3 federal agencies sued over CSX rail repair work in Nolichucky Gorge

and Tenn. (WJHL) — A pale, mid-morning November sun threw glints of light onto the Nolichucky River's surface Saturday as Patrick Mannion pointed to a riffle at the head of the river's gorge where heavy equipment had crossed a makeshift passage.

CSX Nolichucky repairs concern whitewater community

"I would imagine we're going to see heavy equipment driving across that rock shelf, which is home to one of the seven colonies of a mussel that has been documented on this section of river," Mannion, who owns a rafting company, said as he prepared to take a guest through the gorge.

He was talking about the Appalachian elktoe, "a critically endangered species according to the U.S. Fish and Wildlife Service."

A huge yellow crane towered over the spot that is the gateway to a river section where Mannion said the federal government completed a comprehensive river management plan nearly 50 years ago. He was right about the heavy equipment. Huge trucks belonging to a contractor that's conducting emergency repairs on about nine miles of CSX rail line through the gorge crossed the shallows.

Two days later the non-profits American Whitewater and American Rivers sued Fish and Wildlife and two other federal agencies in the Western District of North Carolina's U.S. District Court. The suit also names the U.S. Army Corps of Engineers (USACE) and the U.S. Forest Service as defendants.

It alleges the agencies have violated federal law by giving CSX "unlawful approvals" that allowed its contractor to "engage in unmitigated, extremely damaging railroad construction work in the Nolichucky River Gorge."

They had started their work about a month earlier, just a couple weeks after the remnants of Hurricane Helene tore through the gorge on Sept. 27, completely demolishing that section of CSX track and most of the base those tracks sat on. A CSX spokesperson told News Channel 11 Monday the company estimates the repairs will cost more than $200 million.

The Southern Environmental Law Center (SELC), which filed the suit, says the complaint demands a halt to the work until CSX develops a plan to repair the destroyed line in a way that protects the environment. It also demands an end to what it claims is mining of river rock along the banks and well below the high-water mark — something it says would alter the river channel and threaten the river's navigability for outfitters like Mannion.

Neither Mannion and other whitewater enthusiasts who alerted SELC to their concerns nearly a month ago nor SELC Attorney Patrick Hunter say they oppose the CSX rebuild. Hunter said there's just a much better way to do it, including by transporting in quarried rock to rebuild the base rather than "mining" rock from the bed of the river.

"We would want them to be able to get it back up and running basically as fast as they can without wrecking the gorge in the meantime," Hunter told News Channel 11 Monday. He said SELC held off on suing for more than a week while its leaders contacted CSX and the federal agencies.

"We have reached out ... to say 'work with us, put some basic protections in place, quit taking things out of the river to rebuild your railroad and we can all make this happen in a way that works for everybody,'" Hunter said.

He said if the work isn't halted at least temporarily before the end of the workday Tuesday, SELC will seek an emergency injunction to halt it.

"Too much damage has happened already," Hunter said.

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Tracks litter a remote jewel of the East Mannion and a group of other raft guides and fellow kayakers are the ones who first discovered repair activity that they found alarming. They began sending photos and video to groups like SELC, prompting Hunter to call them "heroes" Monday.

"This is an exceptional place important to communities in western North Carolina, eastern Tennessee," Hunter said. "I just don't know how to describe the sense of loss there, how much of a mistake that would be to destroy this place for quick gain, to rebuild this railroad.

"We want the railroad rebuilt, but it's got to be done in a way that protects this exceptional place and the other economies that depend on it for their well-being. So, yeah, my hat is off to the folks that have been down there and documenting what's been happening."

Mannion's passion for the gorge was evident as he spent several hours with a novice sitting next to him in a small raft. He talked about the awe daytime rafters experience when they realize the size and scale that exceeds anything else they would find east of the Rockies. He described how huge muskellunge live in deep pools between the rapids, and how previous floods even during his two decades on the river have changed those rapids.

He also spoke about his respect for the railroad, what it's meant to the area's history and the sheer magnitude of the engineering marvel that allowed the rail industry to tame the gorge roughly 120 years ago.

As the raft and kayaks got deeper into the gorge, the rail line's absolute inability to withstand the raging 1,000-year flood was shockingly clear. Tracks were on the opposite side of the river from the line, which in most places lacked its base material. Tracks were in the river. Ties were everywhere.

It was abundantly clear that Mannion and the handful of kayakers who joined him Saturday were determined to continue documenting the repair work — and that they were convinced CSX had been altering the gorge in harmful ways, including to those mussels.

"That comprehensive management plan noted several of the ecological and biological wonders of the river corridor right over my shoulder," Mannion said. "One of those is a critically endangered freshwater mussel called the Appalachian elktoe, and it's found in seven colonies along this watershed."

One of them is in that riffle at the head of the gorge. The rafting community went through three years of environmental permitting just to put its access point in a number of years ago — a tradeoff with which Mannion took no issue.

"I've actually taken two trips that included scientists from the U.S. Fish and Wildlife Service down the river, and we have documented and inventoried and marked these freshwater mussels," Mannion said.

"Five years after the first trip, we actually found one of the mussels from the trip before that had been marked. The scientists could measure the growth and whether it migrated. It's amazing to think that with high water events and low water events and all the disruptions of regular life, that mussel was still holding on in this one specific colony."

Pointing to the smoke rising from a burning slash pile near the river and the massive equipment near that colony, Mannion described the process to get permission for the access point including "environmental assessments with hydrologists, biologists and ecologists.

"They all had to sign off that we could even move like a ramp from here to this location or move gravel from this location to this location," he said, pointing around the riverbank area.

"What we're seeing here is certainly a whole different ballgame, and it certainly hasn't had any sort of environmental assessment that encompassed anywhere near three years. There may have been one done, but we haven't seen any evidence of that."

USACE email: 'What is the story with haul road across the river and scraping the banks?' Emails obtained by SELC show that on the Tennessee side, which covers a shorter portion of the gorge, CSX coordinated the project with the Nashville district of the USACE starting Oct. 15. The company got email and verbal permission to begin emergency repairs, and was told "where feasible, the repair should restore the resource to pre-emergency conditions."

In an Oct. 31 email to a CSX representative, USACE's Casey Ehorn wrote that he had been able to discuss one of the requirements SELC says is a cause for its claim — a so-called "Section 10" permit.

"(B)ottom line is that the work CSXT is conducting requires a Section 10 permit," Ehorn wrote, even sending a link to a draft permit as a guide. He suggested CSX "submit an application for the on-going work ASAP."

Ehorn also mentioned "contractors removing boulders and other natural materials in the wet," saying "this should be avoided as impact avoidance/mitigation best practice." And he said once USACE fully coordinated with other federal agencies, remediation measures for already removed material "may be discussed to ensure that the emergency track rebuild has minimal individual and cumulative impact."

Finally, even the mussel came into the conversation: "I also anticipate needing to coordinate with U.S. Fish and Wildlife Service on this project because the section of the river you are working is critical habitat for the Appalachian Elktoe mussel — and there are several other ESA listed species that have the potential to be affected by the work."

As the kayakers continued pressing USACE and the Tennessee Department of Environment and Conservation (TFDEC) — which has provided the only written permit for any work — Ehorn again emailed Scott Glover, who was handling the front end for CSX.

"Scott," Ehorn wrote Nov. 4. "I'm also curious about these photos that were submitted to USACE — What is the story with haul road across the river and scraping the banks?"

Hunter, SELC's attorney, said Ehorn was asking a reasonable question. But he also said Ehorn's agency and the other two never should have let CSX's work get as far as it has, if it's being done in the way he and the witnesses describe. Hunter said the agencies must comply with basic environmental laws including the Clean Water Act, Rivers and Harbors Act and the Forest Service Organic Act.

And because of the economic component and the fact that the river passes through two states, an interstate commerce element comes into play through the Rivers and Harbors Act.

"The agencies have issued those approvals without complying with any of those laws," Hunter said. "So that is at the core of the lawsuit — the agencies have said, 'go ahead, keep doing what you're doing,' even though what they're doing violates these core environmental protections."

Hunter said the magnitude of the natural disaster certainly allowed some emergency procedures to be utilized, but added "those procedures don't waive substantive legal requirements."

He said the agencies have had enough time to commit to CSX that they'll fast-track permitting, but still require reconstruction "in a way that protects the environment and implements the laws as (the agencies are) charged with implementing them."

News Channel 11 contacted both USACE and CSX Monday.

USACE Public Affairs Specialist Michael Davis wrote in an email the Corps of Nashville was actively working with Fish and Wildlife and the Forest Service on the Tennessee side "to ensure the emergency repairs to the rail line are conducted in an environmentally sensitive manner.:

Davis wrote that CSX's emergency coordination for its activities actually began Sept. 30, and he said the Corp's Nashville and Wilmington, N.C. districts visited the site last week.

"The Corps anticipates issuing formal correspondence early this week to CSXT regarding their ongoing repairs of the rail line," Davis wrote.

CSX also provided a lengthy statement, which is shown in its entirety below:

CSX fully recognizes the importance of the Nolichucky River and is committed to continue working collaboratively with the U.S. Army Corp of Engineers, USDA Forestry Service, U.S. Fish & Wildlife, state and federal agencies, to ensure the rail infrastructure is recovered and restored in the safest and most environmentally responsible way. The track material being recovered from the Nolichucky River include rail, ties, rock, track panels, bridge spans and other rail bed fill material that was washed into the river as a result of multiple landslides and historic flooding.

The Blue Ridge rail corridor handles approximately 14 million gross tons of freight annually and is critical to supporting families and businesses throughout the region. Early estimates indicate that costs to rebuild will exceed $200 million. To continue serving our customers during reconstruction, train traffic is being rerouted around the out of service track. CSX continues to work within the required regulatory framework to conduct this critical transportation infrastructure restoration project and declines to comment on the pending litigation.

CSX launched a dedicated webpage ( Blue Ridge Subdivision Recovery ) to keep community stakeholders informed on the progress of our efforts. CSX encourages the public to visit the webpage for updates. Interested community members can use the 'Contact Us' form located on the page to submit any questions or concerns about the project.