When Connectivity Met Toxicity: Hard Questions in Restoration II

A new lawsuit in Ohio pits restoration against precaution.

Restorative work that raises hard questions of one environmental good versus another is quickly becoming a staple of NEPA practice.

Ballville Dam

Ballville Dam

This story brought you the question of fire suppression’s legacy and restoring a forest to its fire-adapted baselines versus currently serviceable lynx habitat and the support of a listed (threatened) species.

Now comes the Ballville Dam on the Sandusky River.

This is a century+ old dam that a group of public agencies (state and federal) would like to remove from the river, restoring vital connectivity between its headwaters and Lake Erie.  The problem: sediment trapped behind the dam.

Unlike many deadbeat dams, the Ballville’s legacy sediment isn’t believed to be particularly toxic in and of itself.  (Note, however, that it is often hard to tell until excavation begins just what has accumulated behind an old dam.)  The dam’s major drawback is that it dissects a system which had evolved to be connected.

Sandusky Watershed

Sandusky Watershed

The troubles are expected in the form of legacy nutrients—especially phosphorus—which have built up in these sediments over time.  And there is good reason to believe that that nutrient addition to the Sandusky/Erie ecosystem could be quite problematic.  What had once been an impoundment behind the dam serving as public drinking supply had to be abandoned as such because the water had grown too hypertrophic and unpotable.

An extended (and in ways exemplary) NEPA process yielded this Final Environmental Impact Statement in summer of 2014.  Ideally, the dam would come out to restore the Sandusky system’s connectivity and the legacy sediment behind the dam would be dredged and removed from that system.  But the costs of dredging—even a partial dredging—were deemed “prohibitive” and this “alternative” wasn’t carried forward for detailed study.  Here, in all of the techno-speak the Fish & Wildlife Service’s contractor could muster, is the explanation:

The probable cost including the hydraulic dredge, dewatering with geotextile, loading, hauling, and disposal is $26,153,895.00 for 200,000 [cubic yards], and $93,426,236.00 for 800,000 [cubic yards]. In light of these costs, and the opinion of sediment quality by Evans and Gottgens (2007) . . . it was determined that dredging the impoundment was neither necessary nor economically feasible. While in theory this alternative could meet portions of the purpose and need, likely reducing some environmental impacts, practicality and costs prohibit its feasibility.

Ballville FEIS at 2-10.

There lies the rub: a combined evaluation of (1) the likely costs of dredging (estimated to range from $26M to $93M!) and (2) the likely risks of not dredging.  What are the probable or possible outcomes of allowing this legacy sediment simply to wash downstream and, eventually, into Lake Erie?  According to the Sierra Club, the FEIS nowhere even attempts to quantify (2).  And that seems, well, imbalanced as analyses go: quantifying one column while not quantifying its opposite is a really good way to tempt a reviewing court to say your techniques are arbitrary. 

Striking Trade-Offs Without Balanced Quantification 

The Sierra Club points to toxic algal blooms in Lake Erie as a possible outcome.  They’re not exactly coming out of left field with that, either.  Toxic algal blooms are increasingly common, costly, and dangerous.  This isn’t like alleging that a wave emitting technology might upset the balance of power between Cold War nemeses and lead to thermonuclear oblivion.  See No GWEN Alliance v. Aldridge, 855 F.2d 1380 (9th Cir. 1988).

This is more like the plaintiffs who pointed out how irrational it was for the National Highway Traffic Safety Administration to refuse to increase fuel economy standards because it said the costs of doing so outweighed the benefits—when it hadn’t even attempted to quantify benefits like reducing greenhouse gas emissions.  See Center for Bio. Diversity v. NHTSA, 538 F.3d 1172 (9th Cir. 2008). The court rightly remanded that NEPA document as arbitrary and capricious.

But how likely is something like a toxic algal bloom?  That question is extremely hard to answer well.  Nutrients’ fate and transport in an aquatic system is notoriously hard to predict.  If the nutrients enter a system that is limited by some other factor like temperature or sunlight, they can be relatively innocuous.  But add that same dose at the right time where these other influences are not limiting factors and you have a ticking time bomb.  How to predict any of this with tolerably accurate estimates?  Just have on hand lots and lots of data about the system in question going back decades—as the Chesapeake Bay people have shown.

The Sierra Club’s Ohio Director had this to say to the Toledo Blade:

The Sandusky River is primarily surrounded by agricultural lands, and we know these sediments are filled with agricultural pollution. We are concerned that taking down the dam without removing the sediment will increase drinking water concerns for Toledo and the rest of northwestern Ohio . . . .

They seek an injunction to halt the dam’s removal. {See AgWeek’s report on the complaint here.}     Interestingly, cost uncertainty seems not to have been woven into the estimates of dredging’s costs which were communicated to the public and the decision-makers.  What’s a reviewing court to do?  This is where the NEPA “rule of reason” leaves courts mostly to decide for themselves.

{Image: dam removal from Wikiwand}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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