Friends of Little Sugar Creek v. U.S. Army Corps of Engineers et alMOTION to Dismiss for Lack of JurisdictionW.D. Ark.February 28, 2017JEFFREY H. WOOD Acting Assistant Attorney General United States Department of Justice MEGHAN E. GREENFIELD Trial Attorney, Environmental Defense Section United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 (202) 714-2795 | Phone (202) 514-8865 | Fax Meghan.Greenfield@usdoj.gov BARCLAY T. SAMFORD Trial Attorney, Natural Resources Section United States Department of Justice Environment & Natural Resources Division 999 18th Street, South Terrace, Suite 370 Denver, Colorado 80202 (303) 844-1475 | Phone (303) 844-1350 | Fax Clay.Samford@usdoj.gov IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS FRIENDS OF LITTLE SUGAR CREEK, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS; FEDERAL EMERGENCY MANAGEMENT AGENCY; LIEUTENANT GENERAL TODD T. SEMONITE, in his official capacity as Commanding General and Chief of Engineers, U.S. Army Corps of Engineers; COLONEL ROBERT G. DIXON, in his official capacity as District Engineer for the Little Rock District Office of the U.S. Army Corps of Engineers; BOB FENTON, in his official capacity as Acting Administrator, Federal Emergency Management Agency, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 16-cv-5370 FEDERAL DEFENDANTS’ MOTION TO DISMISS Case 5:16-cv-05370-PKH Document 13 Filed 02/28/17 Page 1 of 2 PageID #: 54 Defendants, the United States Army Corps of Engineers, the Federal Emergency Management Agency, Lieutenant General Todd T. Semonite, in his official capacity as Commanding General and Chief of Engineers, U.S. Army Corps of Engineers, Colonel Robert G. Dixon, in his official capacity as District Engineer for the Little Rock District Office of the U.S. Army Corps of Engineers, Bob Fenton, in his official capacity as Acting Administrator, Federal Emergency Management Agency, respectfully move for dismissal of all claims brought by plaintiff, Friends of Little Sugar Creek, for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). As set forth in the accompanying Memorandum in Support of Defendants’ Motion to Dismiss, dismissal is warranted because the Plaintiff lacks standing. Respectfully submitted this 28th day of February, 2017. JEFFREY H. WOOD Acting Assistant Attorney General United States Department of Justice /s/ Meghan E. Greenfield MEGHAN E. GREENFIELD Trial Attorney, Environmental Defense Section United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 (202) 714-2795 | Phone (202) 514-8865 | Fax Meghan.Greenfield@usdoj.gov /s/ Barclay T. Samford BARCLAY T. SAMFORD Trial Attorney, Natural Resources Section United States Department of Justice Environment & Natural Resources Division 999 18th Street South Terrace, Suite 370 Denver, Colorado 80202 (303) 844-1475 | Phone (303) 844-1350 | Fax Clay.Samford@usdoj.gov Attorneys for Defendants Case 5:16-cv-05370-PKH Document 13 Filed 02/28/17 Page 2 of 2 PageID #: 55 JEFFREY H. WOOD Acting Assistant Attorney General United States Department of Justice MEGHAN E. GREENFIELD Trial Attorney, Environmental Defense Section United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 (202) 714-2795 | Phone (202) 514-8865 | Fax Meghan.Greenfield@usdoj.gov BARCLAY T. SAMFORD Trial Attorney, Natural Resources Section United States Department of Justice Environment & Natural Resources Division 999 18th Street, South Terrace, Suite 370 Denver, Colorado 80202 (303) 844-1475 | Phone (303) 844-1350 | Fax Clay.Samford@usdoj.gov IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS FRIENDS OF LITTLE SUGAR CREEK, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS; FEDERAL EMERGENCY MANAGEMENT AGENCY; LIEUTENANT GENERAL TODD T. SEMONITE, in his official capacity as Commanding General and Chief of Engineers, U.S. Army Corps of Engineers; COLONEL ROBERT G. DIXON, in his official capacity as District Engineer for the Little Rock District Office of the U.S. Army Corps of Engineers; BOB FENTON, in his official capacity as acting Administrator, Federal Emergency Management Agency, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 16-cv-5370 FEDERAL DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 1 of 23 PageID #: 56 TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................................... i INTRODUCTION ................................................................................................................................ 1 A. The Clean Water Act .................................................................................................... 4 B. The Corps’ Administration of the Nationwide Permit Program ................................... 5 C. The National Environmental Policy Act ...................................................................... 6 D. FEMA’s Public Assistance Program ............................................................................ 7 FACTUAL BACKGROUND .................................................................................................................. 7 A. The Lake Bella Vista Dam Project ............................................................................... 7 B. FEMA’s PA Grant and the Corps’ Permit Verification ............................................... 8 C. Plaintiff’s Complaint .................................................................................................... 9 LEGAL STANDARD ......................................................................................................................... 10 ARGUMENT .................................................................................................................................... 12 I. PLAINTIFF LACKS STANDING TO CHALLENGE THE CORPS’ VERIFICATION THAT THE REPLACEMENT DAM WAS AUTHORIZED BY NWP 3 ........................ 12 II. PLAINTIFF LACKS STANDING TO CHALLENGE FEMA’S COMPLIANCE WITH NEPA ................................................................................................................................. 15 CONCLUSION .................................................................................................................................. 15 Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 2 of 23 PageID #: 57 i TABLE OF AUTHORITIES CASES Balogh v. Lombardi, 816 F.3d 536 (8th Cir. 2016) ............................................................................................ 8, 9, 11 Cent. S. D. Coop. Grazing Dist. v. U.S. Dep’t of Agric., 266 F.3d 889 (8th Cir. 2001) ...................................................................................................... 8 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .................................................................................................................... 7 City of Alexandria, Va. v. Slater, 198 F.3d 862 (1999) .................................................................................................................. 15 Ctr. for Food Safety v. Vilsack, 718 F.3d 829 (9th Cir. 2013) .................................................................................................... 15 Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) .................................................................................................................... 9 Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004) ................................................................................................................ 3, 4 Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015) .......................................................................................... 9, 10, 12 Duit Constr. Co. Inc. v. Bennett, 796 F.3d 938 (8th Cir. 2005) .............................................................................................. 10, 12 Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955 (6th Cir. 2009) .............................................................................................. 10, 11 Hastings v. Wilson, 516 F.3d 1055 (8th Cir. 2008) .................................................................................................... 8 Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) ............................................................................................ 5, 8, 13 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................................................... 8 Massachusetts v. EPA, 549 U.S. 497 (2007) .................................................................................................................. 13 Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 170 F. Supp. 3d (D.D.C. 2016) .............................................................................. 10, 11, 13, 14 Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 3 of 23 PageID #: 58 ii Pucket v. Hot Springs School Dist. No. 23-2, 526 F.3d 1151 (8th Cir. 2008) .................................................................................................... 8 Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785 (8th Cir. 2004) ...................................................................................................... 7 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .............................................................................................................. 3, 13 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) ............................................................................................ 13, 14 Sierra Club v. Bostick, 787 F.3d 1043 (10th Cir. 2015) .................................................................................................. 3 Sierra Club v. Kimbell, 623 F.3d 549 (8th Cir. 2010) ...................................................................................................... 3 Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) .................................................................................................................... 3 Wieland v. U.S. Dep’t of Health & Human Servs., 793 F.3d 949 (8th Cir. 2015) .................................................................................................. 5, 8 RULES Federal Rule of Civil Procedure 12(b)(1) ................................................................................... 5, 8 STATUTES 5 U.S.C. § 706(2)(A)....................................................................................................................... 7 33 U.S.C. § 1251(a) ........................................................................................................................ 1 33 U.S.C. § 1344(a) ........................................................................................................................ 1 33 U.S.C. § 1344(e) ........................................................................................................................ 2 33 U.S.C. § 1344(e)(1) .................................................................................................................... 2 42 U.S.C. §§ 4321-4347 ................................................................................................................. 3 42 U.S.C. § 4332(2)(C) ................................................................................................................... 3 42 U.S.C. § 5172 ....................................................................................................................... 4, 14 Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 4 of 23 PageID #: 59 i TABLE OF AUTHORITIES CASES Balogh v. Lombardi, 816 F.3d 536 (8th Cir. 2016) ............................................................................................ 8, 9, 11 Cent. S. D. Coop. Grazing Dist. v. U.S. Dep’t of Agric., 266 F.3d 889 (8th Cir. 2001) ...................................................................................................... 8 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .................................................................................................................... 7 City of Alexandria, Va. v. Slater, 198 F.3d 862 (1999) .................................................................................................................. 15 Ctr. for Food Safety v. Vilsack, 718 F.3d 829 (9th Cir. 2013) .................................................................................................... 15 Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) .................................................................................................................... 9 Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004) ................................................................................................................ 3, 4 Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015) .......................................................................................... 9, 10, 12 Duit Constr. Co. Inc. v. Bennett, 796 F.3d 938 (8th Cir. 2005) .............................................................................................. 10, 12 Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955 (6th Cir. 2009) .............................................................................................. 10, 11 Hastings v. Wilson, 516 F.3d 1055 (8th Cir. 2008) .................................................................................................... 8 Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) ............................................................................................ 5, 8, 13 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................................................... 8 Massachusetts v. EPA, 549 U.S. 497 (2007) .................................................................................................................. 13 Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 170 F. Supp. 3d (D.D.C. 2016) .............................................................................. 10, 11, 13, 14 Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 5 of 23 PageID #: 60 ii Pucket v. Hot Springs School Dist. No. 23-2, 526 F.3d 1151 (8th Cir. 2008) .................................................................................................... 8 Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785 (8th Cir. 2004) ...................................................................................................... 7 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .............................................................................................................. 3, 13 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) ............................................................................................ 13, 14 Sierra Club v. Bostick, 787 F.3d 1043 (10th Cir. 2015) .................................................................................................. 3 Sierra Club v. Kimbell, 623 F.3d 549 (8th Cir. 2010) ...................................................................................................... 3 Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) .................................................................................................................... 3 Wieland v. U.S. Dep’t of Health & Human Servs., 793 F.3d 949 (8th Cir. 2015) .................................................................................................. 5, 8 RULES Federal Rule of Civil Procedure 12(b)(1) ................................................................................... 5, 8 STATUTES 5 U.S.C. § 706(2)(A)....................................................................................................................... 7 33 U.S.C. § 1251(a) ........................................................................................................................ 1 33 U.S.C. § 1344(a) ........................................................................................................................ 1 33 U.S.C. § 1344(e) ........................................................................................................................ 2 33 U.S.C. § 1344(e)(1) .................................................................................................................... 2 42 U.S.C. §§ 4321-4347 ................................................................................................................. 3 42 U.S.C. § 4332(2)(C) ................................................................................................................... 3 42 U.S.C. § 5172 ....................................................................................................................... 4, 14 Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 6 of 23 PageID #: 61 iii 42 U.S.C. § 5172(a) ........................................................................................................................ 4 CODE OF FEDERAL REGULATIONS 33 C.F.R. § 330.1(b) ....................................................................................................................... 2 33 C.F.R. § 330.1(e)(1) ................................................................................................................... 2 33 C.F.R. § 330.1(e)(3) ................................................................................................................... 3 33 C.F.R. § 330.2(b) ....................................................................................................................... 2 33 C.F.R. § 330.2(c)........................................................................................................................ 2 33 C.F.R. § 330.5(b)(3) ................................................................................................................... 2 33 C.F.R. § 330.6(a).................................................................................................................... 2, 3 40 C.F.R. § 230.7(b) ....................................................................................................................... 2 40 C.F.R. pts. 1500-08 .................................................................................................................... 4 40 C.F.R. § 1501.4(b) ..................................................................................................................... 4 40 C.F.R. § 1508.9 .......................................................................................................................... 3 40 C.F.R. § 1508.13 ........................................................................................................................ 3 44 C.F.R. § 206.2(a)(17) ................................................................................................................. 4 44 C.F.R. § 206.40(a)...................................................................................................................... 4 44 C.F.R. § 206.201(i) .............................................................................................................. 4, 14 44 C.F.R. § 206.226 ........................................................................................................................ 4 FEDERAL REGISTER 76 Fed. Reg. 9174 (Feb. 16, 2011) ................................................................................................. 3 77 Fed. Reg. 10,270 (Feb. 21, 2012) .............................................................................................. 2 Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 7 of 23 PageID #: 62 1 INTRODUCTION Nearly a century ago, the Lake Bella Vista Dam was constructed on Little Sugar Creek. The City of Bentonville wishes to replace that small dam, which has been damaged by flooding, and has sought a permit verification from the Army Corps of Engineers (“the Corps”) and funding from the Federal Emergency Management Agency (“FEMA”) to allow it to do so. Plaintiff Friends of Little Sugar Creek brings this suit against the Corps and FEMA alleging that its members are injured by the existing dam, and would be injured in the future if the dam were replaced. In their view, the stream should be restored to the condition it was in a hundred years ago: a free flowing state. It is beyond dispute, however, that the federal agencies sued here have no legal authority to remedy Plaintiff’s alleged injury and order the current dam removed. Because Plaintiff’s alleged injury from an obstructed creek cannot be redressed by a favorable decision, this suit must be dismissed for lack of standing. This Court simply does not have subject matter jurisdiction to resolve this dispute where Plaintiff would remain injured no matter how this Court resolves Plaintiff’s claims. At bottom, Plaintiff’s grievance is not with the federal defendants it has sued in this case, but with the City of Bentonville which has chosen to replace, rather than remove, its dam. LEGAL BACKGROUND A. The Clean Water Act The Clean Water Act (“CWA”) was enacted to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA prohibits the discharge of dredged or fill material into “waters of the United States” without a permit from the Corps. See id. § 1344(a) (“Section 404”). The Corps issues two types of permits: individual permits, which require a case-by-case review before discharge is allowed at a specific site, id., and general permits, which allow for activities the Corps determined “are Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 8 of 23 PageID #: 63 2 similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment,” id. § 1344(e)(1). The general permit program allows routine activities to move forward “with little, if any, delay or paperwork.” 33 C.F.R. § 330.1(b). Nationwide Permits (“NWPs”) are a category of general permits. 33 C.F.R. § 330.2(b). At issue in this case is NWP 3, which allows for “the repair, rehabilitation, or replacement of any previously authorized, currently serviceable structure.” 77 Fed. Reg. 10270 (Feb. 21, 2012). Section 1.0(a) of NWP 3 also allows for, along with other things, the “repair, rehabilitation, or replacement of those structures” that are damaged by “catastrophic events, such as hurricanes or tornadoes.” Id. The express provisions of NWP 3 do not require that the Corps receive “preconstruction notification” before a structure is repaired, rehabilitated, or replaced pursuant to this section. Id. at 10271. B. The Corps’ Administration of the Nationwide Permit Program Before issuing NWPs, the Corps conducts a predictive environmental analysis to ensure that the individual and cumulative adverse environmental impacts of the activities authorized by each proposed NWP are no more than “minimal.” See 33 U.S.C. § 1344(e). The Corps seeks public comment on the proposed NWPs and prepares appropriate documentation under the National Environmental Policy Act (“NEPA”). 33 C.F.R. § 330.5(b)(3); see 40 C.F.R. § 230.7(b). Only after complying with these and other statutory and regulatory requirements does the Corps issue NWPs. In some cases, as with section 1.0(a) of NWP 3, permittees may proceed with NWP- authorized activities without notifying the Corps. 33 C.F.R. §§ 330.1(e)(1), 330.2(c). Other circumstances not at issue here require a pre-construction notice seeking verification that the activity complies with the general permit’s terms and conditions. Id. §§ 330.1(e)(1), 330.6(a). Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 9 of 23 PageID #: 64 3 In those situations, the district engineer evaluates the proposed activities “on a case-by-case basis to ensure that they will have no more than minimal adverse effects . . . .” 76 Fed. Reg. at 9175. If the district engineer determines that “the adverse effects are more than minimal,” he “will notify the prospective permittee that an individual permit is required . . . .” 33 C.F.R. § 330.1(e)(3). No additional public comment or NEPA analysis is required for NWP verifications. See id. § 330.6(a); Sierra Club v. Bostick, 787 F.3d 1043, 1053-54 (10th Cir. 2015). C. The National Environmental Policy Act Congress enacted NEPA, 42 U.S.C. §§ 4321-4347, to establish a process for federal agencies to consider the environmental impacts of their actions. Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). NEPA imposes procedural, not substantive, requirements. So long as “the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). See also Sierra Club v. Kimbell, 623 F.3d 549, 559 (8th Cir. 2010) (“NEPA does not prevent agencies from taking environmentally harmful action” so long as impacts are identified and evaluated). Under NEPA, a federal agency must prepare an Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). To evaluate whether a proposed federal action meets this criteria and requires an EIS, the agency may prepare an Environmental Assessment (“EA”). 40 C.F.R. §§ 1501.4(b), (c), 1508.9. If, based on the EA, the agency concludes that the proposed action will not significantly impact the environment, it issues a Finding of No Significant Impact (“FONSI”) in lieu of an EIS. Id. § 1508.13; see generally Dep’t of Transp. v. Public Citizen, 541 Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 10 of 23 PageID #: 65 4 U.S. 752, 756-58 (2004) (“CEQ regulations allow an agency to prepare a more limited document, an Environmental Assessment (EA), if the agency’s proposed action neither is categorically excluded from the requirement to produce an EIS nor would clearly require the production of an EIS”).1 D. FEMA’s Public Assistance Program FEMA’s Public Assistance (“PA”) Program provides federal disaster grant assistance to state and local governments when the President authorizes assistance in a disaster declaration. 44 C.F.R. § 206.40(a). Under the PA program, FEMA may fund, among other things, “permanent work” including the “repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.” 42 U.S.C. § 5172(a).2 FEMA has defined permanent work as “restorative work that must be conducted through repairs or replacement, to restore an eligible facility on the basis of its pre-disaster design and [to] current applicable standards.” 44 C.F.R. § 206.201(i). There is no statutory or regulatory authority under the PA program which permits FEMA to fund the removal of a facility without replacement of the facility at the same site or a different site. See 42 U.S.C. § 5172; 44 C.F.R. § 206.226. For permanent work projects, FEMA prepares a NEPA analysis before awarding a PA grant. FACTUAL BACKGROUND A. The Lake Bella Vista Dam Project Lake Bella Vista Dam is a small dam located on Little Sugar Creek within the City of Bentonville, Arkansas. Pl.’s Compl. (ECF No. 1) (“Compl.”) ¶¶ 44-45; EA at 1-1. The dam was 1 Specific guidance for complying with NEPA is provided by regulations promulgated by the Council on Environmental Quality (“CEQ”). See 40 C.F.R. pts. 1500-08. 2 A “major disaster” is a natural catastrophe “which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance.” 44 C.F.R. § 206.2(a)(17). Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 11 of 23 PageID #: 66 5 constructed in approximately 1918, and created Lake Bella Vista. Compl. ¶ 44; EA at 1-5.3 In April 2011, many communities in Arkansas were heavily damaged by severe storms, tornados and associated flooding, resulting in the issuance of a Presidential Disaster Declaration. EA at 1-1. During this event, Little Sugar Creek overtopped the Lake Bella Vista Dam causing erosion of the downstream slope and the base of the dam, and resulting in extensive breakage of the concrete cover of the dam. See Compl. ¶ 50; EA at 1-1. The dam was overtopped by flooding again in April and August 2013, leading to additional damage. See Compl. ¶ 50; EA 1- 1. In its current state the dam poses a serious safety risk in the event of a dam breach or additional flooding. EA 1-5. Seeking to restore the function, safety, and long-term usability of Lake Bella Vista as a park amenity, the City of Bentonville applied to FEMA’s PA grant program for financial assistance in replacing the dam. See Compl. ¶ 50. The City proposed to remove and replace the existing dam with a new dam within the footprint of, and the same height as, the existing dam, but which would satisfy current dam and spillway design criteria. EA at 2-1; id. at 3-1. The new dam would not alter the capacity or normal operating elevation of the lake, or impact surrounding infrastructure. Id. at 3-1. B. FEMA’s PA Grant and the Corps’ Permit Verification In accordance with NEPA, FEMA prepared an EA to analyze the environmental impacts of the City’s proposal to replace the dam. See Compl. ¶ 53. Thereafter, FEMA issued a draft EA for public review and comment. Id. ¶ 54; EA at 6-2. Before the close of the public comment 3 The EA prepared by FEMA which is the subject of Plaintiff’s request for judicial review, see Compl. ¶ 4, is attached as Exhibit A to this motion. Plaintiff’s extensive reliance on the EA warrants treating the EA as incorporated into Plaintiff’s complaint by reference. Wieland v. U.S. Dep’t of Health & Human Servs., 793 F.3d 949, 953 (8th Cir. 2015). In any event, when resolving a Rule 12(b)(1) motion to dismiss, a court may consider documents outside of the pleadings in order to satisfy itself that it has power to hear the case. See Iowa League of Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013). Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 12 of 23 PageID #: 67 6 period on March 20, 2015, FEMA received 66 public comments. EA at 6-2. In September 2015, after reviewing and addressing the public comments, FEMA issued a final EA. Compl. ¶55. FEMA’s Final EA comprehensively examined the proposed replacement of the dam, including impacts to geology, air quality, water quality, wildlife, cultural resources and socioeconomic resources. EA at 4-1 to 4-37. In addition to examining the impacts of replacing the dam, FEMA gave detailed consideration to the alternative of taking no-action (leaving the existing structure in place) and considered, but eliminated from detailed review, three additional alternatives: (1) rehabilitating the existing dam; (2) relocating the dam; and (3) removing the dam without replacing it and thus eliminating the lake. EA at 3-1 to 3-3. With regard to the option of removing the dam without replacing it, FEMA noted that doing so would be contrary to the wishes of the City, which desires to keep the lake as a recreational amenity. See Compl. ¶ 56; EA at 3-3. FEMA also noted that the City views elimination of the lake as inconsistent with the deed under which the City acquired the property. See id. Finally, FEMA noted that such an alternative was not reasonable because FEMA funding under the PA Grant Program cannot be used to remove the dam without replacing it. See Compl. ¶ 57; EA at 6-3. After completing its NEPA analysis, FEMA determined to award funds to assist the City in removing and replacing the dam. On December 13, 2016, the Corps verified that the replacement dam project was authorized by NWP 3, concluding that the City was not required to apply for an individual discharge permit. Compl. ¶ 64. C. Plaintiff’s Complaint Plaintiff, the Friends of Little Sugar Creek, is a nonprofit organization “whose mission is to protect and restore Little Sugar Creek.” Id. ¶ 7. It alleges that its members are harmed by the City of Bentonville “[c]ontinuing to maintain a lake instead of restoring Little Sugar Creek to a Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 13 of 23 PageID #: 68 7 free-flowing stream.” Id. ¶ 13. Plaintiff explains that the “existence of a dam” on Little Sugar Creek adversely impacts its members’ use and enjoyment of the creek by “continu[ing] to block passage by canoe or kayak,” id. ¶¶ 9-10, and “interferes with boating and fishing in that it restricts passage on the creek,” id. ¶ 11. Plaintiff also traces sundry environmental harms to the existence of the dam and lake it creates, including impairment of water quality, and harm to aquatic species. Id. ¶¶ 9-13. Plaintiff brings two claims. The first alleges that the Corps violated the CWA when it issued a verification to the City of Bentonville stating that the replacement of the Lake Bella Vista dam was authorized by a general permit—NWP 3. Id. ¶¶ 66-72 (Count 1). As relief for this claim, Plaintiff seeks a declaration that the Corps’ authorization to the City to proceed under NWP 3 was invalid, and an injunction precluding the Corps or the City from relying on NWP 3 in the future for this project. Id. ¶ 80. The second claim contends that FEMA violated NEPA when it failed to adequately address an alternative of removing the dam and restoring Little Sugar Creek to a free flowing stream before it granted funds to the City of Bentonville to replace the existing dam. Id. ¶¶ 73-79 (Count 2).4 As relief for this claim, Plaintiff requests a declaration that FEMA’s NEPA analysis was contrary to law. Id. ¶ 80. LEGAL STANDARD “Standing is the threshold question in determining whether a federal court may hear a case.” Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785, 791 (8th Cir. 2004) (citation omitted). The “party invoking federal jurisdiction”—here, Friends of Little Sugar 4 Were this case to proceed to the merits, judicial review of these claims would be governed by the Administrative Procedure Act (“APA”). See Compl. ¶ 5. Judicial review of agency decisions under the APA is limited to a determination of whether the agency acted in a manner that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” based on the agency’s administrative record. 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 14 of 23 PageID #: 69 8 Creek—“has the burden of establishing standing” to bring its claims against each defendant. Id. To demonstrate standing, a plaintiff must show that (1) it has “suffered an injury-in-fact”; (2) that the injury is “fairly traceable to the challenged action of the defendant” rather than “the result of the independent action of some third party not before the court”; and (3) that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision” by the court. Balogh v. Lombardi, 816 F.3d 536, 541, 543 (8th Cir. 2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).5 Federal Rule of Civil Procedure 12(b)(1) requires dismissal of a complaint if, “accept[ing] all factual allegations in the pleadings as true,” standing is absent. Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008). In evaluating a motion to dismiss under Rule 12(b)(1), the court may consider the pleadings, “materials that are part of the public record or do not contradict the complaint, [ ] materials that are necessarily embraced by the pleadings, Wieland v. U.S. Dep’t of Health & Human Servs., 793 F.3d 949, 953 (8th Cir. 2015), as well as other materials necessary to evaluate “the merits of the jurisdictional claims,” Iowa League of Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013). This inquiry “requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Pucket v. Hot Springs School Dist. No. 23-2, 526 F.3d 1151, 1157 (8th Cir. 2008) (citation omitted); see also Davis v. Fed. Election Comm’n., 554 U.S. 724, 734 (2008) (a plaintiff must establish standing for each claim and form of relief). 5 For an association like Friends of Little Sugar Creek to have standing to sue on behalf of its members it must further show that the “interests at stake [are] germane to the organization’s purpose.” Cent. S.D. Coop. Grazing Dist. v. U.S. Dep’t of Agric., 266 F.3d 889, 897 (8th Cir. 2001). Defendants do not contest in this motion that Friends of Little Sugar Creek’s alleged interests in an unimpeded stream are germane to the organization’s purpose, which is permanent removal of the Lake Bella Vista dam. Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 15 of 23 PageID #: 70 9 ARGUMENT Plaintiff lacks Article III standing to bring claims against either the Corps or FEMA. The Plaintiff alleges aesthetic, recreational, and environmental injuries traceable to the “existence of a dam” on Little Sugar Creek, and asserts these injuries would be redressed only by removing the dam and “returning [the stream] to its natural state.” Compl. ¶ 8; see also id. ¶¶ 9-13. These allegations, however, are insufficient to establish that Plaintiff’s claims against the Corps or FEMA are redressable because neither agency has any legal authority to remove the existing dam and return Little Sugar Creek to its natural state. Were the Court to order the relief sought by Plaintiff and invalidate the federal decisions, the existing dam would remain in place and Plaintiff’s injuries would continue unabated. Thus, it is impossible for Plaintiff to show standing, and the Court must dismiss this case for lack of jurisdiction. I. PLAINTIFF LACKS STANDING TO CHALLENGE THE CORPS’ VERIFICATION THAT THE REPLACEMENT DAM WAS AUTHORIZED BY NWP 3 Plaintiff’s allegations against the Corps, taken as true, fail to show that an order by this Court invalidating the Corps’ permit verification for the replacement dam will likely redress Plaintiff’s alleged injuries and return the stream to its natural state. To satisfy the redressability element of the standing test, a plaintiff must demonstrate that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision” of the court. Balogh, 816 F.3d at 541 (citation omitted). “It must be the effect of the court’s judgment on the defendant that redresses the plaintiff’s injury.” Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957-59 (8th Cir. 2015) (emphasis added). Applying this rule, the Eighth Circuit held there is no standing where the plaintiff’s alleged injury would not be redressed by a favorable ruling “by virtue of [the ruling’s] effect on the defendant officials”; but instead would be remedied (if at all) only through the impact of a favorable ruling Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 16 of 23 PageID #: 71 10 on other parties not before the court. Id. See also Duit Constr. Co. Inc. v. Bennett, 796 F.3d 938, 941 (8th Cir. 2005) (finding no redressability where it was “totally speculative” whether a favorable ruling “would have any effect on the practices of the . . . separate Arkansas government entity” that had directly harmed the plaintiff). Nor is the redressability element satisfied where the alleged injury would continue to exist unabated even if the plaintiff prevailed on its claim. For example, in Friends of Tims Ford v. Tennessee Valley Authority, 585 F.3d 955 (6th Cir. 2009), the plaintiff organization alleged ongoing aesthetic and recreational harm from “already-constructed community boat docks,” and sought a declaratory judgment that the agency defendant had violated federal law in allowing for construction of the docks, and an injunction against future construction. Id. at 970. Plaintiff did not “additionally seek the destruction or modification of the community boat docks, nor [did] it seek . . . remedial measures to counteract or prevent the harms allegedly caused by the current docks.” Id. The Sixth Circuit held the plaintiff lacked standing because the relief requested would not redress plaintiff’s alleged injury—the boat docks would remain regardless of the court’s ruling. Id. Because the suit could not result “in the settling of some dispute which affects the behavior of the defendant towards the plaintiff,” plaintiff lacked standing. Id. (citation omitted). Similarly, in National Wildlife Federation v. U.S. Army Corps of Engineers, the plaintiff organizations alleged “harm tied to an existing bulkhead” (a barrier constructed in a river) which impacted their members’ enjoyment of the river. 170 F. Supp. 3d 6, 13-14 (D.D.C. 2016). The organizations sought a declaration that the Corps’ authorization under a NWP allowing for construction of the bulkhead was unlawful, and an injunction preventing future authorizations under the same permit. Id. at 14. The court held that the plaintiff had not “established that a Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 17 of 23 PageID #: 72 11 favorable decision on the merits of their claims will likely ameliorate the harm alleged,” because the plaintiffs had not sought “relief in the form of removing existing bulkheads.” Id. Thus, the “disconnect between the relief sought and the harm stated therefore precludes finding the requisite redressability.” Id. at 15. Here, Friends of Little Sugar Creek alleges that “[c]ontinuing to maintain a lake instead of restoring Little Sugar Creek to a free-flowing stream” injures its members because the status quo “affects [their] use and enjoyment of Little Sugar Creek.” Compl. ¶ 12. Plaintiff further contends that these injuries are caused by the “existence of a dam,” see, e.g., id. ¶ 11, and are redressable only by removal of the dam and “returning [the stream] to its natural state,” id. ¶ 8. For relief, it seeks a declaration that NWP 3 does not authorize replacement of the dam, and an injunction vacating the Corps’ authorization of the replacement dam. Id. ¶ 80.6 The disconnect between the injuries alleged and the relief sought confirm that Plaintiff’s allegations are insufficient to establish redressability under the rationale applied in Friends of Tims Ford and National Wildlife Federation. In short, granting Plaintiff the relief it seeks would do nothing to remove the existing dam and restore Little Sugar Creek to a free-flowing stream, remedying Plaintiff’s alleged aesthetic and environmental injuries.7 It is true that here, unlike in Friends of Tims Ford and National Wildlife Federation, the 6 Plaintiff also seeks an injunction prohibiting the City of Bentonville from “taking any actions under that NWP.” Compl. ¶ 80. But, the City is not a named defendant in this suit, and this Court lacks any power to permanently enjoin a party that has not been sued and has not appeared. 7 Nor is there a clear causal relationship between Plaintiff’s alleged injuries and the defendants’ actions challenged here. See Balogh, 816 F.3d at 541. This is not a straightforward case where the Corps issued a permit verification causing construction of a dam where none stood before. Instead, the federal defendants had nothing whatsoever to do with Plaintiff’s current injuries which are traceable to the decisions of those who constructed the dam a hundred years ago. Of course, the Corps action at issue in this case may contribute in some respect to the perpetuation of Plaintiff’s injuries. Even assuming this is sufficient to establish causation, for reasons discussed in the text those future injuries are not redressable. Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 18 of 23 PageID #: 73 12 Corps’ verification will have an impact on future conduct because it enables the replacement dam project to move forward. The problem for Plaintiff here, however, is that its members will face the same harm—namely, an impeded stream—regardless of whether the court upholds the Corps’ permit verification pursuant to NWP 3 or invalidates it. That is so because the Corps lacks authority to order the City (which controls the existing dam) to remove it. In either event, the stream will remain obstructed, either by the existing dam, or by a new dam built in the same location. It does not matter that a judgment by this Court vacating the Corps’ permit verification allowing for the replacement dam could, as a practical matter, impact the City’s ability to move forward with the project. For example, if the permit verification were invalidated, the Corps might not grant the City an individual permit to replace the dam, or the City could perhaps change its mind and decide instead to seek to remove the dam. But these possible future effects are speculative at best, and thus insufficient to show redressability. Duit Const. Co., 796 F.3d at 941. And, even more critically, these potential effects are based on the impact of the suit on a third party not before this Court: the City of Bentonville. The Eighth Circuit has time and again held that the impact of a favorable judgment on a third party cannot establish redressability. See id.; see also Digital Recognition Network, 803 F.3d at 957-59 (same). Therefore, because Plaintiff’s injury will not be redressed by a ruling in its favor, Plaintiff lacks standing to pursue its claim against the Corps. II. PLAINTIFF LACKS STANDING TO CHALLENGE FEMA’S COMPLIANCE WITH NEPA For reasons similar to those set forth above, Plaintiff lacks standing to pursue its NEPA claim against FEMA. FEMA lacks authority to provide a PA Grant to the City for the removal of the dam and restoration of the Creek. Thus, were the Court to find the agency’s NEPA Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 19 of 23 PageID #: 74 13 analysis inadequate, the existing dam would remain in place because FEMA could never adopt the alternative of removal of the dam. As noted above, NEPA is a procedural statute; so long as agencies follow the required procedures, NEPA does not require that they reach specific substantive outcomes. See Robertson v. Methow Valley Citizens Council, 490 U.S. at 350. Given the statute’s procedural mandate, where a plaintiff asserts a procedural injury stemming from an alleged violation of NEPA, the redressability prong of the standing inquiry may be relaxed. Lujan, 504 U.S. at 571– 73 n.7. Thus a plaintiff alleging a procedural injury need not establish that if a court were to remand the agency’s decision for further NEPA analysis, the agency would definitely adopt an alternative that would alleviate the plaintiff’s concrete injury. Lujan, 504 U.S. at 572 n.7. However, while the redressability requirement is “relaxed” in the NEPA context, it is not “toothless.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1227 (9th Cir. 2008). ‘“[R]elaxed’ does not mean erased.” Nat’l Wildlife Fed’n, 170 F. Supp. 3d at 15. Thus, to satisfy the redressability prong of the standing inquiry for a procedural injury, the plaintiff must establish that there is at least “some possibility” that upon further analysis the agency would adopt a position that would remedy the plaintiff’s concrete harm. Massachusetts v. EPA, 549 U.S. 497, 518 (2007); see also Iowa League of Cities, 711 F.3d at 871 (same). For example, in Salmon Spawning, the plaintiffs alleged that they suffered a procedural injury when the Forest Service and State Department allegedly failed to follow the proper procedures under the Endangered Species Act before the United States entered a treaty with Canada. 545 F.3d at 1227. The court found plaintiffs lacked standing because, although the court could order additional consultation, it was powerless to redress plaintiffs’ injury by altering the “ultimate agency decision to enter into the Treaty” which had been made years before. Id. Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 20 of 23 PageID #: 75 14 National Wildlife Federation similarly held that redressability was an insuperable bar for the plaintiffs because “the harm to plaintiffs’ concrete interest in the natural beauty of the Georgia coast—tied as it is only to existing bulkheads—could not be redressed” by remedying the alleged procedural deficiency because the plaintiffs had not sought as relief removal of the existing bulkheads. 170 F. Supp. 3d at 15. The court further reasoned that “this concrete injury remains at the heart of the redressability inquiry, even when dealing with a procedural injury.” Id. Here, Plaintiff cannot satisfy even a relaxed procedural redressability inquiry because there is no possibility that—if the Court declared its NEPA analysis invalid—FEMA could adopt an alternative of removing the dam and not replacing it. That is so because Congress has expressly limited FEMA’s authority under the PA Grant program to funding the “restoration, reconstruction, or replacement of [] public facilit[ies].” 42 U.S.C. § 5172. Restoration is limited to work which “through repairs or replacement” returns a damaged facility to its “pre-disaster design and current applicable standards.” 44 C.F.R. § 206.201(i). Thus, FEMA’s options are statutorily limited to providing a grant to fund the replacement or restoration of the dam, or to not awarding a grant to the City. Under all of these options, the flow of Little Sugar Creek would remain impeded by a dam and Plaintiff’s alleged injury would remain unredressed. As the court explained in Salmon Spawning, “[i]n effect, if we rule against the groups’ claim of procedural injury, they will continue to suffer injury; and if we rule in their favor, they will still suffer injury.” Salmon Spawning, 545 F.3d at 1227. The only option which would redress Plaintiff’s concrete injury—removal of the dam and restoration of the stream to a free-flowing Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 21 of 23 PageID #: 76 15 state—is simply not an alternative that FEMA can adopt. Under these circumstances, Plaintiff’s procedural injury is not redressable, and Plaintiff lacks standing.8 CONCLUSION For the reasons above, Defendants respectfully request that this Court dismiss Plaintiff’s complaint in its entirety for lack of subject matter jurisdiction. Respectfully submitted this 28th day of February, 2017. JEFFREY H. WOOD Acting Assistant Attorney General United States Department of Justice /s/ Meghan E. Greenfield MEGHAN E. GREENFIELD Trial Attorney, Environmental Defense Section United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 (202) 714-2795 | Phone (202) 514-8865 | Fax Meghan.Greenfield@usdoj.gov 8 This standing analysis is confirmed by the structure of NEPA itself which requires that an agency need only engage in a detailed analysis of “reasonable” and “feasible” alternatives. See, e.g., Ctr. for Food Safety v. Vilsack, 718 F.3d 829, 842 (9th Cir. 2013) (NEPA did not require agency to evaluate alternatives “absent jurisdiction to adopt them.”); see also City of Alexandria, Va. v. Slater, 198 F.3d 862, 869 (1999) (analysis of alternatives outside jurisdiction of the action agency “make little sense for a discrete project within the jurisdiction of one federal agency”). Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 22 of 23 PageID #: 77 16 /s/ Barclay T. Samford BARCLAY T. SAMFORD Trial Attorney, Natural Resources Section United States Department of Justice Environment & Natural Resources Division 999 18th Street South Terrace, Suite 370 Denver, Colorado 80202 (303) 844-1475 | Phone (303) 844-1350 | Fax Clay.Samford@usdoj.gov Attorneys for Defendants Case 5:16-cv-05370-PKH Document 13-1 Filed 02/28/17 Page 23 of 23 PageID #: 78 Final Environmental Assessment City of Bentonville Improvements to Lake Bella Vista Dam FEMA‐1975‐DR‐AR / PW1562 Benton County, Arkansas September 2015 Federal Emergency Management Agency Department of Homeland Security 500 C Street, SW Washington, DC 20472 EXHIBIT A Defendants' Motion to Dismiss Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 1 of 62 PageID #: 79 This document was prepared by: CP&Y, Inc. Chase Bank Building – Tower of the Hills 13809 Research Blvd., Suite 300 Austin, Texas 78750 Prepared on behalf of: The City of Bentonville 608 SE 3rd Street Bentonville, Arkansas 72712 Prepared for: FEMA Region 6 Office Denton, Texas Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 2 of 62 PageID #: 80 6.0 5.0 Table of Contents 1.0 INTRODUCTION ................................................................................................................................................................................... 1‐1 Project Authority ............................................................................................................................................................................ 1‐1 Project Location .............................................................................................................................................................................. 1‐5 Project Description ........................................................................................................................................................................ 1‐5 2.0 PURPOSE AND NEED ......................................................................................................................................................................... 2‐1 Purpose ............................................................................................................................................................................................... 2‐1 Need ..................................................................................................................................................................................................... 2‐1 3.0 ALTERNATIVES .................................................................................................................................................................................... 3‐1 No Action Alternative ................................................................................................................................................................... 3‐1 Proposed Action .............................................................................................................................................................................. 3‐1 Alternatives Considered and Dismissed ............................................................................................................................... 3‐2 4.0 AFFECTED ENVIRONMENT AND POTENTIAL ........................................................................................................................ 4‐1 Physical Resources ........................................................................................................................................................................ 4‐1 Geology, Soils, and Seismicity .............................................................................................................................................. 4‐1 Air Quality .................................................................................................................................................................................... 4‐4 Climate Change .......................................................................................................................................................................... 4‐6 Water Quality .............................................................................................................................................................................. 4‐6 Wetlands and Waters of the U.S. ......................................................................................................................................... 4‐9 Floodplains ............................................................................................................................................................................... 4‐10 Biological Resources .................................................................................................................................................................. 4‐14 Wildlife and Fish ..................................................................................................................................................................... 4‐14 Threatened and Endangered Species and Critical Habitat ................................................................................... 4‐17 Cultural Resources ...................................................................................................................................................................... 4‐21 Socioeconomic Resources ........................................................................................................................................................ 4‐24 Environmental Justice .......................................................................................................................................................... 4‐26 Hazardous Material ............................................................................................................................................................... 4‐30 Noise ............................................................................................................................................................................................ 4‐30 Traffic .......................................................................................................................................................................................... 4‐31 Public Service and Utilities................................................................................................................................................. 4‐31 Public Health and Safety ..................................................................................................................................................... 4‐32 Summary Table ............................................................................................................................................................................ 4‐32 Archeological Resources ..................................................................................................................................................... 4‐22 Historic Properties ................................................................................................................................................................ 4‐22 Native American Consultation .......................................................................................................................................... 4‐24 4.5 CUMULATIVE IMPACTS .................................................................................................................................................................... 5‐1 AGENCY COORDINATION, PERMITS, AND PUBLIC ............................................................................................................... 6‐1 6.1 Agency Coordination .................................................................................................................................................................... 6‐1 6.2 Permits................................................................................................................................................................................................ 6‐2 6.3 Public Involvement ........................................................................................................................................................................ 6‐2 7.0 References .............................................................................................................................................................................................. 7‐1 8.0 LIST OF PREPARERS .......................................................................................................................................................................... 8‐1 9.0 APPENDICES .......................................................................................................................................................................................... 9‐1 Improvements to Lake Bella Vista Dam – Final EA September 2015 i Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 3 of 62 PageID #: 81 Figures Figure 1‐1: Flood Damage to the Lake Bella Vista Dam (west spillway) ...................................................................................... 1‐3 Figure 1‐2: Flood Damage to the Lake Bella Vista Dam (looking east) ......................................................................................... 1‐4 Figure 1‐3: Vicinity Map ...................................... ............................................................................................................................................. 1‐6 Figure 3‐1: Location and Configuration of Facilities .......... .................................................................................................................. 3‐4 Figure 4‐1: Soils ............................................. ...................................................................................................................................................... 4‐3 Figure 4‐2: FEMA Floodplains and NWI Data ....................................................................................................................................... 4‐13 Figure 4‐3: Area of Vegetation to be Removed as Part of Project ................................................................................................ 4‐16 Figure 4‐4: Census 2010 Boundaries Within and Adjacent to the Study Area ..................................................... .................. 4‐29 Table Table 4‐1: 1999 Emissions Summary of Criteria Air Pollutants, Benton County, Arkansas ........................................ ........ 4‐5 Table 4‐2: Federally‐ Listed Threatened, Endangered and Candidate Species of Benton County ................................. 4 ‐17 Table 4‐3: Racial and Ethnic Composition of Study Area and Surrounding Geographies .................................................. 4‐27 Table 4‐4: Racial and Income Composition of Bloc k Groups Near Study Area ....................................................................... 4‐28 Table 4‐5: Impact Summary Table ............................................................................................................................................................ 4‐33 Appendices Appendix A – Study Area Photographs Appendix B – Agency Coordination Appendix C – GeoSearch Radius Report Appendix D – Redman Report Improvements to Lake Bella Vista Dam – Final EA September 2015 ii Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 4 of 62 PageID #: 82 Acronyms and Abbreviations ADEQ .................................................................................................... Arkansas Department of Environmental Quality AGFC ......................................................................................................................... Arkansas Game and Fish Commission AMFI .............................................................................................................................................. Area Median Family Income ANHC .................................................................................................................... Arkansas Natural Heritage Commission ANRC .................................................................................................................... Arkansas Natural Resource Commission APE .......................................................................................................................................................... Area of Potential Effect ASTM .............................................................................................................. American Society for Testing and Materials BFE ................................................................................................................................................................ base flood elevation BMP .................................................................................................................................................. Best Management Practice CEQ .................................................................................................................................... Council on Environmental Quality CFR ................................................................................................................................................ Code of Federal Regulations CWA ........................................................................................................................................................................ Clean Water Act dBA ................................................................................................................................................................ A‐weighted decibels DNL ........................................................................................................................................ Day‐Night Average Sound Level EA .................................................................................................................................................... Environmental Assessment EIS ....................................................................................................................................... Environmental Impact Statement EJ .................................................................................................................................................................. environmental justice EO ........................................................................................................................................................................... Executive Order EPA .................................................................................................................................... Environmental Protection Agency FEMA ................................................................................................................. Federal Emergency Management Agency FIRM .................................................................................................................................................. Flood Insurance Rate Map FPPA ....................................................................................................................................... Farmland Protection Policy Act gpm ................................................................................................................................................................... gallons per minute LF ......................................................................................................................................................................................... linear feet MSA .............................................................................................................................................. metropolitan statistical area NAAQS .................................................................................................................. National Ambient Air Quality Standards NEPA ............................................................................................................................... National Environmental Policy Act NFIP ................................................................................................................................. National Flood Insurance Program Improvements to Lake Bella Vista Dam – Final EA September 2015 iii Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 5 of 62 PageID #: 83 NHPA ........................................................................................................................... National Historical Preservation Act NPL ........................................................................................................................................................... National Priorities List NOAA ..................................................................................................... National Oceanic and Atmospheric Association NPDES ............................................................................................... National Pollutant Discharge Elimination System NRCS .................................................................................................................... Natural Resources Conservation Service NRHP ............................................................................................................................. National Register of Historic Places NWI ............................................................................................................................................. National Wetlands Inventory NWP ................................................................................................................................................................ Nationwide Permit NWSR ............................................................................................................................ National Wild and Scenic Rivers Act PA ......................................................................................................................................................................... Public Assistance PJD ...................................................................................................................... Preliminary Jurisdictional Determination PMF ..................................................................................................................................................... probable maximum flood psi ............................................................................................................................................................ pounds per square inch RQD ..................................................................................................................................................... Rock Quality Designation SHPO .................................................................................................................................. State Historic Preservation Office SW3P ............................................................................................................ Storm Water Pollution Prevention Program T&E ............................................................................................................................................... Threatened and Endangered THPO ................................................................................................................................ Tribal Historic Preservation Office tpy ................................................................................................................................................................................ tons per year US .......................................................................................................................................................................................... US Route USACE .......................................................................................................................................... US Army Corps of Engineers USC .................................................................................................................................................................... United States Code USDA ......................................................................................................................................... US Department of Agriculture USFWS .......................................................................................................................................... US Fish and Wildlife Service USGS ............................................................................................................................................................ US Geological Survey Improvements to Lake Bella Vista Dam – Final EA September 2015 iv Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 6 of 62 PageID #: 84 1.0 INTRODUCTION This Environmental Assessment (EA) has been prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, the President’s Council on Environmental Quality (CEQ) regulations to implement NEPA (40 Code of Federal Regulations [CFR] Parts 1500‐1508), and the Federal EmergencyManagement Agency’s (FEMA) regulations implementing NEPA (44 CFR Part 10). FEMA is required to consider potential environmental impacts before funding or approving actions and projects. The purpose of this EA is to analyze the potential environmental and social impacts of the Improvements to Lake Bella Vista Dam project. FEMA will use the findings in this EA to determine whether to prepare an Environmental Impact Statement (EIS) or Finding of No Significant Impact. Project Authority Lake Bella Vista Dam, located on Little Sugar Creek, is owned by the City of Bentonville, Arkansas (the “Applicant”). Beginning on April 23, 2011, many communities in Arkansas sustained extensive damage from severe storms, tornados, and associated flooding. Subsequently, a Presidential Disaster Declaration, DR‐ 1975‐AR, was signed for this event. Significant flooding that occurred along the creek during this time resulted in the dam overtopping and causing erosion along the entire 410‐foot long downstream slope. The erosion at the toe of the dam caused a progressive slope failure of an 80‐foot wide section of the downstream slope near the west spillway. Toe erosion along the east section of the dam resulted in loss of support beneath the concrete slope cover, leading to extensive breakage and cracking of the concrete cover on the downstream embankment. The water flow beneath the damaged concrete caused erosion of embankment soils. This extensive erosion along the toe and embankment resulted in a slump forming along the crest near the east spillway. Further settlement and cracking resulted in potholes and the washing away of asphalt pavement from the crest of the dam. The structure poses a serious safety risk in the event of another flood and overtopping event such as what occurred on April 19, 2013 when heavy rains caused Little Sugar Creek to flood resulting in a second overtopping of Lake Bella Vista Dam (Heard, Arkansas Democrat Gazette, 2013). Another overtopping event on August 12 and 13, 2013 resulted in two Jersey barriers on the top of the dam being moved by the powerful currents of the floodwaters. The dam is classified as a small, high‐hazard structure under dam safety regulations of the Arkansas Natural Resources Commission (ANRC). Figure 1‐1 and Figure 1‐2 show the damage to the Lake Bella Vista Dam after the above described flood events. FEMA’s Public Assistance (PA) Grant Program provides supplemental Federal disaster grant assistance for debris removal, emergency protective measures, and the repair, replacement, or restoration of disaster‐damaged, publicly owned facilities and the facilities of certain Private Non‐Profit organizations. The PA Program also encourages protection of these damaged facilities from future events by providing assistance for hazard mitigation measures during the recovery process. The project falls under the PA Improvements to Lake Bella Vista Dam – Final EA 1-1 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 7 of 62 PageID #: 85 work categoryD: Water Control Facilities, which includes repair of levees, dams, and flood control channels; the eligibility of these facilities is restricted, however. This EA was prepared in response to the Applicant’s proposal to restore the dam’s function, long‐term usability, and safety by removing and replacing the existing structure. In accordance with 44 CFR for FEMA, Subpart B, Agency Implementing Procedures, Part 10.9, this EA has been prepared pursuant to Section 102 of the NEPA of 1969, as implemented by the regulations promulgated by the President’s Council on Environmental Quality (CEQ; 40 CFR Parts 1500‐1508) Improvements to Lake Bella Vista Dam – Final EA 1-2 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 8 of 62 PageID #: 86 Figure 1‐1: Flood Damage to the Lake Bella Vista Dam (west spillway) April 2, 2013 Post‐flood. August 13, 2013. Improvements to Lake Bella Vista Dam – Final EA 1-3 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 9 of 62 PageID #: 87 Figure 1‐2: Flood Damage to the Lake Bella Vista Dam (looking east) April 1, 2013 Post‐flood. August 19, 2013. Improvements to Lake Bella Vista Dam – Final EA 1-4 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 10 of 62 PageID #: 88 Project Location Lake Bella Vista Dam is located along US Route (US) 71 within Bentonville’s city limits in northwest Arkansas. Its central coordinates are at 36.43270°, ‐94.23091° (NAD 1983). This dam, constructed circa 1918, created Bella Vista Lake, which was subsequently used for recreational purposes. The dam is located in Lake Bella Vista Park just outside the town of Bella Vista (Figure 1‐3). The park is bounded by Veterans Way, Cold Cave Drive, and US 71 (Bella Vista Way). The dam is crossed by the Lake Bella Vista Trail, which is used for walking, jogging, and biking. Approximately 18,000 people a month utilize the Lake Bella Vista jogging trail for recreation purposes. This number does not include recreational activities that do not directly utilize the jogging path such as disc golf, picnicking, and use of the lake for water sports such as canoeing and kayaking. The nearest public park providing comparable facilities (running, walking, biking, fishing, kayaking, disc golf, etc.) is more than 10 miles away. The project site is located within a FEMA‐designated 100‐year floodplain where the base flood elevation (BFE) is approximately 1,031 feet (FEMA, 2007). This area is prone to flooding. Project Description The Lake Bella Vista Dam is comprised of an earthen embankment with concrete spillways located at both the west and east abutments. Both spillways are spanned by concrete vehicular bridges. Pictures of the dam are in Appendix A. The dam is classified as a small, high‐hazard structure under dam ANRC safety regulations and poses a serious safety risk in the event of another flood and dam breach. The Applicant is proposing to improve the dam facility through replacement of the structure. The study area is identified in the figures throughout this EA and is approximately eight acres, which includes both the existing dam structure and its surrounding resources. Details of project actions are provided in Section 3.0. A temporary diversion will be installed to divert Little Sugar Creek around the work area during construction while still remaining within the eight acres study area. Following completion of the project, the recreation area will be returned to pre‐construction conditions, including removal of temporary erosion control measures and re‐connection of the Lake Bella Vista Trail. Improvements to Lake Bella Vista Dam – Final EA 1-5 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 11 of 62 PageID #: 89 Figure 1‐3: Vicinity Map Improvements to Lake Bella Vista Dam – Final EA September 2015 1-6 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 12 of 62 PageID #: 90 2.0 PURPOSE AND NEED Purpose The objective of FEMA’s PA Grant Program is to provide assistance to State, Tribal and local governments, and certain types of Private Nonprofit organizations so that communities can quickly respond to and recovery from major disasters or emergencies declared by the President. Through the PA Program, FEMA provides supplemental Federal disaster grant assistance for debris removal, emergency protective measures, and the repair, replacement, or restoration of disaster‐damaged publicly owned facilities and the facilities of certain Private Nonprofit organizations. The PA Program also encourages protection of these damaged facilities from future events by providing assistance for hazard mitigation measures during the recovery process. The specific purpose of the project is to restore the function, safety, and long‐term usability of Lake Bella Vista as a park amenity and to satisfy current dam and spillway design criteria of the ANRC as discussed in the Rules Governing Design and Operation of Dams, Title 7 (ANRC, 1993). The Lake Bella Vista dam is currently classified as a small, high‐hazard dam. A high‐hazard classification indicates a potential loss of human life and/or excessive economic damage (over $500,000) in the event of dam failure. Spillway design for small, high‐hazard dams shall be for 0.50 probable maximum flood (PMF). Need With the damage to the existing dam structure, there is a need to provide improved functionality and safety of the Lake Bella Vista Dam, to preserve its useful life, to maintain the usability of the associated recreation facilities, and to satisfy dam and spillway design criteria. Improvements to Lake Bella Vista Dam – Final EA 2-1 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 13 of 62 PageID #: 91 3.0 ALTERNATIVES This section describes the project alternatives considered by the City of Bentonville to address the Purpose and Need of the project (Section 2.0). The alternatives analysis consists of the No Action, Proposed Action, and Alternatives Considered and Dismissed. The No Action and the Proposed Action alternatives are carried forwarded in the EA. No Action Alternative Under the No Action Alternative, the existing dam structure would remain as‐is with no improvements to its condition through repair or rehabilitation efforts. The dam would not adhere to the safety regulations of the ANRC and would continue to pose a serious safety risk. Further, the functionality and usability of the dam is a concern, as the severely degraded dam is currently beyond its functional life, particularly in the presence of future floods. If left in the current partially‐breached state described in Section 1.1, the dam is likely to experience additional failure (by advancement of the existing partial breach through the crown of the dam toward the lake), ultimately extending into the normal pool of the lake and resulting in a complete failure and uncontrolled release of the lake contents (water and sediment) into the downstream floodplain of Little Sugar Creek. This alternative would not meet the project’s purpose and need; safety conditions under this option necessitate alternative provisions for flood protection in order to maintain the surrounding recreational area and the flows within Little Sugar Creek. Furthermore, loss of the lake may trigger regulatory issues, in particular those associated with Section 404 permitting under the jurisdiction of the U.S. Army Corps of Engineers (USACE). If no repairs or replacement are undertaken, the lake would need to be drained and the dam removed in a safe manner. Proposed Action The proposed action will include the removal of the currently existing Bella Vista Dam which is located on Little Sugar Creek on the north shore of Lake Bella Vista and replacing it with a new dam structure constructed within the footprint and at the same height of the original dam (Figure 3‐1). The existing dam structurewill be replacedwith a zone earthfill embankment with concrete facing on the crest and upstream and downstream slopes. The zoned embankment will include a clay core and keyway of sufficient depth to cut off subsurface seepage, which is an issue with the current dam structure. The new dam design will prevent normal flows from sweeping and eroding the toe of the dam. This design is keeping with cost studies conducted by the contractor, CP&Y, Inc. (CP&Y) in January 2013 and with FEMA approval. The conceptual replacement dam design will not alter the capacity or normal operating elevation of the lake or impact surrounding infrastructure based on the HEC‐RAS obtained from FEMA in September, 2008 (FEMA 2008). The HEC‐ RAS is an USACE computer program that is widely used to develop floodplain models based on a hydraulic analyses of a watershed for the National Flood Insurance Program (NFIP). Therefore, it is anticipated that the dam replacement project will maintain the hydraulic characteristics of Little Sugar Creek, both upstream and downstream of the dam during flood events. Improvements to Lake Bella Vista Dam – Final EA 3-1 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 14 of 62 PageID #: 92 The conceptual design of the dam’s principal spillway is a reinforced concrete overflow weir, with reinforced concrete‐lined approach section and discharge basin and reinforced concrete sidewalls. The weir crest elevation will match the current normal lake operating level and will provide approximately the same spillway discharge capacity as the two existing spillways. The dual outlet gates in the spillway weir section will be provided for lowering the lake level when necessary. Construction equipment will be staged in the adjacent asphalt and concrete parking area located east and west of the dam. The City of Bentonville has identified a borrow pit for fill material located in Benton County, approximately 9 miles southwest of the project area (36.351147, ‐94.358624). There may be a need for a temporary cofferdam and the dewatering or drawing down of the lake during construction. Also, the dam will be constructed in two stages to manage the flow of Little Sugar Creek. The existingwest spillway will be used to temporarily divert Little Sugar Creek during the eastern half of dam construction. The western half of the dam will be completed by allowing the stream to use the newly constructed east spillway. The spillway structure will be spanned by a pedestrian bridge with reinforced concrete abutments. As part of the dam construction, 0.7 acres of trees and brush will be removed adjacent and north of the dam. Locating the new dam at the site of the existing Bella Vista Dam structure will result in minimal disturbance to environmental or cultural resources as the project will take place on already disturbed land. This action will also result in the least disturbance to park usage by the public. Alternatives Considered and Dismissed The following project alternatives were considered, but each had limitations that precluded their practical implementation. Therefore, they were dismissed and are not discussed any further in the document beyond the below discussion. Rehabilitation of the Lake Bella Vista Dam This project alternative proposes rehabilitation of the existing Lake Bella Vista Dam structure in its current location. Based on the results of geotechnical, hydrologic and hydraulic analyses of the existing dam, repair of the partial breach was deemed infeasible. The dam is susceptible to frequent overtopping of the unprotected earthfill embankment, which is a recurring condition that will eventually lead to a complete (and possibly sudden) failure. The west spillway may have structural problems of unknown severity, with visible evidence of cracking and spalling of the concrete, and the gates are in poor and almost inoperable condition. There are also substantial under seepage and slope stability issues. Actual construction of breach repairs in the confined area adjacent to the west spillway would be difficult and likely ineffective, since the placement of good‐quality compacted fill directly abutting the existing fill (which is of highly‐variable content and poor quality for an earthfill dam) would not achieve the consistency and quality control associated with a reconstructed dam. The probable high cost of repairs, with no achievement of a long‐term solution to extend the life of the dam, is not considered to be a prudent use of public funds and is therefore not justifiable, and the repair alternative is deemed inconsistent with the City of Bentonville’s objective of maintaining Lake Bella Vista as a long‐term resource. Improvements to Lake Bella Vista Dam – Final EA 3-2 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 15 of 62 PageID #: 93 Because of the condition of the structure and the cost of repairs, this alternative was determined to be infeasible and was not carried forward for further evaluation. Relocation of the Lake Bella Vista Dam Relocation of the Lake Bella Vista Dam was considered as an alternative to rehabilitating or replacing the dam in place. Under this alternative, the dam would be relocated further downstream at the north end of Lake Bella Vista. Relocating the dam would result in greater environmental impacts as it would involve installing a dam in a new location, which would lead to additional hydrological and biological impacts. After agency consultation, it was decided to not carry this alternative forward for further evaluation. Removal of Lake Bella Vista Dam with No Replacement The removal of Lake Bella Vista Dam with no planned replacement was considered as an alternative to replacing the dam in place. Under this alternative, Lake Bella Vista would be allowed to drain under controlled conditions, eliminating the lake entirely and returning Little Sugar Creek to an unimpeded stream. The City of Bentonville has interpreted this alternative to be inconsistent with the restrictions in the Special WARRANTY DEED filed of record in Benton County, AR., Nov.21, 2006 in DEED Book 2006, Page 55778, following the purchase of Lake Bella Vista Park by the City of Bentonville from Bentonville/Bella Vista Trailblazers Association, Inc. In addition, it would completely eliminate Lake Bella Vista as a park amenity, which would go against the purpose and need of the project to maintain Lake Bella Vista as a recreational amenity. There are few lakes within the area of the project for use in recreational activities. The removal of Lake Bella Vista would greatly affect the ability of the public to enjoy lake habitats for recreational purposes. This alternative would also go against the wishes of the Bentonville City Council which has voted to keep Lake Bella Vista as a recreational amenity for the surrounding community. This alternative was not considered in the Phase 2 Engineering Report produced by CP&Y as it was not deemed viable for consideration due to the deed restrictions on the study area and the expressed wishes of the Applicant. Therefore, there are no preliminary design plans for this alternative. Improvements to Lake Bella Vista Dam – Final EA 3-3 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 16 of 62 PageID #: 94 Figure 3‐1: Location and Configuration of Facilities Improvements to Lake Bella Vista Dam – Final EA September 20153-4 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 17 of 62 PageID #: 95 4.0 AFFECTED ENVIRONMENT AND POTENTIAL IMPACTS This section includes a description of existing conditions, and assessment of potential impacts from the No Action Alternative and the Proposed Action Alternative. Conditions and mitigation measures to offset these impacts are also discussed. Table 4‐5 summarizes these potential impacts and mitigation measures (Section 4.5). Physical Resources Geology, Soils, and Seismicity The Geologic Map of Arkansas indicates that the project site is underlain by the Chattanooga Shale and Cotter and Jefferson City Dolomites. These formations, comprised of shale and dolomite with thin beds of sandstone and limestone with some chert, are located at or slightly above the floodplain (USGS, 1993). The Ozark Highlands where Lake Bella Vista is located are dominated by limestone and dolomite bedrock. Both types of rock are water soluble, allowing rainwater that absorbs carbon dioxide in the air and other acids from decaying organic matter on the ground to slowly dissolve the rock. This allows for the creation of breaks, passages, and caves in the bedrock. Land characterized by this sort of water soluble bedrock is known as having karst topography. Karst topography in the Ozarks includes features such as caves, springs and sinkholes (ANHC, 2013). Approximately 25% of the national groundwater supply is located in cave and karst regions. Karst systems can move large quantities of water over long distances relatively quickly, but the fast transmission of water allows for very little natural filtration, leaving the water in these systems more vulnerable than usual to pollution. Contamination of aquifers can happen quickly and endangers sensitive plant and animal species, as well as humans (ANHC, 2013). Site surveys of the study area indicate that there are no caves, springs, sinkholes related to karst, or karst openings within the study area (Redman, 2013). Engineering aspects of the “bedrock” subsurface geology for the dam’s construction have been addressed in a geotechnical report by Grubbs, Hoskyn, Barton & Wyatt, Inc. titled Geotechnical Investigation – Phase I, Lake Bella Vista Dam, Bella Vista, Arkansas dated September 2009. For this study two deep borings were drill and sampled to determine foundation conditions and leakage potential through the foundation and abutments. The borings were drilled through the existing earthen embankment to depths of 61.5 feet and 57 feet, penetrating more than 40 feet of bedrock consisting of moderately hard, fine‐to medium‐grained dolomite with occasional chert seams and nodules and shale seams. Some healed horizontal fractures and weathered seams were also encountered. Rock was cored using an NX double tube core barrel. The borings did not encounter detectable voids, caves or other evidence of karst geologic conditions at the site. Water pressure testing was conducted in both borings in the rock sections to assure no significant leakage was occurring or would occur in the foundation for a new dam constructed at this location. Boring B‐A took 1.15 gallons per minute (gpm) at a pressure of 60 pounds per square inch (psi) in the zone Improvements to Lake Bella Vista Dam – Final EA 4-1 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 18 of 62 PageID #: 96 from 23.5 feet to 41.5 feet and 0.22 gpm from 44 feet to 61.5 feet at 50 psi. Boring B‐B was tested from 19.5 feet to the total depth of 57 feet. At 50 psi the rock took 1.1 gpm. Core recovery was 100 percent in both borings and the Rock Quality Designation (RQD) generally exceeded 9 0. Unconfined compressive strengths in the rock were found to be on the order of 3400 psi to 12,300 psi. All indications are that the dam foundation bedrock conditions are excellent. A cutoff grout curtain does not appear to be warranted. A shallow inspection trench in the bedrock would be adequate. There is no reporting or evidence of leaking from the reservoir, i.e. sinkhole development, during the operational history of the dam and lake. There is leakage through an approximate four‐foot gravel layer that overlies the bedrock. That leakage emits from the downstream toe of the embankment. It will be stopped with the construction of the new embankment that will have an impervious core. Supporting the conclusions stated above concerning the lack of evidence of adverse effects of karstic geology on the design and construction of a dam on Little Sugar Creek at the selected location is a geotechnical report on a considered dam site some 500 feet downstream from the original site. In June 2009 four borings were made at the alternate site. The deepest boring was 39.5 feet deep, penetrating 28.5 feet of dolomitic rock similar to the bedrock at the upstream site. Again, no voids, caves or other evidence of karstic geology was encountered in any of the borings. Water pressure tests in Boring B‐2 from 15.5 feet to 24 feet and 26.5 feet to 39 feet were conducted. Maximum water take in the upper zone was 0.53 gpm at 25 psi. Maximum water take in the lower zone was 0.69 gpm at 35 psi. Tests in Boring B‐3 showed similar results. Testing from 18 feet to 29.5 feet showed a maximum water take of 0.86 gpm at 35 psi. There was no water take in the zone from 29.5 feet to 39.5 feet at pressures up to 35 psi. The core recovery and RQD percentages were slightly lower than was obtained at the original site. Details of this study can be found in a report by Grubbs, Hoskyn, Barton & Wyatt, Inc. titled Geotechnical Investigation‐Phase I, New Lake Bella Vista Dam, Bella Vista, Arkansas, dated July 2009. A review of the United States Geological Survey (USGS) 7.5‐minute topographic map for the Bentonville North quadrangle indicates that the approximate elevation of the project site ranges from 997 to 1018 feet above mean seal level (USGS, 2010). The topography in the immediate vicinity of the project is relatively flat with large elevation changes on either side of the lake. According to the U.S. Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS) Web Soil Survey, the area within the study area contains the following soil types: Captina silt loam (CnB), Secesh gravelly silt loam, (Se), and Waben very gravelly silt loam (WeC) (USDA, 2014) (Figure 4‐1).Hydric soils, defined by the National Technical Committee for Hydric Soils as soils that form under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part, are not present within the study area (Federal Register, 1994). Secesh gravelly silt loam is predominantly non‐hydric and all other soils are non‐hydric (USDA, 2014). Improvements to Lake Bella Vista Dam – Final EA 4-2 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 19 of 62 PageID #: 97 Figure 4‐1: Soils Improvements to Lake Bella Vista Dam – Final EA September 20154-3 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 20 of 62 PageID #: 98 The Farmland Protection Policy Act (FPPA) requires Federal agencies to “minimize the extent to which Federal programs contribute to the unnecessary conversion of farmland to nonagricultural uses…” Captina silt loam and Secesh gravely silt loam are considered to be prime farmland in all areas, whereas Britwater gravelly silt loam is considered to be farmland of statewide importance (USDA, 2014). However, the land within the study area is currently being utilized for parkland and is already disturbed by the development of Lake Bella Vista Park and Lake Bella Vista Dam. Therefore, the FPPA does not apply. The project is located in northwestern Arkansas, which is in amid to low risk area for seismic risk, according to the USGS (USGS, 2008). No Action Alternative ‐ Under the No Action Alternative, no construction would occur. There would therefore be no impacts to geology or soils as a result of construction. If the dam continues to operate as‐is, continued overtopping and flooding is expected at the dam site and downstream; this would result in further erosion of the soils along Little Sugar Creek and degradation of its banks. This could have an impact on soils in the area. Furthermore, if the structural integrity of the dam continues to degrade the possibility exists for a complete collapse of the dam structure, resulting in an uncontrolled release of the contents of Lake Bella Vista into Little Sugar Creek. This could result in a massive release of sedimentation into Little Sugar Creek as well as extreme levels of erosion along the banks of Little Sugar Creek. Proposed Action Alternative ‐ Under the Proposed Action Alternative, construction activities will temporarily displace soil materials on the project site in order to demolish the currently existing dam structure and build its replacement. The Applicant will be required to submit Storm Water Pollution Prevention Program (SW3P) and National Pollutant Discharge Elimination System (NPDES) permit applications, and obtain these permits prior to construction. Implementation of appropriate Best Management Practices (BMPs) will be required at the construction location in order to minimize erosion; these may include the installation of silt fences, rock check dams, and permanent revegetation of disturbed soils. Excavated soil and waste materials will be managed and disposed of in accordance with applicable local, State, and Federal regulations. If contaminated materials are discovered during construction activities, work will cease until the appropriate procedures and permits could be implemented for cleanup and disposal. It is not anticipated that the project will impact karst features as nonewere identifiedwithin the study area (Grubbs, Hoskyn, Barton, & Wyatt, 2009). Although a geotechnical report determined that karst geology does not exist in the project area, if these features are found during construction, consultation will be initiated with the Arkansas Natural Heritage Commission (ANHC), the U.S. Fish and Wildlife Service (USFWS), and other relevant agencies. Air Quality The U.S. Environmental Protection Agency (EPA) is responsible for setting and enforcing the National Ambient Air Quality Standards (NAAQS) (40 CFR part 50) in accordance with the Clean Air Act. The NAAQS include both primary and secondary air quality standards: primary standards set limits to protect public health, including the health of "sensitive" populations such as asthmatics, children, and the elderly; secondary standards set limits to protect public welfare, including protection against decreased visibility, damage to animals, Improvements to Lake Bella Vista Dam – Final EA 4-4 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 21 of 62 PageID #: 99 crops, vegetation, and buildings (EPA, 2011a). The six principal pollutants, known as “criteria pollutants”, monitored in the NAAQS are: carbon monoxide, lead, nitrogen dioxide, particulate matter, ozone, and sulfur oxides. Areas that meet the NAAQS for the criteria pollutants are considered to be “in attainment.” Those that do not meet the air quality standard for one or more of the criteria pollutants may be designed as “nonattainment” for that standard and require action by the local jurisdiction. According to the 1999 Emissions Summary of Criteria Air Pollutants (Scorecard, 2011), mobile sources are the largest contributor of air pollutant emissions in Benton County, except among nitrogen oxides, sulfur oxides, and volatile organic compounds. Both nitrogen and sulfur oxides are primarily emitted from point sources, while volatile organic compounds are primarily emitted through area sources (Table 4‐1). Table 4‐1: 1999 Emissions Summary of Criteria Air Pollutants, Benton County, Arkansas Pollutant Mobile Sources a (tpy) Areas Sources b (tpy) Point Sources c (tpy) All Sources d (tpy) Carbon Monoxide 30,351 9,265 570 40,186 Nitrogen Oxides 5,250 1,129 6,102 12,481 Particular Matter (PM10) 8,601 4,660 243 13,504 Sulfur Oxides 432 582 11,858 12,873 Volatile Organic Compounds 3,238 4,074 339 7,650 Source: Scorecard, 2011. Notes: the latest available year for criteria air pollutant emission data was 1999 tpy = tons per year emitted a Includes both on‐road vehicles (such as cars, trucks and buses) and off‐road equipment (such as ships, airplanes, agricultural and construction equipment) b Includes major industrial facilities like chemical plants, steel mills, oil refineries, power plants, and hazardous waste incinerators. c Point sources are defined as those that emit 10 tpy of any of the criteria pollutants or hazardous air pollutants d Mobile sources, area sources, and point sources combined. The air quality standard for ground‐level ozone, as set by the EPA, is 0.075 ppm for 8‐hour, and 0.12 ppm for 1‐hour (EPA, 2011c). According to the EPA Green Book, Benton County is Improvements to Lake Bella Vista Dam – Final EA 4-5 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 22 of 62 PageID #: 100 in attainment, meaning their 8‐hour emissions of ground‐level ozone do not exceed this standard (EPA, 2011d). No Action Alternative ‐ Under the No Action Alternative, no construction or development would take place; therefore, there would be no air quality impacts. Proposed Action Alternative ‐ The project will not emit any criteria air pollutants. Under the Proposed Action Alternative, no long‐term impacts to air quality will occur. Temporary air quality impacts may occur during construction; however, these impacts will be short‐term and isolated in nature. Impacts will primarily result from the mobilization of dust during site preparation and construction. These impacts will be mitigated through BMPs, such as watering of the construction site and limiting the speed of delivery and construction vehicles. Emissions from heavy machinery and construction equipment could temporarily increase levels of some of the criteria pollutants. To reduce these emissions, contractors will reduce the run time of fuel‐burning equipment wherever possible and avoid idling; they will also ensure engines are properly maintained. Climate Change Climate change is a global phenomenon attributable to human activities and natural processes which result in emissions of greenhouse gases, particularly atmospheric carbon dioxide, that impact our global climate. Climate change has the potential to cause the sea level to rise and increase the intensity of storm events. The project will not affect climate change but rather address a potential impact of climate change by providing protection against flooding, one of the results of more frequent or severe storm events, bymaintaining the existing lake level and hydrology of the study area. Water Quality Surface Water Quality The Clean Water Act (CWA) (33 United States Code (USC) 1251‐1376), as amended by the Water Quality Act of 1987, is the major federal legislation governing water quality. The USGS 7.5‐minute quadrangle map for Northern Bentonville shows Little Sugar Creek and Lake Bella Vista falling within the study area. Little Sugar Creek and its tributaries are identified as perennial streams on the topographic map. A site visit conducted by a CP&Y biologist on April 3, 2013, identified two man‐made drainage channels entering Lake Bella Vista on the northwestern and southwestern banks. Stormwater from US 71 likely sheet flows into these channels and into the lake during precipitation events. Both of these channels fall outside of the study area. No drainage channels or drains were observed in the study area itself but there are two spillways associated with the Lake Bella Vista Dam which allow water to pass between Lake Bella Vista and Little Sugar Creek. Stormwater likely sheet flows over impervious cover into Lake Bella Vista or Little Sugar Creek. The CWA requires states to periodically assess and report on the quality of waters in their State. Section 303(d) of the CWA also requires states to report on streams and lakes identified as impaired for one or more pollutants and that do not meet one or more water Improvements to Lake Bella Vista Dam – Final EA 4-6 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 23 of 62 PageID #: 101 quality standards. The state must consider strategies to reduce the input of the specific pollutant(s) restricting waterbody uses in order to restore and protect the resource value. Neither Little Sugar Creek nor Lake Bella Vista has been designated as a 303(d) Impaired Water (ADEQ, 2012). The National Wild and Scenic Rivers Act (NWSR) was created to preserve certain rivers with outstanding natural, cultural, and recreational values in a free‐flowing condition for the enjoyment of present and future generation. Rivers protected under the NWSR may be designated by Congress or, if certain requirements are met, the Secretary of the Interior. Each river is administered by either a state or federal agency. Designated segments may not include the entire river and may just include tributaries. There are no wild and scenic rivers or tributaries as designated by the Wild and Scenic Rivers Act within the study area (NWSRS, 2013). A Hazardous Materials Radius Report has been generated on the subject property (GeoSearch, 2013). Although surface water quality testing was not performed as part of the field study, there are no recognized environmental conditions that indicated the potential for contamination of surface waters on or adjacent to the project site. Sediments have accumulated on the upstream side of the dam. These sediments will be removed prior to dam demolition and reconstruction. Because neither Lake Bella Vista nor Little Sugar Creek have been identified as impaired segments under the CWA and because Lake Bella Vista has been dredged twice in the past (see Section 4.3.1 for further details), sediments will not be tested during removal. All other relevant local, State, and Federal guidelines for removal of sediments will be followed. It is possible that archeologists will need to sample the removed sediments prior to disposal (see Section 4.3.2). Public drinking water is provided to the study area by the City of Bentonville. The City of Bentonville sources its water from local rivers, lakes, streams, ponds, reservoirs, springs, and wells. Water is also purchased from the Beaver Water District which procures its water from Beaver Lake. No Action Alternative ‐ Under the No Action Alternative, no construction would take place and no impacts to surface water quality would therefore occur. However, if the structure of the dam continues to degrade, water quality could be temporarily impacted during further overtopping events or in the event of a dam collapse which would result in an uncontrolled release of the contents of Lake Bella Vista, including sediments, into Little Sugar Creek. Continued overtopping and potential collapse of the dam could also lead to continued erosion within the downstream portion of Little Sugar Creek. Proposed Action Alternative ‐ The Proposed Action Alternative will add impervious cover to the study area in the form of concrete riprap on both the downstream and upstream portions of the new dam. Precipitation that falls on this new cover is expected to sheet flow into Little Sugar Creek and Lake Bella Vista with no significant impacts to water quality. Under the Proposed Action Alternative, temporary short‐term impacts to surface water quality in the area of the project will occur during construction due to soil and sand erosion. BMPs such as silt fences, rock check dams, and revegetation will minimize impacts from erosion during construction to the greatest extent practicable. A SW3P and NPDES permit Improvements to Lake Bella Vista Dam – Final EA 4-7 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 24 of 62 PageID #: 102 will be required prior to construction. There are no anticipated impacts to public drinking water as a result of the project. Groundwater Quality The project is located in northern Arkansas where groundwater supplies are more limited than in the remainder of the state. Much of the Ozark Plateau region is underlain by carbonate rocks, which are soluble in the presence of water. The solubility of the rock has led to the formation of large openings through which water passes so quickly that contaminants in the water are not filtered out. As a result, water from shallow wells may not be suitable for human consumption without treatment. Two aquifers that serve as the principal source of high quality water for communities in northern Arkansas are the Roubidoux Formation and the Gunter Member of the Gasconade Formation. Both aquifers are permeable sandstone and carbonate units of the Ordovician age (Arkansas Geological Survey, 2013). Based on a map from the Nature Conservancy, the study area is located in an area of moderate groundwater recharge sensitivity. However, the southern portion of Lake Bella Vista and the upstream portion of Little Sugar Creek are identified as areas of high groundwater recharge sensitivity. These areas are especially sensitive to pollution and contamination (TNC, 2013). A Hazardous Materials Radius Report has been generated on the subject property (GeoSearch, 2013). Although groundwater quality testing was not performed as part of the field study, no recognized environmental conditions were identified that indicated the potential for contamination of groundwater. No Action Alternative – Under the No Action Alternative, no construction would occur and therefore, there would be no impacts to groundwater. Further deterioration in the structure of the dam leading to further overtopping events or a dam collapse would be unlikely to impact groundwater. Proposed Action Alternative – Under the Proposed Action Alternative, construction activities will not reach a sufficient depth to impact groundwater. The construction will not involve any deep excavation (or open cuts), drill shafts, or pilings. The dam section is a compacted earth embankment with a clay core center that is keyed into the existing impermeable rock approximately 5 to 10 feet in depth. The outfall structures of reinforced Portland cement concrete will be founded on a shallow spread footings requiring minimum excavation into the existing impermeable rock. The impact to the local groundwater will be negligible. If the action will require additional excavation to groundwater depths, consultation with the EPA and the Arkansas Department of Environmental Quality (ADEQ) will be required to identify appropriate mitigation. The project is not expected to impact the areas of high groundwater recharge sensitivity on the southern end of Lake Bella Vista and the upstream portion of Little Sugar Creek. Improvements to Lake Bella Vista Dam – Final EA 4-8 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 25 of 62 PageID #: 103 Wetlands andWaters of the U.S. Section 404 of the CWA mandates the USACE regulate the discharge of dredged or filled material into waters of the U.S., including wetlands. Additionally, Executive Order (EO) 11990, Protection of Wetlands, requires Federal agencies to avoid impact to wetlands to the greatest extent possible. Based on USACE definition, wetlands are areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of wetland vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetland data from the National Wetlands Inventory (NWI) shows one riverine area north of the dam and a large lacustrine open water area south of the dam, portions of which fall within the study area (Figure 4‐2). Lake Bella Vista is located on Little Sugar Creek, which is classified as a perennial stream on topographic maps (USGS, 2010). A wetland delineation was performed by Bonnie Doggett, a biologist with CP&Y, in April, 2013 and no wetlands were identified in the study area. However, 1,262 linear feet (LF) of Little Sugar Creek and its tributaries fall within the study area. Furthermore, 1.53 acres of Lake Bella Vista, which is hydrologically connected to Little Sugar, falls within the study area. Little Sugar Creek, its tributaries, and Lake Bella Vista are considered Waters of the U.S. under Section 404 of the CWA. Therefore, any discharge of fill material into Little Sugar Creek, one of its tributaries, or Lake Bella Vista is subject to regulation by the USACE and will require agency coordination to determine the type of Section 404 permitting requirements. No Action Alternative ‐ Under the No Action Alternative, there would be no construction and therefore, no immediate impacts to waters of the U.S. would occur. However, if the structure of the dam continues to deteriorate, further overtopping events or a dam collapse could occur. This could lead to a potentially sudden and dramatic impact to Little Sugar Creek and Lake Bella Vista aswater and sediment would be released into Little Sugar Creek downstream of the dam and water levels would change suddenly and potentially irrevocably both upstream and downstream of the dam. Release of sediment from Lake Bella Vista into the downstream portion of Little Sugar Creek and the change in function of the lake into a continuous stream upstream and downstream of the dam may require coordination with the USACE to determine the type of Section 404 permitting requirements, if any. Proposed Action Alternative ‐ Under the Proposed Action Alternative, there will be no permanent impacts to Little Sugar Creek or Lake Bella Vista. The new dam structure with divided spillway will maintain the some flow rates and hydrologic conditions as currently exist within the study area. Temporary impacts to Little Sugar Creek will occur as water must be diverted around the construction site during dam removal and rebuilding. Though exact temporary impacts are currently unknown, the final configuration of the project will be developed in order to minimize these impacts. Reasonable measures will be taken to protect the waters of the U.S. in the area of the Lake Bella Vista dam and coordination with the USACE will be ongoing through construction planning and staging at this site. As previously Improvements to Lake Bella Vista Dam – Final EA 4-9 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 26 of 62 PageID #: 104 discussed, the USACE has jurisdictional authority over Section 404 of the CWA. Under Section 404, authorization must be obtained from the USACE for discharges of dredged or fill material into waters of the U.S., including jurisdictional wetlands. Under the proposed action alternative, there will only be temporary impacts to Little Sugar Creek as the dam design will maintain the existing lake level, flow of Little Sugar Creek, and the overall hydrology of the study area. At this stage, it is assumed that Nationwide Permit (NWP) 3 – Maintenance or NWP 31 – Maintenance of Existing Flood Control Facilities will be used to authorize the Proposed Action pending approval from the USACE. The USACE also has authority over Section 10 of the Rivers and Harbors Act of 1899, which allows the USACE to regulate work in, or affecting, navigable waters of the U.S. Little Sugar Creek is not listed as a navigable water by the USACE Little Rock District. Since the proposed action alternative will not affect any navigable waters, a Section 10 permit will not be required. A Preliminary Jurisdictional Determination (PJD) report was submitted to the USACE on August 5, 2013. In a response dated December 10, 2013, the USACE stated that they concur with the conclusions of CP&Y’s investigation of the site. Their letter is available in Appendix B of this report. Floodplains According to EO 11988, Floodplain Management, Federal agencies are required to avoid direct or indirect support of development within the 100‐year floodplain whenever there is a practicable alternative. FEMA uses Flood Insurance Rate Maps (FIRMs) to identify the regulatory 100‐year floodplain for the National Flood Insurance Program. In accordance with EO 11988, the latest FIRMs were examined during preparation of this EA. Given that the majority of the study area is located within Lake Bella Vista and Little Sugar Creek, the entire project site is located in Flood Zone AE, which is a 100‐year flood zone (Figure 4‐2) (see also Community Panel Number 05007C0090J, dated September 28, 2007). The majority of the study area is also located within a NFIP delineated floodway, which is also shown on Figure 4‐2. No Action Alternative ‐ Under the No Action Alternative, no construction or development would occur in the study area. Therefore, there would be no immediate impacts to floodplains under the No Action Alternative. However, if the condition of the dam’s structure continues to deteriorate and there is a collapse, there could be a major impact to the existing floodplain as water levels upstream and downstream of the project would be suddenly and dramatically changed. This would likely result in the deposit of sedimentation from Lake Bella Vista into Little Sugar Creek aswell as further erosion of Little Sugar Creek downstream of the dam. This would have the potential to impact flood elevations within the study area as well as in the general area of the project. Proposed Action Alternative ‐ Under the Proposed Action Alternative, development will occur within the FEMA‐designated 100‐year floodplain (Zone AE). Because of the high velocities and overtopping potential of the water held by the dam, the proposed alternative will require concrete riprap to face both the upstream and downstream slopes of the new dam structure. Additional riprap or other protection will also be required in the toe area Improvements to Lake Bella Vista Dam – Final EA 4-10 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 27 of 62 PageID #: 105 along the base of the dam (the existing Little Sugar Creek area below the dam) to prevent erosion, undercutting, and scouring. This additional concrete or other protective covering will increase the amount of impervious cover in the study area. However, the structure is designed to maintain the currently existing hydraulic characteristics of Little Sugar Creek – both upstream and downstream of the dam – during flood events to prevent significant changes in flood elevations (CP&Y, 2011). The project design is consistent with federal guidance [44 CFR Section 9.2(b)], which seeks to minimize the impacts of floods on human health, safety and welfare, and attain the widest range of beneficial uses of the environment without degradation or risk to health and safety. The Floodplain Management Checklist (Eight‐Step Planning Process for Floodplains) has been completed in compliance with 44 CFR Part 9. The steps of the checklist are as follows: Step 1 – Determine if the proposed action is located within the base floodplain: The project is located within the 100‐year floodplain. Step 2 ‐ Early Public Notice (Preliminary Notice): The public will be notified of the project through the local newspaper, the Benton County Daily Record, after FEMA approval of the draft EA and the release of funds to the Applicant necessary for the project to proceed. It is anticipated that the public will largely support the project as the Lake Bella Vista dam has been in disrepair for years and has been discussed at numerous public hearings and in the local newspaper. Step 3 – Identify and evaluate alternatives to locating in the base floodplain: Due to the nature of the project (dam replacement), there is no feasible alternative to locating the project outside the floodplain. Even if the dam were to be removed or relocated, the project will still be located within the floodplain of Little Sugar Creek. The dam is considered Functionally Dependent per 44 CFR Section 9.4, which means that it cannot fulfill its intended purpose unless it is located in close proximity to water. Step 4 ‐ Identify impacts of proposed action associated with occupancy or modification in floodplain: The project will not affect occupancy of nearby areas as it has been designed to maintain the existing hydrology of the floodplain and to maintain currently existing lake levels and flood levels. Based on the HEC‐RAS, no significant changes from existing conditions are anticipated as a result of the project. Therefore, it is anticipated that the dam replacement project will maintain the hydraulic characteristics of Little Sugar Creek, both upstream and downstream of the dam during flood events. The new dam will be constructed with improved spillways and the downstream face will be armoured with concrete riprap to minimize the erosion effects during the 100 Year storm event when the entire dam will be functioning as a spillway. All design and construction work will be in accordance with current local, state and federal criteria. Step 5 – Design or modify the proposed action to minimize threats to life and property and preserve its natural and beneficial floodplain values: The project will not increase threats to life and property as it has been designed to maintain the existing hydrology of the floodplain. Currently existing flood levels will not be significantly altered based on the HEC‐RAS. Improvements to Lake Bella Vista Dam – Final EA 4-11 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 28 of 62 PageID #: 106 Step 6 – Re‐evaluate the proposed action: The action will not expose any segment of the population or sensitive ecological receptors to increased flood hazard as it has been designed to maintain currently existing conditions within the floodplain. Therefore, it is still practicable to construct the project within the floodplain. Step 7 – Findings and Public Explanation (Final Notice): Final notice will be given to the public after the draft EA has been accepted by FEMA and following an initial public comment period. Public comments are anticipated to be in support of the project as it has been discussed by the Applicant in council meetings numerous times. Per 44 CFR 9.12, the final public notice will be published at least 15 days prior to any construction occurring. Step 8 – Implement the action: The project will be implemented once final approval has been received from all agency stakeholders and the public has been given sufficient time to comment upon the action. In support of this project, the City Engineer for the City of Bentonville (who is also the Floodplain Administrator) indicated in a letter dated August 22, 2013 that the City of Bentonville is in favor of the project moving forward. This support is contingent upon the project complying with the City of Bentonville Flood Damage Prevention Ordinance. A copy of the letter and reference to the Ordinance are available in Appendix B of this report. As noted in Section 4.1.5, the project is not subject to Section 10 of the Rivers andHarbors Act and/or any work performed in the area of discharge of fill material into Little Sugar Creek does not require a Section 10 permit from the USACE. Improvements to Lake Bella Vista Dam – Final EA 4-12 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 29 of 62 PageID #: 107 Figure 4‐2: FEMA Floodplains and NWI Data Improvements to Lake Bella Vista Dam – Final EA September 20154-13 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 30 of 62 PageID #: 108 Biological Resources Wildlife and Fish The study area is located within the Level III Ozark Highlands ecoregion. Habitat diversity and species richness within this ecoregion are notably high. Historic vegetation found throughout the ecoregion is typically oak‐hickory forest. Open forests are common on rugged terrain whereas pastureland and hay crops are common on more level sites. Shortleaf pine grows on steep escarpments and glades dominated by grass and eastern red cedar are found on shallow soils (EPA, 2004). The study area is located within the Level IV Springfield Plateau ecoregion which is located within the Ozark Highlands. This ecoregion has upland areas dominated by oak‐hickory and oak‐hickory‐pine forests. Savannas and tall grass prairies historically also occurred within this area and were maintained by fire. Much of the historic vegetation within this ecoregion has been replaced by agriculture and expanding residential areas (EPA, 2004). Plant species observed during the April 2013 field survey by CP&Y include: Black walnut (Juglans nigra), wild cherry (Prunus serotina), Chinese privet (Ligustrum sinense), honey locust (Gleditsia triacanthos), box elder (Acer negundo), maple (Acer sp.), osage orange (Maclura pomifera), wild grape (Vitis sp.), saw greenbrier (Smilax bona‐nox), poison ivy (Toxicodendron radicans), flannel mullein (Verbascum thapsus), poison hemlock (Conium maculatum), bedstraw (Galium sp.), rough cocklebur (Xanthium strumarium), poke salad (Phytolacca sp.), and wild rye (Elymus canadensis). The study area is located within a rural/suburban area. Wildlife species found in the study area will likely be those that are adapted to this habitat type, including white‐tailed deer (Odocoileus virginianus), bobcats (Felix rufus), raccoons (Procyon lotor), Virginia opossums (Didelphis virginiana), fox squirrels (Sciurus niger), and eastern cottontail rabbits (Sylvilagus floridanus). Black bears (Ursus americanus) are likely rare but possible in the area (AGFC, 2013). The study area is located on the edge of the Central and Mississippi Flyways for migratory birds. Migratory bird species are protected under the Migratory Bird Treaty Act (16USC 703‐ 712) which makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation or carriage, or export, at any time, or in any manner, any migratory bird” without prior permitting and approval. It is possible that migratory birds could use habitat within the study area during migration. According to the National Oceanic and Atmospheric Administration National Marine Fisheries Service, there is no Essential Fish Habitat located within or adjacent to the study area (NOAA, 2013). No Action Alternative ‐ Under the No Action Alternative, there would be no immediate impacts to wildlife and fish as a result of the project. However, if the condition of the dam’s structure continues to deteriorate, resulting in a collapse, there could be major impacts to Improvements to Lake Bella Vista Dam – Final EA 4-14 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 31 of 62 PageID #: 109 the surrounding habitat both upstream and downstream of the study area as water levels would be suddenly and dramatically altered. Lake Bella Vista would likely be almost completely dewatered without the dam structure in place, eliminating all lake habitats within the study area and altering flow rates in the downstreamportion of Little Sugar Creek. Potential habitat for fish and wildlife species would be destroyed or permanently altered. Proposed Action Alternative – Under the Proposed Action Alternative, impacts to biological resources such as fish and wildlife species will be short‐term and minor. Permanent impacts from the project are expected to affect the area of vegetation at the toe of the currently existing dam structure as shown in Figure 4‐3. This vegetation will be removed; however, due to the small size and relatively isolated nature of this area, these impacts are not anticipated to have a major effect on biological resources and they will not significantly affect similar, more abundant habitat further upstream or downstream. Wildlife species may be temporarily displaced from the study area during construction activities but will be able to use similar, unaffected habitat nearby. The new dam design will allow for the movement of aquatic species from Lake Bella Visa to Little Sugar Creek but will not allow for movement from the downstream section of Little Sugar Creek to Lake Bella Vista. This is in keeping with the design of the existing dam and will therefore not affect existing aquatic migration patterns. Improvements to Lake Bella Vista Dam – Final EA 4-15 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 32 of 62 PageID #: 110 Figure 4‐3: Area of Vegetation to be Removed as Part of Project Improvements to Lake Bella Vista Dam – Final EA September 20154-16 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 33 of 62 PageID #: 111 Threatened and Endangered Species and Critical Habitat The endangered species list for Benton County maintained by the USFWS was reviewed on December 2, 2013 (Table 4‐2). The bald eagle has been delisted, as of August 9, 2007. This species is protected by the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. Table 4‐2: Federally‐ Listed Threatened, Endangered and Candidate Species of Benton County Common Name Scientific Name Fe de ra l St at us Habitat Description Likely Presence Bald eagle Haliaeetusleucocephalus R Breeding habitat consists of coastal areas, bays, rivers, lakes, reservoirs, or other bodies of water that support prey species. Usually nest in tall trees or on pinnacles or cliffs near water. Tend to avoid areas with high levels of human disturbance. Likely transient through study area. Lake Bella Vista provides foraging habitat for this species. Human disturbance likely to limit species presence. Piping plover Charadrius melodus T Sandy upper beaches, especially where scattered grass tufts are present, and sparsely vegetated shores and islands of shallow lakes, ponds, rivers, and impoundments. Unlikely in the study area. Beaches of Lake Bella Vista are not sandy. Human disturbance likely to limit species presence. Improvements to Lake Bella Vista Dam – Final EA 4-17 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 34 of 62 PageID #: 112 Common Name Scientific Name Fe de ra l St at us Habitat Description Likely Presence Neosho mucket Lampsilis rafinesqueana PE Found in a variety of habitats in large streams and small rivers, most often in shallow riffles and runs with a predominantly gravel substrate. In Arkansas, the species was found in survey sites along the Illinois River in Washington and Benton Counties. It has not been found during surveys of the Arkansas River. Unlikely in the study area. A 2013 survey of Lake Bella Vista did not identify this species or any suitable habitat for this species within the lake or study area (Redman, 2013). Rabbits‐ foot Quadrula cylindrical cylindrical PT Found in small to medium rivers with moderate to swift currents. In smaller streams it inhabits bars or gravel and cobble close to the fast current. Has been found at depths up to 3 meters. In Arkansas, it is found within the Arkansas River system. h f d Unlikely in the study area. A 2013 survey of the study area did not identify any rabbitsfoot mussels. There was little if any suitable habitat identified (Redman, 2013). Cave crayfish Cambaraus aculabrum E This species is known to occur in two caves in Arkansas: Logan Cave in and Bear Hollow Cave. Logan Cave is located within Benton County, approximately 20 miles to the southwest of the study area. Unlikely in the study area. This is a cave‐ dwelling species. There are no known caves or karst openings within the study area. Improvements to Lake Bella Vista Dam – Final EA 4-18 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 35 of 62 PageID #: 113 Common Name Scientific Name Fe de ra l St at us Habitat Description Likely Presence Ozark cavefish Amblyopsis rosae T This subterranean species is known to occur in Logan Cave in Benton County, approximately 20 miles to the southwest of the study area Unlikely in the study area. This is a cave‐ dwelling species. There are no known caves or karst openings within the study area. Arkansas darter Etheostoma cragini C Shallow, clear, spring‐ fed tributaries and headwater streams having sand or sandy‐ gravel substrates. Vegetated cover in spring‐ fed channels, near shore and away from swift currents. Known to occur in the Arkansas River basin in extreme northwest Arkansas. Unlikely in the study area. A spring‐fed stream that enters the study area from the northwest was sampled in May 2013 (Redman, 2013). Two species of darters were observed, but no Arkansas darters were identified. Previous surveys of this stream have also not identified the species. Indiana bat Myotis sodalis E Hibernate in caves. Maternity sites are generally in tree cavities or behind the bark of dead or dying trees. Forages in riparian areas, upland forests, ponds, and fields. Possible transient through study area while foraging. No known dead or dying trees in study area for maternity sites. There are no cave or karst openings in the study area. Gray bat Myotisgrisescens E Roosts almost exclusively in caves. Forested areas along streams and lakes provide important protection for adults and young. Possible transient through study area while foraging. There are no known caves or karst openings in the study area for roosting. Improvements to Lake Bella Vista Dam – Final EA 4-19 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 36 of 62 PageID #: 114 Common Name Scientific Name Fe de ra l St at us Habitat Description Likely Presence Ozark big‐ eared bat Corynorhinus townsendii ingens E Roosts in caves in limestone karst regions dominated by mature hardwood forests of hickory, beech, maple, and hemlock. Possible transient through study area while foraging. There are no known caves or karst openings in the study area for roosting. Source: USFWS, 2013b. E‐ Endangered; T‐ Threatened; C‐ Candidate; R – Recovery; PT – Proposed Threatened; PE – Proposed Endangered The USFWS maintains an online database of critical habitat for threatened, endangered, and at‐risk species. A review of this database revealed that there is no critical habitat within 10 miles of the study area (USFWS, 2013a). The ANHC reviewed their files for records indicating the occurrence of rare plants and animals, outstanding natural communities, natural or scenic rivers, or other elements of special concern within or near the study area. No records were located in or near the study area. The eBirds.com bird observation reporting website, a public resource for sharing bird sightings, was utilized to inform potential Threatened and Endangered (T&E) species in the vicinity of the project (eBird, 2013). According to this resource, three sightings of the bald eagle (Haliaeetus leucocephalus) were recorded on the eBird register: January 8, 2013 at Lake Bella Vista, October 20, 2009 approximately two miles north of Lake Bella Vista, and December 23, 2006 approximately two miles downstream of Lake Bella Vista west of US 71. However, it is believed that these birds were utilizing Lake Bella Vista and the surrounding area to forage as there have been no nests reported in the general vicinity. Furthermore, Beaver Lake, located approximately tenmiles to the southeast is considered to be preferable habitat for the species. The area of intent for the Lake Bella Vista dam improvement project was surveyed in April and June of 2013 for T&E species (Redman, 2013). The report based on these surveys is included in Appendix D. The site lacks nearly all of the habitat requirements of the listed species and is highly developed with major roads on two sides of the project. What habitat is available on site is severely degraded from anthropogenic perturbations for both aquatic and terrestrial areas. No karst features were identified during the survey. Given that there is little appropriate habitat for listed species and what habitat there is available is of poor quality, the project will likely not adversely affect any of the listed species in Benton County. Given the proximity of the project to a known gray bat (Myotis griscens) cave, gray bats may use the area for foraging. However, gray bats are nocturnal hunters and, since work for the Proposed Action Alternative will be conducted during the daytime, there should be no effect to nighttime gray bat use of the area. Furthermore, other suitable foraging habitat for the gray bat of better quality is abundant around the study area (Redman, 2013). Improvements to Lake Bella Vista Dam – Final EA 4-20 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 37 of 62 PageID #: 115 No Action Alternative ‐ Under the No Action Alternative, there would be no immediate impacts to T&E species and critical or sensitive habitats. However, if the structure of the dam is allowed to continue to degrade, the dam could collapse, causing potential significant impacts to habitat as Lake Bella Vista drains into Little Sugar Creek. This would also cause significant impacts outside of the study area both upstream and downstream water levels changed and habitat altered. The No Action Alternative has the potential to affect possible habitat for T&E species, including the federally‐listed endangered gray bat, and protected species such as the bald eagle. Proposed Action Alternative ‐ Under the Proposed Action Alternative, impacts to vegetation and soils in the area of development will occur, but these will be isolated and short‐term in nature. There are no known T&E species or critical habitat within the study area or in the immediate vicinity. Potential impacts to T&E species will be remote and short‐term. Construction activities will be planned in consultation with USFWS and ANHC to ensure no impact to listed species. It is not anticipated that the project will impact karst features as none were identified within the study area. If karst features are found during construction, consultation will be initiated with the ANHC, USFWS, and other relevant agencies to ensure the potential habitat of a threatened or endangered species, such as the gray bat, will not be affected. A Threatened and Endangered Species report was submitted to FEMA dated August 8, 2013. In a response dated January 21, 2014, FEMA indicated that a No Effect determination for Federally Listed T&E species was made under the following conditions: The project will leave standing dead trees and snags within the project area (when practicable) to benefit bats and other wildlife species; Development and implementation of construction protocols in the event that bald eagles are observed near the construction site. The full threatened and endangered species report, and the response from FEMA, are included in Appendix B of this report. Cultural Resources Federal agencies are required to consider the effects of proposed projects on historic properties and provide the Advisory Council on Historic Preservation an opportunity to comment on this work before implementation, pursuant to Section 106 of the National Historic Preservation Act (NHPA), implemented by 36 CFR Part 800. According to the NHPA, historic properties include archeological sites, standing structures, or other historic resources listed in or eligible for listing in the National Register of Historic Places (NRHP). The Area of Potential Effect (APE) is defined as the area of potential impact from the dam replacement project. The APE includes construction staging areas, and the footprint of the existing dam and spillway. As the project will not have a vertical increase, indirect visual effects are not anticipated for this project. No embankment modifications are anticipated outside the defined APE. Improvements to Lake Bella Vista Dam – Final EA 4-21 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 38 of 62 PageID #: 116 Archeological Resources An Archeologist reviewed site records at the Arkansas Historic Preservation office (the Arkansas State Historic Preservation Officer) to determine the presence of previously recorded archeological sites within the APE and surrounding areas. Several historic properties (including buildings, structures, objects, and prehistoric and historic archeological sites) have been documented in this part of the Ozark Plateau, some of which have been considered significant by the State Archeologist and SHPO (including some with clearly preserved contexts and human burials). There are no previously‐recorded archeological sites within the APE. The archeological investigations to date consist of initial reviews of the records of the State Archeologist and the State Historic Preservation Officer (SHPO). The lake has been dredged, with soil removed in the 1950s, and later in 2001. The dam, spillways, and retaining walls have been altered and repaired over the years. At least some of the APE has been previously disturbed by construction activities. Although no archeological sites have been previously recorded in the APE, this part of Little Sugar Creek has never been documented and the possibility exists that historic properties may be present in the APE. Following the initial coordination with SHPO, archeologists will likely test areas of the APE for the presence of historic and pre‐historic deposits. The testing areas will likely include the removed soils from the lake and construction areas (areas of impact and removed soils) (See Section 4.1.4 for additional information regarding sediment removal). In the event that archeological deposits, including any Native American pottery, stone tools, bones, or human remains, are uncovered, the project shall be halted and the Applicant shall stop all work immediately in the vicinity of the discovery and take reasonable measures to avoid or minimize harm to the finds. All archeological findings will be secured and access to the sensitive area restricted. The Applicant will inform FEMA immediately and FEMA will consult with the SHPO or Tribal Historic Preservation Office (THPO) and Tribes and work in sensitive areas cannot resume until consultation is completed and appropriate measures have been taken to ensure that the project is in compliance with the NHPA. Historic Properties The area around Lake Bella Vista was farmland in 1915, when Reverend William S. Baker and his wife, Mary, decided to turn their land into a vacation resort. The Bakers purchased the land along Sugar Creek in 1909, and six years later constructed an earthen dam to create a recreational pond around which they platted six blocks and 389 lots, as well as a golf course and tennis courts. The lake was 600 feet wide at its largest point and 1200 feet long. In 1917 the Bakers sold the fledgling resort to a family of land developers from Dallas, TX, the Linebargers. After the sale of the original Bella Vista property and the subsequent purchase of several of the surrounding parcels of land, the Linebarger Brothers Realty Co. made several improvements to the original dam built by the Bakers, including the addition of two spillways, and a hydro‐electric pump house downstream. Improvements to Lake Bella Vista Dam – Final EA 4-22 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 39 of 62 PageID #: 117 The resort officially opened in June of 1917, and remained open well into the 1960s. During the numerous development phases, summer cottages were built along the surrounding hillsides, a large swimming pool and bath house were located just north of the east spillway, a dance hall and ice rink building was constructed on the lake south of the east spillway, and numerous other resort‐related facilities and buildings populated the area around the lake. During the 1930s, the resort fell victim to fires and floods—a flood in December 1932 washed a hole through the dam at Sugar Creek, and another flood in September 1937 completely overtook a number of the properties small cottages. In 1952, the Linebargers sold Bella Vista to E.L. Keith, the owner of another nearby resort at Cave Springs. Keith, a fan of water sports, was responsible for the deepening of Lake Bella Vista, as well as strengthening and raising the height of the dam. In 1952, Keith also constructed a new spillway and dredged the lake. Today, the lake is owned by the City of Bentonville and is utilized as a park. There is very little infrastructure remaining from the resort facility time period. Most of the buildings from the 1920‐1960s period have succumbed to fires. Two summer cottages listed on the NRHP are located east of the lake within a mobile home community. Some additional summer houses dating from the 1920s are located west of US‐71, though these are in poor condition. Overall, the Lake Bella Vista area is no longer an intact, cohesive grouping of structures that relate to a particular historic theme or time period. The lake and dam do not convey a historical association with an early resort community that once was centered on the lake. An architectural historian conducted fieldwork in April, 2013 to identify historic‐age resources (those 45 years or older) within the APE. In addition, research was conducted at the Arkansas Historic Preservation office to determine the presence of previously recorded resources within the APE. Research indicated that the Lake Bella Vista Spillways (West and East; Resource Numbers BE3598 and BE3597, respectively) were surveyed in 2003, though an eligibility recommendation for inclusion in the NRHP was not made. Field investigations confirmed that the dam and spillways are the only historic‐age resources within the APE. Following the Section 106 process and the NRHP guidelines for evaluating historic properties, an architectural historian identified the Lake Bella Vista dam and spillways as historic‐age resources. Though the resources are associated with the development of the early destination resort community of Lake Bella Vista, they do not convey this historical significance due to a lack of historic context and integrity. FEMA has determined that the dam and spillways are considered Not Eligible for listing in the NRHP due to lack of historic integrity. A Section 106 Review Consultation letter was prepared by FEMA on August 7, 2013. The letter was submitted by FEMA to the Department of Arkansas Heritage‐ Arkansas Historic Preservation Program Office (SHPO) for review under Section 106 of the NHPA. In a letter dated September 24, 2014, the Arkansas SHPO concurred that the dam was not eligible for listing in the NRHP and determined that the project will have no effect on any known historic resources. (Appendix B) Improvements to Lake Bella Vista Dam – Final EA 4-23 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 40 of 62 PageID #: 118 Native American Consultation Consultation with federally‐recognized tribes is the sole responsibility of FEMA. The Section 106 process of the NHPA requires that any proposed action with the potential to adversely affect Native American cultural or religious resources must be identified within the study area, carefully assessed, and the potential impacts summarized in the final EA. Tribal consultation letters for the Bella Vista Lake Dam project were sent to the four identified tribes with historic interests in Benton County, AR on September 22, 2014. The tribes consulted were the Caddo Nation, Eastern Shawnee Tribe of Oklahoma, Osage Nation, and the Shawnee Tribe. The tribes’ had 30 days from September 22, 2014 to submit comments. A response from the Caddo Nation Tribal Historic Preservation Officer (THPO) was received by FEMA dated September 23, 2014 which stated that the THPO had ‘no concerns with the project proceeding as planned.’ A response was received by FEMA from the Osage Nation THPO dated September 29, 2014 which stated that the project, ‘will not adversely affect properties of cultural or sacred significance to the Osage Nation.’ A response was received from the Shawnee THPO on October 16, 2014 stating that the department, ‘concurs that no known properties will be negatively impacted by this project. No response was received from the Eastern Shawnee Tribe of Oklahoma. (See Appendix B for Tribal Consultation coordination) In the event that archeological resources are discovered during construction of the project, the project shall be halted and the Applicant shall stop all work immediately in the vicinity of the discovery and take reasonable measures to avoid or minimize harm to the resources. All archeological findings will be secured and access to the archeologically sensitive area restricted. The Applicant will inform FEMA immediately and FEMA will consult with the SHPO/THPO or appropriate tribes and work in sensitive areas cannot resume until consultation is completed and appropriate measures have been taken to ensure that the project is in compliance with the NHPA. Socioeconomic Resources The project site is located to the north of Bentonville, Arkansas, in Lake Bella Vista Park, a 132‐acre community park located on US 71. The park is bound to the east by residential properties, to the west by US 71 and residential properties, and to the north and south by commercial properties. The total population in the City of Bentonville, as measured by the 2010 Census, was 35,301 individuals, with 68.8 percent of citizens over the age of 16 participating in the work force (U. S. Census Bureau, 2010; 2011a). The City of Bentonville is part of the Fayetteville‐Springdale‐Rogers metropolitan statistical area (MSA). Within the MSA, the top employing occupations are office and administrative support (15.1%), sales and related occupations (11.2%), and transportation and materials moving (10.1%) (BLS, 2012). The MSA’s largest industries by employment include government (11.4%), manufacturing (10.8%), and retail (9.8%) (BEA, 2011). Bentonville’s largest employers include Wal‐Mart, Inc., Northwest Medical Center, Mercy of Northwest Improvements to Lake Bella Vista Dam – Final EA 4-24 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 41 of 62 PageID #: 119 Arkansas and Bentonville School District (Bentonville Bella Vista Chamber of Commerce, 2013). In 2011, the unemployment rate in the City of Bentonville was relatively low at 5.7 percent, compared to 8.4 percent in Arkansas, and 8.7 percent nationwide. Median household income was also higher for Bentonville ($54,194) than for the state ($40,419) or nation ($52,762) (U. S. Census Bureau, 2011a). Lake Bella Vista Park is a locally popular outdoor recreational area drawing people to the north of Bentonville, AR. Fishing and kayaking are popular activities on the lake (Bentonville Bella Vista Chamber of Commerce, 2014)1. 1 Income and employment data are collected through the American Community Survey; these figures represent the most recent data available, collected from the ACS five‐year estimates, reflecting the period 2007‐2011. Improvements to Lake Bella Vista Dam – Final EA 4-25 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 42 of 62 PageID #: 120 No Action Alternative ‐ Under the No Action Alternative, no immediate impacts to socioeconomic resources would occur. However, if further deterioration of the dam occurs and leads to a complete collapse, Lake Bella Vista would likely be almost completely dewatered. This would lead to the loss of the lake as a recreational area for the community. Proposed Action Alternative ‐ Under the Proposed Action Alternative, it is expected that improvements to the Bella Vista Dam will increase the number of visitors to the park, which will generate economic benefits throughout Bentonville and Benton County as visitor expenditures can include restaurant and bar purchases, lodging, gasoline and other transportation‐related costs, as well as retail and recreation. Environmental Justice All projects involving federal action (funding, permitting, or approval) must comply with EO 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low‐ Income Populations, as amended. This EO directs federal agencies to take the appropriate and necessary steps to identify and address disproportionately high and adverse effects of their programs, policies and activities on minority and low‐income populations. In 2010, the City of Bentonville had a population of 35,301 individuals. The median household income as reported in the City of Bentonville was $54,194 with 10.2 percent of individuals living below the poverty line. As of 2012, Benton County had a population of 221,339 people. The median household income for Benton County in 2010 was $52,159 with 11.8 percent of individuals living below the poverty line. In 2010, there were 2,915,918 people living in Arkansas. The median household income for the state was $40,149, and 18.4 percent of individuals lived below the poverty level (U.S. Census Bureau, 2010; 2011a). Minorities (defined as all residents that are not White, non‐Hispanic) represented 23 percent, 23.4 percent, and 25.5 percent respectively, of populations of the City of Bentonville, Benton County, and the state of Arkansas. Hispanic residents comprised a greater percentage of the population in Bentonville and Benton County than in the state as a whole (U.S. Census Bureau, 2010). The specific racial and ethnic composition of these geographies is provided in Table 4‐3. Improvements to Lake Bella Vista Dam – Final EA 4-26 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 43 of 62 PageID #: 121 Not Hispanic or Latino1 Ce ns us Ge og ra ph y To ta l Po pu la ti o n Wh it e Bl ac k/ Af ri ca n Am er ic an Am er ic an In di an / Al as ka As ia n N at iv e H aw ai ia n / Pa ci fic O th er 2 H is pa ni c or La ti no (A ll Ra ce s) City of Bentonville 35,301 77.0% 2.4% 1.2% 8.3% 0.2% 2.2% 8.7% Benton County 221,339 76.6% 1.2% 1.6% 2.8% 0.3% 2.0% 15.5% State of Arkansas 2,915,918 74.5% 15.3% 0.7% 1.2% 0.2% 1.7% 6.4% 2 AMFI for the Fayetteville‐Springdale‐Rogers MSA in 2011 was $57,500 for a family of four (HUD, 2011). Improvements to Lake Bella Vista Dam – Final EA 4-27 September 2015 Table 4‐3: Racial and Ethnic Composition of Study Area and Surrounding Geographies Source: US Census Bureau, 2010, SF1 De mographic Profile Data (Table P9) 1The USCB 2010 data c onsiders race and ethnicity to be sepa rate identities. SF1 Table P9 provides ra ce da ta by " Hispanic or L atino" and "Not Hispanic o r Latino" ethnicities. 2 Combines USCB Ta ble P9 categories 'Some other race a lone' an d 'Two or m ore races' The study area i s located entirely i n Block Group 1 of C ensus T ract 2 07.04 and is a djacent to Block Group 2 of Census Tract 208.05. See Figure 4‐4 fo r a m ap of these Census boundaries. Both of these block groups a re m ajority white, with median h ousehold incomes over 80 percent of a rea median family income (AMFI)2. Census T ract 2 07.04 Block G roup 1 h as a median h ousehold income nearly t wice t he m edian household income for the City of Bentonville. These census tracts also had extremely low poverty rates in 2011: 1.8 percent in tract 207.04 and 2.1 percent in tract 208.05 (Census Bureau, 2011a). Racial and income information for these block groups is listed in Table 4‐4. Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 44 of 62 PageID #: 122 Table 4‐4: Racial and Income Composition of Block Groups Near Study Area Tract and Block Group White, Non‐Hispanic Minority (non‐White) Median Household Income (2011$) Tract 207.04 Block Group 1 94.1% 5.9% $103,287 Tract 208.05 Block Group 2 95.4% 4.6% $51,744 No Action Alternative ‐ Lake Bella Vista Park is a free, public park. Under the No Action Alternative, no impacts to environmental justice (EJ) populations would occur. Proposed Action Alternative – Due to the fact that residents near the study area are majority White, non‐Hispanic and earn incomes well above not only the poverty rate but also 80 percent AMFI, under the Proposed Action Alternative, there will be no impacts to EJ populations. Further, all residents, regardless of race or income level, will benefit from the Proposed Action Alternative as the park is free and open to the public. Improvements to Lake Bella Vista Dam – Final EA 4-28 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 45 of 62 PageID #: 123 Figure 4‐4: Census 2010 Boundaries Within and Adjacent to the Study Area Improvements to Lake Bella Vista Dam – Final EA September 20154-29 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 46 of 62 PageID #: 124 Hazardous Material Hazardous materials are defined as any solid, liquid, contained gas or semisolid waste, or any combination of wastes that pose a substantial present or potential hazard to human health or the environment. Improper management and disposal of hazardous substances can lead to pollution of groundwater or other drinking water supplies, and the potential contamination of surface water and soil. The Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act are the primary Federal regulations for the management and disposal of hazardous materials. GeoSearch, Inc. was contracted to perform a standard regulatory records search. State and federal environmental databases were searched within a radius of the subject property as defined by ASTM E1527‐05 distances. Only one locatable site was identified: Goodwill Industries as a Recycling Marketing Directory (see Radius Report in Appendix C for figures and additional information). There were no observations of hazardous materials or evidence of leaks or spills at this site or in the vicinity of the proposed project during a field investigation that took place April 2 and 3, 2013. No Action Alternative ‐ Under the No Action Alternative, no construction would occur and there would be no impacts to hazardous materials or waste. Proposed Action Alternative – No hazardous materials or waste impacts are anticipated under the project. Small quantities of potentially hazardous materials may need to be temporarily stored within the study area during project construction. Hazardous materials will be stored and disposed of in accordance with applicable State, Federal, and local laws. Any hazardous materials discovered during construction will be handled and disposed of in accordance with applicable local, State, and Federal regulations. Noise Noise is generally defined as unwanted sound and is measured in decibels on the A‐ weighted scale (dBA), which is the scale most similar to the range of sounds that the human ear can hear. The Day‐Night Average Sound Level (DNL) is an average measure of sound that is commonly accepted by Federal agencies as a standard for establishing guidelines for compatible land uses. EPA guidelines state that outdoor sound levels in excess of 55 dB DNL are “normally unacceptable” for noise‐sensitive land uses such as residences, schools, or hospitals. The project is located entirely within city‐owned parkland. However, residential areas exist within 1/4‐mile of the project. No Action Alternative ‐ Under the No Action Alternative, no construction would take place and there would be no impact to noise levels. Proposed Action Alternative ‐ Under the Proposed Action Alternative, temporary short‐ term increases in noise levels will be expected during the construction period, though these will be limited in area of impact and duration. The closest noise sensitive receiver is the park surrounding Lake Bella Vista. The Veteran’s War Memorial and the surrounding residences are also considered noise sensitive receivers. Improvements to Lake Bella Vista Dam – Final EA 4-30 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 47 of 62 PageID #: 125 Noise impacts to these receivers resulting from the project will be short term and related to construction activities. Once construction is completed, noise will return to the current existing conditions. Traffic The location of the project falls entirely within Lake Bella Vista Park where traffic is limited. However, the park is located immediately east of US 71, the only major thoroughfare between northern Arkansas and southern Missouri. Approximately 1/4‐mile of Veteran’s Way traverses the northern portion of Lake Bella Vista Park across the dam, connecting US 71 with the residential area to the east of the park. However, cars are no longer allowed to cross the dam as they could further deteriorate the dam. Mercy Way, located approximately 0.5‐mile north of the study area, provides another access route to the residential community from US 71. Cars can access the park via the residential area on the east side of the park. There is one small parking lot on the northeast side of the park and a second parking lot on the west side of the park, directly connected to US 71. Cold Cave Drive/Lake Bella Vista Trail forms a walking trail around the lake within the park. Vehicular access is not permitted on the trail. No Action Alternative ‐ Under the No Action Alternative, there would be no construction and therefore no impacts to existing road infrastructure would occur. However, continued deterioration of the dam may lead to the bridge over Little Sugar Creek being closed to foot traffic, causing the main path between the east and west side of Lake Bella Vista Park to be completely closed down. This might increase traffic to one side of the park or the other as visitors would no longer be able to quickly and easily traverse the park or complete the walking trail loop. In the event of a dam collapse due to deterioration, the foot path across the dam would likely be completely destroyed. Proposed Action Alternative – Under the Proposed Action Alternative, the Veteran’s Way in Lake Bella Vista Park will be closed down during construction of the dam. However, the road is currently closed to vehicular traffic and will remain so even after repairs are complete. It will be reopened to foot traffic after repairs are complete. Traffic to Lake Bella Vista Park will increase temporarily during construction to bring equipment and workers to the study area. This is not expected to cause significant traffic delays to through traffic on US 71 adjacent to the park. City of Bentonville officials will communicate any possible delays caused by project traffic to first responders and area school districts. Road signs will also be used to communicate with the public. After completion of the project traffic levels are anticipated to return to normal. Public Service and Utilities Water and wastewater service are provided to Lake Bella Vista Park by the City of Bentonville. Carroll Electric Coop provides electricity to the Lake Bella Vista park area. No other public service or utilities are provided to the park. No utility lines were identified with the study area. No Action Alternative ‐ Under the No Action Alternative, there would be no anticipated impacts to public services and utilities. Improvements to Lake Bella Vista Dam – Final EA 4-31 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 48 of 62 PageID #: 126 Proposed Action Alternative – Coordination with Carroll Electric Coop with be required to ensure the project does not impact their utility lines in the area of the project. There will be no anticipated impacts to public services and utilities under the proposed action alternatives. Public Health and Safety The health and safety concerns in the study area include consideration for flooding and environmental health. EO 13045 for the protection of children from environmental health and safety risks requires federal agencies to make it a high priority to identify and assess environmental health and safety risks that may disproportionately affect children. The project is located in a FEMA‐designated flood zone (AE), which is a 100‐year flood zone (FEMA, 2007) (Community Panel Number Community Panel Number 05007C0090J). In terms of environmental health, there are no hazardous materials in or around the project site; therefore, no health or safety concerns result from the presence of waste materials in the area of the project. There were no environmental health or safety risks identified that may disproportionately affect children. No Action Alternative ‐ Under the NoAction Alternative, no facilities would be constructed and public health and safety within the study area and surrounding areas would remain consistent with the existing conditions. However, should the existing dam structure continue to deteriorate, it would pose a potential public health and safety hazard if the damwere to experience a complete collapse as flood hazards in the area could potentially increase. It would also pose a risk to any people utilizing the park at the time of collapse. Proposed Action Alternative ‐ Under the Proposed Action Alternative, the new Bella Vista Dam will be constructed to maintain the hydraulic characteristics of Little Sugar Creek – both upstream and downstream of the dam – during flood events to minimize significant changes in water surface elevations. The existing lake level will remain the same based on the HEC‐RAS. Park closures, advisories and alerts will keep visitors safe during extreme weather events. No hazardous materials were identified within the study area. 4.5 Summary Table The following table summarizes the potential impacts of the Proposed Action Alternative, agency coordination/permits, and mitigation measures to offset those impacts (Table 4‐5). Improvements to Lake Bella Vista Dam – Final EA 4-32 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 49 of 62 PageID #: 127 Table 4‐5: Impact Summary Table Affected Environment Impacts Agency Coordination/ Permits Mitigation Geology, Soils, and Seismicity Temporary displacement of soil materials during construction. No impacts to underlying geology are anticipated. No impacts related to seismic activity are anticipated. SW3P, NPDES permit applications must be obtained prior to construction. Implementation of BMPs to minimize erosion impacts. Excavated soil and waste materials will be managed and disposed of in accordance with applicable local, State and Federal regulations. Air Quality Temporary air quality impacts may occur during construction None. Contractors will be required to water down construction areas to prevent dust and flyaway; fuel‐burning equipment running times will be kept to a minimum and their engines will be properly maintained. Climate Change No impacts to climate change are anticipated. The project will be designed to mitigate impacts from climate change, however (see Mitigation column) None. None. Improvements to Lake Bella Vista Dam – Final EA 4-33 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 50 of 62 PageID #: 128 Affected Environment Impacts Agency Coordination/ Permits Mitigation Water Quality Surface runoff will increase as a result of the additional impervious cover installed. SW3P, NPDES permit applications must be obtained prior to construction. Erosion control measures will be implemented to minimize runoff and drainage impacts. If the action will require excavation to groundwater depths, consultation with the EPA and the ADEQ will be required to identify appropriate mitigation. Wetlands and Waters of the U.S. No wetlands occur in the area of the project. There will be no permanent impacts to waters of the U.S. associated with the project. Temporary impacts are unknown at this time but will be minor in nature. Coordination with USACE to confirm type of permit required during project design and construction planning. Project design sought to minimize waters of the U.S. impacts. Will likely seek project authorization under NWP 3 – Maintenance or NWP 31 – Maintenance of Existing Flood Control Facilities. Floodplains Development will occur within the FEMA‐designated 100‐year floodplain (Zone AE) The City of Bentonville will comply with the City of Bentonville Flood Damage Prevention Ordinance. The Floodplain Administration for the City of Bentonville is in favor of the project and suggests no mitigation so long as the hydraulic capacity of the replacement dam and impounded lake are maintained as close as reasonably possible with existing conditions (See Appendix B). Wildlife and Fish Minor impacts to fish and wildlife habitat. Most impacts will be None. None. Improvements to Lake Bella Vista Dam – Final EA 4-34 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 51 of 62 PageID #: 129 Affected Environment Impacts Agency Coordination/ Permits Mitigation Threatened and Endangered Species, Critical Habitat No federally‐listed listed species or critical habitat has been observed in the area of the project. FEMA issued a No Effect determination (See Appendix B). If karst features are found during construction, consultation will be initiated with the ANHC, USFWS, and other relevant agencies. The project will leave standing dead trees and snags within the project area (when practicable) to benefit bats and other wildlife species. Construction protocols will be developed in the event that bald eagles are observed near the construction site. Improvements to Lake Bella Vista Dam – Final EA 4-35 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 52 of 62 PageID #: 130 Affected Environment Impacts Agency Coordination/ Permits Mitigation Archeological Resources No archeological survey required Coordination with SHPO and Consulting Parties (See Appendix B). In the event that archeological deposits, including any Native‐ American pottery, stone tools, bones, or human remains, are uncovered, the project shall be halted, and the applicant will stop all work immediately in the vicinity of the discovery and take reasonable measures to avoid or minimize harm to the finds. All archeological findings will be secured and access to the sensitive area restricted. The applicant will inform FEMA immediately, and FEMA will consult with the State Historic Preservation Office (SHPO) or Tribal Historic Preservation Office (THPO), and the Tribe. Work in the sensitive areas cannot resume until consultation is completed, and appropriate measures have been taken to ensure that the project is in compliance with the Historic Properties None Coordination with SHPO and Consulting Parties (See Appendix B). None. Native American Consultation None FEMA coordinate with Tribal Agencies (See Appendix B). None. Improvements to Lake Bella Vista Dam – Final EA 4-36 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 53 of 62 PageID #: 131 Affected Environment Impacts Agency Coordination/ Permits Mitigation Environmental Justice All populations will benefit from the Proposed Action Alternative. None. None. Hazardous Material No hazardous materials or waste impacts are anticipated. None. Any hazardous materials discovered, generated, or used during construction will be disposed of and handled in accordance with applicable local, State, and Federal regulations Noise Temporary, short‐ term noise impacts will take place during the construction phase. None. None. Traffic There will be a temporary increase in traffic related to the construction of the project. Coordination with AHTD. Signage will be posted near project site alerting Lake Bella Vista Park visitors and staff of construction traffic. Public Service and Utilities No adverse impacts are anticipated. Coordination with the City of Bentonville and Carroll Electric Coop for provision of None. Public Health and Safety The design of the dam will protect public safety in the presence of wet weather conditions and flooding. None. Park closures, advisories and alerts will keep visitors safe during extreme weather events. Appropriate signage and barriers will alert pedestrians and motorists of project activities during Improvements to Lake Bella Vista Dam – Final EA 4-37 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 54 of 62 PageID #: 132 5.0 CUMULATIVE IMPACTS According to CEQ regulations, cumulative impacts represent 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 (40 CFR 1508.7).” In accordance with NEPA, and to the extent reasonable and practical, this EA considers the combined effect of the Proposed Action Alternative and other actions occurring or proposed in the vicinity of the project site. The project site located along US 71 within Bentonville’s city limits in northern Arkansas. The area includes Lake Bella Vista Park and Lake Bella Visit Dam as well as portions of Lake Bella Vista and Little Sugar Creek. The park is currently used as a public recreational area maintained by the City of Bentonville. In the foreseeable future, construction of a new dam will be used to meet the needs of the City of Bentonville by allowing them to continue to provide a recreational area for its citizens. The new dam will allow for safe operation of the park and minimize flooding hazards within the study area as well as within the surrounding areas. Impacts from the project will be minor. There are no other planned construction or development projects within the study area at this time. The study area falls entirely within parkland owned by the City of Bentonville. Habitat within the park will be disturbed as little as possible during project construction. As shown in Figure 4‐2, the entire study area falls within the 100‐year floodplain. However, the project will maintain current flood levels to the greatest extent practical. Therefore, considered in relation to past, present, and reasonably foreseeable future actions, the cumulative impact of the action to the built and natural environment will be minimal, will be beneficial rather than detrimental, and is not expected to contribute to any adverse effects or to otherwise significantly affect the human environment. Improvements to Lake Bella Vista Dam – Final EA 5-1 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 55 of 62 PageID #: 133 6.0 AGENCY COORDINATION, PERMITS, AND PUBLIC INVOLVEMENT 6.1 Agency Coordination The following agencies and organizations were contacted by letter requesting project review during the preparation of this EA. Responses received were included in Appendix B. Local o City of Bentonville State o Arkansas Department of Emergency Management o Arkansas Department on Environmental Quality o Arkansas Game and Fish Commission o Arkansas Highway and Transportation Department o Arkansas Natural Resource Commission o Arkansas State Historic Preservation Officer o Department of Arkansas Heritage – Arkansas Historic Preservation Program o State Parks of Arkansas Federal o U.S. Environmental Protection Agency, Region 6 Office o U.S. Fish and Wildlife Service, Arlington, Arkansas Ecological Services Field Office o U.S. Army Corps of Engineers, Little Rock District o Federal Emergency Management Agency National Flood Insurance Program Region VI An agency meeting was coordinated by CP&Y on July 11, 2013. In attendance were representatives from CP&Y, the City of Bentonville, ANRC, ANHC, ADEM, FEMA, HPA, USACE, and USFWS. The purpose of the meeting was to clarify the contents of the EA to satisfy the requirements of all involved agencies. A Meeting Summary is included in Appendix B. Improvements to Lake Bella Vista Dam – Final EA 6-1 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 56 of 62 PageID #: 134 6.2 Permits In accordance with the applicable local, State, and Federal regulations, the Applicant will be responsible for acquiring any necessary permits prior to commencing construction at the project site. At this stage, it is assumed that impacts to wetlands will be authorized under NWP‐3 – Maintenance or NWP 31 – Maintenance of Existing Flood Control Facilities pending approval from the USACE. 6.3 Public Involvement FEMA is the lead federal agency for this EA. It is the goal of the lead agency to expedite the preparation and review of NEPA documents and to be responsive to the needs of the community and the purpose and need of the proposed action while meeting the intent of NEPA and complying with all NEPA provisions. Public meetings will be held once the project is further along in the development process. Notification of meetings will be published in relevant local publications to inform the public of their time and location. The draft EA will be available at both a local repository and online at FEMA.gov. A 30‐day public comment period will commence on the initial date of the public notice. FEMA will consider and respond to all public comments either individually or in the Final EA. Per 40 CFR, §1506.6, FEMA was required to provide a public notice in the local newspaper that indicated the Draft EA prepared for this project was available for public review and comment on the FEMA Library and at the Bentonville Public Library. In support of the 30 day public comment period, the public notice appeared in the Benton County Daily Record newspaper on February 18 and March 4, 2015. The 30‐day public comment period ended at 5:00 P.M. on March 20, 2015. A total of 66 public comments were received at the close of the comment period. In addition, FEMA received 6 inquiries and another 5 public comments were received after the conclusion of the comment period. The inquiries and comments received after the comment period were recorded but are not part of this discussion. Aside from private citizens, the Arkansas Game and Fish Commission provided one of the comments. Below is a summary of the total percentage based on the 66 comments. Against the proposed project: 55 (83.3%) For the proposed project: 11 (16.7%) The percentages can be further broken down by the number of individuals who provided comments. Individuals who provided multiple comments are only counted once. A total of 58 individuals provided comments. Against the proposed project: 47 (81%) For the proposed project: 11 (19.0%) The above percentages have all been weighted equally and do not distinguish between substantive and non‐substantive comments. Improvements to Lake Bella Vista Dam – Final EA 6-2 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 57 of 62 PageID #: 135 Many of the public comments requested that the dam be removed for various reasons. However, FEMA’s PA Grant Program can only provide supplemental Federal disaster grant assistance for debris removal, emergency protective measures, and the repair, replacement, or restoration of disaster‐damaged, publicly owned facilities and the facilities of certain Private Non‐Profit organizations. The dam removal would not be eligible for FEMA funding under the PA Grant program and therefore, was not considered as an alternative. However, of the comments received, the comments regarding the potential presence of karst geology in the project area and how the deed restriction limited the project alternatives were considered substantive. As a result, the Applicant was requested to address these comments before a Finding of No Significant Impact (FONSI) could be considered by FEMA. The Applicant was responsible for addressing and expanding upon the discussion of the presence/absence of karst topography in the project area with a defensible discussion and documentation from knowledgeable resources, publications, bulletins, geological surveys, engineering studies or the like to address the public comment concern with this environmental condition. In the Final EA, in Section 4.1.1 (Geology, Soils, and Seismicity) the Applicant has revised this section in response to the public comments to indicate that a Geotechnical Investigation was conducted by Grubbs, Hoskyn, Barton, and Wyatt. This Geotechnical Investigation has established that subsurface karst geology does not exist in the project area. The Applicant was responsible for addressing and expanding on the discussion of the deed restriction with documentation and clarification from official resources and records to illustrate the current and historical status of legal land use of the park and project area for the dam. In the Final EA, in Section 3.3 (Alternatives Considered and Dismissed) the Applicant has revised this section in response to the public comments to indicate that the alternative involving the Removal of Lake Bella Vista Dam with No Replacement would be interpreted as being inconsistent with the restrictions in the Special WARRANTY DEED filed of record in Benton County, AR., Nov.21, 2006 in DEED Book 2006, Page 55778,following the purchase of Lake Bella Vista Park by the City of Bentonville from Bentonville/Bella Vista Trailblazers Association, Inc. It will be the responsibility of the Applicant to use their normal protocols by way of public meetings, news/press releases or the like to notify the public regarding the completion, availability and posting of the Final EA and FONSI. FEMA has also post the Final EA document on the FEMA Library website and has brief regional External Affairs on the location and availability of the document to convey to outside citizen and press inquiries. Improvements to Lake Bella Vista Dam – Final EA 6-3 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 58 of 62 PageID #: 136 7.0 REFERENCES Arkansas Department of Environmental Quality (ADEQ). 2012. Impaired Waterbodies List (303(d)). Category 5Waters: Arkansas's Water Quality Limited Waterbodies. (Accessed July 8, 2013). Arkansas Game and Fish Commission (AGFC). 2013. Wildlife by Species. Species and Habitats. (Accessed July 26, 2013). Arkansas Geological Survey. 2013. Water: Aquifers. 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City of Bentonville. Water Utilities. 2011. Annual Drinking Water Quality Report. Bentonville Water Reports. (Accessed June 25, 2013). CP&Y, Inc. January 24, 2011. Phase 2, Task 1. Conceptual Design and Engineer’s Estimate of Probable Cost for FEMA Requested Options for Lake Bella Vista Dam Improvements. eBird.org. 2013. View and Explore Data: Range and Point Maps. eBird. (Accessed December 2, 2013). Environmental Protection Agency (EPA). 2004. Ecoregions of Arkansas. Ecoregions of Arkansas. (Accessed May 10, 2013). 2011a. National Ambient Air Quality Standards (NAAQS). National Ambient Air Quality Standards. (Accessed May 10, 2013). 2011b. National Priorities List (NPL). National Priorities List. (Accessed August 24, 2011). 2011c. Ozone Air Quality Standards. Ozone Air Quality Standards. (Accessed July 18, 2011). Improvements to Lake Bella Vista Dam – Final EA 7-1 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 59 of 62 PageID #: 137 2011d. 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National Wild and Scenic River System (NWSRS). 2013. Designated Rivers: Arkansas. National Wild and Scenic River System. Accessed July 8. 2013. National Oceanic and Atmospheric Association (NOAA). 2013. National Marine Fisheries Service: Essential Fish Habitat Mapper v3.0. National Oceanic and Atmospheric Association. (Accessed July 22, 2013). Redman, Ron. June, 2013. Lake Bella Vista Dam Project. Scorecard. 2011. 1999 Emissions Summary of Criteria Air Pollutants: Benton County. Scorecard.goodguide.com (Accessed May 10, 2013). The Nature Conservancy (TNC). 2013. Karst Area Sensitivity Map for Northwest Arkansas: Benton County. The Nature Conservancy. (Accessed July 22, 2013). U.S. Army Corp of Engineers (USACE). January 1987. Corps of Engineers Wetlands Delineation Manual. Wetlands Research Program Technical Report Y‐87‐1. Corps of Engineers Wetlands Delineation Manual. (Accessed February 6, 2012). 2010. Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region (Version 2.0). ERDC/EL TR‐ 10‐20, U.S. Army Engineer Research and Development Center, Vicksburg, MS. U.S. Department of Housing and Urban Development (HUD). 2011. 2011 Median Family Income Limits for Fayetteville‐Springdale‐Rogers, AR MSA. US Department of Housing and Urban Development. (Accessed July 17, 2013). Improvements to Lake Bella Vista Dam – Final EA 7-2 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 60 of 62 PageID #: 138 8.0 LIST OF PREPARERS Consultants Lauren Avioli Environmental Planner CP&Y, Inc. Austin, TX Kaci Blaney GIS Specialist CP&Y, Inc. Austin, TX Bonnie Doggett Environmental Project Manager CP&Y, Inc. Austin, TX Mel Green Engineer CP&Y, Inc. Fort Worth, TX John Levitt Project Manager CP&Y, Inc. Dallas, TX Kathryn St. Clair Architectural Historian CP&Y, Inc. Austin, Texas Emily Tritsch Environmental Planner CP&Y, Inc. Austin, TX Improvements to Lake Bella Vista Dam – Final EA 8-1 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 61 of 62 PageID #: 139 Mary Tibbets Staff Biologist CP&Y, Inc. Austin, TX Sarah Kobetis Architectural Historian (Intern) CP&Y, Inc. Austin, TX Government Contributors Kevin Jaynes Regional Environmental Officer FEMA Region 6 Alan Hermely Environmental Specialist FEMA Region 6 Improvements to Lake Bella Vista Dam – Final EA 8-2 September 2015 Case 5:16-cv-05370-PKH Document 13-2 Filed 02/28/17 Page 62 of 62 PageID #: 140
