WildLaw
A Non-Profit Environmental Law Firm
8116 Old Federal Road; Suite C
Montgomery, AL 36117
334-396-4729
June 1, 2006
Board of Directors
Tennessee Valley Authority
400 W. Summit Hill Dr.
Knoxville, TN 37902-1499
Dear TVA Board of Directors:
WildLaw has recently become aware of the Board’s decision to
institute a moratorium on land actions, including the selling of TVA
property and issuing easements for private development. We are
thankful for, and appreciative of, the Board’s decision to
reexamine TVA’s policies regarding how its lands are used and
conveyed. This marks an important step toward reconciling the
controversy that has surrounded previous TVA land use decisions.
However, since no time limit has been imposed on the moratorium, we
realize that it could be lifted at any time. Wildlaw has been
working to oppose the Elk River Resort project, which involves a
proposed 91-acre easement from TVA to a private developer. Even
if the moratorium is lifted, this project still should not be allowed
to proceed.
Approval of this project would violate the TVA Act of 1933, which
states in pertinent part that the Tennessee Valley Authority shall
provide for “the economic and social well-being of the people
living in the Tennessee River basin.” 16 U.S.C. §
831(v)(1994). 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). 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.” See 16 U.S.C. §§ 831(c) and (v).
Additionally, the community surrounding the proposed site opposes the
creation of this resort.
TVA’s approval of this project would also violate the National
Environmental Policy Act (NEPA) because the agency has failed to
prepare an environmental impact statement (EIS) for this project.
An EIS is required for “all major Federal actions significantly
affecting the human environment.” 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). There
is a substantial public controversy in this case. TVA received
comments from 93 individuals who were opposed, and only 19 who were in
favor of the proposal. EA at 3. 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. In response
to the public’s concern over this project, the comment period was
extended by TVA. The public continues to express their
opposition. In view of this outpouring of public protest, a
substantial dispute exists and an EIS is warranted for this project.
The community does not support the proposed marina, nor does economic
demand justify its creation. There are at least six other marina
and camping facilities located within close proximity to the proposed
site, and according to the EA, are all under-utilized. See EA at
25. Even if the proposed marina would serve a purpose for the
area, alternative sites that may have a less detrimental effect to the
environment are available, but have not been examined by TVA or the
applicant. The Council on Environmental Quality describes the
alternatives requirement as the “heart” of the
environmental impact statement. 40 C.F.R. § 1502.14.
The alternative sites were listed and summarily disregarded as they
were not a “perfect fit” with the applicant’s ideal
plan. “[A]n 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). These alternative sites should have
been given more consideration, even if the adoption of such site would
cause the applicant to amend his plan.
There are also environmental concerns surrounding the project that
legally must be given further consideration. One such issue is
water quality. 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. The assessment of the
project’s effect on the Elk River is insufficient because it does
not take into consideration all the direct and indirect effects of the
project on the river, including the effects of fuel discharges,
cleaning products, increased usage by visitors, sewage concerns, and
non-point sources. It also was not appropriately analyzed whether
there will be any indirect effects on the wetlands in the proposed
area. This deficiency in the EA must be reconciled, along with
other similar potential environmental harms that were not properly
evaluated.
The EA is replete with broad, conclusory statements backed with little
or no investigation or factual support. The cumulative effects of
all five phases of the project are only minimally examined. 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, it looks as if this is precisely what has happened here.
There is no community support for this project, there is no sound
economic justification for its inception and the Environmental
Assessment that was filed by the applicant fails to meet the legal
requirements of the National Environmental Policy Act (NEPA). We
also feel that TVA’s finding of “no significant
impact” was wrongly decided, and therefore, an Environmental
Impact Statement must be prepared. If the Board approves this
project, Wildlaw is prepared to bring suit against TVA.
If you decide to proceed with the Elk River Resort you must review the
EA and prepare an EIS to ensure that all potential effects on the
environment and the surrounding community are taken into consideration
before the decision to grant the easement is made. We appreciate
the difficult position that the Board is in when forced to decide
between what is best for the people and what is best for the
environment. However, in this case, the community and environment
will both benefit from the denial of this easement. We are
optimistic that the Board’s decision to institute a moratorium on
land action is a positive indicator of changing priorities within TVA,
and trust that the Board will make the right decision about the Elk
River Resort and deny the proposal.
Thank you for your time and consideration.
Yours truly,
Sandra S. Nichols
Counsel for the Shoals Environmental Alliance and Wild South
