AFORR Comments on DOE's Environmental Assessment for the
Floodplain Strip Adjoining the Boeing Property

November 29, 2000

Note: These comments pertain to the undated EA distributed as a preapproval draft in early November 2000. 

Major Comments

1. The Environmental Assessment's conclusion of minimal environmental impact from any alternative is based on a totally incorrect assumption. Specifically, the EA assumes that, regardless of which alternative is selected, the Tennessee Valley Authority (TVA) would substantially restrict both development and vegetation modification on this property. This is not true.

The different alternatives aren't thoroughly described in the EA, but the EA concludes that they all would have approximately the same impacts. When we first read the EA, we found it implausible that impacts would be similar whether the land were owned by TVA or a private developer. If this were true, why would the developer consider it critically important to own the land?

Careful reading of the EA and discussions at the November 14th public meeting on the EA helped us ascertain that DOE and Tetra Tech analysts assumed that under TVA's Shoreline Management rules TVA would impose significant limitations on vegetation management as well as construction in the floodplain area, regardless of who owned the land. As a result, the EA concluded that impacts would generally be similar under all alternatives. However, this fundamental assumption is not true - TVA does not have such extensive legal authority over private property.

TVA's brochures and other publications describing the Shoreline Management Policy clearly state that its provisions apply only to TVA-owned land, and that (for example) "TVA approval is not required for management of vegetation on flowage easement or other private property." Under Section 26A of the TVA Act (Title 16 U.S. Code, Chapter 12A, Sec. 831y-1), on privately owned flowage easement land (such as the floodplain strip) the TVA has authority to regulate only the building of structures and other obstructions that could affect navigation or flood control. In the context of the EA, this means that under Alternative 1 TVA would have the authority to limit construction of boat docks, marinas, and other structures on the shoreline and flooding easement, but private owners would have the right to clear all vegetation from the floodplain strip down to the water's edge for any purpose.

Thus, environmentally sensitive natural areas on the floodplain, including state-listed threatened and endangered plant species, would not be protected under private ownership. Therefore, in assessing the potential impacts of Alternative 1, DOE should have assumed that natural vegetation in the floodplain strip would be cleared.

2. The Tennessee Valley Authority should be a cooperating agency for this EA. Council on Environmental Quality regulations (specifically 40 CFR 1501.6), provide for the involvement of "cooperating agencies" in the NEPA process. In particular, the regulations call for the involvement of "any other Federal agency which has jurisdiction by law ... or has special expertise with respect to any environmental issue." Because TVA has legal jurisdiction over many of the potential actions covered in this EA and has special expertise regarding some of the impacts that are considered, TVA should have been invited to be a cooperating agency in the draft EA and should be invited to cooperate in the preparation of the final EA. There are several reasons for this:

  • TVA holds a flooding easement over the entire floodplain strip, and some activities in the floodplain strip would require TVA permits under Section 26A of the TVA Act. Much of the "analysis" in this document is surmise about what TVA's future actions might be with regard to granting such permits. It would be far more efficient to have TVA document this process than to have DOE employees and contractors speculate about TVA's actions, and the analysis would yield substantially more reliable conclusions.

  • One of the EA alternatives (Alternative 2) is to convey the shoreline to TVA. TVA has requested such conveyance in order to protect the environmentally sensitive floodplain area. In this circumstance, it would make sense to ask this sister agency to describe its recommended alternative, rather than having DOE staff and contractors try to guess what TVA would do.
  • TVA representatives have told us (orally) that the agency asked to be included as a cooperating agency, but DOE refused the request. If true, this is a strong indication that TVA would be ready and willing to cooperate with DOE.

  • Before issuing permits for development of shoreline structures on this parcel, TVA would need to do its own NEPA review of the proposals. If the present EA were rewritten to consider specific development proposals and if TVA participated in the EA as a cooperating agency, substantial duplication of environmental-review effort (and unnecessary costs and delays) could be avoided. This kind of cooperation would be consistent with the letter and spirit of the CEQ NEPA regulations, which exhort agencies to assess connected actions together and to avoid duplication by coordinating NEPA review with other required environmental reviews.

  • As the federal agency responsible for managing 11,000 miles of shoreline in the Tennessee River system, TVA possesses considerable technical expertise in matters related to the environmental impacts of shoreline and floodplain development, and therefore could lend valuable expertise to this NEPA review.
3. The EA should assess - and seriously consider -- a hybrid alternative in which the most environmentally sensitive areas are retained in federal ownership (either TVA or DOE ownership) for their protection, and other lands are sold to the abutting property owner designated for lakeshore access, possibly including a marina. This would help to protect sensitive features and it should not prevent successful development of the interior parcel. If the reserved areas were managed by TVA as a natural area, the natural area probably could become a marketing feature for the development. Reservation of certain portions of the shoreline also could help minimize the issue of resident exposure to contaminants by reducing the likelihood of casual recreational contact with the slightly contaminated areas.

4. There are some important unresolved environmental issues related to environmentally sensitive areas in the floodplain strip. There are at least seven state-listed threatened and endangered plant species growing on the Boeing property and floodplain, there are several extensive wetlands, and there are other environmentally sensitive areas on the property. The EA acknowledges the existence of these features but is otherwise quite vague about the characteristics of these features and how they might be affected by the different alternatives. Without additional information and analysis on potential impacts and opportunities to mitigate these impacts, the EA cannot support a finding of no significant impact. This additional information and analysis should be provided in the final EA.

5. The EA does not consider the impact of removing this land from the Oak Ridge National Environmental Research Park. The current draft of the Oak Ridge National Laboratory Land and Facilities Plan (ORNL/TM-200/237) indicates that the floodplain strip is part of the Environmental Research Park and is designated for research purposes. The EA should identify this current land-use designation and should assess the potential impacts to current and future environmental research activities if this land is removed from the research park. According to the ORNL L&F plan, "proposed changes in the use of land and facilities within the ORNL developed area" will by reviewed and approved by the ORNL Land and Facilities Use Committee (Section 2.3.4, page 2-3). Has this committee reviewed the proposed change in land use proposed in this EA? If this has happened, this EA should include the committee's comments and recommendation. If this review has not occurred, the review should be completed and documented before a final EA is issued.

Comments on Specific Sections and Pages

Page 3, lines 4-5. This historical background section should discuss the reasons why the Atomic Energy Commission acquired the floodplain strip in 1959. What was AEC's purpose in acquiring it? What was TVA's purpose in transferring it?

Page 3, lines 8-13. This historical background section should discuss why the floodplain strip was not transferred with the rest of the Boeing property in 1987. (Was there an environmental reason? Did TVA object to the transfer?)

Page 3, lines 14-22.
1. An important element of the "historical perspective" on this action that should be included here is the fact that Boeing had intended to use the Boeing site for a missile project, but the project was canceled after the land was sold to Boeing, and Boeing subsequently decided to try to sell the land.
2. This paragraph should contain formal citations to the 1987 Quitclaim Deed described in lines 14-15, documentation of the DOE determination discussed in lines 15-17, documentation of the "parameters of economic development through the self-sufficiency program" as discussed in lines 17-19, and the document that abrogated the deed restrictions (lines 20-22).

Page 3, lines 20-27. The naive reader of this passage probably would infer that DOE's abrogation of deed restrictions on the Boeing site and the Oak Ridge City Council's decision to rezone the site were spontaneous decisions made because DOE and the City thought this would be a good idea. Instead of conveying this erroneous impression, this passage should point out that these actions were taken at Boeing's request, because Boeing had located a prospective buyer that is interested in developing the site for a mix of land uses, including residential and commercial.

Page 3, lines 28-31. Several more land transfers and process changes have occurred since the Parcel ED-1 EA was published in 1996. Therefore, instead of saying that "a discussion" of these topics can be found in that document, say that "additional information" on these topics can be found in that document and in the more recent draft EA on the proposed leasing of Parcel ED-3.

Page 3, lines 34-37. States that ". . . one of the objectives of various actions is to commercialize its [DOE's] excess land and facilities. DOE ORO identifies land excess to its needs through its existing, periodic process for assessing land utilization."
This passage raises several questions that should be answered in the text: What is the definition of "excess" land? What current and potential land uses are considered? Is this process described somewhere? How often does this periodic assessment occur?

Section 1.2, pages 3 and 4. The statement of the purpose and need for action seems disingenuous. It is evident to most observers that the purpose of the proposed transfer is "to avoid creating an uneconomic encumbrance to the adjacent owner," as stated in DOE's letter of May 1, 2000 to Andrew Barrass of the Tennessee Department of Environment and Conservation (this letter is included in Appendix C) - that is, to facilitate the proposed development of the adjacent Boeing site. Please be honest and complete in describing the purpose and need for action.

Page 4, lines 1-2. How is "review of the conveyance of the floodplain strip" supposed to "fulfill the ORO economic development initiative"? This passage needs to be reworded.

Page 6, line 24 and following. 
1. This description of Alternative 1 is the place to discuss the TVA flowage easement over the floodplain strip and how it would affect development and other potential activities on this land. Since the flowage easement would exist under all alternatives and would affect private landowners' uses, it should be discussed here and not in Alternative 2, under which TVA would not just have an easement, but would also own the land.
2. This description of Alternative 1 should be modified to present the reality of what the private landowner could do with the floodplain, rather than describing what the developer has told DOE it currently intends to do. This change is necessary so that the EA can accurately assess the potential impacts of the proposed sale. Even if the developer currently says it would leave the floodplain strip mostly undisturbed, there would be nothing to prevent the developer from clearing the entire strip - perhaps to create "lakefront lots" and to allow residents to build lakeside tennis courts. Furthermore, development plans can change over time, as the plans for this development have done several times already. The EA must consider the impacts of what could happen as a result of DOE's action, not what another party says it intends to do following that action.
3. If the developer has specific plans for a marina or other developments that would require TVA permits, the EA could and should describe these plans and assess their potential impacts. TVA cooperation would be invaluable for this analysis.

Page 6, lines 26-28. We are not aware that the Oak Ridge Land Company's Segment O Master Plan (cited here to explain Alternative 1) is a publicly available document, so it should not be relied upon to explain one of DOE's alternatives. Also, the cited plan is dated 1999, and the Oak Ridge Land Company's plans for the site have changed several times since 1999, so this document is probably not reliable. (Changes to the development plan since 1999, as reported in The Oak Ridger newspaper, include elimination of the planned golf course, an increase in the number of residential lots from 500 to 1500, and changes in the land areas allocated to commercial and industrial uses.) The EA should describe relevant elements of this plan under Alternative 1, rather than simply citing this source.

Page 6, line 32. Ross (2000) is not in the list of references.

Page 7, lines 7-14. This description of Alternative 2 should describe how TVA would manage the parcel, consistent with its policies and plans for management of environmentally sensitive shoreline tracts on Watts Bar Reservoir. TVA should be invited to provide this information. At a minimum, the EA should cite TVA's letters to DOE regarding this matter (they are included in Appendix C) and describe what TVA said in those letters. The August 6, 1999 letter to Katy Kates from Michael Crowson and the June 16, 2000 letter to Ms. Kates from Eric Rauch both ask DOE to consider reconveying the floodplain strip to TVA to allow TVA to protect "this valued riparian shoreline" and "exclude access rights across it." This suggests that Alternative 2 would be quite different from what is described here, where it is stated that "the landowner could negotiate with TVA for use of the property, subject to TVA regulations and permitting."

Page 7, lines 9-10. States "TVA currently has a flowage easement over the entire parcel." Is the word "currently" included here to suggest that this flowage easement would no longer exist under some alternative?

Page 7, lines 16-20. It is not apparent why the EA assumes that the property "would be used as green space" and that "it is unlikely that any boat docking or marina facilities would be constructed" if it were conveyed to the city or county. If the concept is that it would be conveyed with deed restrictions restricting it to public recreation use, the EA should say this explicitly. Otherwise, it is not informative for the EA to surmise what another landowner (i.e., the City of Oak Ridge or Roane County) might do after land is transferred.

Page 9, Table 1. This summary of potential environmental impacts by alternative is largely meaningless because it is based on erroneous assumptions regarding TVA's authority over private property. (See major comment 1.)

Page 13, lines 12-15. The decision to provide a combined description of the Boeing site and the floodplain in the affected environment section detracts significantly from the value of the assessment of environmental impacts. It is useful to include information about the Boeing site, but in order to reasonably judge potential impacts from conveyance of the floodplain, the decisionmaker has a specific need to know about the characteristics of the floodplain. In the final EA there should be descriptive information that is specific to the floodplain.

Page 15, Figure 2. This land use map has significant inaccuracies. The areas labeled "Conservation - Biodiversity Preserved Natural Areas" have not been preserved as natural areas. Rather, the Nature Conservancy has identified them as areas of high biodiversity value that should be preserved. A few portions of these areas are registered state natural areas, but this status also does not confer preservation. The designation "mixed light industrial" is applied to most of the land area included in Parcel ED-3, which is proposed for leasing for light industry, but is not currently used for this purpose. Finally, there may be mistakes in some of the shading choices (for example, some of the areas mapped as "natural areas" are not natural at all) -- DOE should verify the accuracy of this map before issuing the final EA.

Page 16, Section 3.3. This section should cite the geologic map of the site that is included as Figure 4 in Appendix A.

Page 19, line 36, through page 20, line 18. This passage about floodplain and wetlands conditions does not contain the area of delineated wetlands on the floodplain strip. Also, it contains very little information about the characteristics of the wetlands. Based on information in Appendix A, this passage should say that there are approximately 69 acres of wetlands on the 182-acre tract (38% of the parcel), in three geographic areas of the parcel. It should also include the information on wetland types that is provided in lines 30-34 on page A-3 in Appendix A.

Pages 24-25. This section should discuss the floodplain strip's Nature Conservancy Biodiversity Ranking and the state-listed threatened and endangered plant species that have been reported from this parcel. The reader of this section would conclude that these state-listed plants might be present somewhere in Roane County but probably aren't on the floodplain strip, when in fact several protected have been found on the floodplain strip. The current draft of the Oak Ridge National Laboratory Land and Facilities Plan (ORNL/TM-200/237) depicts the entire floodplain strip parcel as either "surveyed wetlands" or land with "confirmed habitats for rare species" (Figure 2.8, page 2-17). This means that actual surveys have established that rare species (i.e., state-listed threatened plant species) occur throughout the parcel. The presence of protected plants can be discussed in the EA without disclosing location information sufficiently specific to invite illegal plant collecting. Furthermore, the Nature Conservancy Biodiversity Ranking for the entire floodplain parcel (Figure 2.7 of the ORNL Land and Facilities Plan) is the highest conferred anywhere on the Oak Ridge Reservation: "very high significance." We found no mention of this fact in this EA.

Page 25, Table 4. It would be helpful to insert subheadings in this table to identify the categories of listed species as "Plants", "Mammals," "Bird" and "Mollusks."

Section 3.8, pages 26-28. The map of historic sites on page 27 shows the "Gallaher Ferry Site" as being on the floodplain strip, but this discussion of historic sites does not mention the Gallaher Ferry site at all (instead, it mostly describes sites on the property that Boeing currently owns). If this EA is about the floodplain strip, it ought to include information about sites on the floodplain strip.

Page 31, lines 3-5. There seems to be an error here. If the areas with above-background radioactivity are under water "most of the year," then they are above the low water mark and would be included in the proposed conveyance.

Chapter 4, pages 33-48. This chapter suffers from the same fundamental flaw as the summary of impacts in Table 1.

Section 4.4, page 37. The main thrust of this "assessment" of potential socioeconomic impacts is the supposition that the development on the Boeing site would benefit the local and regional economy by increasing the housing stock, which would increase the number of residents. This seems like little more than fanciful thinking. In a community where residential property values have been not been increasing and population may be declining, as is the case in Oak Ridge, it is hard to see how increasing the housing stock would be beneficial to existing homeowners or the community at large. The potential for adverse socioeconomic impacts is increased by the fact that Oak Ridge would be providing basic city services and school bus transportation to a residential area that would be over 6 miles by road from the nearest residential area in city. Please provide a more credible assessment of the topic of socioeconomic impact.

Page 42, lines 3-5. Army Corps of Engineers permitting requirements are applicable to actions that modify the physical character of a wetland (for example, by filling a wetland or changing its hydrology), but not to actions that change a wetland's biological character (for example, by clearing vegetation). Therefore, this section should acknowledge that Alternative 1 could result in substantial changes to wetlands vegetation. Also, note that the Army Corps permitting process does not necessarily prevent changes to the physical character of wetlands. Similar changes are needed throughout Appendix A, the floodplain/wetlands assessment.

Page 43, lines 26-42. This passage is incorrect. DOE must acknowledge the potential for Alternative 1 to lead to the total destruction of floodplain strip vegetation, including state-listed plant species. Contrary to the statement in lines 27-30, this alternative must be expected to change the fundamental character of the floodplain, and impacts to ecological resources would be both direct and discernible.

Page 43, lines 42-43. What is the basis for the assertion that boat docks benefit fish populations by providing fish habitat? Can this be technically substantiated?

Section 4.7, pages 44-45. The federal law that is referenced in lines 30-40 on page 44 also requires DOE to consult with the Tennessee Historic Commission regarding an action that has the potential to affect historic or archeological resources. This EA does not indicate whether DOE has undertaken such consultation. Full documentation of the consultation (including both DOE's requests and the Historic Commission's responses) should be provided in the final EA.

Page 44, lines 39-40 and page 50, lines 6-7. These passages state that National Register-eligible historic and archeological sites on the property, specifically sites 40 RE 86 and 40 RE 89, would be excluded from the proposed property transfer and would remain in federal ownership. Nowhere in the EA is there a map that identifies these two sites, nor are there any maps that show how the conveyance boundaries would be redrawn to exclude these locations. This information is needed.

Page 50, lines 1-3. If the land is conveyed to the developer, what is the chance that the site would be surveyed for state-protected species, or that land development activities would be conducted in a manner that limits or avoids impacts to those species? Information about the locations of these plants exists now. This information can and should be used to identify tracts that should not be disturbed and therefore should be retained in federal ownership to protect these listed species and other sensitive resources.

Appendix A.
This floodplain/wetlands assessment should be revised to provide all of the analysis needed to fulfill DOE's responsibilities under Executive Orders 11988 and 11990, Protection of Floodplains and Protection of Wetlands, respectively, and the DOE regulation that implements these orders (10 CFR 1022). Also, information should be added help readers understand DOE's extensive obligations under these directives.
10 CFR 1022.3 states that it is DOE's policy to "avoid to the extent possible the long- and short-term adverse impacts associated with the destruction of wetlands and the occupancy and modification of floodplains and wetlands, and avoid direct and indirect support of floodplain and wetlands development wherever there is a practicable alternative." To aid in achieving this goal, 10 CFR 1022.12(a)(3) calls for floodplain/wetlands assessments to consider "alternatives to the proposed action which may avoid adverse effects and incompatible development in the floodplain/wetlands." Accordingly, this floodplain/wetlands assessment should point out that alternatives 2 and 5 would avoid the adverse impacts to wetlands and floodplains that would occur under Alternative 1. Also, the assessment should address the question of whether these are "practicable" alternatives to achieve DOE's objectives, or whether there are hybrid alternatives or other modifications that would achieve DOE's objectives while protecting wetland and floodplain values and functions.
To help readers understand DOE's obligation to protect wetlands and floodplains, this appendix and the text of the EA should point out that DOE is obligated under 10 CFR 1022.15 and the Executive Orders to "design or modify its action in order to minimize potential harm to or within [a] floodplain/wetlands." Furthermore, the document should discuss the implications of 10 CFR 1022.5(d), which states: "When property in a floodplain or wetlands is proposed for lease, easement, right-of-way, or disposal to non-Federal public or private parties, DOE shall: (1) Identify those uses that are restricted under Federal, State, or local floodplains or wetlands regulations; (2) attach other appropriate restrictions to the uses of the property; or (3) withhold the property from conveyance."

Appendix A, page A-3, lines 38-39. This sentence says that the 69 acres of wetland constitute 53% of the 182-acre tract. There is an error here, since 69 acres is only 38% of 182 acres. Perhaps the 69 acres and 53% values are for the area of wetlands in the portion of the floodplain strip that is above the high water level. The entire area between the low and high water levels might also be considered wetlands. Clarification is needed here.

Appendix A, Figure 2. This figure is the only wetland map in the EA, but it does not clearly depict the location of wetlands on the floodplain strip. The map is extremely difficult to read with the coding in shades of gray. It is also impossible to distinguish the boundaries of wetland areas from the boundaries of the DOE property. A more legible map is needed. (Perhaps the original map was in color, but the version that was distributed for review is in black and white.)

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