CPANP Letterhead

 

February 10, 2021

Norfolk District, Army Corps of Engineers
(ATTN: CENAO-WRR)
803 Front Street
Norfolk, Virginia 23510-1011

Subject:   CENAO-WRR NAO-2012-00080, Dominion Power Surry-Skiffes Creek-Whealton Transmission Line Project Draft Environmental Impact Statement (DEIS)1https://www.nao.usace.army.mil/Missions/Regulatory/SkiffesCreekPowerLine.aspx

Dear Mr. Steffey:

I am writing on behalf of over 1,800 members of the Coalition to Protect America’s National Parks (Coalition). As a group we collectively represent over 40,000 years of experience managing and protecting America’s most precious and important natural and cultural resources. Among our members are former NPS directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.

The Coalition previously commented in 2016 on the environmental assessment (EA). In 2018, we filed an amicus brief in support of Plaintiffs in the case of National Parks Conservation Assoc. v. Semonite, No. 18-5179 (D.C. Cir. 2019).

We have numerous concerns about the Army Corps’ draft environmental impact statement (DEIS) for the Dominion Power Surry-Skiffes Creek-Whealton Transmission Line Project (Project), but will first provide a brief overview as context for our comments.

OVERVIEW

1. Project Setting – The James River, particularly that portion of the river within the Project Area, is known as “the cradle of the Republic” for the important role that area inhabitants played in the early history and development of this Nation. Among the many nationally significant historic properties that have already been adversely affected by the Project are the following:

      • Carter’s Grove National Historic Landmark;
      • Colonial National Historical Park/Colonial Parkway Historic District;
      • Jamestown National Historic Site;
      • Hog Island Wildlife Management Area (“WMA”);
      • Archeological Site 44JC0662;
      • Jamestown National Historic Site/Jamestown Island/Jamestown Island Historic
      • District (“Historic District”), including the contributing section of the Captain
      • John Smith Chesapeake National Historic Trail (“Captain John Smith Chesapeake NHT”);
      • Battle of Yorktown; and
      • Fort Crafford

It is indisputable that these sites individually and collectively are of national significance, worthy of effective preservation, and should remain unimpaired for the benefit and enjoyment of future generations. However, the Corps’ Section 404(b)(1) permitting procedures do not give sufficient weight to the preservation of historic properties located adjacent to but not within Corps jurisdictional waters. As a result, the Corps’ previous decision under an environmental assessment (EA) to permit the Proposed Action was successfully challenged.

  • 2. Litigation Background – The U.S. Court of Appeals for the District of Columbia Circuit (Court) March 1, 2019 ruling in National Parks Conservation Assoc. v. Semonite, No. 18-5179 (D.C. Cir. 2019), hereafter NPCA v. Semonite, reversed and remanded the district court’s ruling and directed the Corps to prepare an environmental impact statement (EIS) for the already constructed Project.

The Court ruling hinged primarily on its review of three “intensity factors” under the National Environmental Policy Act (NEPA) that it concluded were inadequately considered by the Corps in determining in deciding to prepare an EA, rather than an EIS, for the project. As stated in the ruling, “[t]hree intensity factors demonstrate not only that the Project will significantly impact historic resources, but also that it would benefit from an EIS. Indeed, Congress created the EIS process to provide robust information in situations precisely like this one, where, following an environmental assessment, the scope of a project’s impacts remains both uncertain and controversial. See, e.g., Grand Canyon Trust, 290 F.3d at 345–47.” See NPCA v. Semonite at p. 23.

NPCA also made claims regarding the adequacy of the Corps review under the Clean Water Act (CWA) and National Historic Preservation Act (NHPA). The Court was largely silent in addressing those concerns, in essence, “taking no position on the adequacy of the Corps’ alternatives analyses” under those statutes.  However, the Court stated that “[i]n preparing its EIS, the Corps will have to revisit its theories about alternatives under NEPA, which in turn will require it to reevaluate its Clean Water Act and [National Historic] Preservation Act analyses.” (Emphasis added) See NPCA v. Semonite at p. 24.

EXECUTIVE SUMMARY

As described above, the Court ordered the Corps to “revisit its theories about alternatives under NEPA [and] reevaluate its Clean Water Act and Preservation Act analyses.” Shortly after the Court ruling was issued, Tom Walker, Chief of the Regulatory Branch for the Corps’ Norfolk division, was quoted as saying: “We can’t ignore reality, but at the same time we have to be careful in how we use information.”2https://www.virginiamercury.com/2019/07/19/cant-ignore-reality-army-corps-grapples-with-after-the-fact-assessment-of-james-river-power-lines/ (Emphasis added)  Presumably, Mr. Walker was referring to the inherent difficulty of conducting an objective and more thorough NEPA review of a Project that had already constructed under the flawed EA.

Despite Mr. Walker’s statement, the Corps has ignored or skewed important facts during its preparation of the DEIS. Then, absent reasonable and accurate consideration of those facts, the Corps has used flawed rationale to dismiss a number of reasonable, potentially practicable, and less environmentally damaging alternatives from further consideration. Important facts ignored by the Corps include:

  • By setting the baseline to assume that the Project has not been constructed, the Corps ignored the status quo and skewed its analysis to exclude reasonable, feasible, practicable, and potentially less damaging alternatives that could be phased in to replace the Project. FACT: The Project has already been constructed and is operating. It effectively serves as “an interim Remedial Action Scheme (RAS)”, which means no NERC reliability standards violations will occur unless and until the Project is ordered to be decommissioned before an alternate solution is constructed. See DEIS at p. 2-5.
  • In its practicability analysis, the Corps has manufactured an artificially low Project cost estimate of $204 million to help validate Dominion’s preferred alternative for the Proposed Action. FACT: The actual cost of the Project was approximately $435 million, including approximately $95.5 million in mitigation costs, which is 213% higher than the $204 million estimate used by the Corps. The estimate used by the Corps is well outside the -50% to +100% accuracy range considered reasonable for a Class 5 estimate. See DEIS at p. 2-36.
    The Court ordered the Corps to revisit its analysis under the National Historic Preservation Act (NHPA). FACT: In preparing the DEIS, the Corps has failed to re-initiate formal consultation with the consulting agencies (ACHP, SHPO, and NPS). See DEIS at p. 5-22.
  • Instead of re-initiating formal consultation as required under the NHPA, the Corps has relied upon a 2017 memorandum of agreement (MOA) prepared under the flawed EA “as resolution of adverse effects for purposes of NHPA Section 106 and Section 110(f).” See DEIS at p. 5-18. FACT: The Court observed that the MOA does little, if anything, to actually alleviate the most significant adverse effects (i.e., the visual impacts) to historic properties caused by the Project. In the DEIS, the Corps has not considered additional mitigation measures to reduce the severity of those effects; nor has the Corps fully considered reasonable “phaseable” alternatives that would clearly be less damaging to historic properties than the Project in the long run.

By ignoring these and other important realities, the Corps has issued a DEIS that essentially follows the same defective reasoning as the debunked EA and proposes to re-approve the same Action. In doing so, the Corps has failed to comply with the Court’s direction to “revisit [Corps] theories about alternatives under NEPA, which in turn will require it to reevaluate its Clean Water Act and [National Historic] Preservation Act analyses.” These critical failures virtually assure that the EIS will not satisfactorily resolve consulting agency concerns about the impacts of the Project; and almost certainly invite future legal challenge.

Given the above as context, the Coalition has multiple concerns about the DEIS, which are briefly summarized below:

I. National Environmental Policy Act Concerns

A. The Corps has relied upon a narrowly defined Project Purpose and Need statement to eliminate otherwise reasonable alternatives from full consideration.
B. By setting the baseline to assume that the Project has not been constructed, the Corps ignored the status quo and skewed its analysis to exclude reasonable, practicable, and less damaging alternatives to the Project.

II. Practicability Analysis Concern

A.The cost estimate used for the Proposed Action in the Corps’ practicability analysis is fundamentally flawed and artificially low, which erroneously skews the analysis in favor of the Proposed Action.

III. LEDPA Analysis Concerns

A. The Corps has based its LEDPA determination primarily on impacts to the aquatic environment, without demonstrably factoring “other significant adverse environmental consequences” into its determination as specified in 40 C.F.R. § 230.10.
B. The Corps’ Section 404 Guidelines Comparison is inconclusive and incomplete. As a result, it does not serve as a valid basis for selecting the Project as the LEDPA (again).

IV. National Historic Preservation Act Concerns

A. For the DEIS, the Corps did not re-initiate consultation with the appropriate consulting agencies as required under Section 106 of the National Historic Preservation Act (16 U.S.C. § 470(f)). This is a major procedural shortcoming that must be corrected.
B. The 2017 mitigation MOA has done virtually nothing to alleviate the Project’s adverse visual impacts on numerous historic properties within the Project Area. Absent further consultation, the Corps should not assume the MOA is the definitive resolution of those adverse effects.
C. The Corps has not considered additional mitigation measures nor fully considered less damaging “phaseable” alternatives in the DEIS. As a result, the Proposed Action fails to adequately resolve well-documented adverse effects to historic properties in the Project Area.
D. The 2017 MOA creates the appearance of a conflict of interest involving ACHP, Virginia SHPO, and NPS as consulting agencies for the Court-ordered EIS. That appearance of conflict is magnified by the fact that the Corps did not reinitiate formal consultation with them and none of these agencies submitted scoping comments on the DEIS.

V. Other Requirements

A. Given the feasibility of phasing in less damaging alternatives(s) to replace the Project, the DEIS does not adequately consider renewable energy alternatives that Dominion must eventually develop in order to comply with the Virginia Clean Economy Act (VCEA).

VI. Next Steps Under NEPA

A. The appropriate NEPA mechanism to address the many concerns described above is for the Corps to issue a supplemental EIS, as provided for in 40 CFR § 1502.9(d).
B. In the absence of a supplemental EIS, once the final EIS is issued it would be prudent and appropriate for the NPS to submit a pre-decisional referral to the Council on Environmental Quality (CEQ), as provided for in 40 CFR §1504.

Below is more detailed discussion of these concerns.

I. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) CONCERNS

A. The Corps has relied upon a narrowly defined Project Purpose and Need statement to eliminate otherwise reasonable alternatives from full consideration.

In NPCA v. Semonite (see p. 24) the Court stated that “[i]n preparing its EIS, the Corps will have to revisit its theories about alternatives under NEPA, which in turn will require it to reevaluate its Clean Water Act and [National Historic] Preservation Act analyses.” (Emphasis added)

NEPA requires agencies to consider potential environmental effects objectively and in good faith. Carolina Envtl. Study Grp. v. United States, 510 F.2d 796, 801 (D.C. Cir. 1975). The Corps has failed to meet that standard here. Far from undertaking a full, fair, and objective analysis of available alternatives and their impacts, the Corps has crafted its EIS to ensure that the only “practicable alternative” was the action that had already been taken, i.e., the construction of the Project.

As the NEPA regulations make clear, utilizing the NEPA process as nothing more than a ruse to justify or rationalize a decision already made is a patent violation of the letter and spirit of NEPA. See, e.g., 40 C.F.R. § 1502.2(g) (explaining that the NEPA process “shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made.” (emphasis added)); see also id. § 1502.5 (requiring that NEPA review “shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made” (emphasis added)). The Corps’ structuring of its environmental analysis to ensure that the ultimate outcome was construction of the Project is therefore a violation of NEPA and its implementing regulations.

An alternative is “reasonable” under NEPA if it “falls within the agency’s statutory mandate” and if it meets the “agency’s objectives for a particular project.” N.M. ex rel. Richardson v. BLM, 565 F.3d 683, 709 (10th Cir. 2009). In contrast, an alternative is “practicable” under the CWA if “it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” See 40 C.F.R. § 230.10(a)(2).

As described in DEIS Section 2.2.3, the Corps has applied regulations implementing NEPA and the 404(b)(1) Guidelines in a sequential process of elimination to exclude certain alternatives from detailed analysis. However, by applying a narrowly defined Purpose and Need under NEPA, particularly with regard to the time required to implement respective alternatives, the Corps has excluded reasonable alternatives that could be phased in to replace the Project before it is decommissioned. And by applying the 404(b)(1) practicability analysis to exclude reasonable alternatives from detailed consideration, the Corps has violated NEPA’s command to examine “all reasonable alternatives” to the proposed action. See 40 C.F.R. § 1502.14.

Section 404(b)(1) Guidelines contemplate that the scope of the Corps’ NEPA and CWA alternatives analyses may differ, see 40 C.F.R. § 230.10(a)(4) (noting that “the analysis of alternatives required for NEPA environmental documents . . . will in most cases provide the information for the evaluation of alternatives under these Guidelines”; “[o]n occasion, these NEPA documents may address a broader range of alternatives than required to be considered under this paragraph” (emphasis added)), and suggest that the NEPA analysis should come before the CWA practicability analysis.

The Project purpose here is to “provide sustainable electrical transmission capacity into, and/or non-fossil generation capacity within the North Hampton Roads Load Area (NHRLA), sufficient to meet NERC reliability standards in compliance with state and Federal regulations, including MATS and the VCEA.” Id. at p. 1-43. Therefore, arguably, the Corps should have considered all reasonable alternatives that met that purpose, regardless of whether they were “practicable” under the CWA. Cf. 40 C.F.R. § 1502.14(c) (providing that an EIS “shall” “[i]nclude reasonable alternatives not within the jurisdiction of the lead agency”).

An EIS must “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives.” See 40 C.F.R. § 1508.9(b). The goals of the action necessarily dictate the range of “reasonable” alternatives that the agency must consider in evaluating the environmental impacts of a proposed action. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991). Therefore, an agency cannot define its objectives in unreasonably narrow terms. See, e.g., Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1175 (10th Cir. 1999) (providing that “the statements of purpose and need drafted to guide the environmental review process” may not be “unreasonably narrow”); see Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) (holding that a statement of objectives would be unreasonably narrow if it would permit only one particular crossing across a river in order to improve traffic flow).

While the Corps has a duty to consider an applicant’s purpose, it cannot define its purpose so narrowly to preclude the existence of reasonable alternatives. See cf. Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir. 1989) (“[A]n applicant cannot define a project in order to preclude the existence of any alternative sites.”). Nor can the Corps formulate its purpose and need such that the Project is rendered a foregone conclusion under NEPA. See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 710-11 (10th Cir. 2009) (finding that a project purpose “to determine which lands . . . are suitable for leasing and subsequent development” did not “take development . . . as a foregone conclusion”).

Rather, the agency has a “duty to conduct an independent analysis of alternatives,” see  S. Utah Wilderness All. v. Norton, 237 F. Supp. 2d 48, 52-54 (D.D.C. 2012), and cannot merely accept the “self-serving statements or assumptions” of non-federal parties with a vested interest in the outcome of the NEPA process. See Hammond v. Norton, 370 F. Supp. 2d 226, 251-52 (D.D.C. 2005) (internal quotation omitted); see also City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999) (“An alternative is properly excluded from consideration . . . only if it would be reasonable for the agency to conclude that the alternative does not bring about the ends of the federal action.”); see  Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999) (“[W]hile the EIS need not be exhaustive, ‘[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.’” (internal quotation omitted)); see Simmons v. U.S. Army Corps of Eng’rs, 120 F.3d 664, 669 (7th Cir. 1997) (“The Corps has the duty under NEPA to exercise a degree of skepticism in dealing with self-serving statements from a prime beneficiary of the project.” (citation and internal quotation marks omitted)); see Pub. Emps. for Envtl. Resp. v. U.S. FWS, 177 F. Supp. 3d 146 (D.D.C. 2016) (“It is not enough that the alternatives it considered are consistent with the need for the proposed action. Rather, FWS must address the accusation that it improperly excluded from consideration additional reasonable alternatives that would also meet the agency’s objectives.”).

Yet, that is precisely what the Corps did here. By defining the need for the Project to exclude otherwise reasonable alternatives that would not meet Dominion’s preferred schedule because they would, in essence, “take too long to build,” the Corps allowed Dominion to control its NEPA analysis. In so doing, the Corps impermissibly “adopt[ed] private interests to draft a narrow purpose and need statement that exclude[d] alternatives that fail[ed] to meet specific private objectives.” See Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1072 (9th Cir. 2010).

The fact that otherwise reasonable alternatives that may have met the overall purpose and need of the Project—i.e., “to provide sustainable electrical transmission capacity into, and/or non-fossil generation capacity within the NHRLA, sufficient to meet NERC reliability standards in compliance with state and Federal regulations, including MATS and the VCEA,” DEIS at 1-43—may entail some additional delay does not afford a satisfactory basis for excluding them from detailed analysis. To the contrary, simply deferring to Dominion, which cannot construct and operate the Project without authorization from the Corps, runs roughshod over the crucial obligations imposed on the Corps by NEPA. See, e.g., State of Idaho v. ICC, 35 F.3d 585, 596 (D.C. Cir. 1994) (holding that the agency failed to take a hard look at environmental impact by deferring to the judgment of other agencies and the licensee in assessing environmental impact of licensee’s application); see Ill. Commerce Comm’n v. ICC, 848 F.2d 1246, 1258 (D.C. Cir. 1988) (holding that an agency has responsibility to independently investigate and assess environmental impact of the proposal before it); see cf. Pub. Emps. For Envtl. Resp., 177 F. Supp. 3d at 146 (holding that FWS violated NEPA where the “agency’s record . . . shows that alternatives were excluded from consideration not because they could not satisfy the stated need—the management of double-crested cormorants—but simply because of resource limitations”).

In essence, the Corps’ purpose and need section ensured that the Project was the only solution to meeting the NHRLA’s energy needs, thus rendering the construction of the Project a “foregone conclusion” in violation of NEPA. See Richardson, 565 F.3d at 710-11. As a result, the Corps failed to examine reasonable and practicable alternatives that could be phased in to replace the Project – alternatives that may, over the long term, have had fewer adverse impacts on the aquatic environment and other resources. This failure contravenes NEPA’s purpose—i.e., “to require agencies to consider environmentally significant aspects of a proposed action, and, in so doing, let the public know that the agency’s decisionmaking process includes environmental concerns,” see Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1162 (10th Cir. 2002)—and is antithetical to NEPA’s command to take a “hard look” at “all reasonable alternatives” to a proposed action, see 40 C.F.R. § 1502.14(a).

B. By setting the baseline condition to assume the Project has not been constructed, the Corps ignored the status quoand skewed its analysis to exclude reasonable, feasible, practicable, and potentially less damaging alternatives than the Project.

NEPA requires that agencies “present complete and accurate information to decision makers and to the public to allow an informed comparison of the alternatives considered in the EIS.” See Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813 (9th Cir. 2005). To fulfill NEPA’s goal of providing the public with information to assess the impact of a proposed action, the Corps should accurately define the status quo and describe how it was reached. See Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 746 F. Supp. 2d 1055, 1091 (N.D. Cal. 2009).

The status quo as it exists today includes the Project (i.e., the existing overhead line). Yet, “based on the unique posture of this EIS, the Corps plans to evaluate the alternatives as if the Corps permit had not been issued and the Proposed Project had not been constructed. Under that scenario, Dominion immediately would be unable to maintain compliance with NERC Reliability Standards.” (Emphasis added.) See DEIS at p. 1-32.

By starting its analyses with this flawed assumption, the Corps created an artificial and significant constraint to the range of reasonable alternatives that could otherwise meet the Purpose and Need for the Project. Importantly, Dominion clearly exploits the Corps’ false premise in explaining its Statement of Purpose and Need (see DEIS Section 1.4.1.). In brief, Dominion states that after the Project was completed, Dominion retired Yorktown coal-fired Units 1 and 2 in March 2019 to comply with federally mandated environmental rules. Since then, Dominion asserts it would be unable to comply with NERC reliability standards without the existing Project. “Accordingly, for a project to meet the purpose and need, Dominion must be able to place the project in service as soon as possible to minimize the amount of time where there is noncompliance with NERC Reliability Standards (and corresponding contingencies, including rolling blackouts to prevent system overloads)… As a result, projects that would take longer to be permitted, built, and placed in service would not be reasonable alternatives because they would not meet the project need to provide sustainable electrical capacity into the NHRLA[.]” (Emphasis added.)
See DEIS at p. 1-33.

Similarly, “[t]he Corps finds the basic project purpose is to continue providing the NHRLA with reliable, sustainable and cost-effective, bulk electrical service consistent with mandatory NERC reliability standards for transmission facilities and planning criteria.” (Emphasis added.)  See DEIS at p. 1-42. As a result, the Corps has applied this artificial constraint to outright reject a number of potentially practicable alternatives based on the simplistic rationale that they “cannot meet in-service date requirements.” See Table 2-6, DEIS pp. 2-56 and 2-57.

Obviously, “as soon as possible” and “continue to provide” convey the importance of not having an interruption in the level of electrical service provided by the existing Project. However, this completely ignores the fact that “the Project effectively serves as an interim RAS [Remedial Action Scheme], which means no NERC reliability standards violations will occur until and unless the Project is ordered to be decommissioned before an alternate solution is constructed.” See DEIS at p. 2-5. In addition, the Corps has determined… that the NERC near-term compliance date is 2024 and the long-term compliance date is 2030.” (Ibid., emphasis added.) In other words, the existing overhead line satisfies NERC reliability standards until at least 2030. That would allow sufficient time to implement a less damaging alternative that could be phased in to replace the existing Project line before it is decommissioned.

As an aside, Dominion’s and the Corps’ respective explanations of why only the existing Project best meets the Purpose and Need for the Project are classic examples of circular reasoning. Circular reasoning (Latin: circulus in probando, “circle in proving”) is a “logical fallacy” in which the reasoner begins with what they are trying to end with.3https://en.wikipedia.org/wiki/Circular_reasoning In this case, Dominion and the Corps make an erroneous argument (in our words) along the lines of: “Because the Project was completed under the flawed EA and Dominion has already retired Yorktown Units # 1 & 2, if the Project is not approved again under the EIS, Dominion will not be able to comply with NERC reliability standards.” This circular reasoning completely ignores the fact that there are other reasonable, feasible, practicable and potentially less damaging alternatives by which Dominion can remain in compliance with NERC requirements. It simply means that the existing Project must not be decommissioned before a replacement has been implemented.

However, by defining the status quo (or baseline) such that the NHLRA would immediately be plunged into an energy crisis if the DEIS’s Proposed Action is not approved, the Corps fails to provide an accurate “standard by which the reader may compare the other alternatives’ beneficial and adverse impacts.” Kilroy v. Ruckelshaus, 738 F.2d 1448, 1453 (9th Cir. 1984) (internal citation and quotation omitted). To the contrary, as a result of its failure to accurately define and consider the baseline, the Corps excluded from detailed analysis reasonable alternatives that may have taken longer to build; or that under the status quo as it exists today could have been phased in to replace the Project with alternatives that would, over the long term, have fewer adverse effects on historic properties adjacent to Corps jurisdictional waters, while still protecting the aquatic environment.

Without “[accurate baseline] data, an agency cannot carefully consider information about significant environment impacts . . . resulting in an arbitrary and capricious decision.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011). To comply with NEPA, the alternatives analysis must be revised to include alternatives that accurately reflect the baseline.

Key Point: To properly address these shortcomings, the Corps should prepare a supplemental EIS that fully considers potentially practicable and less environmentally damaging alternative that could be phased in to replace the existing Project before it is decommissioned.

II. PRACTICABILITY ANALYSIS CONCERN

A. The cost estimate used for the Proposed Action in the Corps’ practicability analysis is fundamentally flawed, which erroneously skews the analysis in favor of the Proposed Action.

As stated in DEIS Section 2.5.2 Cost, see pp. 2-34 and 2-35:

[T]he largest differentiator is cost when evaluating practicability of these alternatives… For the purposes of this EIS, cost is analyzed in the context of the overall scope of the alternative and whether it is unreasonably expensive. (Emphasis added)

The term “unreasonably expensive” apparently derives from a 1993 joint EPA-USACE “Memorandum: Appropriate Level of Analysis Required for Evaluating Compliance with the CWA Section 404(b)(1) Guidelines Alternatives Requirements”4https://www.epa.gov/cwa-404/memorandum-appropriate-level-analysis-required-evaluating-compliance-cwa-section-404b1, which states in part:

Section 3. b. The determination of what constitutes an unreasonable expense should generally consider whether the projected cost is substantially greater than the costs normally associated with the particular type of project.” (Emphasis added)

While this guidance refers generally to “costs normally associated with the particular type of project,” we state the obvious regarding this specific Project – placing a 500kV overhead transmission line through “the cradle of the Republic” and adversely affecting the area’s multiple historic properties is not “normal” (or normally done) by any standard. We are not aware of any comparable project occurring under Corps jurisdiction that has had such significant, long-term (if not permanent) adverse effects on so many important historic sites and cultural resources. Because of this, it is inappropriate for the Corps to determine “practicability” based simplistically on “normal costs for comparable projects” in other locations that do not have a similar level of nationally significant cultural resources. Yet that appears to be what the Corps has done.

Second, the estimated cost of the Proposed Action is identified in the DEIS as $204 million. See DEIS Table 2-5, p. 2-43. This estimate is artificially low and has no connection to reality or to Dominion’s own cost estimates published in the years leading up to the construction of the transmission line. For example, as detailed in Appendix C, the $204 million does not include the estimated $95.5 million in mitigation commitments made by Dominion in the 2017 mitigation memorandum of agreement (MOA).5http://cdm16021.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/4674

Excluding known mitigation costs from the $204 million estimate is inconsistent with cost exclusion guidelines described by the Corps in the DEIS. See p. 2-38. As described, appropriate exclusions include “mitigation fees required as a result of legal challenges.” (Emphasis added) It is well documented that Dominion’s mitigation commitments under the MOA were not “a result of legal challenges.” Therefore, the costs of the MOA should be included (not excluded) as part of the cost estimate for the Proposed Action.
.
In addition, the Corps’ $204 million estimate in the DEIS, issued in late 2020, is significantly lower than multiple cost estimates for the Project prepared by Dominion up to four years earlier. For example, in its annual Form 10-K filings with the U.S. Securities and Exchange Commission (SEC) for fiscal years 2016-2018, Dominion submitted the following estimates for the Surry-Skiffes Creek-Whealton Project:

      • $260 million in fiscal year ending December 31, 2016.6https://www.sec.gov/Archives/edgar/data/103682/000119312517060413/d334692d10k.htm (See Properties section, p. 12.)
      • $325 million in fiscal year ending December 31, 2017. 7https://d18rn0p25nwr6d.cloudfront.net/CIK-0000715957/643659e0-4324-4a23-9493-0b22f9694a62.pdf(See Properties section, p. 12.)
      • $435 million in for fiscal year ending December 31, 2018.8https://www.sec.gov/Archives/edgar/data/103682/000119312519057924/d662998d10k.htm#tx662998_5 (See Properties section, p. 12.)

Last but not least, the DEIS reports the actual cost of the completed project was $348.4 million, which presumably still does not include the $95.5 million in mitigation costs under the MOA. See DEIS at p. 2-41. Therefore, the proper “actual cost” figure should be approximately $443.9 million, which is reasonably consistent with Dominion’s $435 million estimate (cited above) for the fiscal year ending December 31, 2018.

In summary, the Corps has arbitrarily omitted known mitigation costs from the “estimate” for the Proposed Action in the DEIS resulting in a $204 million estimate that is significantly lower than estimates for the Project Dominion provided to the SEC for fiscal years 2016-2018; and significantly lower than actual costs for the Project as already constructed. As a result, the artificially low $204 million estimate is not a valid basis for determining practicability; and improperly skews the analysis in favor of the Corps’ re-selection of the Proposed Action as the most practicable LEDPA candidate.

Key Point: The Corps must fairly assess the true cost of the Proposed Action (the existing Project), which at least must include the $95.5 million in mitigation under the 2017 MOA.

III. LEDPA ANALYSIS CONCERNS

A. The Corps has based its LEDPA determination primarily on impacts to the aquatic environment, without demonstrably factoring in “other significant adverse environmental consequences” into the determination as specified in 40 C.F.R. § 230.10.

Unlike NEPA which is purely procedural, the CWA has a substantive mandate. The CWA requires that the Corps select the “least environmentally damaging practicable alternative” (LEDPA), unless the LEDPA has “other significant adverse environmental consequences.” See 40 C.F.R. § 230.10, which states, in part: “No discharge or dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” (Emphasis added).

In effect, the wording of the regulation means that “other significant adverse environmental consequences” outside of the aquatic environment may preclude permitting an alternative that otherwise is the least environmentally damaging to the aquatic environment. In this case, it is arguable that the significant adverse visual effects caused by the Project to the area’s historic properties are sufficient to disqualify the Surry-Skiffes Creek-Whealton overhead line from being the LEDPA.

Corps guidance on “Compliance With the Section 404(b)(1) Guidelines” provides no useful information regarding the meaning of § 230.10’s provision regarding “so long as the alternative does not have other significant adverse environmental consequences.” And, based on the Corps analysis in the DEIS, it is not evident what weight (or value), if any, the Corps has given to significant adverse effects to non-aquatic resources in its LEDPA determination.

Furthermore, as indicated in Table 4-26, see DEIS at p. 4-19, eighteen of the twenty (or 90% of the) Section 404 (b)(1) “Guidelines” considered in the Corps’ LEDPA analysis relate specifically to the aquatic environment, which is obviously the focus of Section 404 of the Clean Water Act. Only two (or 10%) do not. Of critical importance to this Project, there is no Section 404 Guideline for “historic properties” or “cultural resources” listed in the table. Presumably, adverse effects to historic properties and cultural resources could be considered under Guidelines for §230.53 Aesthetics and/or §230.54 Parks, Monuments, etc. However, lumping a National Historic Landmark and other nationally significant historic properties under such vague generalized terms is inappropriate this case. In simple quantitative terms, if that is the only consideration given to adverse effects to historic properties in the Corps’ LEDPA determination, it would account for no more than 5-10% of the overall guidelines comparison. As such, it would have little to no effect in the Corps’ LEDPA determination for this Project; and, frankly, that appears to be what has happened.

While 40 C.F.R. § 230.10 establishes a general prohibition on permitting an alternative that has “other significant adverse environmental consequences,” the Corps has not adequately explained how the well-documented significant adverse effects to historic properties along the James River were factored into the LEPDA evaluation. As a result, it appears that decision was based primarily on impacts to the aquatic environment without serious regard to “other significant adverse environmental consequences,” which falls far short of meeting the letter and intent of 40 C.F.R. § 230.10.

B. The Corps’ Section 404 Guidelines Comparison is inconclusive and incomplete. As a result, it does not serve as a valid basis for selecting the Project as the LEDPA (again).

Table 4-26 (see DEIS p. 4-198) indicates that the overall results of the Section 4040 Guideline comparison between the Proposed Action and the Chickahominy-Skiffes Creek-Whealton alternative “are not clear cut.” As explained by the Corps on DEIS pp. viii-ix:

The 404(b)(1) Guidelines provide guidance when the differences between alternatives are not clear cut. When it is determined that there is no identifiable or discernible difference in adverse impact on the environment between the applicant’s proposed alternative and all other practicable alternatives, then the applicant’s alternative is considered as satisfying the requirements of Section 230.10(a).

Therefore, based on the information currently available to the Corps and the Corps’ detailed evaluation of the Proposed Action and Chickahominy to Skiffes Creek to Whealton Alternative, the Corps has determined, as of the date of publication of the draft EIS, that the Proposed Action is the LEDPA. (Emphasis added)

In other words, the Corps assessment indicates that the relative environmental impacts (or “pros” and “cons”) of the only two “practicable” alternative candidates are roughly equivalent in this case. As a result, Corps policy requires the Corps give the nod to the alternative preferred by Dominion Energy, which coincidently is the alternative that has already been constructed and put into operation by Dominion. See DEIS at p. ix.

In reviewing the DEIS, we’ve found it very difficult to find and track the Corps’ analysis to support its Guidelines ratings summary shown in Table 4-26. While there is much discussion in various sections of the DEIS and appendices of potential impacts to a variety of aquatic resources, the title or grouping of aquatic resources being discussed in those analyses often does not correspond directly to the respective Guideline titles. For example, DEIS Section 4.4.5 Comparison Table of Alternatives and Table 4-25 provide a limited comparison of some factors related to the two potential LEDPA alternatives, yet neither provides a detailed comparison of the two alternatives for each Guideline heading listed in Table 4-26 (e.g., those headings include: §230.20 Substrate; §230.21 Suspended Particles; §230.22 Water; §230.23 Current Patterns” … up through “§230.53 Aesthetics; and §230.54 Parks, Monuments, etc.). As a result, it impossible to discern the validity of Corps’ rationale on a point-by-point basis for how it has determined the comparative ratings under each individual Guideline summarized in Table 4-26.

As discussed previously, by employing a narrow interpretation of Purpose and Need the Corps has arbitrarily eliminated a number of potentially reasonable, feasible, practicable and potentially less environmentally damaging alternatives that could be phased in over time to replace the most damaging portions of the Project (i.e.., the James River crossing). As a result of this overarching shortcoming, the Guidelines analysis shown in Table 4-26 is incomplete – only two potential LEDPA candidates are even considered in the Corps Guidelines summary.

Last but not least and as described above, the Corps’ Guidelines Comparison table does not demonstrably consider “other significant adverse environmental consequences.”

Recommendation:  To properly address these shortcomings, the Corps should prepare a supplemental EIS that fully considers “phaseable” alternatives and provides detailed analysis supporting each of its Section 404 Guidelines ratings shown in Table 4-26. This should include a clear explanation of how “other significant adverse environmental consequences” have been factored into the evaluation.

IV. NATIONAL HISTORIC PRESERVATION ACT (NHPA) CONCERNS

A. For the DEIS, the Corps did not re-initiate Section 106 consultation with the appropriate consulting agencies as required under Section 106 of the National Historic Preservation Act (16 U.S.C. § 470(f)). This is a major procedural shortcoming that must be corrected.

The gist of the Court’s ruling in NPCA v. Semonite was that the Corps had not adequately evaluated impacts of the Proposed Action on historic properties and cultural resources in the Project Area. As a result, the Court specifically directed the Corps to “reevaluate its… [National Historic] Preservation Act analyses.” See NPCA v. Semonite at p. 24.

However, as summarized in Table 5-1, see DEIS at pp. 5-19 to 5-22, the Corps did not re-initiate formal consultation with the appropriate cultural resources agencies during preparation of the DEIS, as required under Section 106 of the National Historic Preservation Act (16 U.S.C. § 470f).  Instead, the Corps relies upon its prior consultation under the flawed EA. (See “Final Section 106 Consultation and Public Involvement Plan,” dated May 9, 2017, in DEIS Appendix D, Section B.)  In doing so, the Corps has clearly failed to comply with the direction of the Court that it “reevaluate its… [National Historic] Preservation Act analyses.”  Failure to re-initiate formal Section 106 consultation is a major procedural shortcoming in the Corps’ DEIS planning process that must be corrected.

  1. The 2017 mitigation MOA has done virtually nothing to alleviate the Project’s adverse visual effects on numerous historic properties within the Project Area. Absent further consultation, the Corps should not assume the MOA is the definitive resolution of those adverse effects. 

The 2017 MOA enabled the Project to proceed; but, as the Court pointed out in NPCA v. Semonite, the MOA offered very little to alleviate the substantial visual impacts caused by the Project:

Except for requiring Dominion to “examine” alternative “coating and finishing materials” for the transmission towers, the enumerated mitigation measures the Corps cites relate not to reducing the significance of the Project’s visual impacts on the historic resources along the James River, but rather to periodic evaluation of the continued need for the Project itself and to more general historic preservation efforts throughout the Commonwealth. Memorandum of Agreement § I.e.1, J.A. 293. USCA Case #18-5179 Document #1775491. See NPCA v. Semonite at pp. 21-22.

Since the Court ruling, the Corps has subsequently approved Dominion’s request to be released from using a non-reflective coating on the transmission towers. As a result, Dominion has none literally nothing under the MOA to alleviate the consulting parties’ primary adverse effects of concern (i.e., visual impacts). Instead, the MOA provided for approximately $95.5 million in payments from Dominion as “mitigation” for those impacts, including approximately $85 million in payments to organizations as what is loosely labeled as “compensatory mitigation.”

Courts have recognized the shortcomings of agencies relying upon monetary payments as “mitigation.” For example, the U.S. Court of Appeals for the Fourth Circuit issued a ruling on December 1, 2020 in Sierra Club v. U.S. Army Corps of Engineers (No. 20-2042)9https://www.ca4.uscourts.gov/opinions/202039A.P.pdf, a case related to the Mountain Valley Pipeline. In that ruling, the Court stated, in part:

Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987). And “[t]he dredging . . . that may occur while the Court decides the case cannot be undone and, if the end result is that the Corps should not have issued [the permit], irreparable harm will have occurred in the meantime.” Sierra Club v. United States Army Corps of Eng’rs, 399 F. Supp. 2d 1335, 1348 (M.D. Fla. 2005), vacated on other grounds, 464 F. Supp. 2d 1171, 1228 (M.D. Fla. 2006).

The Court’s statement above rings true for the James River transmission line project as well. The visual impacts caused by the transmission towers truly constitute “permanent or at least of long duration, i.e., irreparable” harm to multiple historic properties, unless the Corps fully reconsiders its “alternatives theories” and “Preservation Act analysis” as directed by the Court in NPS v. Semonite.

C. The Corps has not considered additional mitigation measures or fully considered less damaging “phaseable” alternatives in the DEIS. As a result, the Proposed Action fails to adequately resolve well-documented adverse effects on historic properties in the Project Area.
The Corps’ Proposed Action is to simply “re-approve” the already-constructed Surry- Skiffes Creek-Whealton transmission line without any significant changes in the Project proposal or other alternatives considered. Given the ineffectiveness of the 2017 MOA at alleviating the adverse visual effects to historic properties along the James River, additional mitigation measures should have been suggested by the consulting agencies and considered by the Corps in the DEIS. However, no new or additional mitigation measures have been considered or evaluated that would help reduce or eventually eliminate these adverse effects over time.

At the very least, the Corps should consider reasonable, feasible and practicable alternative(s) that could be phased in to replace the existing Project within a 10-year horizon and would ultimately be far less damaging to the integrity and setting of the historic properties than the existing Project.

D. The 2017 MOA creates the appearance of a conflict of interest involving ACHP, Virginia SHPO, and NPS as consulting agencies for the Court-ordered EIS. That appearance of conflict is magnified by the fact that the Corps did not reinitiate formal consultation with them and none of three agencies submitted scoping comments on the DEIS.

  • Each of the consulting agencies abbreviated above and discussed in this section has a statutory mandate to conserve cultural and historic resources. Their respective self-described missions are as follows:
  • Advisory Council on Historic Preservation (ACHP), John M. Fowler, Executive Director (signatory to the MOA). According the ACHP website10https://www.achp.gov/ “The ACHP promotes the preservation, enhancement, and sustainable use of the nation’s diverse historic resources, and advises the President and Congress on national historic preservation policy.”
  • Virginia State Historic Preservation Office (SHPO), Julie V. Langan, Director, Virginia Dept. of Historic Resources (DHR) (signatory to the MOA). As described on the DHR website11https://www.dhr.virginia.gov/ “[t[he Virginia Department of Historic Resources is the State Historic Preservation Office. Our mission is to foster, encourage, and support the stewardship of Virginia’s significant historic architectural, archaeological, and cultural resources.”
  • U.S. Department of the Interior, the National Park Service (NPS) and Colonial National Historical Park (a “Consulting/Concurring Party” to the MOA). According to the NPS website12https://www.nps.gov/aboutus/index.htm “[t]he National Park Service preserves unimpaired the natural and cultural resources and values of the National Park System for the enjoyment, education, and inspiration of this and future generations. The Park Service cooperates with partners to extend the benefits of natural and cultural resource conservation and outdoor recreation throughout this country and the world.”

As consulting parties in the previous EA planning process, ACHP, SHPO, and NPS each expressed significant concerns about the Surry-Skiffes Creek-Whealton alternative. As summarized in NPCA v. Semonite, see p. 8, examples of these concerns included the following:

  • The Advisory Council on Historic Preservation—the independent federal agency tasked with the “preservation of historic propert[ies],” 54 U.S.C. § 306101(a)(1)—warned that the Project “threaten[s] to irreparably alter a relatively unspoiled and evocative landscape that provides context and substance for the historic properties encompassed within. Letter from Advisory Council Chairman (May 2, 2017), J.A. 414.
  • Writing to the Corps fully twenty times, the Park Service warned that the Project “would forever degrade, damage, and destroy the historic setting of these iconic resources.” Letter from Park Service Director (Dec. 11, 2015), J.A. 1829.
  • The Virginia Department of Historic Resources feared “irreparabl[e] alter[ation] [of] the character of the area.” Letter from Virginia Department of Historic Resources Director (Nov. 13, 2015), J.A. 1855.

In addition, Secretary of the Interior Sally Jewell sent Jo-Ellen Darcy, the Assistant Secretary of the Army (Civil Works), a 68-page information package13https://www.nao.usace.army.mil/Portals/31/docs/regulatory/Skiffes/Additional%20Federal%20Agency%20Comments/DOI_Secretary_Jewell_1.17.2017.pdf?ver=2017-01-23-135209-680 on January 17, 2016, that described in detail the Department’s (and Park Service’s) “substantial concerns” with the proposed Dominion Surry-Skiffes Creek-Whealton Transmission Line Project. In essence, this correspondence summarized the many concerns NPS had previously expressed in approximately twenty other written communications.

However, on March 30, 2017 (after the change in administrations) newly appointed Secretary of the Interior Ryan Zinke sent Douglas W. Lamont, Senior Official Performing the Duties of the Assistant Secretary of the Army (Civil Works) a short letter14https://www.nao.usace.army.mil/Portals/31/docs/regulatory/Skiffes/Additional%20Federal%20Agency%20Comments/DOI_3.30.2017.pdf?ver=2017-04-04-110147-043 (barely two pages long) notifying the Corps of Interior’s willingness to accept the Corps selection of the Surry-Skiffes Creek-Whealton alternative and sign the MOA. Less than a month after Secretary Zinke’s acquiescence memorandum, NPS, ACHP, and SHPO became parties to the April 24, 2017 mitigation MOA along with the Corps and Dominion Energy.

When the Corps’ permitting decision was challenged by NPCA, it was readily apparent to the Court that Secretary Zinke’s letter provided no substantive review of NPS concerns or explanation as to why Secretary Jewell’s concerns were no longer in effect. As the Court stated in NPCA v. Semonite (see p. 19), “We are unsure, moreover, whether the Zinke letter actually responds to the Park Service’s concerns. As the Conservation Association points out, the letter “never even reference[s] [the Park Service’s] objections [or] longstanding methodological critiques.”

In our view, the Zinke letter represents an arbitrary and capricious reversal of previously stated NPS concerns regarding the Surry-Skiffes Creek-Whealton overhead line. The stark contrast in the level of substance and concern between the two Secretary letters before and after a change in administration strongly suggests the role that partisan “politics” played in the Interior Department’s acquiescence to the Corps’ proposed decision. It also suggests the likelihood that NPS was compelled by the Department to “live with” a decision that NPS career officials did not believe adequately addressed their previously stated concerns about impacts to cultural resources.

According to the scoping report15https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/13231 for the DEIS, neither ACHP, SHPO, nor NPS submitted scoping comments. See Scoping Report , Table 2, p. 5. Given their respective missions and previous concerns described above, the consulting parties’ silence now is dumfounding. In a high profile NEPA planning process following litigation such as this, one would reasonably expect ACHP, SHPO, and NPS to continue to advocate strongly and negotiate tirelessly for alternatives that would best preserve the historic properties and cultural resources within the Project Area. However, the fact that the Proposed Action in the DEIS is essentially the same as that in the flawed EA raises serious concerns about the inclination and effectiveness of ACHP, SHPO, and the NPS in negotiating with the Corps during the DEIS development process.

Lastly, the ongoing status of the $95.5 million MOA signed by ACHP, SHPO and NPS in 2017, which in effect cemented their acceptance of the Surry-Skiffes Creek-Whealton transmission line under the flawed EA, creates the appearance of a conflict of interest involving these consulting agencies. That appearance is seriously magnified by the fact that none of them submitted scoping comments on the DEIS. If the consulting agencies have already agreed to the existing transmission line under the MOA, which is now proposed for “re-approval” by the Corps, how can they be expected to advocate effectively now for the conservation of historic properties to the extent their respective mandates demand?

In summary, the MOA creates the appearance of a conflict of interest on the part of the consulting parties who previously expressed strong concerns about the Proposed Action during the EA planning process. That appearance is magnified by the fact that the Corps has not reinitiated consultation as required under Section 106 of the National Historic Preservation Act and none of the consulting parties (i.e., neither ACHP, SHPO, nor NPS) submitted scoping comments on the DEIS.

Recommendation: To properly address these concerns, the Corps should prepare a supplemental EIS that fully considers reasonable, less damaging alternatives that could be phased in to replace the existing Project before it is decommissioned. In doing so, the Corps should re-initiate formal consultation with the consulting agencies and seek their input on how to further reduce existing adverse visual effects to historic properties in the Project Area.

V. OTHER REQUIREMENTS

A. Given the feasibility of phasing in less damaging alternatives(s) to replace the Project, the DEIS does not adequately consider renewable energy alternatives that Dominion must eventually develop in order to comply with the Virginia Clean Economy Act (VCEA).

The VCEA, which became effective on July 1, 2020, imposed new retirement requirements and constraints on approval of new fossil fueled generation that the SCC must implement. See DEIS p. 1-16. Principal among these requirements that directly relate to the Corps’ decision making are:

    1. By December 31, 2024, all generating units principally fueled by oil with a rated capacity in excess of 500 megawatts (MWs) and all coal-fired electric generating units must be retired, except for certain coal-fired units, such as electric cooperatives, other than Dominion’s Yorktown units;
    2. By December 31, 2045, all other electric generating units that emit carbon as a fuel combustion by-product must be retired;
    3. The SCC may grant petitions to allow fossil fuel generation to continue beyond these dates solely on the basis the retirement would threaten the reliability or security of electric service in consideration of in-state and regional transmission resources on a case by-case basis.

Relevant to this Project are recently stated SCC concerns16https://scc.virginia.gov/docketsearch/DOCS/4r%24t01!.PDF that Dominion’s 2020 Integrated Resource Plan (IRP) is neither “reasonable” nor “in the public interest.” The SCC directs Dominion to include “a variety of sensible improvements” in “each year’s updated filing, and each triennial filing.” Ibid. Improvements required under the VCEA include that: Dominion retire all electric generating units located in the Commonwealth that emit carbon as a by-product of combusting fuel to generate electricity by December 31, 2045; Dominion must meet target levels for acquisition of renewable energy derived from sunlight or onshore wind and from offshore wind by December 31, 2035; Dominion must achieve specified target levels of energy storage capacity by December 31, 2035. (Emphasis added)

Also relevant to this Project is the recently issued Executive Order (EO) on Tackling the Climate Crisis at Home and Abroad17https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/ issued by President Biden on January 27, 2021. Section 207 of the EO addresses “Renewable Energy on Public Lands and in Offshore Waters” and establishes “the goal of doubling offshore wind by 2030 while ensuring robust protection for our lands, waters, and biodiversity and creating good jobs.” This order significantly increases the likelihood of offshore wind energy development in areas capable of supplementing the energy supply for the NHRLA.

Given the existing Project meets current service demands and allows Dominion time to phase in a less environmentally damaging alternative and/or a combination of alternatives that would contribute to Dominion achieving its mandatory VCEA’s renewable energy targets, it would be prudent for the Corps (and Dominion) to fully consider such alternatives in a supplemental EIS.

Recommendation:  To properly address this concern, the Corps should prepare a supplemental EIS that fully considers potentially practicable and less environmentally damaging renewable energy alternatives that could be phased in to replace the existing Project before it is decommissioned.

VI. NEXT STEPS UNDER NEPA

A. The appropriate NEPA mechanism to address the many concerns described above is for the Corps to issue a supplemental EIS, as provided for in 40 CFR § 1502.9(d).

Circumstances indicating the need for a supplemental EIS are spelled out in the Council on Environmental Quality (CEQ) NEPA implementing regulations at 40 CFR § 1502.9(d), which state, in part:

(d) Supplemental environmental impact statements. Agencies:

(1) Shall prepare supplements to either draft or final environmental impact statements if a major Federal action remains to occur, and:

(i) The agency makes substantial changes to the proposed action that are relevant to environmental concerns; or

(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

(2) May also prepare supplements when the agency determines that the purposes of the Act will be furthered by doing so. (Emphasis added)

(3) Shall prepare, publish, and file a supplement to a statement (exclusive of scoping (§1501.9 of this chapter)) as a draft and final statement, as is appropriate to the stage of the statement involved, unless the Council approves alternative procedures (§1506.12 of this chapter).

In this case, the Corps has issued a flawed DEIS that rubber stamps its prior decision under a flawed EA without considering reasonable changes to the previous assessment, such as considering potentially practicable alternatives that could be phased in to replace the existing Project. Nor has the Corps considered additional mitigation measures that would more effectively resolve consulting agency concerns about adverse visual effects to numerous historic properties in the Project Area.

In addition, the “purposes of the Act” (referred to in §d.2 above) are found in NEPA Sec. 2 (42 USC § 4321).

The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

Clearly, preparing a supplement EIS in this case would “further the purposes of the Act.” Given the existing Project eliminates the urgency to complete the Project, there is no valid reason for the Corps not to fully consider potentially less environmentally damaging alternative(s) that could be phased in to replace the existing Project. Ideally, such alternative(s) would incorporate principles of adaptive management that identify desired future conditions or other benchmarks that, once achieved, would trigger initiation of the phase-in process.

For example, a desired future condition for a “phaseable” alternative should be to replace and remove the James River overhead line within a 10 year horizon. A simple “phaseable” alternative to consider would be to eliminate the current James River crossing by employing alternate routing and/or improved technology. A more complicated alternative to consider would be an integrated approach using a combination of possible alternative energy sources, such as offshore wind, that are currently under discussion.

B. In the absence of a supplemental EIS, once the final EIS is issued it would be prudent and appropriate for the NPS to submit a pre-decisional referral to the Council on Environmental Quality (CEQ), as provided for in 40 CFR §1504.

Absent a supplemental EIS, it is readily apparent that the Corps along with the consulting agencies cannot effectively resolve this issue by essentially repeating the same decision process that occurred under the flawed EA.What is needed now, but apparently cannot be achieved by Corps without third-party intervention, is an effective compromise solution that would better protect the area’s unique and nationally significant historic properties, while still adequately protecting the important but not as unique aquatic resources within Corps jurisdictional waters.

If the Corps does not issue a supplemental EIS to correct the many shortcomings in the DEIS, the appropriate and apparently necessary next step under NEPA would be for the NPS to submit a “pre-decisional referral” to the Council of Environmental Quality (CEQ), as provided for in 40 CFR §1504, after the final EIS is released. Note: We will share this recommendation with NPS.

Highlights of the pre-decisional referral regulations include the following:

      • §1504.1(a) “establishes procedures for referring to the Council [on Environmental Quality or CEQ] Federal interagency disagreements concerning proposed major Federal actions that might cause unsatisfactory environmental effects. It provides means for early resolution of such disagreements.”
      • § 1504.2 establishes criteria for making a predecisional referral to CEQ, which include the following: “In determining what environmental objections to the matter are appropriate to refer to the Council, an agency should weigh potential adverse environmental impacts, considering: (a) Possible violation of national environmental standards or policies; (b) Severity; (c) Geographical scope; (d) Duration; (e) Importance as precedents; and (f) Availability ofenvironmentally preferable alternatives.” In our considered opinion, most, if not all, of the above criteria apply in the case of the Surry-Skiffes Creek-Whealton alternative.
      • § 1504.3 describes the procedures for agencies to make a predecisional referral to CEQ, including paragraph (b), which states: “The referring agency shall deliver its referral to the Council not later than twenty-five (25) days after the final environmental impact statement has been made available to the Environmental Protection Agency, commenting agencies, and the public. Except when an extension of this period has been granted by the lead agency, the Council will not accept a referral after that date.” (Emphasis added)

A more detailed description of how a predecisional referral to CEQ works is available at: https://ceq.doe.gov/docs/nepa-practice/referrals-to-ceq-dec-2016.pdf. Such a referral may be the only mechanism we know of (short of litigation) that would enable the federal agencies involved to reach a mutually acceptable and balanced solution that would adequately protect not only the aquatic resources, but also the important historic properties and cultural resources within the Project Area

CLOSING COMMENT

In closing, the Army Corps should address the many flaws in the DEIS by issuing a supplemental EIS. Ultimately, the Corps should only permit a Project that provides sufficient electricity without unnecessarily harming our environment or irreparably harming Jamestown and other historic properties along the James River. We appreciate the opportunity to comment on this important issue.

Sincerely,

Phil Francis Signature

 

 

 

Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks

cc:

Shannon Estenoz, Assistant Secretary for Fish and Wildlife and Parks, USDOI
Shawn Benge, Acting Director, National Park Service
Joy Beasley, Associate Director, Cultural Resources, Partnerships, and Science, NPS
Gay Vietzke, Regional Director, Region 1 North Atlantic Area, NPS
Dwayne Scheid, Acting Chief of Res. Mgmt., Colonial NHP, NPS