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February 16, 2006

Heather Turner
TVA Water Resource Representative
Reservation Road
Muscle Shoals, AL 35662

Dear Ms. Turner:

On behalf of Wild South, a non-profit outdoor recreation and environmental organization, we are filing the following comments on the Environmental Assessment (EA) for the proposed Elk River Resort Project. This document fails to meet the legal requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) and the proposed action is inconsistent with the 1995 Wheeler Reservoir Land Management Plan and the TVA Act.

A. Purpose and Need

1. The Purpose and Need of this Project is Vague

NEPA planning begins with an identification of the purpose and need for a project. NEPA’s implementing regulations provide that an environmental document should "briefly specify the underlying purpose and need to which the agency is responding in proposing the alternative including the proposed action." 40 C.F.R. § 1502.13 (emphasis added). "Agencies are afforded considerable, although not unlimited, discretion to define the purpose and need of a project." Northwest Ecosystem Alliance v. Rey, 380 F. Supp. 2d 1175, 1185 (W.D. Wa. 2005). However, as the Court in Citizens Against Burlington, Inc. v. Busey explains, "deference does not mean dormancy, and the rule of reason does not give agencies license to fulfill their own prophecies, whatever the parochial impulses that drive them." 938 F.2d 190, 196 (D.C. Cir. 1991). Furthermore, an agency must exercise independent judgment in defining the purpose and need of a project and cannot rely exclusively on the statements and opinions of the applicant. See Simmons v. Untied States Army Corps of Engrs., 120 F.3d 664, 669 (7^th Cir. 1997) (stating that "an agency cannot restrict its analysis to those alternative means by which a particular applicant can reach his goals").

The purpose and need statement for this proposed action is entirely vague if not altogether missing from this EA. The EA states that the applicant applied for an easement to develop a commercial marina and the construction of this marina is allegedly consistent with the agency’s Commercial Recreation and Visual Management Plan for that region. EA at 1. The EA then concludes that TVA must decide whether or not to grant the easement. Id.

The section makes no mention of why this multi-phase development is needed in the first place. Is the construction of the marina in response to community or economic demands? This is highly doubtful considering that at least six other marina and camping facilities are located within close proximity to the proposed site, and according to the EA, are all under-utilized. See EA at 25.

Assuming there is a need, will it only be served if the marina is located at the proposed site? These and other questions must be addressed in the "purpose and need" section. NEPA requires that you thoroughly and independently investigate and define the underlying purpose and need for this project.

A clearly defined purpose and need section is critical because the purpose and need of a project necessarily dictates the range of reasonable alternatives. See City of Carmel-By-the Sea v. Dept. of Transp., 123 F.3d 1142, 1155 (9^th Cir. 1997). The broader the purpose, the wider the range of alternatives, and vice versa. See Simmons, 120 F.3d at 666 (7^th Cir. 1997). Without a clearly articulated purpose and need for this project, you cannot identify a range of reasonable alternatives to the proposed action. Therefore, it is imperative that you develop a clear statement of the purpose and need for this action so as not to rule out additional, and perhaps more environmentally benign alternatives from further consideration. See Citizens Against Burlington, Inc., 938 F.2d at 196.

1. The EA Fails to Analyze a Reasonable Range of Alternatives

NEPA requires a "detailed statement" of "alternatives to the proposed action." 42 U.S.C. § 4332(2)(c). The alternatives analysis should address "the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for the choice among options by the decisionmaker and the public." 40 C.F.R. § 1502.14. This analysis must "rigorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. § 1502.14(a).

The purpose of this section is "to insist that no major federal project should be undertaken without intense consideration of other more ecologically sound courses of action, including shelving the entire project, or of accomplishing the same result by entirely different means."  Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 1135 (5th Cir. 1974). The Council on Environmental Quality describes the alternatives requirement as the "heart" of the environmental impact statement.  40 C.F.R. § 1502.14. 

While an agency is not obliged to consider every alternative to every aspect of a proposed action, reviewing courts have insisted that the agency "consider such alternatives to the proposed action as may partially or completely meet the proposals goal." Natural Resources Defense Council, Inc. v. Callaway, 524 F 2d. 79, 93 (2d Cir. 1975).

This EA presents analysis of only two alternatives: one action alternative and a no action alternative. This is a violation of the law. By considering in detail only one action alternative, this EA fails to "provid[e] a clear basis for choice among options by the decisionmaker and the public."  40 C.F.R. § 1502.14.

A wide range of alternatives clearly exists. For instance, in addition to relocating the project to a less environmentally sensitive location, the agency could decide to limit the acreage of the easement. The agency could also impose a variety of development restrictions. For example, the agency could grant the entire 91-acre easement but require the applicant to set aside a certain percentage of the land for mitigation or conservation purposes. The agency could also require the applicant to "scale back" the intensity of the proposed development from five phases to just one or two phases. Or perhaps, the agency could permit the applicant to proceed with all five phases of construction but make certain design changes in order to reduce the impacts on the surrounding area.

Despite these and other reasonable alternatives, you have entertained only one option: satisfy the applicant’s every desire and grant Elk River LLC a 91-acre easement and the permission to do what ever it wishes with the land. This is not the careful consideration of alternatives that NEPA demands.

1. The EA Disregards a Number of Alternative Locations for the Proposed Site

In addition to not exploring a number of reasonable alternatives, you reject three other possible locations for this project with not so much as a sentence explaining why these areas were eliminated from further consideration. EA at 5. As courts have long recognized, "the existence of a viable but unexamined alternative renders an environmental impact statement inadequate." Alaska Wilderness Recreation & Tourism v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995).  See, e.g., Dubois v. U.S. Dept. of Agric., 102 F.3d 1273, 1288 (1st Cir. 1996).

Instead of analyzing these alternatives as the law requires, you dismiss them, saying these areas are "unsuitable for a marina," because they provide "limited room for future expansion" or "limit[ed] access for boats." Id.  These are conclusory statements with little or no explanation and "the record offers precious little to show that the agency ever paused to test its foundational assumption" that the proposed site is really in fact the preferred alternative. Simmons v. United States Army Corps of Engineers 120 F.3d 664, 670 (7th Cir. 1997).

Moreover, you have eliminated these perfectly reasonable alternatives from further consideration simply because they do not appear to be a perfect fit for the developer. However, "an alternative may not be disregarded merely because it does not offer a complete solution to the problem."  Citizens Against Toxic Sprays v. Bergland, 428 F. Supp. 908, 933 (D. Or. 1977). If you actually take the time to consider these and other alternative sites, you may discover that these and other areas are better suited for a development of this size and intensity.

In closing, the CEQ regulations warn that a NEPA document is not to be used to justify a decision already made. 40 C.F.R. § 1502.2(g). However, in view of your decision to address only one alternative while summarily rejecting a number of other reasonable alternatives, it appears that you are doing just that and unlawfully making this EA nothing more than a "foreordained formality." Citizens Against Burlington, Inc. 938 F.2d at 196.

"NEPA imposes procedural requirements designed to force agencies to take a ‘hard look' at [the] environmental consequences" of their actions. Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1300 (9^th Cir. 2003). "This includes considering all foreseeable direct and indirect impacts. Id. See also 40 C.F.R. § 1508.25 (c).

This EA fails to consider a wide range of foreseeable direct and indirect impacts on the area’s resources. In addition, many of your discussions on direct and indirect impacts are contradictory and inconsistent with past findings. You must correct these and other deficiencies and provide a thorough and well-reasoned discussion of all direct, indirect and reasonably foreseeable environmental impacts.

In your section on the impacts to terrestrial plant communities (EA at 10), you provide absolutely no analysis of the potential impacts this project will have on these communities. In one conclusory sentence you state "there should be no significant impacts to terrestrial plant communities since there is no uncommon terrestrial plant communities associated with the development." Id. This statement is not only illogical, since it does not necessarily follow that because there are no uncommon plants in the area there must be no significant impacts on all terrestrial plant communities, but it forecloses any opportunity to further analyze the impacts this project will have on these resources. This is unacceptable.

You also fail to address what impacts the proposed operation will have on trees. What types of trees are located on the property? How old are these trees? Is there old growth in this area? What measures will be taken to mitigate the impacts to these tree communities?

This analysis is entirely insufficient under NEPA and you must go back and consider what impact this project will have on all terrestrial plant communities.

You fail to address the indirect impacts to several ecological significant sites that are within 3 miles of the proposed action. These sites include Long Forest TVA Small Wild Area, Joe Wheeler State Park, Limestone County State Park and Elk River Lodge State Park.

While you conclude that the proposed action will not have a "direct" impact on these sites, you not discuss whether the project will have an "indirect" impact on these sites. As you recognize, some of these sites are only a half a mile away from the project area. EA at 11. Therefore, even the slightest increase in visitor use resulting from this project could have a significant, indirect impact on these other areas.

For example, the anticipated increase in boat traffic as a result of this project could lead to an increase in boat traffic in and around Long Forest, Joe Wheeler, Limestone County and Elk River Lodge as visitors using the proposed marina’s facilities venture out to visit these areas. Also, the expected increase in RV and campground use as a result of this project will likely impact these other areas. An increase in the number of visitors using the proposed marina’s RV and camping facilities will likely lead to an increase in vehicle traffic, in and around, these state parks and scenic areas.

Therefore, you must address the indirect impacts this project will have on all four of these areas. Failure to do so will render your analysis of the environmental impacts of this project insufficient under NEPA.

In your section on impacts to terrestrial ecology (animals) you recognize that the project area encompasses approximately 91 acres of timber woodlands. Yet, for some unexplainable reason, you limit your analysis of the impacts to 5 acres, or roughly seven percent of the entire area. You state that "the construction of the marina would create approximately five acres of openings within the forest. These openings would be converted to parking lots, RV sites, roads, and other man-made structures." EA at 11. You then go on to analyze the impacts on animals in this 5-acre vacuum.

This is unacceptable for several reasons. First, is it entirely unclear if this figure is even accurate or if it represents the entire extent of the land clearing on this site. There are no blueprints or diagrams that provide support for this figure and the information that is provided in the EA and developer’s application is inconsistent. The EA states that five acres must be cleared to make room for the marina, roads, parking lots, RV sites, and other man-made structures. The term "man-made structures" is vague and could include the restaurant, bathhouses, ship’s store, storage buildings or all four of these structures. Yet, on page 16 of the application, the five-acre figure refers only to the amount of land clearing needed to construct the access road. See Appendix A at 16. Still, in another section, the applicant states that the five acres includes not only the access road, but marina parking areas and a maintenance building. Appendix A at 7. It appears that neither the agency nor the applicant has a clear idea what is planned for these five acres.

Even if the marina, roads, parking areas, and a maintenance building can be constructed on only 5 acres of land, how much land must be cleared to make room for the 200 campsites, bathhouses, dry storage facility, playgrounds, hiking trails, ship’s store, and restaurant? Are we to assume that all of these facilities and amenities will occupy the same five acres of land? If not, how does the applicant intend to accommodate these structures? The EA does not say.

However, based on the statements contained in the EA and those made by the applicant, it appears that the five acres of initial land-clearing is limited to the first two phases of construction. Compare EA at 11 and Appendix A at 7, 16. If this is indeed the case, you have unlawfully limited the scope of your analysis.

NEPA requires that you analyze the impacts of all phases of construction as "connected actions." 40 C.F.R. § 1508.25. Connected Actions are actions which:

(i) automatically trigger other actions which may require environmental impact statements
(ii) cannot or will not proceed unless other actions are taken previously or simultaneously 
(iii)and are independent parts of a larger action and depend on the larger action for their justification. Id.

All five phases of this project are "connected actions." The construction of the marina under phase two cannot proceed unless roads and other infrastructure are first constructed. In addition, the construction of additional campsites and wet slips under phase three are independent parts of the larger action and depend on the construction of the marina and campground for their justification. Lastly, the construction of a dry storage building (presumably for boats) and restaurant under phases four and five are dependent upon the construction of roads, infrastructure and the marina under phases one and two. All five phases are intertwined and can be viewed as "links in the same bit of chain." Northwest Resoruce Info. Ctr. v. NMFS, 56 F.3d 1060, 1068 (9^th Cir. 1995).

Therefore, you are required to discuss the impacts these connected or "closely related" actions have on the area’s resources in the same environmental assessment. See Wetlands Action Network v. United States Army Corps of Engrs., 222 F.3d 1105, 1118 (9^th Cir. 2000). Accordingly, you must identify the total acreage required for all five phases of construction and analyze the impact all this land clearing will have on the area’s wildlife.

However, your analysis does not end there. Assuming for the sake of argument that you are analyzing the impacts of all five phases of construction and that all these structures can be built within a contiguous five acre parcel of land, an improbable if not impossible feat of engineering, this is an easement for 91-acreas not five. As such, you are giving the applicant the permission to do whatever it wishes with the land to accommodate its plans for a multi-phase development. As the applicant points out, the inherent nature of this multi-phase development provides great flexibility in planning future construction. Appendix A at 4. Once the easement is granted, the applicant may chose to significantly modify its plans. The applicant recognizes this possibility and suggests that, if needed, the entire 91-acre tract could be developed to accommodate some 1,000 campsites and 500 boat slips. Appendix A at 4. In view of the potential for additional land-clearing and development in the future, you are required to analyze the impacts these activities will have on the region and its wildlife.

Lastly, it would certainly be disingenuous to imply that any and all impacts on animal communities would occur as a result of the applicant’s initial and future land clearing activities. Long after the last bulldozer clears the last tree, animals and their habitats will be directly and indirectly impacted by a variety of human activities associated with the day to day activities and operations of a marina, RV park and campground. You must examine the impacts these operations and activities may have on animals in the area.

The CEQ regulations mandate that an agency evaluate ‘[t]he degree to which the action may adversely affect an endangered or threatened species" when determining whether an action will significantly affect the environment. 40 C.F.R. § 1508.27(b)(9). You have not adequately evaluated the project’s impacts on threatened and endangered species.

Endangered and Threatened Plants

You provide little empirical and quantifiable evidence supporting your conclusion that no endangered and threatened plant species occur within the project area. You base your conclusion on "field inspections" performed on a single day in August, 2005. The EA contains no discussion of these "field inspections" nor does it provide any information on how the public can access the results of these inspections. Also, the fact that this "inspection" was performed in the fall, prohibits you from concluding that endangered and threatened spring ephemerals are not found within the project area. The EA also provides no plant surveys or other inventory data to support the agency’s conclusions. Finally, you fail to mention whether you consulted with the United States Fish and Wildlife Service as required by the Endangered Species Act to confirm your findings (see discussion on compliance with Endangered Species Act).

Your failure to provide any references to any material in support of your conclusions raises substantial questions about the presence of these species within the project area. You must provide adequate support for your conclusions or you will be in violation of NEPA. See Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213-14 (9th Cir. 1998) (invalidating an EA after determining that the agency failed to provide any references in support of its conclusions that the proposed project would have no impact on the environment).

As in your discussion on impacts to animals, your discussion on the impacts to endangered and threatened animal species is limited to the impacts resulting from the clearing of five acres of forested habitat. For example, you conclude that the project would not result in adverse impacts to Indiana bats "considering that 5 acres of forested habitat would be disturbed." EA at 14.

This is an inadequate discussion of the impacts on these endangered species. As discussed earlier, you cannot limit your analysis to these initial impacts. Factors such as noise, waste management practices, vehicle traffic, artificial lighting and other human activities resulting from the daily operation of a marina could all have an effect on these and other species. These and other user created impacts need to be addressed in your EA.

In addition, your analysis of the impacts to bald eagles and ospreys is flawed. You conclude that "given the amount of habitat in the vicinity and the low numbers of bald eagles (federally listed) and ospreys (state listed) reported from Northwest Alabama, the proposed project would not result in adverse impacts to these species." EA at 14. Just because bald eagles and ospreys are not common in other parts of Northwest Alabama (a statement you fail to support with any data) does not mean that this project will not impact discrete, local populations of this species. There very well may be a concentrated community of bald eagles living in and around the project area but the public has no way of knowing this from your EA.

Moreover, it is unclear what you mean by "given the amount of habitat in the vicinity." EA at 14. If this means that the amount of bald eagle habitat in project area is relatively sparse, any amount of habitat degradation or modification as a result of this project could have a significant impact on bald eagles and their habitat. This needs to be addressed.

Finally, as in your discussion on impacts to endangered and threatened plant species, you fail to reference a single survey or any population data in support of your findings. You must provide substantially more information as well as consult with the Fish and Wildlife Service before taking any further action with respect to this project.

As in your discussion on impacts to endangered and threatened plant and animal species, you fail to support your conclusion that no endangered, threatened or sensitive aquatic species are found within the project area. You fail to reference a single study or survey supporting your statements that no snail or boulder darters are located in the area. You also fail to reference any data in support of your conclusion that no cracking pearlymussels or pink muckets will be affected by this project. You must provide further documentation to support these assertions as well as consult with the Fish and Wildlife Service before you make a final determination that these and other species will not be impacted by the proposed action.

Wetlands

Your discussion on impacts to wetlands fails to alleviate the concern that wetlands will be indirectly impacted by the proposed action. In your analysis you state:

"Development of Wetlands A and B and the surrounding upland buffers may result in the complete or partial loss of the resources and its functions due to direct and/or indirect impacts. Direct impacts could potentially include introduction of fill material or the dredging of wetlands and adjacent waters for shoreline improvements. Indirect impacts may include sedimentation from highly erodible uplands and possible contaminant input from adjoining infrastructure. Examples include sewage leaks, fuel leaks, and runoff from impermeable surfaces. Impacts to forested wetlands are of special concern because of the historic high rate of loss, and continuing losses, of this type of wetland and the long time period necessary to replace forested wetlands and their functions…It is unlikely that these impacts could be avoided if either of these two areas were developed. However, under the proposed action, the wetland areas would not be developed nor include any fill or dredging thereby avoiding these impacts." EA at 18 (emphasis added).

In this statement, you conclude that under the proposed action, wetlands would not be developed nor include any fill or dredging "thereby avoiding all direct and indirect impacts." Id. While it may be true that no fill or dredging would occur under the proposed action, thereby eliminating all direct impacts, indirect impacts may still result from sedimentation and contamination including sewage leaks, fuel leaks, and runoff. Regardless of whether these wetlands are developed, dredged or filled, sedimentation and contamination occurring on and off-site could still indirectly impact these wetlands.

For example, a fuel leak or sewage leak from a nearby property that results in groundwater contamination could ultimately impact these wetlands. However, based on your analysis it is unclear whether the potential for these and other indirect impacts exist and to what extent these impacts could be avoided. Therefore, you must go back and address these indirect impacts as well as discuss possible mitigation measures.

1. No analysis of impact on historic resources

Due to controversy about the presence of historical resources in the proposed project area, further study must be done before proceeding with the NEPA process on this project.

A federal agency is required to consider the impacts of any expenditure of funds on any "district, site, building, structure, or object that is included or eligible for inclusion in the National Register [of Historic Places]" under the National Historic Preservation act (NHPA). 16 U.S.C. § 470f.

Implementing regulations require TVA to consult with the state historic preservation officer, make a reasonable and good faith effort to identify historic properties, determine their eligibility for listing in the National Register of Historic Places, and assess the effects of a project on such properties. This consultation process is commonly referred to as the "Section 106" process after Section 106 of the NHPA. Id.

In consultation with the SHPO, you must identify all historic properties, buildings, structures, or objects within a designated "area of potential effects." The "area of potential effects" is "the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist." 36 C.F.R. § 800.16(d).

While a survey was apparently conducted, the results presented in the EA do not reflect known facts about the site. Further, you violated NEPA when you failed to identify and discuss all potential impacts to known cultural resources. Mentioning only two sites identified as "late nineteenth century to early 20^th century historic homesteads" neglects a host of other historic resources identified by the public. EA at 20.

NEPA mandates that federal agencies "use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may . . . preserve important historic, cultural, and natural aspects of our national heritage." 42 U.S.C. § 4331(b)(4).

"The regulations implementing the NHPA require agencies involved in projects such as the present one to consult with state historic preservation officers ("SHPOs"), make reasonable and good faith efforts to identify historic properties…" Pres. Coalition v. Fed. Transit Admin., 356 F.3d 444, 447 (2d Cir. 2004).

"The NHPA… is designed to protect certain ‘historic properties’… Section 106 of the statute requires that prior to a proposed federal ‘undertaking,’ the agency must ‘take into account the effect’ on such properties and allow the Advisory Council on Historic Preservation a ‘reasonable opportunity to comment.’ 16 U.S.C. § 470f. The act thus imposes both a substantive obligation to weigh effects in deciding whether to authorize the federal action and a procedural obligation to consult." Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 57-58 (1st Cir. 2001)

"Eligible property" that federal agencies must take account for under the NHPA includes any property that qualifies on basis of literal eligibility under National Register criteria. "Eligible property" is not restricted to property officially determined to be eligible for inclusion on National Register. Boyd v Roland, 789 F.2d 347 (5^th Cir. 1985), reh. denied 789 F.2d 347 (5^th Cir. 1985).

The absence of an official determination of "eligibility" does not render the NHPA inapplicable since "eligible property" is defined as any district, site, building, structure, or object that meets criteria of National Register. Hough v Marsh, 557 F. Supp 74 (D. Mass. 1984).

You have failed to meet the requirements of surveying all eligible or potentially eligible resources. There is no mention of any under- water resources in the EA. Apparently, a shoreline archeological survey was done at some point. The information discovered and the impacts on these resources must be included in the EA. Furthermore, you must address how the proposed "shoreline stabilization" will impact these resources.

The two sites mentioned in the EA, but presented as ineligible for protection, are not described in any detail. Since there are many early nineteenth century homestead sites of both Native American and European in the area, how did the team determine these were late nineteenth century rather than early nineteenth century? One of the fundamental purposes of NEPA is to inform the public of the potential environmental impacts prior to taking any major federal action. Therefore, the EA must describe the sites and how the conclusion presented was reached in order to satisfy this directive.

The same consultants walked the shoreline and failed to find evidence of occupation by Native Americans. In contrast, in February a Wild South team walked the shore and found ample artifacts to warrant an investigation. Given this apparent discrepancy, there is no way to rely on the conclusions about the significance, origin, and age of the homesteads.

There is a great deal of archeological and historical information that must be addressed in the EA. The proposed project area was part of Cherokee Chief Doublehead’s Reserve recognized by the Cotton Gin Treaty of January 7, 1806. Prior to and after this treaty, the land actually belonged to the Chickasaws as recognized by the Chickasaw Boundary Treaty of January 10, 1786. Did the consultant determine whether the homestead on the TVA property could be from Doublehead’s era? Certainly this would be an important element and subject of discussion in TVA’s research and in conjunction with TRC Solutions’ Phase I archaeological survey.

Robert L. Barnes bought the property in 1900.  Two home-sties, as well as several roads and trails that have been identified on the site were likely built at that time, or earlier. Thus, some if not all of these structures are at least 106 years old.  NHPA provides that home sites, structures, roads, and trails that are a hundred years or older, are defined as archaeological resources and protected by law until studied for their significance or nomination to the National Register of Historic Places.

An on-site inspection by a Wild South team on February 8, 2006 found ample evidence along the shoreline to warrant a much more intense inspection of the property, both above waterline and below waterline. 

Personal testimony that tract XWR-21PT was occupied by Native Americans and that it contains historic objects must be explored or analyzed. The junction of the Elk River and Tennessee River was an important historical, political, and geographical region. The Elk River is recorded in many pages of testimony of early tribal lands.  Villages were established along the fall lines and shoals.  This makes the large flat land underwater and adjoining Tract XWR-21PT a prime candidate for a significant village site. Higher elevations above the water line may also contain burial sites. Was this considered in the survey? If so, the findings must be analyzed in the EA.

Furthermore, you fail to note the existence of a historic road that was clearly shown on the acquisition maps of 1934. According to the National Historical Preservation Act, any road or trail over 100 years old is protected by law as an archaeological resource until a study determines that it is not significant.  The EA contains no discussion of this road or any proof that TVA did in fact research this road. In fact, there is no record in any documents made available from TVA to indicate that this road was studied in the 1995 Plan.  This supports a long-standing contention that that this property was misallocated in 1995 due to a lack of adequate archaeological surveying and testing.

There is no evidence of whether a study was done to determine whether the road was an Indian trail prior to occupation by early settlers before 1934.  A trail and road system existed throughout the region.  There is no doubt that a trail traversed up the west bank of the Elk River from the settlements on the Tennessee River just a mile or so below. It is also highly likely that another trail traversed parallel to the Elk River on higher ground parallel to the west bank of the Elk River.  Melton’s Bluff was an Indian settlement just across the Tennessee River from the mouth of the Elk River.  A major Indian trail called the Black Warrior’s Path crossed the river in the Elk River Shoals and went up the east bank of the Elk River to Fort Hampton. There was a well known Indian trail/pioneer road that connected modern Huntsville with Bainbridge on the Tennessee River west of Rogersville. There was a system of roads and trails in place before European settlers moved onto former Indian lands. The old farm or field road shown on the TVA acquisition map and identified by our field team could well have been a connecting trail that left a village site along this portion of the Elk River.  It would have followed the contour of the hill along the south shore of the north wetland in this tract and followed the ridges to the vicinity of Rogersville. Numerous historic references discuss the importance of these roads. See e.g., William Webb, The Archaeological Survey of Wheeler Basin on the Tennessee River in Northern Alabama, Smithsonian Institution (1939). However, the EA fails to even mention them.

Thus, this EA fails to comply with the NHPA and NEPA. These failures make this project vulnerable to an injunction pending compliance with these statutes.

2. Inadequate consultation

Although the EA lists having "consulted" with several agencies and relevant tribes, this consultation is inadequate. It is elemental that consultation must include actually contacting the relevant agency. James Warr is listed as the director of the Alabama Department of Environmental Management. EA at 39. Mr. Warr was replaced in early 2005 by Troy Glenn. Further, the document lists having consulted Charles Rose, Florence, AL. Mr. Rose has not lived in Florence since April 2002.

The EA does not indicate having "consulted" with any of the relevant Federally Recognized Native American tribes as required by the Native American Graves Protection and Repatriation Act (NAGPRA) (25 U.S.C. § 3001) and the National Historic Preservation Act, much less reflect any actual analysis of information from them. Because of the location of the proposed project, at a minimum, the Poarch Band of the Creek Indians and the Mowa band of the Choctaw should have been consulted about the impacts of this project.

Your discussion on the impacts to visual resources is inadequate. First, you fail to provide a reasonable description of the entire project and its impacts. The applicant is proposing to build a five-phase, multi-use development that includes access and secondary roads, a marina, 200 RV sites, campgrounds, office, storage and retail buildings, a restaurant, bathhouses, hiking trails, playgrounds and parking lots. Rather than specifically addressing the direct, indirect and cumulative visual impacts of these structures, you summarize the potential impacts in the vaguest of terms:

"Construction activity associated with Phase 1 of the development would be visible to recreational lake users and shoreline residents from within the foreground…views of proposed structures and water-use facilities, such as the incremental additions to the marina would increase to the middleground viewing distance…" EA at 12.

These and other statements fail to provide a detailed account of the potential impacts this development will have on the surrounding community. You must analyze the visual impacts each of the five phases will have on the area and you must base your discussions on actual data (such as blueprints and diagrams) rather than mere conjecture.

Your statements are also inconsistent with the evidence that you do provide. For instance, you state that "[t]he discernable increase in the number of vehicles and water vessels would remain in context with the surrounding landscape character." EA at 21. What landscape character are you referring to? The surrounding area remains in a natural state and is largely undeveloped. How will a discernable increase in automobiles, RVs, campers, boats, personal watercraft and other vessels in the area be consistent with this natural landscape?

You then conclude:

"the construction of resort amenities would potentially result in an adverse impact on the existing visual resources. However, given the current land allocation, the concept of a ‘natural’ theme for this proposed development, and incorporation of best practices to meet visual management objectives, the impacts to visual resources associated with the proposed action would be insignificant." EA at 21.

Your conclusion ignores the size and scope of this development. Irrespective of the current land allocation, this 91-acre tract has forever remained in a natural state. However, once this project is completed, most, if not all, of this land will lose its natural resources and characteristics. Therefore, you must analyze the resulting impact not from the perspective of what this land is allocated for but in view of how the natural landscape will change as a result of this project.

Furthermore, your reliance on design themes in support of your "no significance" finding is misplaced and unsupported in the record. You refer to the concept of a "natural theme," but nowhere in the EA do you define the concept. How is a commercial marina consistent with a "natural theme?" Even assuming that a marina can have a natural theme, the applicant’s proposal makes no mention of a "natural" theme for this development. In fact, there is not a single blueprint or diagram evidencing the planned architecture for this development. Without these plans, you cannot accurately say that this project will follow a "natural theme."

However, even if the proposed construction follows a "natural theme," any new development on this site will invariably change the visual appearance of the area. Considering that the surrounding area is largely unimproved and undeveloped, even a giant tree-house would change the visual landscape of the region. Therefore, it is imperative that you require the applicant to provide architectural plans and/or models and closely examine these plans before concluding that the development will have an "insignificant" visual impact on the surrounding area and local community.

Lastly, you need to include a much more thorough and detailed discussion of the mitigation measures you intend to implement for this project. It is unclear whether and to what extent the applicant is required to follow certain BMPs in its design plans and construction practices. While you provide a few general examples of BMPs that TVA would require from the applicant (height and color restrictions) you only entertain the possibility of requiring additional BMPs (such as lighting restrictions to reduce trespass and glare). A more thorough analysis of these mitigation measures is needed and you must incorporate these measures in a mitigation plan that the applicant is required to follow.

The Elk River embayment downstream of Anderson Creek is listed as a Section 303(d) impaired waterway under the Clean Water Act because it does not fully support its designated uses (public water supply, swimming and fishing) due to low pH and organic enrichment/ dissolved oxygen. In view of these impairments, it is particularly important that you provide a thorough discussion of the project’s impacts to the water quality of the Elk River. Your discussion of these impacts is inadequate for several reasons.

1. You fail to thoroughly analyze and address all reasonably foreseeable direct and indirect impacts to water quality

Your discussion of potential water quality impacts consists primarily of a general listing of impacts typically associated with development projects. However, you fail to discuss how this project will impact the Elk River.

For instance, you devote a third of your discussion on erosion and sedimentation as a result of construction activities. EA at 22. However, the entire discussion is an abstract account of the potential environmental impacts of construction activities. At no point in the entire discussion do you reference the impacts this project will pose. You then follow this recitation of generalized facts with a listing of BMPs that could mitigate impacts to the Elk River’s water quality, without ever identifying which impacts require these mitigation measures. Id. You then go on to note that these BMPs are only intended as "guidance" and the applicant is in no way "required" to adopt them. Id. This is not the type of discussion and analysis NEPA demands.

In addition, you fail to identify a wide array of impacts marinas have on the environment. You must address the following impacts before you proceed any further with the NEPA process:

(1) The impacts fuels, lubricants and petroleum products will have on water quality

Marinas are inherently fuel-dependent. Marinas serve as fueling stations, repair shops and storage facilities. The public’s use of these services and facilities increases the risk of accidental spills and leaks in and around the marina. An increase in boat traffic also results as more people rely on the marina for their boating needs. The increase in the number of boats in the area increases the risk of spills and releases into other areas of the river. All these impacts must be discussed.

2. The impacts cleaning solvents and other toxic chemicals will have on water quality

Many marinas provide cleaning, resurfacing, refinishing and painting services. Many marinas use solvents and other chemicals to clean and resurface boat hulls and other marine equipment. Many of these solvents and cleaning agents contain toxic chemicals, which in sufficient concentrations, contribute to water quality degradation. You must address the use of these substances and their impacts on the environment.

3. The impacts users will have on water quality

The construction of this marina may result in a dramatic increase in the public’s use of the Elk River. This will lead to an increase in gasoline emissions, improper solid waste disposal, littering, noise levels, and impacts on riparian zones from boat wakes. All these impacts need to be discussed and you cannot write off the significance of these impacts by citing to the applicant’s expected compliance with the agency’s "Clean Marina Initiative." EA at 23.

(4) The impacts sewage and domestic wastewater will have on water quality

You need to discuss the potential direct and indirect impacts sewage and domestic wastewater will have on water quality. You must provide the public with some details on the proposed sewage and domestic wastewater systems planned for this project as well applicable controls. You must also analyze the geological composition of the proposed site and discuss its ability to support the type of large scale septic system that is needed for a development of its size. As in the case with user impacts, you also cannot write off the significance of these and other impacts by citing to the applicant’s expected compliance with the agency’s "Clean Marina Initiative." EA at 23.

5. The impacts non-point sources will have on water quality

The Elk River has been plagued over the years by organic enrichment as a result of pasture grazing and non-irrigated crop production in the region. EA at 21. However, in view of these non-point sources of water pollution, you fail to identify the non-point source impacts this marina will have on water quality, let alone address what cumulative impact all non-point sources will have on water quality. A development of this size and scale may have a host of non-point sources of pollution, including stormwater runoff from impermeable surfaces and runoff from fertilizer and pest control practices. You must discuss these and other non-point sources in your EA and their potential impact on the Elk River.

1. You Fail To Adequately Discuss Shoreline Stabilization and Erosion Concerns

Your discussion on impacts to the surrounding shoreline is inadequate and contradictory. On page nine of the EA you note that "soil interpretation indicates that the site has highly erodible soils." However, in your discussion on impacts to the shoreline you state that "the higher concentration of watercraft around the proposed marina would likely contribute to an insignificant acceleration of erosion of surrounding areas of unprotected shoreline." EA at 23. How can you make such a conclusory finding in light of the highly erodible nature of the site’s soils?

Furthermore, you leave it up to the applicant to dictate how much shoreline stabilization and erosion control will occur. On page 23 of the EA you state:

Thus, shoreline stabilization and erosion control is entirely contingent on the applicant’s compliance with BMPs and the "Clean Marina Initiative." EA at 23. However, you do not identify these BMPs or any other prescribed methods to control soil erosion. You then go on to discuss the benefits of the "Clean Marina Initiative" without ever once addressing exactly what the applicant must do to control soil erosion. All the public is left with is broad descriptions of what is in this initiative and no clear indication of what is required from the applicant. You must go back and provide a thorough analysis of possible mitigation measures and develop a clear plan on how you intend to stabilize the shoreline and mitigate the impacts of erosion.

Your analysis of impacts to roads and traffic is inadequate. You have yet to perform an independent traffic study for any of the roads within the project area. You cannot rely on "estimates" and "TVA assumptions" (EA at 36) as the methodology supporting your analysis. As you clearly recognize, the "most direct and most probable route" to access the proposed site is via CR 77. EA at 35. You further point out that this road "is a 100 percent no-passing, two-lane, rural road." EA at 36. However, you fail to adequately explain how this unimproved, two lane road that by all indications is comprised of "steep hills and sharp curves" (Appendix B at 96) is able to support the huge influx in traffic associated with the construction and operation of this development. This is particularly problematic in view of the types of vehicles that will be using this road to access the marina. As many as 200 RVs and campers may be using this road to access the marina’s facilities at any given time. In addition to these large, unwieldy vehicles, an equal if not greater number of boats, personal watercraft and off-road vehicles may be transported (by trailer) to and from the site on any given day. Without a traffic study and engineering assessment to determine whether this road is capable of safely supporting all these vehicles, you cannot conclude that the development "would not create any significant changes or overloading to the network." EA at 36.

In addition, you fail to discuss the impacts associated with the access road. For instance, you state that the construction of this access road will involve "crossing five streams" but you do not identify these streams or address the potential impacts. EA at 5. You must identify these streams and discuss these impacts. Once you have adequately assessed these impacts, you must then discuss whether appropriate mitigation measures will be in place to ensure that these stream-crossings will not impair local water quality.

Third, you fail to discuss the applicant’s plans to construct additional secondary roads upon completion of the access road. See Appendix A at 16. You must address the impacts these additional roads will have on the environment.

Lastly, you fail to discuss the impacts associated with parking lots, RV slabs and other impermeable surfaces. You must address these impacts.

You fail to address the indirect impact this development will have on growth and development patterns in the region. Under the CEQ regulations, an agency must consider the direct, indirect, and cumulative impacts on the environment when determining whether a federal action is "significant." 40 C.F.R. §§ 1508.8, 1508.27(b).

An EA must analyze "indirect effects", which:

"are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. 40 C.F.R. 1508.8(b) (emphasis added).

In TOMAC v. Norton, 240 F. Supp.2d 45, 50-52 (D.D.C. 2003), the Court held that the Bureau of Indian Affairs failed adequately to analyze the potential impacts of a casino upon local growth and development patterns. The Court determined that the assessment was lacking because (1) it did not address the "related affects on air and water and other natural systems, including ecosystems", and (2) it did not support the finding that the Project would not have a significant impact. Specifically, the agency failed to address secondary growth as it pertained to impacts to groundwater, prime farmland, floodplains and stormwater run-off, wetlands and wildlife and vegetation. Additionally, it failed to explain how the increase in jobs, and the concurrent expansion in population due to new employees and their families, would not have a significant impact on a community of only 4,900. In order to ensure that the agency did not ignore any "arguably significant consequences," the Court held the FONSI to be inadequate for its failure to address the Project’s "indirect growth inducing effects" related to wetlands, stormwater drainage, traffic, environmental contamination, cleanup, relocation of the complex, closure wells and septic tanks.

In Friends of the Earth v. United States Army Corps of Eng’rs, 109 F. Supp.2d 30, 43 (D.D.C. 2000) the Court held that an EIS was required for a series of shoreline casinos that would spur development, and rejected the Corps’ determination that the effects of shoreline casino development would be minimal, as there was no analysis to support the conclusion. The Court ruled that NEPA required the Corps to analyze both the significant upland development adjacent to casino barges and the inevitable secondary development that would result from casinos, and the agency failed to adequately consider the cumulative impact of casino construction in the area. See also City of Davis v. Coleman, 521 F.2d 661 (9^th Cir. 1975) (requiring the agency to prepare an EIS on effects of a proposed freeway interchange on a major interstate highway in an agricultural area and to include a full analysis of both the environmental effects of the exchange itself and of the development potential that it would create.); Mullin v. Skinner, 756 F. Supp. 904, 925 (E.D.N.C. 1990) (enjoining the agency from proceeding with a bridge project which induced growth in island community until it prepared an adequate EIS identifying and discussing in detail the direct, indirect, and cumulative impacts of and alternatives to the proposed project).

In this case, the location, pattern and rate of development in the surrounding area will be significantly altered, including its land uses and transportation and utility infrastructure. The land use changes and the infrastructure extensions made for this project may be the catalyst for several other developments. Indeed, your own statements suggest this:

"Representatives from area financial institutions believe that based on their experience with other marinas, property values could increase in the surrounding areas as this would initiate additional property development as people want to locate near the convenience of a marina." EA at 34 (emphasis added).

The applicant’s proposal corroborates your findings:

"The owner applicant will…operate the facilities as a must see for the public while providing a positive cash flow back to TVA…This development will sustain TVA’s growth initiatives by creating public land access, public infrastructure, [and] job opportunities…The resort would attract people to this area so that they can take advantage of the resources offered by the Tennessee Valley Authority (TVA). TVA expects that demands for water-based recreation activities will increase as a result of continuing residential development of privately owned land and increases in population in the surrounding area." Appendix A at 4, 18.

You acknowledge these facts, but fail to address the significant impact of this additional development, let alone evaluate carefully and disclose fully the indirect impacts of this project. Your failure to analyze the project’s far – ranging and permanent impacts on the landscape of region defies your findings and the law.

The CEQ NEPA regulations define "cumulative impact" as:

NEPA requires that you analyze the cumulative impacts of the proposed action in your EA. See e.g., Florida Wildlife Federation v. United States Army Corps of Engrs., 2005 U.S. Dist. LEXIS 22619 (S.D. Fla. 2005)(holding that the agency failed to take a "hard look" at the cumulative effects of the proposed action in its EA); see generally Blue Mountains Biodiversity Project, 161 F.3d 1208, 1214 (9th Cir. 1998) (discussing importance of cumulative impact analysis in environmental assessments).

You fail to address the cumulative impacts of this project. No where in your EA do you discuss the cumulative impacts all five phases will have on the surrounding region. This is extremely important because all five phases are "cumulative actions." "Cumulative actions are actions which hen viewed with other proposed actions have cumulatively significant impacts." 40 CFR § 1508.27(b)(7). Courts have held that multi-phase development projects such as the proposed action are "cumulative actions" because each phase is part of a single project, announced simultaneously by the developer, are all reasonably foreseeable and have cumulatively significant impacts on the region. See Blue Mountains, 161 F.3d at 1215. Accordingly, the cumulative impacts of all these actions (or phases) must be analyzed in a single statement. Id.

Moreover, you must address how this multi-phase project, when added to other past, present, and reasonably foreseeable future actions, will impact the environment. Such actions may include past, present and reasonably foreseeable federal and non-federal projects, land grants, and development projects along the Elk River and elsewhere in the surrounding community. For instance, you must discuss how this marina when added to other marinas in the area will impact the environment. You must also analyze how this development project relates to other development projects in the area and discuss how these projects will have a cumulative impact on the environment. You must provide a "useful analysis" of these and other cumulative impacts and base your analysis on "quantified and detailed information." Kern v. United States Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9^th Cir. 2002).

"The discussion of steps that can be taken to mitigate adverse environmental consequences plays an important role in the environmental analysis under NEPA." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989); see also 1502.16(h) (stating that an EIS must contain "means to mitigate adverse environmental impacts"). There must be a "reasonably complete discussion of possible mitigation measures." Robertson, 490 U.S. at 352. Courts have required mitigation measures to be supported by substantial evidence in order "to avoid creating a temptation for federal agencies to rely on mitigation proposals as a way to avoid preparation of an EIS." National Audubon Soc’y v. Hoffman, 132 F.3d 7, 17 (2d Cir. 1997)(emphasis added).

Mitigation measures may be found insufficient when the agency fails to study the efficacy of the proposed mitigation, fails to take certain steps to ensure the efficacy of the proposed mitigation (such as including mandatory conditions in permits), or fails to consider alternatives in the event that the mitigation measures fail. Id; see also National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 734-35 (9th Cir. 2001) (holding that the agency could not issue a FONSI based upon mitigation measures because it "did not conduct a study of the anticipated effects of the mitigation measures, nor did it provide criteria for an ongoing examination of them or for taking any needed corrective action"); Sierra Club v. Norton, 207 F. Supp. 2d 1310 (S.D. Ala. 2002).

Your discussion of the proposed mitigation measures for this project is grossly inadequate. You fail to provide any sort of mitigation plan other than to list certain "best management practices" (BMPs) that the applicant should follow. For instance, in your discussion on water quality impacts, you state:

"BMPs are practices chosen to minimize soil erosion and prevent or control water pollution resulting from land disturbances such as construction sites. If properly applied, BMPs help protect the quality of receiving waters by keeping the sediment on site…The following examples of types of BMPs are not intended as specific requirements, but are provided as guidance for the applicant…" EA at 22.

You then conclude that "soil erosion and sedimentation could be minimized through selection, installation, and maintenance of BMPs." EA at 23.

NEPA requires that you take a "hard look" at the possible mitigating measures;  a "perfunctory description" is not adequate to satisfy NEPA's requirements. Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998). A "mere listing" of mitigating measures, without supporting analytical data, also is inadequate. Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1151 (9^th Cir. 1998).

In your discussion, all you provide is a list of BMPs. You do not provide any sort of mitigation plan or strategy and you leave it up to the applicant’s best judgment whether or not it should follow these BMPs in its construction activities.

Moreover, this EA does not contain data that demonstrates that the BMPs -- which are generalized standards rather than standards developed specifically for this project -- would be adequate in light of the potential environmental harms.

Lastly, your summary of "proposed mitigation measures" for the entire project lists only four general ways in which the impacts of this project could me minimized. EA at 37. It fails to offer any mitigation measures for wildlife, endangered and threatened species, noise, boat and vehicle traffic, etc. and fails to include any of the best management practices you referenced in your discussion on water quality impacts. This is not the "hard look" NEPA demands.

You must go beyond simply listing a few BMPs and develop a clear and coherent mitigation plan. A hard look at possible mitigation measures is particularly important in this case because the portion of the Elk River that will be impacted by this marina is listed by the EPA as an "impaired waterway" under Section 303(d) of the Clean Water Act. EA at 21. Since "adherence to the BMPs does not automatically ensure that the applicable state standards [will be] met," Northwest Indian Cemetery v. Peterson, 795 F.2d 688, 697 (9th Cir. 1986), you must examine other mitigation measures that will help ensure that the Elk River will not be further impaired by this project.

Once you discuss these and other mitigation measures and develop a thorough and comprehensive mitigation plan, you must study the efficacy of the proposed mitigation, take certain steps to ensure the efficacy of the proposed mitigation (such as including mandatory conditions in the easement), and consider alternatives in the event that the mitigation measures fail. See generally, National Audubon Soc’y, 132 F.3d at 17; National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722; Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234, 245 (D. Vt. 1992)(incorporating mitigation measures as mandatory conditions in permits). Only then will you have any idea whether the impacts of this project can be effectively mitigated so as to avoid a significant effect on the environment.

F. Substantial Public Controversy

In determining the significance of a proposed action’s effects on the environment, an agency must evaluate "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial." 40 C.F.R. § 1508.27(b)(4).

A controversy sufficient to require preparation of an EIS occurs "when substantial questions are raised as to whether a project…may cause significant degradation of some human environmental factor, or there is a substantial dispute [about] the size, nature or effect of the major Federal action." Protect Our Water v. Flowers, 377 F.Supp.2d 844, 861 (E.D. Cal. 2004)(quoting Nat’l Parks Conservation Ass’n v. Babbitt, 241 F.3d 722, 736 (9^th Cir. 2001). A substantial dispute exists when evidence, raised prior to the preparation of an EIS or FONSI casts serious doubt upon the reasonableness of an agency’s conclusions. Protect Our Water, 377 F. Supp.2d at 861. "An outpouring of public protest" has been held to satisfy the requirement of "substantial dispute." Pub. Citizen v. Dep’t of Transp., 316 F.3d 1002, 1027 (9^th Cir. 2003).

Once a substantial controversy arises, NEPA places a burden on the agency to come forward with a "well reasoned explanation" demonstrating why those responses do not suffice to create a public controversy. Nat’l Parks Conservation Ass’n, 241 F.3d at 736.

There is a substantial public controversy in this case. The public was first notified of the proposed action on June 26, 2005 and TVA accepted comments through August 19, 2005. EA at 3. TVA received comments from 93 individuals who were opposed, and only 19 who were in favor of the proposal. Id. A petition in opposition to the proposal was also submitted containing 259 signatures. Id. Over the past several months, the local newspaper has published several articles about the controversy surrounding this project. Last month, a local citizen group organized a flotilla protesting the proposed action. See Attachment. In response to the public’s concern over this project, the comment period was recently extended by TVA. An equal if not greater number of comments in opposition to the project are expected.

In view of this outpouring of public protest, a substantial dispute exists and an EIS is warranted for this project.

"NEPA emphasizes the importance of coherent and comprehensive up-front environmental analysis to ensure informed decision making to the end that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989). An EIS is required of an agency in order that it explore, more thoroughly than an EA, the environmental consequences of a proposed action whenever "substantial questions are raised as to whether a project may cause significant [environmental] degradation." Blue Mts. Biodiversity Project, 161 F.3d at 1216 (quoting Idaho Sporting Congress, 137 F.3d at 1149).

As evidenced by these comments, substantial questions have been raised as to whether this project may cause a significant impact on the environment. Therefore, you must prepare an EIS for this project.

The Endangered Species Act (16 U.S.C. §§ 1531 et seq.) helps ensure that federal actions will not adversely impact endangered or threatened species and their habitat. The Act contains both substantive and procedural provisions. Substantively, the Act prohibits the taking of endangered species. See 16 U.S.C. § 1538. Procedurally, the Act requires federal agencies to take certain steps to ensure that their actions are not "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of critical habitat of such species. See 16 U.S.C. § 1536 (a)(2).

Specifically, the Act prescribes a three-step process to ensure compliance with its substantive provisions. First, an agency proposing to take an action must inquire of the United States Fish & Wildlife Service ("Service") whether any threatened or endangered species "may be present" in the area of the proposed action. 16 U.S.C. § 1536(c)(1).

If the answer to the first question is "yes," the agency must prepare a "biological assessment" to determine whether such species "is likely to be affected" by the action. Id. The biological assessment may be part of an environmental impact statement or environmental assessment. Id.

If the assessment determines that a threatened or endangered species "is likely to be affected," the agency must formally consult with the Service. 16 U.S.C. § 1536(a)(2). The formal consultation results in a "biological opinion" issued by the Service. 16 U.S.C. § 1536(b). If the biological opinion concludes that the proposed action would jeopardize the species or destroy or adversely modify critical habitat, then the action may not go forward unless the Service can suggest an alternative that avoids jeopardy, destruction, or adverse modification. 16 U.S.C. §. 1536(b)(3)(A). If the opinion concludes that the action will not violate the Act, the Service may still require measures to minimize its impact. 16 U.S.C. § 1536(b)(4)(ii)-(iii).

In your discussion on the impacts to endangered and threatened species, you note that 4 federally listed animals "are reported from the project area." EA at 12. These federal species include the bald eagle, red-cockaded woodpecker, gray bat and Indiana bat. You further state that bald eagles are known to winter near the project area and are observed all along the Elk River. EA at 13-14. You also note that Indiana bats are known to have once lived within the project area. EA at 13.

In addition to endangered and threatened animals, you state that four endangered and threatened species of fish and mussels are known to occur in the lower Elk River. These species include the Boulder darter, Snail darter, Cracking Pearlymussel and Pink Mucket.

Despite the strong possibility that these and other endangered and threatened species live within the project area, the EA fails to mention whether or not TVA initiated an informal consultation with the Fish and Wildlife Service as required by the Endangered Species Act. See 16 U.S.C. § 1536(c)(1). You must initiate an informal consultation or you will be in violation of the Endangered Species Act. The fact that bald eagles and Indiana bats are known to reside within or near the project area, and that four endangered and aquatic species are found in the Elk River, is more than enough to require you to initiate an informal consultation and prepare a biological assessment to determine whether these and other species will be affected by the proposed action. While TVA staff may believe that no endangered or threatened species are present within the project area, the Endangered Species Act requires you to contact the Service before determining that the proposed action will not affect listed species.

Furthermore, if this biological assessment reveals that bald eagles, red-cockaded woodpeckers, gray bats, Indiana bats or any other endangered and threatened species will likely be affected by this project, the Service must prepare a biological opinion for this project. If this biological opinion concludes that the project would jeopardize any one of these species, this project cannot go forward unless the Service suggests an alternative that will avoid these impacts. Moreover, even if the opinion concludes that the project will not jeopardize these species, the Service may still require measures to minimize the project’s impacts.

Courts have long held that once an agency is aware that an endangered species "may be present in the area of its proposed action, the ESA requires it to prepare a biological assessment." Thomas v. Peterson, 753 F.2d 754, 763 (9^th Cir. 1985)(emphasis added). The agency’s "failure to prepare a biological assessment for a project in an area in which it has been determined that an endangered species may be present" is a "substantial procedural violation" of the Act. Id. at 763-64. Your failure to comply with this requirement could result in an injunction of the project pending compliance with the Act. Id. at 764.

Therefore, in view of the strong likelihood that several endangered and threatened species live within the project area it is imperative that you initiate an informal consultation with the Service and prepare a biological assessment for this project.

The proposed project is also inconsistent with the findings of TVA’s 1995 Wheeler Reservoir Land Management Plan. The Plan states:

"Presently there are two major resorts operating on Wheeler Reservoir –Joe Wheeler State Resort Park and Lucy’s Branch Resort…The greatest need for additional marina and resort development is near the two largest metropolitan areas, Huntsville and Decatur…During the tract evaluation process, TVA Recreation staff ranked the land capability for Tract No. 21 (the location of the proposed project) as excellent, but the suitability was considered poor because the location is so close to two existing resort operations…Therefore the planning team recognizes the public could be better served if all three resort operations were not located on the same side of the reservoir and within 6 miles (10 km) of each other."

Since 1995, several additional marinas have been established near the project area including, "Wheeler Lodge," "The Pointe" and "Bay Hill Marina." See Appendix B at 89-90. In view of all these marinas operating in such close proximity to each other and the proposed site, it is puzzling why TVA would grant an easement for one more marina.

The findings of the 1995 plan, coupled with the construction of several other marinas over the past decade, weigh against TVA granting an easement for the construction of this marina.

Finally, the proposed project is inconsistent with the TVA Act.

In November, 1933, Congress enacted the TVA Act and mandated the Tennessee Valley Authority to provide, in the Tennessee River drainage basin (1) the maximum amount of flood control; (2) the maximum development of the Tennessee River for navigation purposes; (3) the maximum generation of electric power consistent with flood control and navigation; (4) the proper use of marginal lands; (5) the proper method of reforestation of all lands in said drainage basin suitable for reforestation; and (6) the economic and social well-being of the people living in the Tennessee River basin. 16 U.S.C. § 831(v)(1994)(emphasis added).

To accomplish the statutory purposes, Congress gave TVA the power of eminent domain to acquire lands for dams, reservoirs, power production, navigation projects, public recreation, and industrial development for "the economic and social well being of the people" 16 U.S.C. § 831(c)(emphasis added). Congress restricted how and for what purposes TVA could dispose of land after being acquired in the name of the United States of America. These restrictions are contained in sections 831c(k) and 831d(d) of the act.

Section 831c(k) provides four ways in which TVA may convey lands. That section reads:

"[The Corporation]

(k) [s]hall have power in the name of the United States -

(a) to convey by deed, lease or otherwise, any real property in the possession of or under the control of the Corporation to any person or persons, for the purpose of recreation or use as a summer residence, or for the operation on such premises of pleasure resorts for boating, fishing, bathing, or any similar purpose[.]" Id.

The sale of public lands for a private marina/resort is entirely inconsistent with Congress’s mandate that TVA only convey public lands "for the economic and social well-being of the people living in the Tennessee river basin." 16 U.S.C. §§ 831(c) and (v). While this marina may loosely fit the description of a "pleasure resort," it remains a privately run enterprise. As such, the public must pay for the use of its facilities and amenities. A public to private land transfer for these purposes hardly supports the economic and social well-being of the working people of the Tennessee Valley.

"In its rich history, TVA has greatly promoted the South. In recent times, however, TVA …has forgotten its most treasured ally: the Tennessee Valley resident who is the user of its public lands and the beneficiary of its public policies. TVA has lost touch with its statutory mandates and the people it was created to benefit. Although this distance does not have to be fatal, it does need serious attention."

We hope you have not lost touch with the people of the region and that you will honor your statutory mandates and commitment to protecting the natural resources of the Tennessee Valley. Unfortunately, the EA for this project fails to demonstrate any real concern for the environment and the local community. Thus, we urge you to thoroughly review the environmental impacts of this project before taking any further action with respect to Elk River LLC’s application. Failure to do so may result in future litigation.

Thank you for the opportunity to comment on this proposal. Please make these comments and the attached documents part of the official record for this project. Also, please send me at the above address all future notices, announcements, EAs, EISs, decision notices and bid announcements, and contracts for this project.

Sincerely,

Jason Totoiu
Sandra S. Nichols
Attorneys for Wild South

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