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Proposed Riverbank Project Is an Assault on the Middle Fork
Is the U.S. Army Corps of Engineers Enabling It?

This past July, Vistra+Dynegy, the Texas-based company and owner of the now-closed power plant north of Kickapoo State Park, submitted a  Section 404 / 401 Joint Permit Application to regulatory agencies to install riverbank stabilization along its two oldest coal ash pits locate in the floodplain of Illinois’ National Scenic River.  This was expected.  But the extent to which the proposal impacts the river, and the subsequent response by the U.S. Army Corps of Engineers (US ACOE), was not.  The U.S. ACOE indicated that it was planning to waive the more restrictive requirements of an Individual Permit, in favor of proceeding with the less rigorous Nationwide Permit 13, a process reserved for projects with minimal impacts.

Clearly, the scope and magnitude of impacts associated with Dynegy's proposed riverbank armoring is more than minimal.  This is because:

  • Over 22,000 cubic yards of boulders and riprap are proposed along banks and in the river next to the two oldest ash pits. A cubic yard is slightly larger than a typical kitchen stove. The amount of rock proposed is about 12 cubic yards per linear foot, along 1/3 of a mile  of river bank.
  • Work at some locations would extend over 40 feet into the river, and the riverbed would be excavated up to eight feet down.
  • The project could take six to eight months to complete and would need to take place during prime recreation months, when water levels are low. 

No one questions the need to stabilize eroding riverbanks next to Dynegy's oldest ash pits. The steadily-eroding banks have been neglected far too long.  But we object to any process that would waive requirements of a more rigorous review afforded by the more comprehensive Individual Permit, which provides appropriate public notice, public interest review, and an analysis of alternatives.  The basis of our objection is provided below.

Purpose and intent of NWP 13
The expressed intent of the nationwide permit program is to provide for a fair and efficient regulatory process, while also ensuring minimal environmental impact.  Of the 52 nationwide permits currently issued under 33 CFR 330.6, each is carefully articulated to set limits and parameters that will authorize activities resulting in no more than minimal individual and cumulative adverse environmental effects. 

NWP 13 establishes clearly defined limits on project length, volume and impact.  The proposed action grossly exceeds these limits and because of its scale, would result in much more than minimal impact.  Waiving the limitations and processing the application as a NWP would violate both the spirit and intent of the program.

An additional 1900 feet of armoring is proposed. This, along with the 485 feet installed to protect banks next to the New East Ash Pit, would mean nearly 1/2 mile of the 17-mile scenic river corridor would be lined with rock and rip-rap. Photo of New East Ash Pit taken by Pam Richart, Eco-Justice Collaborative. June 2017.

Significant exceedance of length limitation
The proposed river bank stabilization would extend 1900 linear feet along the west bank of the Middle Fork of the Vermilion River. This is 3.8 times the 500-foot length limitation provided for in NWP 13.  In conjunction with a previous river bank stabilization project of 485 feet approved by the Corps of Engineers in 2016, total armoring of the bank would extend 0.45 miles along the river. Armoring nearly a half mile of a National Scenic River constitutes more than a minimal adverse impact, and violates the legal intent of NWP 13.

Significant exceedance of fill volume limitation
The proposed project would place 22,370 cubic yards below the ordinary high water line of the Middle Fork. This amounts to 11.77 cubic yards per linear foot, which is nearly twelve times the limit of one cubic yard per linear foot established by NWP 13. Placing this volume of fill per linear foot along a National Scenic River constitutes more than a minimal adverse impact, and violates the legal intent of NWP 13.

Photo shows river similar in scale to the Middle Fork.  Photo is of a root wad and stabilization, project along the White River in Bethel, VT.

Significant disturbance of riverbed and intrusion into river channel
Plans submitted as part of the Section 404 application call for project construction to extend over 40 feet into the river channel in some sections, with excavation below the riverbed up to eight feet. Construction would take place over a period of many months. The magnitude of disturbance proposed would clearly result in more than minimal adverse impacts to water quality, stream habitat, recreational users, and the recreational economy, as well as potentially impacting stream flow hydraulics and long-term esthetics of a National Scenic River.  This constitutes more than minimal adverse impact, and violates the legal intent of NWP 13.

Potential water quality impacts
Despite the use of best management practices and an effort to work during low water periods, the project has the potential to release heavy silt loads into the stream.  The flow volumes of the Middle Fork can be described as episodic or flashy, with localized storm events resulting in a rapid increase in river flow and swift currents. In 2017, normal water volumes from May through November ranged from 15 to 200 cfs.  During that same period, peak flows exceeded 1000 cfs nine times, and exceeded 5,000 cfs twice.  Water levels typically rise rapidly and would offer very little time for in-stream work to adapt.  Given the extent of river bed excavation proposed, heavy sediment transport to downstream areas is likely.  

In addition, the proposed riverbank excavation would take place in a section of the river where coal ash chemicals are actively leaching through the soil into the river.  Recent tests documented arsenic, barium, boron, chromium, manganese, molybdenum and sulfate leaching out of the bank.  Without special handling and consideration, the potential exists for these chemicals to enter the aquatic system as soils are disturbed. 

Protected species
The Middle Fork has been cited by experts as one of Illinois’ most biologically-diverse rivers. Over 57 different species of fish have been documented in this branch of the Vermilion river system, including the state-endangered blue breast darter.  The Middle Fork is also home to a variety of mussels, four of which are listed as state-endangered, and two listed as threatened. These and many other species are sensitive to heavy silt loads and siltation that could  occur during prolonged excavation of the riverbed along the project area.  

Construction would take place during times when water levels are low. These also are prime recreational months, attracting tourists from Illinois and Indiana. Photo by Pam Richart, Eco-Justice Collaborative. August 2014.

Economic impact
The Middle Fork of the Vermilion River plays a key role in the economic health of the region, by contributing to a strong recreation economy. Water-based recreational activities include canoeing, kayaking, tubing, wading and swimming, and angling, A livery located in Kickapoo State Park puts over 10,000 people on the Middle Fork River in canoes, kayaks and tubes each year.  Users of Kickapoo State Park currently generate an estimated $11 million to $15 million in annual revenues for Vermilion County, and the County’s 2025 plan promotes capitalizing on the Middle Fork’s recreational assets as a way to further attract tourism and bolster local economies.

A primary section of the river trips pass the Vistra-Dynegy coal ash site. The proposed project is estimated to take from six to 12 months to construct, and construction would need to take place when water levels are low.  Because low-water months also tend to be prime recreation months. the project has a high potential for disrupting recreational activity and causing financial hardship.

Public interest
Although a separate regulatory issue, Vistra-Dynegy is currently engaged in compliance discussions with the Illinois EPA regarding both surface and groundwater violations from its leaking coal ash pits and the approval of a Corrective Action and Closure Plan for these facilities.  The installation of riverbank stabilization will be an integral part of the plan, and the nature and extent of stabilization could vary depending on the closure alternative selected (i.e.: the location and design of the stabilization could change if the coal ash were removed or moved back from the river).  We believe that it is in the best interests of the public that these two regulatory decisions are coordinated and implemented as an integrated project.  This process would be facilitated by a public interest review and an analysis of alternatives rightly afforded by an Individual Permit process.  

Conclusion
The proposed action grossly exceeds the physical limits set forth for NWP 13 and has a high probability of resulting in more than minimal adverse environmental and economic effects.   The proposed action should be processed as an Individual Permit under Section 404 of the Clean Water Act. This process is consistent with the intent of the regulatory program, and would ensure that the project is ultimately designed and implemented in a way that is in the best interest of the public by minimizing and mitigating adverse impacts to the Middle Fork and its users.

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