered from similar shortfalls. It considered in detail only two
action alternatives that are extremely similar to each other in their heavy environmental
impacts and extreme financial cost. See Draft EIS at S-9 to S-13 (table of impacts in
which impacts of Alternative 2 invariably described as “same as Alternative 1.”). It
eliminated from detailed consideration (1) partial or spot improvements to the existing
Route 64, (2) transportation system management, and (3) use of transit in the gorge
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during peak-use periods to lessen congestion and improve safety. Id. at 2-29. It
apparently did not consider at all such alternatives as (a) designating new or further truck
routes and eliminating Route 64 as a designated truck route, (b) redirecting commercial
traffic either through Knoxville or through Ellijay, Georgia, either permanently or during
the peak-season months, and (c) some combined or cumulative alternative that considered
some or all of these options together to achieve greater safety, less congestion, and a
better tourist experience, all at much less cost and much-reduced environmental damage.
In this Draft EIS, as in Davis, “there are no cost studies, cost/benefit analyses, or
other barriers advanced” that would support a conclusion that these alternatives are
unreasonable. 302 F.3d at 1122. To the contrary, TWRA has long advocated for
“improvements on existing alignment” and for consideration of the above alternatives,
including a cost/benefit analysis of this bypass proposal compared to re-routing
commercial traffic during whitewater season on the Ocoee River. TWRA Letters dated
June 18, 2003, and November 13, 2003.
Nor does it meet the law to assert that these alternatives do not meet the purpose
and need. Draft EIS at S-7. To begin with, the statement of purpose and need is
inadequate, as described above. More fundamentally, it is well-established that NEPA
does not permit an agency to define the purpose and need so narrowly as to foreclose the
consideration of reasonable alternatives. Davis, 302 F.3d at 1119; Simmons v. U.S.
Army Corps of Engineers, 120 F.3d 664, 669 (7th Cir. 1997). Accordingly, this Draft
EIS violates NEPA in its narrow and arbitrary requirement of a four-lane, interstate-style
highway for this 20-mile segment of Route 64.
The alternatives section is the “heart” of the EIS. 40 C.F.R. § 1502.14. Its
purpose is to “sharply define the issues and present a clear basis for choice among
options.” Id. This Draft EIS failed to serve this purpose because the two alternatives
considered are so similar as to be slight variations of but one alternative -- build a new,
four-lane highway -- and because it considered no other alternatives that truly might have
defined the issues and presented a basis for choice among options. Especially in view of
the huge environmental and financial costs of this proposal, here, as in Davis, the limited
consideration of alternatives was an “egregious shortfall” under NEPA.1
C.
The Analysis Of Impacts In The Draft EIS Is Inadequate In Many
Respects.
The purposes of NEPA are to ensure that agencies carefully consider detailed
information concerning environmental impacts and to guarantee that the relevant
information is made available to the public. Sierra Club v. Corps of Engineers, 295 F.3d
1209, 1214-15 (11th Cir. 2002); Hughes River Watershed Conservancy v. Glickman, 81
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This even more true in light of the separate requirement under Section 4(f) that
there must be no “feasible and prudent alternative” to using public parks and other
significant public lands. Section 4(f) is discussed in greater detail later in these
comments.
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F.3d 437, 443 (4th Cir. 1996). Accordingly, NEPA requires that an EIS provide a “full
and fair discussion of significant environmental impacts…” 40 C.F.R. § 1502.1.
Fundamentally, NEPA requires agencies to take a “hard look” at the likely environmental
impacts of their actions before proceeding with those actions. Sierra Club, 295 F.3d at
1216; Hughes River, 81 F.3d at 443.
The Draft EIS for the Route 64 relocation fails all of these tests. These failings
are so numerous that they will be presented here in abbreviated form:
Inadequate analysis of impacts to wildlife, especially black bear. This inadequacy
is well-summarized in TWRA’s letters dated November 13, 2003, and June 18, 2003.
The TWRA states that the proposed highway will go right through Tennessee’s “premier”
black bear reserve in the Cherokee National Forest and will have “permanent negative
effects” on bear and other wildlife. Letter dated June 18, 2003. For these reasons, to
have assessed the impacts of this project properly, TDOT should have prepared an
ecological function analysis model to assess this project's effects and to help design
effective mitigation measures. Id. This was not done. Moreover, TWRA concluded that
effective mitigation would involve the acquisition and conservation of compensatory
lands in the ecoregion. Id. The Draft EIS does not consider or address this possibility.
Inadequate analysis of fragmentation effects on the ecological integrity of the
area. According to the TWRA, this project will destroy the ecological integrity of the
Ocoee Unit of the Cherokee Wildlife Management Area and severely degrade the
ecological effectiveness of the large block of currently-undeveloped forest that would
come between the existing Route 64 and the proposed four-lane highway. Letter dated
June 18, 2003. The ecological and wildlife impacts of this proposal plainly will be
severe, but one would never know it from this EIS. The EIS makes no attempt to
quantify or describe the losses to wildlife or ecological integrity, perhaps because such
analysis would further highlight the extremely severe impacts of this proposal.
Inadequate analysis of impacts to streams and water quality. While the Draft EIS
recognized that some impacts to area streams and water quality are likely from exposure
of acidic rocks and sedimentation, as with the other types of impacts, these water impacts
are significantly understated while the effectiveness of mitigation is overstated. Again,
no attempt was made to quantify the volume and severity of the likely pollution to the
area’s streams and the impacts of that pollution on aquatic life. The Draft EIS also
largely failed to disclose or address the past history of similar Tennessee road projects
and their impacts to streams, which TWRA characterized as “one disaster after another.”
This failure is especially significant because "no practical remedy exists" for the acidic
pollution likely from the massive earth movement and disturbance necessary for this
project. TWRA Letter dated June 18, 2003.
Inadequate analysis of Clean Water Act Section 303(d) issues. Although the
Draft EIS disclosed that the Ocoee River is listed as an impaired waterway under Section
303(d) of the Clean Water Act, Draft EIS at 3-20, it failed to explore or address the
implications of this listing and related requirements of the Act. In fact, not only the
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Ocoee River, but a number of tributaries in the Copper Basin are listed under Section
303(d) for impairment for acidity and siltation problems. Comment letter of TDEC,
dated November 23, 1999, Draft EIS at A-1-24. Under the requirements of the Clean
Water Act, 33 U.S.C. §§ 1313, 1323, and Tennessee’s water quality/anitdegradation
standards, this project cannot cause or contribute to a violation of the State water quality
standards, meaning that no pollution from this project can reach the listed streams. This
issue will be explored in greater detail later in these comments. For now, it suffices to
note that Sections 303(d) and 313 present very serious questions as to whether this
project can go forward at all consistent with the Clean Water Act, but these questions are
not adequately addressed in this Draft EIS.
Inadequate analysis of impacts to Tennessee Dace and other aquatic species.
Consistent with its understated approach to impacts and overstated confidence in
mitigation, the Draft EIS inadequately analyzes the impacts to the Tennessee Dace and
other aquatic species. To its credit, the Draft EIS discloses that affected streams contain
approximately half of the world's known population of Tennessee Dace, and that acidic
pollution of these streams essentially would kill all of these fish, driving the species
toward extinction. Draft EIS at 4-29. Nonetheless, more is required when addressing a
species in such peril. Exactly what is the current condition of these streams, and what is
the current population of Tennessee Dace? Where else are these fish found, and what
threats are those streams subject to? Beyond placing this species in a condition where
listing under the ESA would be warranted, could this project, in combination with other
threats, actually drive this species extinct? If so, should this project really go forward?
The Draft EIS fails to address any of these questions or issues.
Inadequate analysis of mitigation, its likelihood of success, and past failures.
The discussion of mitigation in the Draft EIS is badly inadequate. The two best
examples of this are the minimal discussions of mitigation to wildlife and mitigation of
the likely acid and sediment pollution to streams.
Concerning wildlife, particularly black bears, the Draft EIS only addresses the
possibility of fencing around the highway. There is no mention, much less analysis, of
mitigation measures proposed by the TWRA. Draft EIS at 4-17, 4-18. In part, this
reflects the failure to perform the models and analyses suggested by the TWRA, but it
also reflects a fundamental failure to take seriously the hammering that this highway
would give to the region’s wildlife. Most particularly, the Draft EIS never even
addresses the possibility of acquiring compensatory land in the region, even though the
need for that type of mitigation was highlighted by the TWRA. Id.
Concerning stream pollution and aquatic life, the Draft EIS assures us that recent
experience “indicates that effective control of pyretic materials can be achieved…” Draft
EIS at 4-13. This statement directly contradicted the comments of the TWRA: “TDOT’s
track record for constructing highways in mountainous terrain is a record of one
environmental disaster after another.” Memo dated December 1, 2003. Even more,
TWRA specifically cited the Tellico-Robbinsville Road and the Foothills Parkway as
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example of these disasters that resulted in gross violations of law and destruction of highquality resources. Id. Astonishingly, the Draft EIS cites the latter stages of these very
same projects as evidence that vaguely-described mitigation can avoid this pollution.
Draft EIS at 4-14, 4-15. These remarkable assertions are not supported by data or other
evidence, nor by studies or articles. Little, if any, detail is provided as to how this
mitigation would work, or not work, in this particular situation, nor is the public informed
of the potential magnitude of the damage if mitigation fails. The Draft EIS’s conclusory
assertions are a good example of sweeping a difficult and troublesome issue under the rug
in violation of NEPA. Seattle Audubon Society v. Moseley, 798 F Supp. 1473, 1479
(W.D. Wash 1992), aff’d sub. nom. Seattle Audubon Society v. Espy, 998 F.2d 699 (9th
Cir. 1993).
Inadequate analysis of long-term impacts of interstate access for logging, oil and
gas development, and other resource exploitation.
This is another significant impact highlighted by the TWRA but essentially
ignored in the Draft EIS. In its discussions of wildlife, streams, aquatics, and other
impacts, the Draft EIS fails to address what the impacts of the increased access provided
by this road will mean in the future. Although most of the surrounding land is part of the
national forest, the fact is that building this highway permanently will open this area for
resource exploitation in a new and significant way. The time to plan for and mitigate this
increased access is now, not piecemeal in the future.
Inadequate analysis of disposal of excavated rock and soil.
Another issue the Draft EIS does not address at all is what will become of the tons
(thousands of tons? millions of tons?) of rock, dirt, and other material that will be blasted,
excavated, and otherwise disturbed in the process of building this highway, much of it
acid-producing. This huge volume of excavated rock and soil will have to go somewhere
and be properly dealt with at that site to avoid creating an entirely new set of impacts and
problems, but the Draft EIS does not address either where or how this disposal will occur,
although the expense and potential problems are substantial.
Inadequate analysis of consistency with Cherokee Forest Plan.
The Draft EIS asserts that this highway is consistent with the Cherokee Forest
Plan without providing any description of that Plan or any documentation of the
correctness of this assertion. Moreover, the Draft EIS measures consistency with the
1986 Plan, Draft EIS at S-2, without addressing consistency with the now-current plan,
adopted in January 2004, which was pending during the preparation of the Draft EIS.
Lack of any analysis of the benefits of this proposal versus its extreme costs.
The Draft EIS provides no estimation or analysis of any kind of the benefits, nor
any demonstration that the project's benefits outweigh its extremely high costs. Under
NEPA, the environmental impacts that must be addressed include economic and social
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impacts, whether direct or indirect. 40 C.F.R. § 1508.8. Especially in view of the
admittedly high financial cost of at least $1.5 billion, combined with the severe
environmental impacts to wildlife, water quality, and forest fragmentation, it is
incumbent on TDOT to address directly whether these costs and impacts are amply
justified. The generalities supplied in the Draft EIS about the ADHS and Corridor K are
inadequate.
Inadequate analysis of cumulative impacts.
This project is just one segment of the 127-mile corridor K. In addition, the Draft
EIS describes the significant expansion of Route 64 west to Memphis. Plainly, all of
these linked road projects are past or present actions that may have an incremental effect
on the total impact of this project, especially in terms of volume of traffic, increased
access and visitation, human-wildlife interactions, pressure for further resource
exploitation, and noise. 40 C.F.R. § 1508.7. Just as plainly, these cumulative actions and
impacts should have been addressed in this Draft EIS, but were not.
II.
THE DRAFT EIS DOES NOT COMPLY WITH SECTION 4(F).
Like the rest of the Draft EIS, the Section 4(f) analysis is inadequate. First, this
analysis artificially is constricted to a series of trails through the national forest, without
considering the surrounding public land or even the Big Frog Wilderness, which the
highway will not cross but which certainly will be impacted. Second, the analysis
understates the requirements of the law and does not demonstrate either that (1) there is
no feasible and prudent alternative to using the public land, or (2) the project has included
all possible planning to minimize harm to the public land. 49 U.S.C. § 303(c).
Because the alternatives requirement of Section 4(f) applies with "even more
force" than the alternatives requirement under NEPA, the failure of the Draft EIS to
consider reasonable alternatives violated Section 4(f). Davis, 302 F.3d at 1120.
Especially in light of Section 4(f)'s "stringent mandates," the Draft EIS failed to justify
not considering improvements to the exiting road, re-routing commercial or truck traffic
during the whitewater season, and transit during that season, or some combination of
these alternatives, and others. Id. at 1121.
This conclusion is reinforced by the second requirement of "all possible planning"
to minimize harm. As explained in Davis, this requirement requires consideration of
whether a small portion of the $1.5 billion planned for the highway relocation might
instead be redirected toward other strategies that could address the congestion and safety
issues of the existing Route 64 in a way that avoids the adverse impact on the 4(f) lands.
Id. at 1122.
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III.
THE DRAFT EIS DOES DEMONSTRATE COMPLIANCE WITH OR
ADEQUATELY ADDRESS SECTIONS 303(D) AND 313 OF THE CLEAN
WATER ACT.
The Draft EIS and other documents acknowledge that the Ocoee River and some
of its tributaries are listed as waters that are impaired by acidic and sediment pollution
under Section 303(d) of the Clean Water Act. However, having made this
acknowledgement, the Draft EIS violated NEPA by failing to address what that listing
means for this project in terms of that Act and the State of Tennessee's
antidegradation/water quality standards and, inherently, thereby failed to demonstrate
how this project will avoid violating the Clean Water Act.
Under Section 303(d), states must identify and list the waters within their
boundaries that fail to meet water quality standards and the reasons (pollutants) that
caused this failure. 33 U.S.C. § 1313(d). Tennessee has listed the Ocoee River and a
number of its tributaries as water-quality limited for excessive acid and sediment
pollution. Draft EIS at A-1-24. Once a stream is placed on the Section 303(d), the state
cannot permit additional sources of the pollutants that have caused the failure to meet
water quality standards. 33 U.S.C. §§ 1313, 1323.
This is a huge problem for this project, because the primary pollutants it will add
to the area's streams -- acid and sediment -- are the very pollutants that cannot be
permitted under the law. Accordingly, to be able to proceed with project, it would be
incumbent on TDOT to explain in this EIS exactly what tributaries are listed under
303(d) and to demonstrate that this project will not cause any further acidity or sediment
pollution in those tributaries or in the Ocoee River. Given the history of water pollution
associated with such massive highway projects in such difficult terrain, it is highly
unlikely that TDOT could make such a demonstration, and this Draft EIS does not even
attempt it. For these reasons, the Draft EIS violated NEPA as well as failed to
demonstrate compliance with the Clean Water Act.
CONCLUSION
This Draft EIS is so flawed that it cannot serve as the basis for proceeding with
this project. Indeed, the multiple costs and impacts of this project, environmental and
financial, are so extensive that the project should not proceed as conceived. TDOT
should consider additional alternatives that would alleviate the congestion and safety
issues on the existing Route 64 but that would not fragment and degrade the southern half
of the Cherokee National Forest and would not carry the staggering expense of at least
$1.5 billion, or choose the no action alternative.
Sincerely,
Douglas A. Ruley
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