UPEC's Response to FERC's Environmental Statement on the Basins
To:FEDERAL ENERGY REGULATORY COMMISSION
RE: Environmental Assessment for Upper Peninsula) Docket Numbers: Power Company’s Shoreline Management Plan for the) P-2506-144-Escanaba Escanaba Hydroelectric Project
)COMMENTS AND PROTEST BY THE UPPER PENINSULA ENVIRONMENTAL COALITION
On July 30, 2008 the Federal Energy Regulatory Commission (FERC herein) released an Environmental Assessment (EA herein) pertaining to The Upper Peninsula Power Company’s (UPPCO’s) proposed shoreline management plan (SMP) for the Escanaba Hydroelectric Project (also known as the Boney Falls Project), Project No. 2506-144--MI. “These comments and protest pertain to the above referenced EA.
INTERESTS:
The Upper Peninsula Environmental Coalition (UPEC) is a non-profit corporation organized in 1975 under the laws of the State of Michigan for the purpose of protecting and maintaining the unique environmental quality of Michigan’s Upper Peninsula. It is a regional conservation organization with about 300 members who reside primarily in the Upper Peninsula. Its members tend to enjoy non-motorized activities, such as canoeing, hiking, and bird watching, where they can enjoy nature’s quiet splendor. Many of its members, including members of its board of directors, engage in, or would like to engage in, activities at the Escanaba basin that will be affected by the SMP. UPEC has previously filed a motion to intervene and comments in opposition to the SMP.
STATEMENT OF POSITION ON EA:
The Upper Peninsula of Michigan (U.P.) is blessed with an abundance of inland lakes, in addition to portions of three Great Lakes. Unfortunately most of the shorelines of these lakes have already been developed. Even within our State and National Forests many lake shorelines are privately owned and have already been developed. Remaining U.P. lake frontage is being rapidly gobbled up by developers. Even the shorelines of remote lakes previously open to the public are being bought up and divided into lots.
Natural shorelines are needed not only for recreation, but also to support a host of plants and animals that depend upon such habitat for their existence. The shoreline of the Escanaba Project basin, along with other hydroelectric basin shorelines in the U.P., represents some of the last undeveloped shoreline left.
UPPCO gave up the development rights of these basins in exchange for the privilege and benefits of using the rivers that belong to the people of the State of Michigan. They are now trying to circumvent the provisions of their operating licenses to take back the development rights they gave up in the license agreements.
The SMPs are riddled with devious and deceptive provisions that (which we expose in our comments herein) seem to be intended to hide the actual affect that the SMPs will have on the basins. Unfortunately the FERC authors of the EAs seem to be fully complicit in this charade.
The Escanaba Project EA is so biased toward development of the Escanaba basin that it appears that it might well have been written by an UPPCO employee or lobbyist. Conclusions are made throughout the EA without any basis or justification. Statements are made that are so illogical that they defy basic reasoning. The EA includes a discussion of the provisions of the SMP, but includes no meaningful assessment of the impacts of the SMP on the future condition of the Escanaba basin.
UPPCO’s statements in the SMP are taken at face value as being accurate with no verification on the part of the EA authors. As such we contend that the EA does not meet the legal definition of an Environmental Assessment within the context of the National Environmental Policy Act of 1969 (NEPA).
We believe that UPPCO’s sole reason for requesting the SMP is to increase the selling price of the land surrounding the buffer zone of the Escanaba basin by circumventing the provisions of their hydroelectric project licensing agreement. The provisions in their proposed SMP would essentially change their non-project land into lakefront property, greatly increasing the selling price of the lots that border the buffer zone. No evidence has been provided to support the notion that UPPCO is motivated by altruistic desires to protect the natural values of the basin by providing for the orderly development of the basin.Yet the authors of the EA repeatedly include such statements without question.
UPPCO has failed to reveal the details of their intended development both within the buffer zone of project lands, and on lands bordering the buffer zone. EA authors acknowledge in numerous places in the EA that they cannot assess the amount of impact of the SMP because the details of the development are unknown. Yet the EA authors inexplicably still conclude that the unknown impacts would not be significant. The authors of the EA have made no effort to respond to the comments and objections that were submitted during the comment period by UPEC and others in opposition to the SMP. Although a smattering of comments are referred to, most of the substantive issues and concerns, raised by UPEC and others who have written comments and protests, are ignored in the EA. Considering the complexity of the 58 page EA and associated documents, the 30-day time limitation for comments on the EA is grossly inadequate. Most interested parties are likely to have received the EA sometime after the original issue date, reducing the time for review and comment even further.
CONCERNS AND COMMENTS ON THE EA
PROTECTING AND ENHANCING PROJECT VALUES:
While the Division of Hydropower Administration and Compliance (DHAC) Compliance Handbook-Standard Land Use Article, appendix H Article (a), and the corresponding provisions in the Escanaba Project license, provides for non-project use of project lands, it states that: “The licensee may exercise the authority only if the proposed use and occupancy is consistent with the purposes of protecting and enhancing the scenic, recreational, and other environmental values of the project.” (emphasis provided).
This provision of the license agreement is unambiguous and explicit; as such it places considerable constraints on the authority of UPPCO to issue easements through project lands. The crux of the issue is whether or not UPPCO’s SMP is consistent with this limitation on the use of project lands. We have previously made this point in our original comments on the SMP, yet the authors of the EA have made no attempt to address this issue. In fact the authors of the EA acknowledges that the provisions of the EA would result in degradation of the Escanaba basin. Under VII Conclusions and Recommendations, last paragraph of page 52 of the EA the authors state:
“Future shoreline development would result in some sedimentation and erosion along the shoreline; temporary impacts on water quality; some losses in habitat for fish; and changes in the aesthetics character of the lake from a rural, wilderness nature to a more developed landscape, consisting of some residential boating facilities that serve adjoining single- and multi-family dwellings.”
While we have demonstrated, in our original comments and our comments that follow, that the negative impacts of the development provided for in the SMP would be considerably greater than what is referred to in the above paragraph, the EA clearly is acknowledging that the development allowed by the SMP would cause degradation of the basin. The SMP not only fails the “protect and enhance” requirement, the EA authors acknowledge that the SMP would cause a degradation of the basin.
Yet in the sentence preceding the above quote, the EA authors state that: “The SMP would ensure an orderly and appropriate level of development and protection of project purposes and resources.” The EA authors provide no explanation of how they arrived at the conclusion that this level of degradation would be “orderly and appropriate” and provide no explanation of how this level of degradation would be consistent with the “protect and enhance” requirement.
UPPCO’s solution to their failure to comply with the protect and enhance requirement is included in the Prohibited Activities section, listed as the last provision in the center of page 12 of the EA. The following activities would be prohibited:
“Any other use that UPPCO determines would degrade the scenic, recreational, or environmental value of the Cataract reservoir. Any such determination lies with the sole and uncontestable discretion of UPPCO.” (emphasis provided)
UPPCO seems to be trying to reserve the enforcement of the provisions of the operating license and SMP exclusively to themselves. They are claiming that they are above the law; not subject to legal action to enforce the provisions of the Escanaba operating license or SMP. Therefore they will be free to degrade the scenic, recreational, and environmental values of the basin because they are the only ones who can determine what constitutes a violation of this provision. They will have immunity from prosecution for violations of this major provision of the operating license. Please explain why FERC would allow such a provision to remain in the SMP.
The first provision under Prohibited Activities on page 9 of the EA includes another such absurd provision. The following activities would be prohibited: “Any use or activity conducted without prior UPPCO written permission for that use or activity.” This provision seems to provide an absurd degree of latitude to UPPCO over the control of the use of project lands and waters. It appears that no one can enter project lands or participate in any activity at these basins unless they get written permission from UPPCO first. Such written permission could be selectively granted by UPPCO to the owners of private lots to the exclusion of the public. Such an absurd degree of latitude is unreasonable, impractical, and unacceptable, and is completely inconsistent with the project license.
THE NO-ACTION ALTERNATIVE AND NEPA VIOLATIONS:
The following statement is included in the 2nd paragraph under Section VI, D. No-action Alternative on page 52 of the EA: “Under the no-action alternative, UPPCO’s management of the river shoreline would not receive the benefits of the proposed SMP, including its shoreline classifications. Thus future shoreline development at the project would occur in a less orderly manner and without full consideration of the effects of such development on the impoundment’s environmental resources from a comprehensive perspective. As such, the no-action alternative would likely have greater overall adverse impacts on the environmental resources of the impoundment shoreline.” This statement seems to be based on the assumption that currently no restrictions or limitations on development exist; that development can occur now haphazardly without regulation or control.
In fact an operating license with restrictions including a buffer zone does exist currently. Buffer zone restrictions include the requirement that non-project uses of project lands can occur only if they are “consistent with the purposes of protecting and enhancing the scenic, recreational, and other environmental values of the project.” (see Protection and Enhancing Project values above).
The no-action alternative should have been based on the assumption that no action would occur. Department of Energy (DOE) National Environmental Policy Act (NEPA) Implementing Procedures, Section 1021.321 provides that: “A DOE EA shall comply with the requirements found at 40 CFR 1508.9. In addition to other alternatives, DOE shall assess the no action alternative in an EA,...” (emphasis provided)
Since FERC has essentially failed to consider the no action alternative in the EA concerning the Escanaba Project SMP, the EA is in violation of this requirement. This oversight on the part of the EA authors causes the very basis of the EA to be flawed, and any conclusions reached in the EA to be faulty.
The FERC has received a letter from Mr. Gerald Ledvina, submitted to FERC P-2506-000 on August 25, 2008 and posted to e-service on August 28, 2008. In his letter Mr. Ledvina explains that he is a property owner on the east side of the Boney Falls Impoundment (also known as the Escanaba Project at issue herein). The following statement is taken from the 3rd paragraph of his letter:
“As a landowner on the east side of the impoundment, with property adjoining project lands, I have never been permitted any of the privileges outlined in the EA as now proposed for the new west shore lot owners.”
This, Ms. Bose, is the “no-action alternative” under the current management practices at the Escanaba Project basin: no docks, no view corridors, no ORV trails, no amenities, no intrusion into the buffer zone at all.
Furthermore, the authors of the EA have failed to consider other alternatives. Section 1021.321 also requires that in addition to the No Action Alternative, the EA must consider other alternatives. No other alternatives were considered in the EA.
The range of other alternatives considered should include regulations offering greater protections in the buffer zone than what are currently provided for in the Escanaba Project operating license in response to the threat of buffer zone degradation caused by the planned development bordering the buffer zone. This development was not anticipated during the renewal of the operating license, and so the affects of this development were not considered in the preparation of the operating license. Considering that the SMP would allow for the intense development of approximately five sixths of the basin shoreline (see Deceptive Shoreline Classification Provides Little Protection on page 14 herein) it is inexplicable how the EA authors could conclude that the SMP would provide a greater level of protection than is currently provided for by the project license.
CHANGES IN OPERATING LICENSE SUBJECT TO NEPA:
In the second paragraph of page 5 of the EA it is noted that UPPCO has requested that the Escanaba Project Comprehensive Land Management Plan (Article 411) and the Recreation Plan be amended to accommodate the inconsistent provisions in the SMP. This change was not part of the shoreline management plan development process, so the public has not had the opportunity to comment on this issue as required by NEPA. Furthermore, the EA states that the project’s approved recreation plan and wildlife management plan would be modified, but fails to state the specific modifications that would be made. Since the details of these changes have not been made public, the public has not had the opportunity to comment on the changes in violation of NEPA.
FUTURE DEVELOPMENT IS NOT INEVITABLE:
The following statement is included under Section III. Purpose and Need for Action in the third paragraph on page 6 of the EA: “UPPCO proposes these recreational enhancements to accommodate anticipated increased general public recreation use of the impoundment that would inevitably occur and increased use that may occur as the result of anticipated development of non-project lands in the vicinity of the project and increased economic activity in the region.” (emphasis provided)
No evidence has been presented that future substantial increased public use is inevitable, or that substantial real estate development is inevitable. Even with the sale of UPPCO’s non-project lands to residential real estate developer Naterra Land, Inc. there will not necessarily be an increase in shoreline development without the relaxed environmental provisions provided for in UPPCO’s SMP. If UPPCO cannot make the land bordering the buffer zone into “lake front property” by circumventing its operating license provisions, it is unlikely that this land will be intensely developed. It is the SMP that will cause the future development, not accommodate it. The future development is only inevitable if FERC approves the UPPCO’s SMP. This fact is proven by the following statement taken from a lawsuit filed by Naterra Land, Inc. against UPPCO on February 25, 2008 in U.S. District Court, District of Minnesota. In provision 39 of this law suit Naterra states that: “As of today (more than seventeen months after Plaintiff provided UPPCO the last of the required legal descriptions), UPPCO still has not delivered the NSA Easements [Natural Shoreline Easement Agreements] or the Licenses to Plaintiff [Naterra]. These breaches of the parties agreement have prevented Plaintiff from developing the lakeshore property and selling retail lakeshore lots because, in part, the lots have no dock or riparian rights associated with them. In essence, without the NSA Easements or the Licenses, Plaintiff does not own developable lakeshore property and, as a result, has not obtained the benefit for which it bargained for with Defendants and paid substantial consideration for to UPPCO.” (emphasis provided) Considering that Naterra is the developer who has purchased UPPCO’s non-project lands associated with the Escanaba Project basin, their sworn testimony that the land surrounding the basins cannot be developed without the approval of the SMP is convincing evidence that the SMP is the cause of the future development, not the solution to accommodating the development. The future intense development of the buffer zone of Escanaba Project basin will only happen if FERC approves UPPCO’s SMP allowing UPPCO to circumvent the environmental protections provided for by the Escanaba Project operating license. The following statement is included in the 4th paragraph of pate 52 of the EA under VII Conclusions: “As future shoreline development occurs around the reservoir, commensurate with increases in residential development adjacent to the project area, it is anticipated that there would be and increased demand for boat dock facilities.” We have demonstrated above with Naterra’s own words from their lawsuit, that it is not the shoreline development that is causing the demand for docks, but it is the docks that are causing the demand for shoreline development. Without the docks Naterra has told us that they cannot sell the lots. It would seem more reasonable for FERC to increase the environmental protection of the Escanaba Project buffer zone to protect the natural features of the basin from development that is anticipated on lands bordering the buffer zone, rather than relaxing or removing existing protections provided for in the current FERC operating license as would occur with approval of the SMP.
SMP FAILS TO PROTECT AND ENHANCE RESOURCES:
The following statement is included in the last paragraph under Section IV. A. Proposed SMP on page 6 of the EA: “The proposed SMP is intended to enhance existing practices and help protect and enhance the impoundment’s natural resources and the project’s primary function, the production of electricity.” (emphasis provided)
There is nothing in the SMP to indicate that the SMP would do anything to improve or enhance the impoundments natural resources. That is the primary defect in the SMP. The overwhelming evidence is that the SMP will cause every aspect of basin natural resources to degrade.
The very next sentence in the EA states that: “The proposed SMP is also intended to provide public recreational enhancements and direct, manage, and mitigate the impacts of anticipated development of non-project lands so as to complement or have neutral effects on those natural resources.”
As we have demonstrated in the preceding section under “Future Development Is Not Inevitable” the SMP will enable the development not mitigate the impacts. The SMP will have negative impacts on every aspect of basin natural resources including soil erosion, water quality, fishery resources, vegetation and wildlife.
The first sentence quoted above states that the SMP would protect and enhance the basin natural resources; the next sentence states that the SMP would have neutral effects on the basin resources. Neither of these conflicting statements is accurate. Further more we can see no indication in the SMP or the EA that the SMP would in any way enhance “the project’s primary function, the production of electricity”.
The considerable burden placed upon UPPCO for the enforcement of provisions of the SMP would seem to distract UPPCO employees from their primary duty of providing for the production of electricity. Will the utility customers be responsible for paying for all these SMP enforcement responsibilities?
ENFORCEMENT OF SMP PROVISIONS NOT POSSIBLE:
The following statement is included in the VII “Conclusions” section on page 55 of the EA: “We recommend the licensee, as part of its permitting program, visit a permitted site prior to vegetation removal to flag the area, as well as visit the site after vegetation removal to ensure compliance with the terms and conditions of its permit.” Considering the 200 foot or greater width of the buffer zone and the number of trees that would be involved in the construction of a pathway or view corridor, we do not believe that it will be possible for UPPCO to assure compliance with vegetation protection requirements. Even with a prior visit to the site they will not be able to inventory the large number of trees the may be removed under the terms of the SMP. Although the size of the trees that can be removed from the view corridor is limited to trees that are less than two inches in diameter at five feet in height, such a restriction would be virtually unenforceable. Moments after the tree is removed there would be no way to know what the diameter of the tree had been at five feet above the ground. All that would be left would be the stump and a pile of cut up wood. Even if the stump was eight inches in diameter, it most likely could not be proven that the tree was not of some atypical configuration that limited its diameter to two inches in diameter at five feet in height. There would be no way for UPPCO to monitor the removal of trees that occurs after UPPCO’s final inspection. UPPCO has no financial interest in enforcing these protection requirements, and therefore there is no reason to believe that UPPCO would be diligent in enforcing such provisions.
PUBLIC OUTREACH MINIMAL:
The following statement is included in the 2nd paragraph under Section IV. 1. Proposed SMP on page 6 of the EA: “UPPCO developed the SMP in consultation with Resource Agencies, local governments, and nongovernmental organization; and conducted local public outreach sessions.” While UPPCO did conduct public outreach meetings, the format used at the meetings was extremely restrictive. The meetings consisted of a brief presentation, followed by a question and answer session at which the public was permitted to submit questions on note cards. UPPCO representatives selected which questions and which parts of questions they would respond to. There was no reason that the public could not have been permitted to ask questions directly, other than UPPCO’s desire to suppress the details of their project.
UPPCO did not release any information at these meetings, or at the focus group meetings, on the extent or design of their planned development. The meetings were not designed to communicate with the public, but were instead designed to meet the minimum FERC requirements with as little public dialog as possible.
Perhaps UPPCO’s cavalier attitude toward public outreach is best illustrated by their Public Informational Meetings held to present their draft Shoreline Management Plans in the spring of 2007. Meetings were scheduled for the evening of April 3 at Au Train Township Hall to present the Au Train SMP, and for the evening of April 4 at K.I. Sawyer to present the Boney Falls (Escanaba) and Cataract SMP. A major blizzard started on the afternoon of the 3rd. I started driving to the Au Train meeting from my home near Ishpeming, but turned back at the Cross Roads on 480, because the visibility was so bad. After dark on the way home, it would have been much worse. But the meeting went on as scheduled. The storm reached full force over night, and the next day all area schools were closed, including Northern Michigan University. Most area businesses were closed, including the Westwood Mall. The storm lasted through the day and into the night of the 4th. It was the worst storm of the season, but the informational meeting at K.I. Sawyer went on as scheduled, even though it would have been nearly impossible for anyone to reach the meeting place at the relatively remote K.I. Sawyer location.
Neither of these informational meetings was rescheduled, even though it was reported that hardly anyone attended them. If UPPCO had a genuine interest in informing the public about their plans, they would have provided additional meetings at times when the public would have been able to attend. These meeting, intended to inform the public about the details of their SMPs, were perhaps the most important of all the public meetings regarding the basin development plans.
Although UPPCO consulted organizations and the public, there is big difference between consulting the public, and reaching a consensus with the public. There is no evidence that UPPCO modified their SMP in any meaningful way to accommodate the concerns of the Resource Agencies, other organizations, or the local public. The SMP is designed to sell real estate, not accommodate the needs and desires of the public.
On Page 19, 2rd paragraph, of the EA goes even further, claiming that the resource agencies “worked collaboratively with UPPCO during the pre-filing process...” Although it appears that the resource agencies were consulted, there is no indication that they collaborated with UPPCO on the preparation of UPPCO’s development plans.
The EA authors conclude in the 3rd paragraph on page 52 of the EA under VII. Conclusions, that the SMP was “shaped” by input from governmental entities and the general public, and by demand for waterfront property and the desire to provide economic benefits to local governments. No evidence has been presented in the SMP or the EA that indicates that these factors influenced UPPCO’s preparation of the SMP. UPPCO started with a plan they had formed in consultation with Naterra Land Company managers and shaped the SMP to the needs of the developer. Naterra statements in their lawsuit confirms this (see lawsuit quote on page 6 herein).
SOIL EROSION:
Under Section VI. Environmental Analysis, C. Environmental Analysis and Recommendations 1. Geology and Soils b. environmental Impacts and recommendations located in the 3rd paragraph on page 27 of the EA the following statement appears: “The extent of the potential erosion is difficult to assess because there are no established plans for development of the lands adjacent to the buffer zone.” Even though the authors of the EA admits that they have no idea what level of development will occur and therefore what level of soil erosion will occur, they are still able to conclude in the last paragraph of this section that: “... if the licensee continues to adequately implement the proposed plan’s shoreline management guidelines and associated programs, including the stabilization technique selection process and use of BMPs, the unavoidable impacts on soils are not expected to be significant.” (emphasis provided)
It is completely illogical to draw the conclusion that impacts will not be significant after just admitting that the amount of the impact is unknown because the details of the planned development is unknown. The National Environmental Policy Act (NEPA) requires that the accumulative impacts that occur on both federal and non-federal property be considered regardless of whether the actions will be conducted by government agencies or by other “person”. See 40 CFR Sec. 1508.7 Cumulative impact: “Cumulative impact” is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” (emphasis provided)
FERC cannot reasonably proceed with approval of the SMP without knowing the impact of the adjacent development. There is no consideration given in the EA section on Environmental Impacts and Recommendations on the impacts of motorized vehicles within the buffer zone.
A list of Prohibited Activities is provided on page 9 and 11 of the EA. The 5th provision provides the following as a prohibited activity: Other than snowmobile use in winter, the use or parking of motorized vehicles except at designated recreation areas, existing roads and project operations areas, and as necessary for the launching and removal of boats or the drop-off and pick up of boating supplies, or as needed for access by people with disabilities. (emphasis provided)
At first glance this provision appears somewhat innocuous, as it is deceptively located in the prohibited activities section of the SMPs. A closer examination reveals that this provision could more appropriately have been placed in the permitted activities section, as it permits a host of motorized use on project lands. It starts out stating that motorized vehicles cannot be used on project lands, but then goes on to provides for some very notable exceptions: This provision provides for the use of motorized vehicles (Off Road Vehicles) for the launching and removal of boats on project lands. This means that motorized vehicles could use the six foot wide public trail system or other areas of the project lands for the purpose of launching and removal of boats. This phrase does not seem to be referring to the public boat launch facilities as the preceding phrase already provides for motorized use at designated recreation areas where the boat launch ramps are located. This provision also allows motorized use of project lands for the drop-off and pick up of boating supplies. I see no definition of boating supplies in the SMPs. If the phrase: “boating supplies” is used in the general sense it would mean people, with homes on lots bordering the project, could use Off Road Vehicles to travel freely between their homes and their privates docks on the 6-foot wide public hiking trails as long as they were carrying any sort of boating supplies. Boating supplies could include a wide range of items such as a rope or a compass. Such motorized use on project land would have a tremendous negative impact on soil erosion and on the scenic and environmental values of the project in conflict with the FERC operating licenses. This provision also makes it clear that snowmobiles will be free to use project lands during the wintertime. Snowmobile use would be likely to harm both soils and flora on project lands especially when used at times when snow depth is low, and snowmobile use could also be harmful to wildlife. Snowmobile use in the project buffer zones would be inconsistent with the purpose of establishing the buffer zones. The use of motorized vehicles in the buffer zone would be very likely to cause tremendous soil erosion and flora damage, yet these impacts are not even considered in the EA.
WATER QUALITY IMPACTS:
The following statement in included under section VI. Environmental Analysis, C. 2. b.Water Resources in the last paragraph on page 28 of the EA: “The addition of the boat slips/docks is the only component of the SMP that would have the potential to affect water quality.” We have noted above in the section of the EA covering impacts on soils that the authors of the EA acknowledge that some unavoidable soil erosion would occur. The following sentence is located in the 4th paragraph on page 27 of the EA: “Implementation of the proposed SMP would result in some unavoidable sedimentation and erosion as the development allowed by the SMP is realized.”
Where do EA authors think that the eroded soils will go? We contend that soil erosion that would result if the SMP is implemented would be substantial, that the eroded soils would go into the water, and that the eroded soils would therefore have a substantial negative impact on water quality in direct conflict with the conclusion reached by the EA authors.
The following statement is located in the last paragraph of page 28 of the EA under Water Resources, b. environmental Impacts and Recommendations: “Although the licensee states there is the potential for up to 24 private boat slips, the schedule for development may be spread over many years, depending on the demand for boating in the reservoir, so any impacts related to dock installation would similarly be spread over many years.” (emphasis provided)
The EA authors conclude that since the installations of docks MAY BE spread over many years, and the impacts WOULD BE spread over many years. This conclusion is completely illogical. If the installation of boat docks MAY BE spread over many years, the impact also MAY BE spread over many years. Conversely if dock development occurs rapidly, then impacts of dock installation will also occur rapidly. Either way significant adverse impacts will occur. Do the EA authors think that delayed degradation is somehow more acceptable than rapid degradation?
The EA authors consider the impact from the disturbance of the water during boat dock installation and removal, but fail to consider the impacts of water quality caused by the significant increase in boating activity resulting from the dock installation, which is much more likely to have a very significant impact on the water quality and on other environmental values of the project.
While UPPCO does not have direct authority over boating activity on the basins, the type of boat launch facility and the presence of the private docks would have a major impact on the intensity of boat use and the type and size of watercraft present. Larger boats and pontoon boats are currently impractical to use on the basin because of the difficulty in launching and retrieving the boats on a daily basis. But if the boats can be launched and left in the basins at the private boat docks for the entire boating season, the effort to launch and retrieve larger boats could be justified, making the use of larger boats feasible and likely. UPPCO admits in the 3rd paragraph of Section 9.1 of the SMP that:
“Moderate long-term impacts to the water quality could potentially result from the operation and maintenance of additional boats associated with the proposed docks.” Yet the EA authors state that only the docks will affect water quality. The horsepower restrictions provided in the SMPs are inadequate to protect the environmental and scenic values of the project. The presence of larger boats at the boat docks and also their use on the basins would negatively affect the scenic and environmental values of the basins, and they would also negatively affect the recreational values of our members and of many other people who enjoy the natural beauty of the basin. The presence of greater numbers of larger sized boats could also be expected to negatively impact water quality. The following excerpt is from the Environmental Assessment for The Use of Motorized Watercraft In the Sylvania Wilderness, Ottawa National Forest, United States Department of Agriculture, July 1994 (emphasis provided): “The degree to which engines emit pollutants depends on a variety of factors including the size of the engine, the age of the engine, the type of engine (two-cycle, four-cycle, jet, etc.) type of fuel used and/or the degree to which the engine is tuned and maintained. Once discharged into the water, petroleum hydrocarbons may remain suspended in the water column, concentrate at the surface, or settle to the bottom. Many hydrocarbon compounds may not persist for very long because of their immiscibility, volatility, or biodegradability. However, while petroleum may disappear rapidly from the water column, the portion that reaches the sediment may persist for several years. Lead compounds from gasoline additives tend to sink to the bottom sediments (Pollution Impacts from Recreational Boating: A Bibliography and Summary Review, Milliken and Lee, 1990). Effect of pollutants from marine engines include odor, and off taste in fish and toxic effects on aquatic organisms. Power boats also have been shown to impact bottom sediments of lakes and to increase turbidity. In 1974 the Environmental Protection Agency (EPA) published a study analyzing the impacts of boating activity on turbidity in shallow lakes (defined as those with a maximum depth of 30 feet). They examined the impact of varying horsepower engines on lakes of varying depths. The study concluded that even a 10 horsepower engine could produce substantial stirring of bottom sediments at depths up to 15 feet and that engines with greater horsepower can do even more damage than smaller engines” (Power boats on shallow lakes: A brief summary of literature and experience on Lake Monegan (NY), Wright and Wagner, 1991 (emphasis provided) Since the installation of the 24 boat docks called for in the SMP is likely to result in increased boating activity and increased boat size, the negative impact on water quality and other environmental values would be significant. The 60-foot length of the individual docks allowed in the SMPs is considerably greater that what would reasonably be necessary to accommodate even a single watercraft. The 10-foot maximum depth of the water at the end of the dock is considerably greater than what would be necessary to accommodate a single watercraft. The 150 foot length of the cluster docks allowed in the SMPs is considerably greater that what would reasonably be necessary to accommodate 10 small watercraft. The docks would have a negative affect on habitat of both terrestrial and aquatic flora and fauna both by the space they would take up, and by the additional human activity they would bring to the site. Many of the wildlife species noted in the environmental studies commissioned by UPPCO, such as bald eagles, loons, and great blue herons, are known to be sensitive to human activity. Depending on the exact locations of the docks on the shoreline, the docks may block the boating public from accessing desirable landing spots. Boat docks also inhibit fishing, since they take up space where anglers would otherwise fish, and they inhibit the ability of anglers to troll effectively along a shoreline. Thus the boat docks would degrade the public’s recreational opportunities in violation of the protect and enhance requirements of the FERC licenses. The presence of 24 boat slips on the shoreline of the Cataract basin would degrade the scenic values of the basin by replacing the beauty of nature with the view of up to150-foot long boat docks and with pontoon boats and other watercraft. The boat docks may be even more unsightly when stored on land than when they are in place in the water. Although the period of time when the docks can be in the water is limited, there is nothing in the plans to prevent docks from being left in the storage areas on land year round. The increase in boating activity, and the disturbance of shoreline habitat with up to150-foot long boat docks and connecting pathways would neither protect nor enhance environmental conditions for wildlife in and around the basins nor would it protect or enhance the scenic values of the projects, and therefore they would fail to meet the protect and enhance requirement of the license agreements. The accumulative affects of soil erosion, boat dock installation, and the associated increase in the size and number of motorboats on the basin would have a significant negative impact on water quality. It is absurd that the EA author would conclude that the only source of water quality impact would be from the installation of boat docks. Similarly the conclusion that the impact on water quality would not be significant is completely unjustified DECEPTIVE SHORELINE CLASSIFICATION PROVIDES LITTLE PROTETION: The following statement is included under 2. Water Resources, b. Environmental Impacts and Recommendation in the 2nd paragraph on page 28 of the EA. “The SMP includes provisions for protection of 35.7 percent of the reservoir shoreline, so that development would not be allowed or only allowed following specific design criteria.” The shoreline classification system provides very little protection for the project buffer zone. All of the classification categories allow greater levels of development than what is allowed in the current operating license. The provisions of the classification system are deceptively written to conceal their true purpose of providing amenities to facilitate the sale of lots bordering the buffer zone. Even so, UPPCO is only claiming to protect 35.7 percent of the basin. How could such a small percentage of protection be construed to be consistent with the requirement that non-project uses of projects lands must protect and enhance the natural resources of the project (see Protection and Enhancing Project Values on page 2 herein) The 2nd paragraph on page 28 of the EA continues: “An additional 7 percent of the shoreline would allow general/recreation, while 50 percent of the shoreline would be maintained for project operations, which would also preclude shoreline development.” (emphasis provided) For some inexplicable reason, almost two thirds of the eastern shore of the basin is designated as a “Project operations area”. The map on page 10 of the EA includes two different categories of “Project operations areas”. There is no explanation of the difference between the two categories, but it appears that the 2nd “Project operations area” includes lands that are actually used in project operations, while the 1st “Project operations area” includes lands that are not currently used in project operations. The above quote indicates that the project operation classification would “preclude shoreline development.” But if one looks at the allowed activities within project operations areas on page 9 of the EA one will find the following sentence: “The construction of recreation areas/facilities, roads, pedestrian paths, enhanced view areas, and motorized vehicle trails, as well as the placement of dock structures, would be permitted in areas classified as Project Operations Areas.” (emphasis provided) Thus one can see that the Project operations area classification would provide for nearly any type of intense develop in direct contradiction to the page 28 quote above. If one looks at the map on page 10 of the EA, one can see that the 1st “Project operations area” extends in a horseshoe shape around more than half of the basin. The outer edge of this so called 1st “Project operations area” borders non-project lands directly, or on the east shore has spaces connecting to non-project lands at convenient regular intervals. Thus looking at the map one can see that a vehicle road could be built from the main road on the west shore of the basin connecting in a horseshoe shape extending up two thirds of the east shore of the basin with convenient connections at regular intervals to an east shore housing development. The classification of so much of the shoreline as “Project operations areas” would almost completely and deceptively remove the buffer zone protections from over half of the basin. Even if the “Conservation-limited public trail” classification actually provided some significant protection of natural resources, which is doesn’t, the tiny slivers and islands of land provided in the SMP would be too small to provide any significant protection to “the highly sensitive terrestrial or aquatic habitat” that it is supposed to protect (1st paragraph page 8 of EA). DISHONESTY AND DECEPTION: If one were to read through UPPCO’s SMP even with a great degree of care, one could easily fail to realize the intensity of the development that would be allowed under the terms of the SMP. This is because many of the provisions are hidden by what appears to us to be deliberate deception. For example, the UPPCO maps show conservation areas, and brags about how much of the shoreline is protected in conservation areas. But it takes a great deal of diligence to discover that the conservation areas don’t actually provide any conservation. One would have to discover the provisions under “prohibited activities” (6th provision, page 11 of the EA) to realize that motorized use is permitted within the “conservation areas”, or that UPPCO would try to limit the enforcement of protective measures by reserving determination of violations to themselves (last provision page 12). UPPCO’s reference to “public paths” sounds somewhat innocuous; one would have to read though the SMP very carefully to discover that the “public paths” aren’t really paths at all, they are 6-foot wide ORV and snowmobile roads. I suspect that very few people have noticed that the Project Operations Area classification allows the construction of motorized vehicle trails, road, docks, and the clearing of trees for enhanced views, or that the Project Operations Area at the Escanaba Project includes much of the shoreline of the basin. It took us a long time to discover some of these deceptive provisions, and I suspect that there are more that we have not yet discovered. UPPCO seems to have made a tremendous effort to gain support from community leaders and organizations in Upper Michigan. Their efforts have been largely successful, as they have gained support for development from state legislators, county commissions and chambers of commerce, among others. The statements of support from the various individuals and groups are so similar that the words seem to be coming directly from the UPPCO lobbyists. But it is very doubtful that any of these individuals understand the full implications of the SMPs or the degree of development that they are supporting. UPPCO has been so successful in limiting public participation in the development of the SMPs, and in concealing the details of the planned development, that people don’t understand the level of development that would occur. The SMPs are so deceptive that one cannot be expected to understand them. I have spoken with State Representative Steve Lindberg regarding his support for the SMPs. It is my impression that Mr. Lindberg did not understand the degree of development that would occur under the SMPs when he issued his letter of support. How could he have? The SMPs are so deceptive that leaders could not be expected to analyze them with the degree of intensity that would be required to truly understand them. I have also spoken with Gwinn-Sawyer Area Chamber of Commerce President, Jeanette Maki, who has written a letter to FERC in support of the Cataract SMP. Mrs. Maki indicates that David Forsberg (UPPCO lobbyist at the Michigan state capital and owner of Forsberg Golenda Communications and Government Relations.) visited the Chamber board in 2006, in 2007, and again about a month ago. Mr. Foresberg presented information on UPPCOs SMP and urged the Chamber to write a letter of support of the SMP to FERC. Mrs. Maki is under the impression that owners of land bordering the buffer zone of the Cataract basin will not be able to cut down trees in the buffer zone. She indicates that Mr. Forsberg told the Chamber board how Wisconsin Public Service (UPPCO’s parent company) has sued a landowner at a Wisconsin basin who cut down trees on project lands. Of course if one examines the Cataract SMP, one will find that land owners can in fact cut down trees on project lands under the terms of the SMP. It appears that Mr. Forsberg may have misled the Gwinn-Sawyer Chamber board in order to gain their support for the SMP. If one considers the level of deception contained in UPPCO’s SMPs, one shudders to think of the level of deception they may have been disseminated by UPPCO lobbyists. I suspect that many of the individuals, that have issued letters of support at the urging of UPPCO lobbyists, would reverse their support if they were given accurate information so that they understood the degree of development that would be allowed under the SMPs; that the basins would be completely and permanently changed from natural areas to intensely developed areas. I suspect that these people would also be angry if they understood the deception that UPPCO appears to have deliberately used to gain their support. The Upper Peninsula Environmental Coalition has not been lobbying Upper Michigan organizations or legislators. We have been under the impression that FERC would base their approval or denial of the SMPs on the basis of law, rather than on the basis local opposition or support. Even if we had wanted to, UPEC does not have the budget to hire expensive Lansing lobbying firms. It seems to me that UPPCO could be putting the electric utility ratepayers money to better use providing electricity, rather than spending so much money on lobbying firms. I urge FERC to come to Upper Michigan and provide a fair public presentations of the details of the SMPs and the level of development that would be permitted, and to provide forums where interested parties can freely discuss the implication of the development plans. (Of course you cannot make fair presentations until UPPCO provides you with the details of their development plans.) These presentations and discussions could be part of the process of developing an Environmental Impact Statement. NEED FOR UNDEVELOPED SHORELINE: The first paragraph of Section VII. on page 52 of the EA provides the following statement: “Water-based recreational activity and waterfront and water access properties are growing in demand and value throughout the project area.” It should be understood that the two topics of this sentence are in conflict. Water-based recreational activity, such as canoeing, motor boating, and fishing, conflicts with the development of waterfront properties for residential construction. The degradation of the scenic, recreational, and environmental values of the basin by shoreline residential development degrades the opportunities for water-based recreational activity on the Escanaba Project basin. While we believe that it is true that the demand for waterfront properties is increasing in the area of Escanaba basin, and also in most other areas of the United States, the reason that the demand is increasing is that almost all of the shorelines of lakes in this country have already been developed; there is very little undeveloped shoreline left to develop. This phenomenon means that opportunities for water-based recreational activity are also becoming more limited. It means that habitat for flora and fauna that require undeveloped shoreline environments for their existence is becoming more and more scarce, and therefore more important to protect. The above quote from the EA seems to be saying that since the demand for waterfront property is there, FERC is obligated to provide it, when in fact the opposite is true; the high demand is an indicator of the shortage of this type of habitat which obligates FERC to protect it. There is no justification for the removal of the environmental protections currently provided for in the Escanaba Project operating license, which is exactly what the SMP would do. The above quote make reference to “water access properties”. No definition is provided in the EA to clarify what is meant by “water access properties”. Is this some new category of land classification that FERC has made up to accommodate UPPCO’s creation of waterfront property from what is now interior forestland property? CONCUSION The EA authors make a mockery of this Nations environmental laws in their process of developing the EA, including failure to consider a range of alternatives, failure to consider a “no-action alternative”, failure to consider cumulative impacts, failure to consider impacts from activities on adjacent lands, and failure to consider the concerns expressed in official comments by members of the public including UPEC. These extensive flaws in the EA development process render the finding of no significant impact unjustified. Even if FERC were to correct the deficiencies of the EA and still somehow arrive at a finding of no-significant impact, the SMP must still be denied because the SMP is in violation of provisions of the Escanaba Project operating license. In particular the operating license requires that non-project uses of project land must protect and enhance the scenic, recreational, and other environmental values of the project. Even the flawed EA acknowledges in numerous places that some degradation of the Escanaba Project basin would occur under the SMP. Therefore the SMP must be denied. While it is clear that the true purpose of the SMP is to enhance the selling price of non-project lands rather than to protect the natural features of the Escanaba Project basin, it appears that the authors of the EA are willing accomplices to this ruse. The development of an Environmental Impact Statement (EIS) would confirm that the provisions of the SMP would severely degrade the natural environment within the Escanaba Project, and that the SMP is therefore inconsistent with the terms and intention of the operating license. It will not be possible for FERC to prepare an EIS unless UPPCO releases the details of the development plans for lands bordering the buffer zone, and the details of the development within the buffer zone, including specific locations of docks, private pathways, dock storage locations, and public pedestrian-off road vehicle pathways. The impacts of proposed development cannot be assessed unless FERC knows what development is proposed. We are requesting that FERC consider the comments we submitted with our intervention request on January 25, 2008, in addition to our above comments. Most of the substantive issues raised in our original comments have not been addressed in the EA. We are requesting that the SMP be denied outright, or in the absence of this denial, that an Environmental Impact Statement be prepared, which we believe would also lead to the denial of the SMP. Dated August 29, 2008 Respectfully Submitted – filed Electronically Upper Peninsula Environmental Coalition William Malmsten, Vice President
UPPCO Basin Development Update - Spring 2008
UPEC has filed a twelve-page Motion to Intervene and Comments in opposition to the Upper Peninsula Power Company’s Shoreline Management Plans (SMPs) filed with the Federal Energy Regulatory Commission (FERC). If we are granted intervener status, any other party filing a motion in the case will be required to serve us with a copy, and we will have the option of filing a motion. We would also have the option of seeking a rehearing or judicial review of FERC’s decision in the case.
The SMPs would provide for the development of the shorelines of five relatively natural basins located in the Upper Peninsula by granting easements to purchasers of lots bordering the basin buffer zones. The development would include Bond Falls, Prickett, AuTrain, Cataract and Boney Falls basins. A sixth basin, Victoria, was withdrawn from UPPCO’s final development plans.
The SMP easements would allow lot owners to install docks in the basins up to 150 feet in length; clear view corridors so they can see the lakes from their homes; and construct trails in the buffer zones that could be used for motorized access.
The plans call for public access paths up to six feet in width to be constructed in the buffer zones. These trails could be utilized by snowmobiles and other motorized vehicles, such as all-terrain-vehicles, for dropping off and picking up boating supplies and for other purposes, according to provisions in the SMPs. The placement of this provision in the “prohibited activities” section of the SMPs seems somewhat deceptive to us. We wonder if this placement, and the convoluted wording of this section, was intended to obscure its true meaning.
The intensity of the proposed development and the provisions allowing motorized access would substantially change the character of these relatively natural lakes in conflict with the purpose for which the buffer zones were established.
An impressive number of comments and protests were sent To FERC in addition to about fifty motions to intervene. By far the majorityof the submissions were in opposition to the development plans. Our thanks goes out to all of you who took action. It would be difficult to imagine that FERC would approve the SMPs in the face of such tremendous opposition.
In an interesting turn of events, on February 25, 2008, the developer, Naterra Land, Inc., filed a Federal lawsuit alleging fraud, breach of contract, and breach of duty of good faith and fair dealing on the part of UPPCO.
According to the suit, Naterra originally agreed to pay $8.9 million for parcels at Bond Falls, Boney Falls and Cataract basins, but the amount was reduced to $5.9 million subject to the approval of local zoning and subdivision plans. Naterra alleges that they were unaware that there would be any difficulty in providing the buffer zone easements that they would need to
successfully develop the property. Naterra states that “...it was clear the Defendants’ [UPPCO] representatives’ material pre-closing representations regarding the status of the necessary easements and license approvals required for the development of the lakeshore property were false.”
The lawsuit document seems to confirm what development opponents had previously suspected, that UPPCO would gain an additional three million dollars if they were successful in providing for the development of the basin shorelines. From the start of the planning process UPPCO’s approach has seemed to us to be very biased toward development. This financial interest may explain why UPPCO seems to be trying so hard to drive the development plans through.
We are waiting for a decision from FERC on the UPPCO basin development plans. We are not sure what impact the Naterra lawsuit will have on the fate of the basins, but we will be watching with interest.
Although the official comment period has ended, FERC is continuing to accept comments until a decision is reached. Comments may be sent to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, DHAC, PJ-12.1, 888 First Street, N.E. Washington, DC 20426.
Letters should include the words COMMENTS OR PROTEST at the top and must include the project numbers for the basins you are writing about as follows: 10854-080 (Cataract), 2402-108 (Prickett), 1864-083 (Bond/Victoria), 10856-061 (AuTrain), and 2406-144 ( Boney Falls).
-William Malmsten, UPEC Vice-President
UPPCO Land Sales May Put Former U.P. Recreation Areas Off-Limits
In early December, 2005, U.P. residents were startled to hear 7,300 acres of recreational lands currently open to public use were being put on the block by their owner, the Upper Peninsula Power Company (UPPCO). According to a website set up by UPPCO to inform the public about the proposed sales, 2,300 of those acres are in Alger County, 2,800 in Ontonagon Co., 500 in Marquette/Delta Counties, and 1,700 acres of land in Baraga Co. The acreage is question abuts the company’s hydroelectric plants at Au Train, Boney Falls, Bond Falls, Cataract, Prickett Dam, and the Victoria Flowage. By the end of December, 2,720 acres had already been sold to a private developer.
A group of people concerned about the sale of this land has been formed. The Upper Peninsula Public Access Coalition (UPPAC) has created an on-line petition drive requesting legislators call for a new environmental impact study of those areas. To sing the petition or learn more about this issue, go to UPPAC’s new website at www.uppac.com. UPEC will continue to stay on top of this issue and report what is going on as we learn more about the sale of these unique public lands.