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November 12, 2021

Reid Nelson
Director, Office of Federal Agency Programs
Advisory Council on Historic Preservation
401 F Street, NW, Suite 308
Washington, DC 20001
Jonathan Meade
Associate Regional Director
National Park Service, Interior Region 1
1234 Market Street
Philadelphia, PA 19107

RE: NAO-2012-00080 Surry-Skiffes Creek-Whealton Proposal

Dear Mr. Nelson and Mr. Meade:

The U.S. Army Corps of Engineers (Corps) plans to issue a Final Environmental Impact Statement (FEIS) for the proposed Surry-Skiffes Creek-Whealton 500kV transmission line across the James River in Virginia, notwithstanding numerous unresolved objections. According to the permitting dashboard for federal infrastructure projects, the Army Corps plans to release its FEIS on November 19 and a record of decision on January 19, 2022. (See permit schedule).

We are writing to urge you to submit a pre-decisional referral to the Council on Environmental Quality (CEQ) pursuant to 40 C.F.R. Part 1504, in an effort to resolve the numerous longstanding Federal interagency disagreements over this controversial project and its harmful impacts to the region’s nationally significant historic properties and unique aquatic resources. Urgent action is needed now before the Corps moves forward to finalize this permit decision. (The deadline for making the referral is 25 days from issuance of the FEIS. Thus, if the FEIS is released on November 19, the deadline for the pre-decisional referral would be December 14).

Throughout the many years this permit request has been considered, both the Advisory Council on Historic Preservation and the National Park Service have repeatedly registered deep concerns with the Corps over the project. We are grateful that you are upholding your mission to protect our country’s historic resources and national parks. Sadly, it is apparent that the Corps is still not amenable to addressing fundamental problems with the proposed project.

The Draft EIS released by the Corps’ Norfolk District in November 2020 was seriously flawed and defied the mandate of the U.S. Court of Appeals for the D.C. Circuit to conduct a more thorough review of the project’s impacts and revisit its analysis under the Clean Water Act and the National Historic Preservation Act. New information made available during the DEIS comment period was not considered, and federally recognized tribes were left out of the consultation.

Given the significant and substantive disputes among agencies, and the deficiencies in the process and analysis to date, a Section 106 consultation must be reinitiated, tribes must be brought into the consultation process, and the current Memorandum of Agreement must be reopened. Additionally, the Corps must give serious consideration to available alternatives and, relatedly, revisit its analysis under the Clean Water Act to comply with the statute’s mandate to select the least environmentally damaging practicable alternative.

To correct the many obvious shortcomings in the DEIS and to address the interagency disputes, the appropriate and necessary next step under the National Environmental Policy Act (NEPA) is a pre-decisional referral to CEQ. In our view, a CEQ referral would be especially helpful here because of the unique policy concerns raised by the need to conduct an objective and meaningful evaluation of alternatives when the permit applicant has already built its preferred alternative. A CEQ referral may be the only manner short of litigation that would enable the federal agencies involved to reach a mutually acceptable solution to protect aquatic resources and critical sites in this historic landscape, among other iconic resources affected by this project.

We respectfully urge you to request a pre-decisional referral with the Council on Environmental Quality in order to ensure that this important project is elevated appropriately so that all relevant agencies can air and resolve their differences using the specific tool provided by NEPA’s implementing regulations for situations like this one.

Sincerely,

Jennifer L. Marshall
General Counsel
American Rivers Coalition
jmarshall@americanrivers.org

Joel Dunn
President and CEO
Chesapeake Conservancy
jdunn@chesapeakeconservancy.org

Tyla Matteson
Chair
York River Sierra Club
Tmatteson1@mindspring.com

Margaret Fowler
Co-Founder
Save the James Alliance
Onthepond1@gmail.com

Michael B. Barber, Ph.D, RPA
President
Archaeology Society of Virginia
archaeova@gmail.com
Philip A. Francis Jr.
Chairvto Protect America’s National Parks
pfran42152@aol.com

Leighton Powell
Executive Director
Scenic Virginia
leighton.powell@scenicvirginia.org

Mark Perreault
President
Citizens for Fort Monroe National Park
perreault3@cox.net

Eleanor Breen, Ph.D, RPA
President
Council of Virginia Archaeologists
eebreen@yahoo.com

Kate Addleson
Director, Virginia Chapter
Sierra Club
kate.addleson@sierraclub.org

cc:
Shannon Estenoz, U.S. Department of the Interior
Joy Beasley, Gay Vietzke, National Park Service
Steven Williams, Colonial National Historical Park
Jaime Loichinger, John Eddins, Advisory Council on Historic Preservation
Justin Pidot, Jayni Hein, Thomas Sharpe, Council on Environmental Quality
Jaime Pinkham, Stacey Jensen, U.S. Army Corps of Engineers
Stepan Nevshehirlian, Carrie Traver, U.S. Environmental Protection Agency
Mark Warner, Tim Kaine, U.S. Senate
Rob Wittman, U.S. House of Representatives
Julie Langan, Roger Kirchen, Virginia Department of Historic Resources