August 29, 2023
The Honorable Tommy Beaudreau
U.S. Department of the Interior
1849 C St. NW
Washington, D.C. 20240
RE: Army Corps of Engineers NAO-2012-0080 Dominion Energy Surry-Skiffes Creek-Whealton Proposal
Dear Deputy Secretary Beaudreau:
We are writing on behalf of the undersigned organizations to express our ongoing concerns about the Army Corps-managed environmental review of Dominion Energy’s Surry Skiffes Creek-Whealton 500kV transmission line project across the James River near Jamestown, Virginia. We feel it is critical to meet with you regarding our concerns prior to the Corps’ expected release of a Final Environmental Impact Statement (FEIS). We have much to articulate and clarify in regards to our concerns about the impacts of the transmission line to this treasured American landscape. As you may know, we have previously submitted two meeting requests, in November 2022 and March 2023 respectively, with the Assistant Secretary of the Army for Civil Works. Thus far, we have not received a response and will soon submit another meeting request to the Corps.
As background, conservation and historic preservation organizations such as ours have expressed strong concerns about the project during multiple public comment opportunities since 2014. Similarly, the National Park Service (NPS) and the Department of Interior (“Department”) have voiced significant concerns as well. For example, in December 2015, NPS Director Jonathan Jarvis expressed “serious concerns” about the project in a letter (attached) to the U.S. Army Chief of Engineers and Commanding General, in which Jarvis stated:
[The project] would cross directly over the open water route of the Captain John Smith Chesapeake National Historic Trail. It would be within sight of Jamestown Island and the Colonial Parkway… The project would cause severe and unacceptable damage to this historically important area and the irreplaceable and iconic national resources within it… [T]he choice here is avoidance, not mitigation.
Shortly thereafter, in January 2016, Interior Secretary Sally Jewell summarized similar concerns in a letter (attached) to the Assistant Secretary of the Army (Civil Works), in which Secretary Jewell stated:
The proposed overhead line supported by multiple towers has the potential to introduce a major visual intrusion into a landscape that has remained largely unchanged since the earliest days of our Nation… Unfortunately, no mitigation measure can offset the impact to the landscape that the presence of the transmission line would cause.
If you have not already visited the project site, we encourage you to do so. As you will see, Director Jarvis and Secretary Jewell were correct in asserting that the project would cause unacceptable damage to this historically important area and no mitigation measure(s) could offset the impact to the landscape that the presence of the transmission line would cause. In essence, no amount of “non-reflective paint,” one of the Corps’ inadequate mitigation measures, can make the massive 295-foot tall towers blend into the surrounding landscape, especially at night, when the flashing lights break through the darkness and erase the stars.
In her letter Secretary Jewell also advocated for the Corps to prepare an environmental impact statement (EIS), rather than an environmental assessment (EA). However, in the attached March 2017 letter, the next Secretary of the Interior, Ryan Zinke, summarily withdrew the Department’s concerns about the project, based largely on partisan political grounds.
As a result, the Corps then authorized the transmission line to be constructed based on a flawed EA, rather than the EIS requested by Secretary Jewell. The Corps did not adequately address concerns expressed by the National Park Service (NPS), the Department, and conservation and historic preservation groups about the project. The Corps’ decision to authorize construction of the transmission line based on the flawed EA was challenged; and the U.S. Court of Appeals for the D.C. Circuit found the EA to be legally deficient, ordering the Corps to prepare an EIS. National Parks Conservation Ass’n v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019). 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. Unfortunately, the Corps allowed Dominion Energy to build the transmission lines during the pendency of litigation, thereby ensuring that the proponent’s “sunk costs” would skew the court-ordered analysis.
The Corps issued a draft EIS (DEIS) in 2020, which essentially proposed to “re-approve” the already constructed transmission line without addressing serious concerns brought forth by the National Park Service, the Advisory Council on Historic Preservation, the Environmental Protection Agency, tribal representatives, and the conservation and historic preservation community.
After several delays, the Corps states it expects to issue an FEIS in the next few months. At this late stage of the planning process, there is little that conservation and historic preservation groups such as ours can do to influence the expected outcome other than wait for the FEIS to be issued and then determine our next steps. However, as a cooperating federal agency on the project, the Department still has important opportunities and responsibilities to address ongoing concerns about the project.
First, we encourage the Department to actively negotiate with the Corps to add the following measures to the final plan:
Ensure meaningful consultation with the Federally-recognized Rappahannock and Upper Mattaponi Tribes. These Tribes received Federal recognition, along with four other Virginia Tribes, when the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act was signed into law on January 29, 2018. The previous lack of Federal recognition may explain why the Tribes were not consulted during preparation of the EA. However, they were Federally-recognized BEFORE the Corps initiated preparation of the DEIS and clearly should have been consulted during the current NEPA review process, but were not.
Update the 2017 historic preservation programmatic agreement (PA) brokered by the ACHP to add appropriate compensatory mitigation to the Rappahannock and Upper Mattaponi Tribes for the adverse effects to cultural sites and other locations traditionally used by Tribal members in the greater project area. The 2017 PA was based on the EA and contains no references to consultation with these Tribes or to compensatory mitigation for them. The PA should be updated to include the Tribes based on their Federal recognition status since 2018 and on the additional information and analysis provided in the EIS.
Improve and fund monitoring and mitigation efforts for the impacts to Atlantic Sturgeon (Acipenser oxyrinchus oxyrinchus) critical habitat that has been adversely affected by construction of the transmission line. The “education as mitigation” efforts previously identified in the EA are not considered an adequate replacement for the loss of critical habitat of a Federally-listed endangered species. The project proponent must be required to restore habitat in suitable locations on at least a 2:1 basis (i.e., 2 acres of habitat improvement for every acre damaged by the project). The project should be developed and implemented in close consultation with the National Marine Fisheries Service (NMFS), the lead Federal agency responsible for managing this species. In addition, there should be ongoing long-term monitoring of impacts to sturgeon and related critical habitat that includes an annual reporting requirement. Note: The Applicant completed its Section 7 ESA consultation with NMFS for these species and received concurrence in January 2016. However, in September 2017, NMFS designated portions of the James River, including the vicinity of the Proposed Action, as critical habitat for Atlantic sturgeon, which was BEFORE the Corps initiated preparation of the court-ordered EIS. The mitigation plan for Sturgeon must be updated based on the 2017 designation and improved to better address the impacts to critical habitat.
We urge the Department to assertively push for eventual removal/relocation of the transmission line to a more appropriate, less damaging location. This should be implemented by a “date certain” provision in the FEIS and Record of Decision and in a revised/updated Corps permit for the project. We suggest that a reasonable approach would be to authorize continued use of the transmission line for no more than 25 years; and require the project proponent to plan and implement a replacement in time for decommissioning of the current transmission line at the expiration of the permit and removal of the current transmission line within 5 years of the expiration. Justification: As Secretary Jewell stated so effectively in her 2016 letter and as demonstrated by the Corps’ planning efforts to date, there are no mitigation measures that can offset the impact to the landscape that the presence of the transmission line has caused. The only acceptable outcome moving forward is that the offending transmission line would be eventually removed from the historic landscape. Otherwise, the park resources and values that the Secretary has an absolute duty to protect will be permanently impaired.
Since the issuance of the DEIS, the U.S, Fish & Wildlife Service has listed the northern long-eared bat and proposed listing the tricolored bat as endangered. Given the change in status and the dire situation facing these species, the Corps must initiate formal consultation with the USFWS to ensure the project does not jeopardize their continued existence, which includes minimizing disturbance of foraging, roosting, breeding, and migration. We specifically raised concerns regarding the project’s impact to the bats in our comments on the DEIS that were ignored by the Corps. The Department must ensure that the Corps initiates formal consultation and undertake appropriate mitigation efforts to protect these species from harm from the project’s ongoing operations. Ongoing monitoring and annual reporting of project impacts on these species should be required.
The Captain John Smith Chesapeake National Historic Trail was directly impacted by this project with seventeen towers, some 295-feet tall, placed directly in the water trail. Despite this direct physical and visual impact to one of our country’s first water trails, mitigation was woefully inadequate. The Department should require the project proponent to contribute to a land acquisition fund that would be used to acquire land or easements along the entire water trail, with special attention given to acquisition that would increase public access along the trail and protect and preserve natural and cultural resources.
Second, in the event that the Corps does not adequately address these ongoing concerns in the FEIS, we urge the Department to fully consider submitting a pre-decisional referral to the Council on Environmental Quality (CEQ), pursuant to 40 C.F.R. Part 1504, to resolve Federal interagency disagreements concerning the project. The Corps’ preferred alternative described in the DEIS is to “re-approve” the transmission line projects “as is.” Based on this, it is readily apparent that the Corps is unlikely to adequately resolve ongoing concerns about the transmission line’s impacts, which are significant, ongoing, and long-term.
At this late stage of the process, a CEQ referral may be the only way for the Department to affect a more positive outcome for this regrettable situation. Secretary Zinke’s retraction of the Department’s firm and consistent position enabled the project to be constructed in an unsuitable location. We believe it is now incumbent upon Secretary Haaland to consider all appropriate means to reduce the ongoing adverse impacts of the transmission line. Under the NPS Organic Act, as amended by the 1970 General Authorities Act and the 1978 Redwoods Amendment (54 U.S.C. §100101 et seq.), the Secretary has an “absolute duty” to protect the resources and values of Captain John Smith Chesapeake National Historic Trail and Colonial National Historic Park. This “absolute duty” is described in the respective Senate1S. Rep. No. 95-528, 95th Congress, 1st Session at 13-14 (1977) and House2H. Rep. No.95-581, 95th Congress, 2nd Session at 21. (1978) reports on the 1978 Redwood Amendment (54 U.S.C § 100101(c)), which was intended to reinforce the provisions of the 1916 Organic Act. Negotiating for better mitigation and eventual removal of the transmission towers and, if needed, requesting CEQ to conduct an objective third-party review of the project through the referral process are both appropriate and apparently necessary steps the Secretary should take in fulfilling her NPS Organic Act responsibilities.
We realize that the use of the CEQ referral process is relatively rare for resolving conflicts between Federal agencies involving projects such as this one that have already been constructed. It is not surprising that a number of previous CEQ referrals have involved conflicts between Federal conservation agencies and the Army Corps of Engineers. The Corps’ stated mission is to “[d]eliver vital engineering solutions, in collaboration with our partners, to secure our Nation, energize our economy, and reduce disaster risk.” (Emphasis added). The Corps’ mission statement notably contains no natural resource conservation or historic resource preservation elements, which are typically key mission elements of federal conservation agencies such as NPS. As a result, the James River transmission line is a classic example of irreconcilable differences between conflicting Federal agency mission priorities (i.e., engineering solutions vs. conservation). The CEQ pre-decision referral process is designed specifically to address such situations and is an important option for the Department to seriously consider.
In closing, meeting with you before the FEIS is issued is imperative to make you aware of serious ongoing flaws in the planning process, which can and should be addressed in order to protect nationally significant historic properties, indigenous cultural landscapes, unique aquatic resources, and other important aspects of the local ecosystem. While former Secretary Zinke’s about-face facilitated the construction of this poorly sited project, Secretary Haaland now has an important opportunity to make a course correction and re-affirm that protection of national park resources and values and respect of cultural sites and lands traditionally used by Native Americans in the Jamestown area are genuinely a Departmental priority.
|Jonathan B. Jarvis|
18th Director of the National Park Service
2009 – 2017, retired
William J. Cook
Cultural Heritage Partners, PLLC
Rappahannock & Upper Mattaponi Tribes
Chief Executive Officer Preservation Virginia
Michael B. Murray
Chair, Executive Council
Coalition to Protect America’s National Parks
Deputy General Counsel
National Trust for Historic Preservation
Senior Program Director
National Parks Conservation Association
Michelle B. Nowlin
Clinical Professor of Law
Duke Environmental Law and Policy Clinic
Shannon Estenoz, Matthew Strickler, Andrew Raddant
U.S. Department of the Interior
Charles Sams, Frank Lands, Michael Caldwell, Joy Beasley, Ray Sauvajot, Gay Vietzke, and Jonathan Meade
National Park Service
Colonial National Historical Park
Reid J. Nelson, Jaime Loichinger, John Eddins
Advisory Council on Historic Preservation
Justin Pidot, Jayni Hein, Thomas Sharpe, Sharmila Murthy
Council on Environmental Quality
Michael Connor, Jaime Pinkham, Stacey Jensen
U.S. Army Corps of Engineers
Stepan Nevshehirlian, Carrie Traver
U.S. Environmental Protection Agency
Mark Warner, Tim Kaine
United States Senate
U.S. House of Representatives
Julie Langan, Roger Kirchen
Virginia Department of Historic Resources
- 1S. Rep. No. 95-528, 95th Congress, 1st Session at 13-14 (1977)
- 2H. Rep. No.95-581, 95th Congress, 2nd Session at 21. (1978)