James White Parkway-Chapman Highway Corridor Study

Full Text of Comment #51, Opposing the James White Parkway

Introduction:
I appreciate the opportunity to comment on the proposed James White Parkway Extension (“the road”). Please be aware that these are preliminary comments and may be revised. Because I believe that the road will have a significant, adverse impact on the environment and will violate Tennessee law, I ask that the Task Force adopt the No Build Alternative. Specifically building the road will:

Cause a condition of pollution in violation of the Tennessee Water Quality Control Act (TWQCA).
Lead to a substantial and unnecessary expenditure of taxpayer dollars on a project whose costs outweigh its benefits.

Because of the questionable legality of the project, its significant adverse impact on the environment and its unacceptably high cost, the Task Force should adopt the No Build Alternative. Although the No Build Alternative might include improvements to existing roads such as Chapman Highway and Moody Avenue, a better use of taxpayer dollars would be to:

Design and implement a system of light rail, such as trolleys and commuter trains, to link areas that would otherwise be served by the road.
Invest in more city buses and drivers, and either a) add more routes and/or b) increase service to existing routes.
Design and implement bike trails, sidewalks, and other appropriate means for non-motorized transportation.

A No Build Alternative that focused on public transportation would have the following benefits:

Decreased traffic and air pollution, through encouraging citizens not to drive, and enabling citizens to choose alternate means of transportation
Conservation and protection of environmental resources
Contribution to the public health, safety and welfare
Preservation and enhancement of neighborhood quality and character
Avoidance of potentially high litigation and administrative costs.

For these reasons, the Task Force should recommend adoption of a No Build Alternative with an emphasis on public transportation.

Argument:

THE ROAD AS PLANNED WILL VIOLATE THE TENNESSEE WATER QUALITY PROTECTION ACT:

The Tennessee Water Quality Control Act makes it unlawful for any person to alter the “physical, chemical, radiological, biological, or bacteriological properties of any waters of the state” without a valid permit issued by the Commissioner of the Tennessee Department of Environment and Conservation (TDEC). The TWQCA expressly states that:

Under no circumstances shall the commissioner issue a permit for an activity which would cause a condition of pollution either by itself or in combination with others.

T.C.A. § 69-3-108(e).

The Act defines pollution as:

such alteration of the physical, chemical, biological, bacteriological, or radiological properties of the waters of this state including, but not limited to, changes in temperature, taste, color, turbidity, or odor of the waters that will:

(A) Result or will likely result in harm, potential harm or detriment of the public health, safety, or welfare;

(B) Result or will likely result in harm, potential harm or detriment to the health of animals, birds, fish, or aquatic life;

(C) Render or will likely render the waters substantially less useful for domestic, municipal, industrial, agricultural, recreational, or other reasonable uses; or

(D) Leave or likely leave the waters in such condition as to violate any standards of water quality established by the board.

T.C.A. § 69-3-103 (22).

The permitting requirements of the TWQCA and the prohibition against issuing permits for activities that will cause a condition of pollution either individually or in combination with others apply broadly to all waters of the state defined as:

any and all water, public or private, on or beneath the surface of the ground, which are contained within, flow through, or border upon Tennessee or any portion thereof except those bodies of water confined to or retained within the limits of private property in single ownership which do not combine or effect a junction with natural surface or underground waters.

T.C.A. § 69 – 3 – 103 (33).

Courts interpreting the TWQCA have found the permitting requirements and prohibitions to be clear and unambiguous. Indeed, the United States Court of Claims recently stated:

Under Tennessee's Water Quality Control Act, a permit may not be issued for the conduct of a mining operation that would cause a condition of pollution affecting the state's waters. Plaintiff's surface mining operation has been determined to hold out a high probability of introducing acid drainage into the Sewanee Conglomerate aquifer. Accordingly, that operation would not qualify for the issuance of a permit; its conduct, therefore, would constitute an enjoinable nuisance under state law.

Rith Energy, Inc. v. U.S. 44 Fed.Cl. 108, 115 (Fed. Cl. 1999).

Tennessee Courts review questions of statutory interpretation as well the application of the statute to the facts de novo. E.g., BellSouth Advertising & Publishing Corp. v. Tennessee Regulatory, 79 S.W.3d 506, 512 (Tenn. 2002). This is true whether or not the statute is one that an agency administers. Id. The Tennessee Supreme Court has long held that a statute must be enforced to its letter and that the plain language of the statute cannot be abrogated by judicial gloss. See Louisville & Nashville Railroad Company v. County Court of Davidson, 33 Tenn. 637, 1854 WL 2124, 15, 16 (Tenn. 1854). As the Court recently stated:

Construction of a statute is a question of law which we review de novo, with no presumption of correctness . . . A ‘basic rule of statutory construction is to ascertain and give effect to the intention and purpose of the legislature.’ In determining legislative intent and purpose, a court must not ‘unduly restrict or expand a statute's coverage beyond its intended scope.’ Rather, a court ascertains a statute's purpose from the plain and ordinary meaning of its language, ‘without forced or subtle construction that would limit or extend the meaning of the language.’ When, however, a statute is without contradiction or ambiguity, there is no need to force its interpretation or construction, and courts are not at liberty to depart from the words of the statute. Moreover, if ‘the language contained within the four corners of a statute is plain, clear, and unambiguous, the duty of the courts is simple and obvious, 'to say sic lex scripta, and obey it. Therefore, ‘[i]f the words of a statute plainly mean one thing they cannot be given another meaning by judicial construction.’ Finally, it is not for the courts to alter or amend a statute. Moreover, a court must not question the ‘reasonableness of [a] statute or substitut[e][its] own policy judgments for those of the legislature.’ Instead, courts must ‘presume that the legislature says in a statute what it means and means in a statute what it says there.’ Id. Accordingly, courts must construe a statute as it is written.

Gleaves v. Checker Cab Transit Corp., Inc. 15 S.W.3d 799, 802 – 803 (Tenn. 2000) (citations omitted).

The limits of the English language simply do not admit of a clearer or less ambiguous wording than that chosen by the Tennessee Legislature in enacting the Tennessee Water Quality Protection Act. The Act forbids permitting activities that either by themselves or in combination with others will alter the waters of the state in such a way as to:

(A) Result or will likely result in harm, potential harm or detriment of the public health, safety, or welfare;

(B) Result or will likely result in harm, potential harm or detriment to the health of animals, birds, fish, or aquatic life;

(C) Render or will likely render the waters substantially less useful for domestic, municipal, industrial, agricultural, recreational, or other reasonable uses; or

(D) Leave or likely leave the waters in such condition as to violate any standards of water quality established by the board.

T.C.A. § 69-3-103 (22).

Such activities are illegal without a permit, and cannot be undertaken. T.C.A. § 69-3-108. The Act applies to both surface and ground waters and it applies to the James White Parkway Extension.

The James White Parkway Extension Will Cause A Condition of Pollution in Violation of the TWQCA Because It Will Result or Likely Result In Harm or Potential to the Health of the Berry Creek Salamander:

The Meades Quarry cave system lies directly beneath the proposed road. As documented by Dr. John Nolt and as discussed by the Task Force in its first report, the Meades Quarry Cave system contains a perennial stream inhabited by a rare and endemic species of salamander: the Berry Cave Salamander (Gyrinophilus gulolineatus). The Berry Cave Salamander has been verifiably observed in only four locations in the world. Due to siltation from a housing development, the Salamander has been extirpated from one of these locations. Although originally classified as a sub species of the Tennessee Salamander, recent taxonomies have classified the Berry Creek Salamander as a separate species.

The proposed road will “[r]esult or will likely result in harm, potential harm or detriment to the health” of the Berry Creek Salamander in violation of the TWQCA. See T.C.A. § 69-3-108. The harm to the Berry Creek Salamander arises from, inter alia: destruction or harm to the Salamander’s food source, siltation, releases of toxic chemicals, increased of water volume and flow, thermal pollution, and filling or collapsing of cave passages. All of these sources of harm are a direct or proximate result of alterations to the waters of the state arising from the construction of the road or of the road itself.

The Meades Quarry cave system is drained by a series of sinkholes. These sinkholes provide organic material that is relied upon by the invertebrates consumed by the Berry Creek salamander. The road as planned will be built on a steep slope immediately above or near these sinkholes. Sediment control structures could reduce the amount of organic material entering the caves through the sinkholes, and thus threaten the food source of the invertebrates upon which the Berry Creek Salamander depends.

As demonstrated by the fate of the population of Berry Cave Salamanders that once inhabited Mud Flats Cave, Berry Creek Salamanders are extremely intolerant of siltation. The Mud Flats Cave population appears to have been extirpated by siltation from the Gettysvue housing development in West Knox County. Severe erosion and siltation have been documented in the portion of the road already completed, as a result of erosion from a bank cut by the Tennessee Department of Transportation to build the existing portion of the road. Significant road cuts are currently proposed in the vicinity of the sinkhole complex that drains into the Meades Quarry Cave System. Thus, there is a significant risk of siltation of the waters relied upon by the Berry Creek Salamander.

Changes to stream flow and thermal pollution from the road represent another source of harm or likely harm to the Berry Creek Salamander. The Red Bud Interchange in the vicinity of the sinkholes would be a large, impervious asphalt surface from which storm water would likely flow rapidly and in high volume during heavy rain events. This water would enter the sinkholes in a greater volume and at a greater rate than water currently enters the sinkholes and could result in flooding and/ or scouring of the waters in the caves. Moreover, during the summer, storm water running over the hot asphalt and flowing into the sinkholes will be a source of thermal pollution. These alterations to the water temperature and flow will or will likely result in harm or potential harm directly to the Berry Creek Salamander as well as to the invertebrates upon which it depends.

The road will be a source of toxic runoff resulting from the vehicles that traverse it, as well as a site of potential chemical and other spills. Exposure to this toxic pollution will harm or likely harm the Berry Creek Salamander. Moreover, there is a possibility that the cave passages will be filled with concrete during construction of the road, and/ or that the passages will collapse either during construction or after the road is completed. All of these represent a significant threat to the Berry Creek Salamander.

Because the road will result in ongoing and long term alterations to the sinkhole complex and waters flowing through the Meades Creek Cave Complex that will “result or will likely result in harm, potential harm or detriment to the health” of the Berry Creek Salamander, the road will cause a condition of pollution in violation of the TWQCA. Because the road cannot be validly permitted under the TWQCA, the road cannot be built, as building the road would result in a violation of the Act.

THE TASK FORCE SHOULD RECOMMEND A NO BUILD ALTERNATIVE FOCUSING ON PUBLIC TRANSPORTATION:

The Task Force claims that light rail is not currently feasible. However, the Task Force has not calculated the cost of building the road. Indeed, Ms. Davis revealed at the September 23, 2004 public meeting, that the Task Force had essentially “brain stormed” options and alternatives in favor of building the road without regard to the cost. Yet, if cost is no object in regard to building the road, it is questionable at best to assert that cost must be considered in regard to light rail. Indeed, having no baseline to compare, it is impossible for the Task Force to know a) that an option involving light rail would be more costly than building the road or b) how much more costly light rail would be.

A road always involves a question and that question is not confined to the obvious one: how does one get from point A to point B. The more significant question is rather: how should one get from point A to point B. By building a road, a city makes a choice that enables people to engage in a certain set of behaviors, in this case driving. However, a road is also prohibitive in that it discourages another set of behaviors. If a road is built to the exclusion or virtual exclusion of other means of transportation, people who do not wish to drive will be faced with a Hobson’s choice of driving when they do not wish to, or of not driving and going nowhere. Likewise, if alternatives to driving are made available, and if no new roads are built to accommodate those who wish to drive, then people will make increased use of those alternatives, especially if existing roads become overcrowded or otherwise less attractive.

Knoxville has one of the highest levels of air pollution in the country. A significant source of this pollution is from automobiles. Air pollution from automobiles leads to adverse health effects from asthma to cancer. Moreover, Knoxville and surrounding counties are on the verge of being designated non attainment areas under the Clean Air Act. Knoxville’s response to this problem cannot be to do nothing or worse to do something that will make the problem worse. Computer modeling conducted by the Task Force demonstrates that the road will lead to increased traffic. More cars equal more pollution and that is not a constructive step toward solving the problem of air pollution in our area.

Knoxville has one of the worst systems of public transportation in the country. Indeed, Knoxville’s only public transportation is a largely inadequate bus service. The city has no passenger rail connection to surrounding areas and no rail system within the city. Sidewalks are fragmented or non existent, and the roads are by-in-large dangerous to walk or bike due to the rate and speed of traffic, among other things. Consequently, most Knoxvillians drive.

For these reasons, Knoxville should not answer the question of how people should get from point A to point B by choosing an option that encourages and forces people to drive. Knoxville should rather choose an option that enables more people not to drive. The road had its genesis in the problems of over forty years ago. However, when it comes to expending tens of millions of dollars paid by every citizen of this state for the purpose of the common benefit of all, that expenditure should address the problems of today. The problem today is that our area of the state is one of the most polluted areas in the country when it comes to air pollution, and that pollution endangers our health, our children, and our environment. We should act to address that problem, not exacerbate it, and for that reason the Task Force should look forward not backward, and adopt a recommendation for a No Build Alternative with an emphasis on public transportation and light rail.

Conclusion:

The road as currently proposed is not permittable under the TWQCA, and thus cannot be built. Yet, the road should not be built for another reason. The road will encourage people to drive, and by foreclosing other options will force people to drive. This will do nothing to remedy the very serious problem with air pollution that our city faces. In fact, it will make the problem worse. The Task Force has the opportunity to do something forward thinking and progressive for Knoxville. The Task Force can recommend an option that will decrease pollution, and still get people from point A to point B. Every citizen of this state – from the richest to the poorest – pays taxes. A project on which the people’s money is expended should be wise in its conception and effect. A No Build Alternative with an emphasis on public transportation would be wise in both its conception and its effect, and it would not violate the law.

T.C.A. § 69-3-108 (b) (“It is unlawful for any person, other than a person who discharges into a publicly owned treatment works or a person who is a domestic discharger into a privately owned treatment works, to carry out any of the following activities, except in accordance with the conditions of a valid permit: (1) The alteration of the physical, chemical, radiological, biological, or bacteriological properties of any waters of the state . . . “).

All information on the Berry Creek Salamander and the impact of the road upon it is taken from: Dr. John Nolt, Environmental Report James White Parkway Taskforce, available at http://web.utk.edu/~nolt/envrepts/JWP.htm.

See Dr. John Nolt, Environmental Report James White Parkway Taskforce, available at http://web.utk.edu/~nolt/envrepts/JWP.htm.

See Dr. John Nolt, Environmental Report James White Parkway Taskforce, available at http://web.utk.edu/~nolt/envrepts/JWP.htm.

See Dr. John Nolt, Environmental Report James White Parkway Taskforce, available at http://web.utk.edu/~nolt/envrepts/JWP.htm.