National Trust for Historic Preservation v. Semonite

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL PARKS CONSERVATION

ASSOCIATION,

Plaintiff,

v.

TODD T. SEMONITE, Lieutenant General, U.S

Army Corps of Engineers and ROBERT M.

SPEER, Acting Secretary of the Army

Defendants,

VIRGINIA ELECTRIC AND POWER

COMPANY,

Defendant-Intervenor.

NATIONAL TRUST FOR HISTORIC

PRESERVATION IN THE UNITED STATES

and ASSOCIATION FOR THE

PRESERVATION OF THE VIRGINIA

ANTIQUITIES

Plaintiff,

V.

TODD T. SEMONITE, Lieutenant General, U.S

Army Corps of Engineers and ROBERT M.

SPEER, Aclz`ng Secretary of the Army

Defendants,

VIRGINIA ELECTRIC AND POWER

COMPANY,

Defendant-Intervenor.

Vv\/\/\/\/\/\/Vv\/\./VVVVV\_/VVV`./V\/\./V\./\./V\/\/\/\/\/V\/\/VVV

Civil NO. 17-CV-013 61-RCL

Civil No. 17-CV-01574-RCL

MEMORANDUM OPINION

Before the Court are plaintiff National Parks Conservation Association’s (“NPCA’s”)

Motion for Summary Judgment (l7-cv-01361, ECF No. 68); plaintiffs National Trust for Historic

Preservation in the United States’ (“National Trust”) and Association for the Preservation of

Virginia Antiquities’ (“Preservation Virginia”) Motion for Summary Judgment (l7-cv-01574,

ECF No. 53); federal defendants’ and defendant-intervenor Virginia Electric & Power Company’s

(“Dominion”) Cross-Motions for Summary Judgment (flled in both cases); and all responses and

replies thereto. Plaintiffs in both cases bring claims under the National Environmental Policy Act

and Section 404 of the Clean Water Act. Plaintiffs National Trust and Preservation Virginia also

allege a violation of the National Historic Preservation Act. Given the substantially similar nature

of the cases, the Court will address all the above motions in this opinion. Upon careful

consideration of the parties’ filings, the administrative record, and the applicable law, the Court

will DENY the plaintiffs’ Motions for Summary Judgment and will GRANT federal defendants’

and defendant intervenor’s Cross-Motions for Summary Judgment in their entirety.

I. BACKGROUND

A. Statutory and Regulatory Framework

I. T he National Environmental Policy Act

The National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq.,

“establishes a ‘national policy [to] encourage productive and enjoyable harmony between man and

his environment,’ and was intended to reduce or eliminate environmental damage and to promote

‘the understanding of the ecological systems and natural resources important to’ the United

States.” Dep’t _ofTransp. v. Pub. Cz`tizen, 541 U.S. 752, 756 (2004) (quoting 42 U.S.C. § 4321).

“[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes

the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

The goal of NEPA is to “prohibit[] uninformed-rather than unwise_agency action.” ]d. at 351.

It “is an ‘essentially procedural’ statute intended to ensure ‘fully informed and Well-considered’

decisionmaking, but not necessarily the best decision.” New York v. Nuclear Regulatory Comm ’n,

681 F.3d 471, 476 (D.C. Cir. 2012) (quoting Vermont Yankee Nuclear Power Corp. v. Natural

Res. Def. Council, 435 U.S. 519, 558 (1978)). The Council on Environmental Quality (“CEQ”)

promulgates regulations that guide federal agencies’ compliance with NEPA. 40 C.F.R. §§

1500.1-1508.28.

At the heart of NEPA is the requirement that federal agencies prepare a detailed

statement_an Environmental Irnpact Statement (EIS)_in connection with “proposals for

major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §

4332(C) (emphasis added). Among other requirements, an EIS must include an explanation of

37 C‘

“the environmental impact of the proposed action, any adverse environmental effects Which

cannot be avoided should the proposal be implemented,” and “alternatives to the proposed action.”

42 U.S.C. § 4332(C)(i)-(iii). The Supreme Court has highlighted that an EIS is meant to “ensure[]

that the agency, in reaching its decision, will have available, and will carefully consider, detailed

information concerning significant environmental impacts” and that “the relevant information will

be made available to the larger audience that may also play a role in both the decisionmaking

process and the implementation of that decision.” Robertson, 490 U.S. at 349.

If an agency is unsure if an EIS is required (i.e. it is unsure if the proposed project will

have a significant effect on the human environment), it may prepare an Environmental Assessment

(“EA”) to assist in making that decision. 40 C.F.R. § 1501.3-4. The regulations define an EA as

a “concise public document” in which the agency must “briefly” discuss “the environmental

impacts” and “altematives” to the proposed action. 40 C.F.R. § 1508.9. If the agency determines

upon completing an EA that an ElS is not necessary, it must issue a Finding of No Significant

Impact (“FONSI”) in which it “briefly present[s] the reasons why an action will not have a

significant effect on the human environment.” 40 C.F.R. § 1508.13. At issue in this case is the

Corps’ FONSI determination and its decision not to prepare an EIS.

2. T he Clean Water Act

The Clean Water Act (“CWA”) was enacted “to restore and maintain chemical, physical,

and biological integrity of the nation's waters.” 33 U.S.C. § 1251(a). The statute prohibits the

“discharge of any pollutant by any person” except as authorized by the statute or by a permit

granted by the Corps pursuant to Section 404 of the Act, by the Environmental Protection Agency

(“EPA”), or by an authorized State. Id. § l311(a); see also id. § 1344. The Environmental

Protection Agency, together with the Corps, developed guidelines to implement the policies of the

CWA and the Corps is required to follow these guidelines in deciding whether to issue a Section

404 permit. See 33 U.S.C. § 1344(b); 40 C.F.R. § 230.2.

ln deciding whether to grant a permit pursuant to Section 404, the Corps must conduct a

“Public Interest Review.” 33 C.F.R. § 320.4(a). The Corps evaluates the “probable impacts,

including cumulative impacts, of the proposed activity and its intended use on the public interest.”

ld. at 320.4(a)(1). The Corps must carefully weigh the benefits of the proposed action against the

°`reasonably foreseeable detriments." Id. The guidelines list numerous factors for the Corps to

consider, including conservation, economics, aesthetics, general environmental concems, historic

properties, navigation, recreation, energy needs, safety, and the needs and welfare of the people.

Id. Unless the proposal is determined to “be contrary to the public interest," a permit will be

granted. Id.

The Corps must also consider if there is a “practicable alternative to the proposed discharge

which would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a). “An

alternative is practicable if it is available and capable of being done after taking into consideration

cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2).

3 . National Historic Preservation Act

As explained by the D.C. Circuit, the purpose of the National Historic Preservation Act

(“NHPA”) is to “discourag[e] federal agencies from ignoring preservation values in projects they

initiate, approve funds for or otherwise control.” Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C.

Cir. 1989). In service of this goal, Section 106 of the NHPA mandates that federal agencies “shall

take into account the effect of the undertaking on any historic property” and must provide the

Advisory Council on Historic Preservation (“ACHP”) with an opportunity to comment on the

undertaking 54 U.S.C. § 306108. Regulations promulgated by the ACHP lay out a procedure for

the federal agency to follow in order to comply with the NHPA. 36 C.F.R. §§ 800.3-800.6. The

consultative process typically commences with an executed memorandum of agreement outlining

“how the adverse effects will be resolved.” Id. § 800.6(b)(iv).

Section 110 was added to the NHPA by Congress in 1980 and stipulates that before

commencing a federal undertaking that may “directly and adversely affect” a National Historic

Landmark, agencies shall take “shall to the maximum extent possible undertake such planning and

actions as may be necessary to minimize harm to the landmark.” 54 U.S.C. § 306107. At issue in

this case is whether Section 110 applies and whether the Corps met its obligation under the statute.

B. Relevant Factual and Procedural Background

This dispute arises out of a planned electrical infrastructure project in Virginia, known as

the Surry-Skiffes Creek-Whealton Project (“Project”). The Project consists of three components:

(1) a new 500kV overhead transmission line across the J ames River from Surry to Skiffes Creek,

(2) a new electrical switching station at Skiffes Creek, and (3) a new overhead transmission line

from Skiffes Creek to Whealton. Defendants posit that the project is essential in order to improve

the electrical infrastructure and provide reliable electric service to the Hampton Roads region of

Virginia. Plaintiff s interest in this case lies in the first component of the project, the river crossing,

which involves approximately 7.92 miles of overhead transmission line. Approximately 4.11

miles of the line Will cross the James River through, and in close proximity to, numerous

historically significant sites dating back to the birth of our Nation: the Captain John Smith Trail,

the Jamestown-Hog Island~Captain John Smith Trail Historic Distn`ct, Jamestown Island, the

Colonial Parkway, Colonial National Historical Park, and Carter’s Grove National Historic

Landmark. The river crossing will entail the construction of seventeen towers across the J ames

River. Four of the towers will stand up to 295 feet tall, with the remaining 14 standing

approximately 189 feet above the water level.

In early 2013, defendant-intervenor Dominion sought Corps approval for the Project.

Dominion initially asked for approval under Nationwide Perrnit 12, which authorizes activities

that cause minimal impact and would not require any individualized analysis under NEPA or the

CWA. However, the Corps determined that a standard individual permit review was more

appropriate and requested additional information on the Project from Dorninion. After receiving

additional information from Dominion on the contours of the Project and the need for electrical

infrastructure in the region, the Corps issued a public notice in August 2013 initiating the

permitting process and soliciting comments from the public, government agencies, and Native

American tribes. The Notice indicated that “[a]ny comments received will be considered by the

Corps [] to determine whether to issue, modify, condition or deny a permit for this proposal.”

AR0149954. lt further noted that comments would be “used to assess impacts on endangered

species, historic properties, Water quality, general environmental effects,” and other factors in

order to prepare an EA and/or EIS. Id. Finally, the Corps stated that a preliminary review

indicated that an EIS would not be required, though additional information might change their

assessment In response to the notice, the Corps received comments expressing concern with the

Project’s proximity to historic sites_including from the National Parks Service (“NPS”), a sister

government agency. NPS, among others, believed that the impacts of the project would be

significant and that an EIS was required.

Following release of the initial public notice of the Proj ect, the Corps undertook dual-track

processes to evaluate the Project: (1) the consultation process required under Section 106 of the

NHPA and a (2) NEPA process to determine the environmental impacts and feasible altematives.

Plaintiffs in these cases participated in the processes and provided the Corps with feedback and

analysis throughout At this point in the opinion, the Court will not detail each and every piece of

feedback that the Corps received nor the measures that the Corps took to respond to the feedback.

The Court will discuss the relevant details as necessary during its analysis.

In May 2017, the Corps; Dominion; and the Acting Assistant Secretary of Interior for Fish,

Wildlife, and Parks (on behalf of NPS), among other parties, signed a Memorandum of Agreement

(“MOA”). The MOA, developed through the Section 106 consultation process, contained

stipulations to avoid, minimize, and mitigate adverse impacts to the historical sites in proximity to

the proposed Project. In June 2017, the Corps signed and released a document entitled

Memorandum for the Record (“MFR”). The MFR, a 111-page document, includes an

Environmental Assessment (“EA”) and a Finding of No Significant Impact (“FONSI”) as required

under NEPA7 and a Section 404 Statement of Findings as required under the Clean Water Act

(“CWA”). And on July 3, 2017, the Corps issued the permit to Dominion authorizing the portions

of the Project under Corps jurisdiction, subject to compliance with the MOA (among other

conditions).

Plaintiffs, all non-profit organizations, subsequently brought suit in this Court and moved

for preliminary injunctions on their claims. In one action, plaintiff NPCA alleges violations of

NEPA and the CWA. See 17-cv-1361. In the other action, plaintiffs National Trust for Historic

Preservation in the United States and Association for the Preservation of Virginia Antiquities

allege violations of NEPA, the NHPA, and the CWA. See 17-cv-1574. On September 20, 2017,

the Court heard oral arguments on the Motions for Preliminary Injunction. The Court denied both

motions, finding that the plaintiffs failed to establish a likelihood of irreparable harm prior to the

cases being decided on the merits. The plaintiffs subsequently filed motions for summary

judgment on their claims and defendants and defendant-intervenors filed cross-motions for

summary judgment The Court now considers those motions.

II. STANDARD OF REVIEW

Although plaintiffs, defendants, and the defendant-intervenor filed cross-motions for

summary judgment, the standard set forth in Federal Rule of Civil Procedure 56_which requires

the Court to grant summary judgment when there is “no genuine issue as to any material fact and

the movant is entitled to judgment as a matter of law”-does not apply to this case. See Stuttering

Found. of Amer. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C.2007). Rather, the case is properly

reviewed under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. Upon review of the

administrative record, the Court may only “hold unlawful and set aside agency action, findings,

and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A).

Courts find agency actions arbitrary and capricious if the agency “relied on factors which

Congress has not intended it to consider, entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter to the evidence before the agency,

or is so implausible that it could not be ascribed to a difference in view or the product of agency

expertise.”’ Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 574 (D.C. Cir. 2016) (quoting

Am. Wildlands v. Kempthorne, 530 F.3d 991, 997_98 (D.C. Cir. 2008); see also Motor Vehicle

Mfis. Ass ’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43. “The scope of review

under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment

for that of the agency.” Id. Courts examine whether the agency engaged in “reasoned analysis.”

Ia’. at 57. An agency has engaged in “reasoned analysis” if the record demonstrates that “it

examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a

‘rational connection between the facts found and the choice made.”’ Ia'. at 43.

As to the plaintiffs’ NEPA claims, the Court will consider only whether the Corps followed

the procedural requirements set out by the statute in preparing the EA and issuing a FONSI for the

Project, and not Whether the Corps reached the right substantive result in deciding to grant the

permit. The D.C. Circuit has highlighted that “because the statute directs agencies only to look

hard at the environmental effects of their decisions, and not to take one type of action or another,

federal judges [must] correspondingly enforce the statute by ensuring that agencies comply with

NEPA's procedures, and not by trying to coax agency decisionmakers to reach certain

results.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991)

(citing Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-

98 (1983).

III. ANALYSIS

A. The Corps’ Compliance with NEPA

Plaintiffs in both cases before the Court challenge the Corps’ actions under NEPA and raise

an array of arguments in support of their claims. For the sake of clarity, the Court buckets the

plaintiffs’ arguments into three main categories: (1) that the Corps erred in deciding to issue a

FONSI and not an EIS; (2) that the Corps failed to adequately analyze less impactful feasible

altematives; and (3) that the Corps failed to provide the opportunity for public comment or

meaningful involvement in the NEPA process. The Court will address each set of arguments in

turn and find that the Corps complied with its NEPA obligation. Although at the preliminary

injunction phase of this case the Court noted that the plaintiffs made a powerful argument on the

merits,l now that the Court has dug in to the administrative record and relevant case law it is

evident that the Corps made a “fully informed and well-considered” decision. Vermont Yankee

Nuclear Power Corp. v. Natural Res. Def Council, 435 U.S. 519, 558 (1978). It is not the Court’s

role to overturn agency action in this context simply because it might have reached a different

outcome on the substantive issue. Id.

1. Decision to Issue a FONSI and Forego an EIS

As the Court set out above, an EIS is only required when a major federal action will

“significantly affect” the quality of the human environment The D.C. Circuit recently reiterated

that a court’s role in “reviewing an agency's decision not to prepare an EIS is a limited one,

designed primarily to ensure that no arguably significant consequences have been ignored.” Mayo

l At that time, the Court did not rule on the merits prong of the preliminary injunction test

because it found that the plaintiffs had not “established a likelihood of any irreparable harm and

failure to show any irreparable harm is [] grounds for refusing to issue a preliminary injunction,

even if the other three factors entering the calculus merit such relief.” 17-cv-1574, ECF No. 45

at 5; 17-cv-1361, ECF No. 60 at 5 (internal citation omitted).

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v. Reynolds, 875 F.3d 11, 20 (D.C. Cir. 2017). Courts in this Circuit apply a four-factor test when

reviewing whether an agency properly issued a FONSI. Court’s assess whether the agency:

(1) has accurately identified the relevant environmental concem, (2) has

taken a hard look at the problem in preparing its [FONSI or Environmental

Assessment], (3) is able to make a convincing case for its finding of no

significant impact, and (4) has shown that even if there is an impact of true

significance, an EIS is unnecessary because changes or safeguards in the

project sufficiently reduce the impact to a minimum.

Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011). The D.C. Circuit makes clear

that although the phrase “convincing case” (found in factor three above) has appeared in the case

law, the scope of review is the usual one for reviewing administrative action-“arbitrary,

capricious, or an abuse of discretion.” Id.

ln order to satisfy the “hard look” requirement the agency must ensure that the “adverse

environmental effects of the proposed action are adequately identified and evaluated.” Robertson,

490 U.S. at 350. The regulations issued by the Council on Environmental Quality further elucidate

how to evaluate whether the proposed project will significantly impact the human environment

The Council explains that “[s]ignij?cantly as used in NEPA requires considerations of both context

and intensity.” 40 C.F.R. § 1508.27. “Context” refers to the fact that the action must be “analyzed

in several contexts such as society as a whole (human, national), the affected region, the affected

interests, and the locality.” Id. . § 1508.27(b). And “intensity” refers “to the severity of impact”

Id. The regulations then proceed to identify the following ten “significance factors” that should

be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect

may exist even if the Federal agency believes that on balance the effect

will be beneficial.

(2) The degree to Which the proposed action affects public health or safety.

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(3) Unique characteristics of the geographic area such as proximity to

historic or cultural resources, park lands, prime farmlands, wetlands,

wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment

are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are

highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future

actions with significant effects or represents a decision in principle

about a future consideration.

(7) Whether the action is related to other actions with individually

insignificant but cumulatively significant impacts. Significance exists if

it is reasonable to anticipate a cumulatively significant impact on the

environment Significance cannot be avoided by terming an action

temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites,

highways, structures, or objects listed in or eligible for listing in the

National Register of Historic Places or may cause loss or destruction of

significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered or

threatened species or its habitat that has been determined to be critical

under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local

law or requirements imposed for the protection of the environment

Id. § 1508.27(b).

i. Significance Factors

Plaintiffs contend that the record makes clear that several of the CEQ significance factors

are implicated in this case, demonstrating that the Corps failed to take a hard look at the problem

and failed to make a convincing case of no significant imapct. As a threshold matter, the parties

disagree as to whether a Court must order an EIS if only one of the significance factors is

determined to be present Plaintiffs suggest that the “existence of even a single significance factor

12

requires preparation of an EIS.” l7-cv-136l, ECF No. 68-1 at 25 (citing Fund for Animals v.

Norton, 281 F. Supp. 2d 209, 218-19 (D.D.C. 2003) (“[T]he presence of one or more of these

factors should result in an agency decision to prepare an EIS.”); Humane Soc ’y v. Johanns, 520 F.

Supp. 2d 8, 20 (D.D.C. 2007) (same); Ark Initiative v. Tidwell, 64 F. Supp. 3d. 81, 99 (D.D.C.

2014) (Same)). Defendants respond that the implication of a single significance factor does not

require an EIS and that the factors are not to be interpreted as categorical rules; rather “the agency

must consider the potential significance of the effects of its action in light of the intensity of each

factor.” l7-cv-1361, ECF No. 76-1 at 37 (citing Van Antwerp, 661 F.3d at 1154-55 (aflirming

decision by Corps not to prepare EIS based on evaluation of relevant significance factors); see also

Advocates For Transp. Alternatives, Inc. v. U.S. Army Corps of Eng ’rs, 453 F. Supp. 2d 289, 301 -

08 (D. Mass. 2006) (affirming Corps’ decision not to prepare an EIS after considering relevant

significance factors)). The Court need not address this dispute, however, as the Court finds that

none of the significance factors weigh in favor of plaintiffs’ contention that an EIS is required.

The Court will proceed to analyze each of the significance factors highlighted by the plaintiffs

a. Highly Controversial

Plaintiffs strenuously contest that the effects of the Project are highly controversial. Under

the regulations, the Court must consider Whether “the effects on the quality of the human

environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). Plaintiff NPCA

argues that “[t]he record in this case presents a textbook example of highly controversial project

under NEPA,” citing the fact that NPS and others with expertise have repeatedly disputed the

conclusions reached by the Corps and the scientific methodologies employed by the Corps and

Dominion to assess the impacts of the Project 17-cv-1361, ECF No. 68-1 at 26.

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The D.C. Circuit has clearly indicated that controversy in this context is not measured

merely by the intensity of the opposition. Rather, “[t]he term ‘controversial’ refers to cases where

a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to

the existence of opposition to a use.” T own of Cave Creek, Arizona v. FAA, 325 F.3d 320, 331

(D.C. Cir. 2003) (quoting Found. for N. Am. Wila' Sheep v. Dep't of Agric., 681 F.2d 1172, 1182

(9th Cir. 1982)). Courts in this circuit have found that “something more is required besides the

fact that some people may be highly agitated and be willing to go to court over the matter.” Nat'l

Parks Conservation Ass'n v. United States, 177 F.Supp.3d l, 33 (D.D.C. 2016) (quoting F und for

Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975)).

And that “[m]any courts have found ‘something more’ to be scientific or other evidence

that reveals flaws in the methods or data relied upon by the agency in reaching its

conclusions.” Ia'. (citing Nat'l Parks & Conservation Assoc. v. Babbitt, 241 F.3d 722, 736-37 (9th

Cir. 2001) (holding agency action was highly controversial because “comments urg[ing] that the

EA's analysis was incomplete, and the mitigation uncertain, cast substantial doubt on the

adequacy of the Parks Service's methodology and data,” and thus the dispute went “beyond a

disagreement of qualified experts over the ‘reasoned conclusions’ as to What the data

reveal[ed]”);Nat'l Wildlife Fed’n v. Norton, 332 F.Supp.2d 170, 185 (D.D.C. 2004) (“Such a

controversy exists where the Corps is presented with scientific evidence specifically evaluating

the environmental effects of the proposed project or calling into question the adequacy of the

EA.”); Funcl for Animals v. Norton, 281 F.Supp.2d 209, 235 (D.D.C. 2003) (“While plaintiffs have

identified serious gaps in defendants' assessment of the local effects of the proposed action, they

do not appear to have identified any scientific controversy per se as to the extent of the

effects.”);Sierra Club v. Van Anrwerp, 719 F.Supp.2d 58, 67-68 (D.D.C. 2010) (“While

14

declarations were submitted to the Corps from numerous experts who claimed that [the

development project] will have significant adverse impacts on Cypress Creek and its wetlands,

these declarations alone fail to rise to the level of ‘controversy’ under NEPA.”), ajj"d in part, rev 'a'

in part on other grounds, 661 F.3d 1147 (D.C. Cir. 2011), as amended (Jan. 30, 2012)); but

cf Humane Soc. of U.S. v. Dep’t of Commerce, 432 F.Supp.2d 4, 19~20 (D.D.C. 2006) (flnding

agencies' decision not to prepare EIS highly controversial based on comments from plaintiff and

other agencies indicating disagreement with agencies' conclusions); see also Standing Rock Sioux

Tribe v. U.S. Army Corps ofEngineers, 255 F.Supp.3d 101, 127 (D.D.C. 2017).

Applying this standard, the Court finds that the Project is not highly controversial. The

record is certainly replete with examples of NPS expressing its view that the project is highly

controversial and that the Corps must undertake an EIS. From the Corps’ first public notice of the

Project in 2014, NPS raised concerns both about the level of impact that the Project would create

and the methodologies employed by the Corps and Dominion in evaluating the Project For

instance, NPS noted that “[t]he high degree of scientific/expert controversy and major impacts to

nationally significant resources raised by this project must trigger preparation of an EIS.” AR

6015. Along those lines, NPS expressed that “[t]he visual impacts of the proposed project are

already highly controversial as demonstrated by opposition from several stakeholder organizations

in addition to strenuous opposition from NPS.” AR 24094.

NPS was not alone in its opposition to the project and its belief that an EIS was necessary

under NEPA. The Advisory Council on Historic Preservation (“ACHP”) and CEQ independently

raised concerns at various points over the years. See 16-cv-1361, ECF No. 68-1 at 14-16.

Moreover, Secretary of the Interior J ewell sent a letter to the Corps in January 2017_her final

month in office before the change in administration_stating in no uncertain terms the Department

15

of Interior’s “substantial concems” with the Project AR5920. She noted that the Project

“introduce[s] a major intrusion into a landscape that has been largely unchanged since the earliest

days of our Nation” and that “no mitigation measure can effectively offset the impact to the

landscape that the presence of the transmission line would cause.” Ia'. Secretary J ewell

highlighted that “[o]ther analyses conducted by NPS and outside stakeholders present legitimate

questions about the project and identify the existence of viable alternatives” and that “NPS has

also conducted assessments of socioeconomic impacts, landscape scale and viewshed impacts, and

Dominion’s mitigation proposal.” Id. She noted that the Department concluded, based on that

analysis, “that an overhead power line is unsuitable at this location.” Id. Secretary J ewell further

stated that should the Corps still believe granting a permit is warranted, it should conduct an EIS

beforehand. Id.

Finally, a visual impact analysis expert from the Argonne National Laboratory also

addressed what he viewed to be insufficient analysis performed by the Corps and Dominion. He

noted that “[n]o analysis of the aesthetic impacts of the proposed project has been conducted, thus

the requirements of NEPA are unmet.” AR 6074. According to the Argonne experts, the Corps

improperly substituted a “cultural resource analysis” for a “visual resource analysis” and therefore

improperly analyzed the impact from the Project AR 6071-72.

These excerpts from the administrative record highlight the vociferous opposition to the

Project And the opposition was not limited to differences in opinion related to the level of impact

from the Project NPS, and others, raised methodological concerns with the Corps’ and

Dominion’s analysis. See Nat'l Parks Conservation Ass’n, 177 F.Supp.3d at 33 (finding that for a

project to be “highly controversial” there must be identified flaws in the analysis and not merely

disagreement as to the level of impact).

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But, the mere existence of those concerns does not mean that the Project is automatically

“highly controversial.” The Court looks to whether the concerns went unaddressed or unanswered.

The Corps was required to consider the objections of the NPS and the other voices expressing

concern about the methodology, but the Corps, as the lead agency in this case, “is entrusted with

the responsibility of considering the various modes of scientific evaluation and theory and

choosing the one appropriate for the given circumstances.” Sierra Club v. U.S. Dept. of Transp.,

753 F.2d 120, 129 (D.C. Cir. 1985). The agency is not “required to accept every possible method

of collecting and analyzing data.” Id. And the Corps, as lead agency, need not “follow the [NPS’s]

comments slavishly_it just has to take them seriously.” Citizens Against Burlington, Inc. v.

Busey, 939 F.2d 190, 201 (D.C. Cir. 1991).

Here, the Court is convinced that the Corps considered the various methodological

challenges raised by the interested parties and addressed their concerns appropriately For

instance, throughout the years, NPS challenged one of the key documents considered by the

Corps-the visual effects assessment entitled the Cultural Resources Effects Assessment

(“CREA”). CREA-_a more than 400 page document_~contains photographs of the Project from

key vantage points, line of sight analyses, and photo-simulations prepared by an expert consultant

Truescape, demonstrating how the River Crossing would appear to the human eye. AR 762.

After the Corps made the document public, NPS submitted letters criticizing the

methodology employed by Truescape. In a March 2016 letter, for example, NPS asserted that the

“visual simulation analysis” was “lacking” because it failed to look at how the Project Would

impact a visitor travelling “in close proximity to the proposed corridor where [the line] crosses the

Captain John Smith Chesapeake National Historic Trail.” AR 29990. In other words, NPS was

concerned that while CREA’s visual analysis captured what the electrical line would look like

17

from historical vantage points on land, it would not capture the impact to a visitor traveling by

boat in the river. In response, the “Photosimulation Overview was updated in June 2016 to include

nearly 80 pages of additional reference photographs and visual simulations depicting views from

the river.” l7-cv-l361, ECF No. 76-1 at 20. Moreover, the “Photosimulation Overview was

updated again in August of 2016 to include additional simulations based on a second round of

photographs taken from the river.” Id. (citing AR 23 648, AR 26402-19).

Moreover, from a process perspective, the Corps held discussions with NPS regarding its

methodological concerns and received an NPS guidance document on how to evaluate visual

impact assessments AR 28801. The Corps forwarded the document to Dominion, asking them

to address whether the methods used were comparable and what the plan would be going forward.

Id.; AR 30383. Dominion demonstrated that the methodology used followed NPS guidance and

provide reliable simulations of how the Project would look. AR 28552-87. Upon considering the

methodological concerns raised by NPS and reviewing Dominion’s updated analysis, the Corps

concluded:

Dominion’s simulations provided enough accuracy to sufficiently analyze

effects to both historic properties and a visitor’s experience . . . While there

are various methods for predicting visual impact it is not likely that

employing further methods will result in substantively different views or

infonnation.

AR 751.

NPS also argued that the Corps’ analysis was flawed because they failed to perform a socio-

economic impact analysis. AR 29991. As NPS put it, that type of analysis was critical because

“visual impacts affect visitors; visitors affect tourism; tourism affects local and regional

economies, etc.” Ia’. But again the Corps did not ignore those concems. The Corps considered a

report on the impact that the Project would have on tourism and ultimately concluded-based on

18

analysis of historic visitorship data_-that construction and modern physical intrusions have no

negative impact to visitorship. AR 694; AR 26215. Again it is not the conclusion that matters,

but whether the Corps took the methodological concerns seriously.

The Court also considers the timeline of events in determining that the Corps’ decision to

issue a permit was not “highly controversial.” lt is true that NPS sent a detailed letter in January

2017_only a few months prior to NPS granting the permit_in which it pointed to “fundamental

flaws” with the decisionmaking process that “remain unresolved.” 17-cv-1361, ECF No. 85 at 32

(citing AR6012). Again, NPS called out the flawed visual analysis and the inadequate

socioeconomic analysis. AR6015-6016. But as the Court has already demonstrated, the Corps

was not required to accept as true NPS’s critiques. All that was required was a serious

consideration And the record reflects that is what transpired

The Corps also did not ignore that final letter. ln response, senior staff at the Corps again

met with the lnterior Department officials to discuss the comments. In March 2017, the new

Secretary of the Interior Zinkie, who ultimately presides over NPS, stated that the information that

had been provided by the Corps reflected “thoughtfill and thorough consideration of the issues

raised by my predecessor.” AR 4335. Moreover, CEQ informed the Corps that it supported the

efforts to complete an EA, AR 4228-29, and the Assistant Secretary for Fish, Wildlife, and Parks

signed the MOA on behalf of NPS.

Secretary Zinkie’s letter effectively withdrew the Department of Interior’s previous stance

that an EIS was required. “As we all know, elections have consequences” and the Interior

Department’s shift in position demonstrates to the Court that there is no longer active disagreement

between the Interior Department and the Corps. Stana'ing Rock Sioux Tribe, 255 F.Supp.3d at 1 19.

Moreover, the Court is satisfied based on its review of the record that the Corps sufficiently

19

addressed the methodological flaws identified by interested parties_that is the Corps carefully

considered them, even though it ultimately did not agree with them. Accordingly, the Court does

not find the Corps’ approval of the Project and issuance of the FONSI to be “highly controversial”

so as to compel the production of an EIS.

b. Unique Characteristics of Geographic Area and

Impacts to Historic Places

Plaintiffs further contend that an EIS is necessary because the Project will cause significant

impact to “unique characteristics of the geographic area such as proximity to historic or cultural

resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical

areas,” 40 C.F.R. § 1508.27(b)(3), and “will result in significant impacts to ‘district, sites,

highways, structures, or objects listed in or eligible for listing in the National Register of Historic

Places....”’ l7-cv-136l, ECF No. 68-1 at 31 (citing 40 C.F.R. § 1508.27(b)(8)). Plaintiffs

highlight that the transmission line is planned to be “constructed directly in the James River where

the transmission line and its mammoth towers Will cross an important segment of the

Congressionally-designated Captain [John] Smith [Chesapeake National Historic Trail].” 17-cv-

1361, ECF No.68-1 at 28. According to plaintiff NPCA that fact “alone compels the need for an

ElS since nothing in the Corps’ EA or FONSI remotely refutes the common sense understanding

and expert agency opinion that this river crossing will fundamentally and permanently alter the

historical, cultural, and visitor experience for those traversing the Captain Smith NHT.” Id. at 28-

29. As plaintiffs National Trust and Preservation Virginia put it, “[i]mpacts to a more unique

geographic area are difficult to imagine.” 17-cv-1574, ECF No. 53-1 at 16.

There is no doubt that the geographic area in question is unique and that the Project will

impact historic places. The transmission line will cross a segment of the J ames River listed on the

National River lnventory for outstanding values “based on history” and will be in the vicinity of

20

numerous historical sites important to our nation’s founding. AR 765. 2 In fact in the MFR, the

Corps itself described the geographic area as a “unique and highly scenic section of the J ames

River.” AR 762. But as federal defendants note, “an EIS is not required for every project that may

have an impact” on a unique area or a historic site, but only when an action “will cause signijicant

impacts to those areas.” 17-cv-1361, ECF No. 78-1 at 28. And the Court is convinced that the

Corps reasonably concluded that the impacts would not be significant In other words, its decision

was not arbitrary and capricious

As already discussed, the Corps extensively considered the potential impacts that the

Project would have on the area. It reviewed the CREA, an over 400 page document, which

included photo-simulations from several key observation points. AR 73812-4253. In response to

feedback from NPS and Argonne Laboratories, the Corps also considered updated photo-

simulations, including images from the perspective of boaters and kayakers along the river. AR

23684-735. Corps personnel “travel[ed] the J ames River by boat and observ[ed] the river from

the important vantage points ....” AR 762. Following extensive analysis, the Corps concluded:

In many landward areas, such as the vast majority of Jamestown Island, the

project will not be visible due to existing tree cover and vegetation. Where

the project Will be visible, it is generally at such a distance that it is on the

horizon (e.g., from Black Point on Jamestown Island). We note that from

the vantage points closest to the project, (limited areas of Colonial Parkway,

Grounds at Carters Grove, Jamestown Island -Hog Island - Captain John

Smith Trail Historic District) the project will be a modern intrusion on the

view, but we emphasize that it is not a blockage to viewing the river or the

surroundings. Due to the distances from important vantage points, we

conclude that the project will not dominate the view.

2 Plaintiff NPCA contends that the segment of the J ames River in question has “protected

federal status” because it is an NRI listed river. 17-cv-1361, ECF No. 68-1 at 29. But federal

protection attaches to rivers designated as “Wild and Scenic” under 16 U.S.C. § 1278, and no river

in Virginia has been designated as such. Being listed on the NRI-which the segment of the J ames

River in question is_merely indicates that the river is “potentially eligible” for designation and

the agency must consider impacts. AR 756-66.

21

AR 763. The Corps also studied historical data and found that “there is no correlating variation in

visitor ship when compared to past [infrastructure] events.” AR 694.

The Court is further persuaded by the fact that boaters traveling along that segment of the

river are already exposed to numerous modern intrusions on their view. As described by

defendant-intervenor, a current day visitor to the area is greeted by “large de-commissioned Navy

ships comprising the Ghost Fleet, the water tower at Fort Eustis, the Surry nuclear power station,

and several large modern houses along the shoreline. In addition, a person traveling by boat is

likely to see barges and other modern commercial vessels operating on the river at numerous points

along the way, as well as recreational boaters and water skiers from Kingsmill Resort.” 17-cv-

1361, ECF No.76-1 at 47 (intemal citations omitted). Plaintiffs respond that all of the existing

land based intrusions are incomparable because they can be effectively screened by vegetation.

But the analysis considered by the Corps did find that “vegetation and topography will effectively

obscure the towers from many key observation points visitors might travel or recreate-including

points on the CAJO Trail.” 17-cv-l361, ECF No. 88 at ll (citing AR 23690; 74028). And for

the segments of the river where the Project will be unscreened, it will be similar in nature to the

current modern intrusions along the river, such as the commercial ship and the Ghost Fleet.

Ultimately, the Corps did enough. It engaged in a reasoned analysis, consulted experts,

responded to criticisms of both its methodologies and conclusions, took a hard look at the potential

impacts, and concluded that the impact of the Project would be “moderate at most.” AR 771. This

may not satisfy the plaintiffs, but it is enough to satisfy the Court that the Corps had a rational

basis for determining that the impacts would not be significant to the unique geographic area and

historical places.

c. Precedent and Cumulative Ejj‘ects

22

PlaintiffNPCA further contends that “putting ‘ gargantuan steel towers’ in a unique historic

locale where none previously existed, AR 6017, also ‘establish[es] a precedent for fiiture action

with significant effects,’ 40 C.F.R. § 1508.27(b)(6), still another CEQ significance criterion.” 17-

cv-1361, ECF No. 68-1 at 32. Sustaining the permit on this Project, according to NPCA, will open

the door to other similarly intrusive projects. The Corps addressed this concern in its MFR, finding

“that issuance of this permit will have no effect on the Corps’ responsibility to comply with Federal

law and regulation in its review of future projects and any future proposals will be fully subject to

all necessary and appropriate review requirements based on case specific information.” AR 687.

The Corps further posited that the effect of the decision to grant the permit in this matter

“is purely speculative” since “commenters did not identify any future planned or reasonably

foreseeable projects of concem.” Id. The Court agrees. Nothing in the record indicates concrete

plans for future development and a court in this Circuit found that “[t]he absence of any certain,

or near certain, plans for future development” indicates that the action is not precedential. Nat'l

Parks Conservation Ass'n, 177 F.Supp.3d at 32 (distinguishing its case from Sierra Club v. Marsh,

769 F.2d 868 (lst Cir.1985), and Friends of the Earth v. U.S. Army Corps of Engineers, 109

F.Supp.2d 30 (D.D.C.2000), where the projects were found to be precedential, because the court

found in its case that there were no “certain, or near certain, plans for filture development.”)

Accordingly, the Court does not believe that this Project will bind the Corps in future permit

decisions and the issuance of the permit without an EIS was not arbitrary and capricious

For similar reasons, the Court rejects plaintiffs National Trust’ s and Preservation Virginia’s

argument that an EIS is required in this case because “it is reasonable to anticipate a cumulatively

significant impact on the environment” 40 C.F.R. §1508.27(b)(7). “Cumulative impact is the

impact on the environment which results from the incremental impact of the action when added to

23

other past, present, and reasonably foreseeable future actions regardless of What agency (Federal

or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. Such impacts “can

result from individually minor but collectively significant actions taking place over a period of

time.” Id. “To invoke 40 C.F.R. § 1508.27(b)(7), a plaintiff must provide some evidence of

ongoing or planned related projects.” Coal. On Sensible Transp. Inc. v. Dole, 642 F. Supp. 573,

589 (D.D.C. 1986), affd, 826 F.2d 60 (D.C. Cir. 1987). Here, plaintiffs have provided no such

evidence of ongoing or related projects. Merely asserting that the Project “is explicitly designed

to remove obstacles to additional long-term growth in an area of extreme historic and scenic

sensitivity,” is not the same as identifying any specific related actions that will result in a

cumulatively significant impact 17-cv-1574, ECF No. 53-1 at 18.

Moreover, the Court is satisfied that the Corps independently considered the possible

cumulative effects of the project AR 736-39. In the MFR, the Corps describes that it analyzed

the incremental impact that the project will create given the already existing infrastructure in the

area and found that it would not “amplify the effects to a greater level.” AR 740. The Corps also

highlighted that land conservation efforts “will prohibit and/or severely limit future development

along the river and shoreline.” Id. For those reasons, the Court finds that the Corps’ consideration

of cumulative effects was reasonable, particularly in light of no actual future related projects

having been identified.

d. Highly Uncertain or Unique or Unknown Risks

The Court is also not persuaded by NPCA’s argument that this is a situation where the

effects are “are highly uncertain or involve unique or unknown risks.” 40 C.F.R. § 1508.27(b)(5).

As federal defendants point out, courts have found this significance factor implicated when the

risks involved uncertainty to the environment from new science or where the effects to a species

24

were unknown. See, e.g., Found. on Econ. Trends v. Heckler, 756 F.2d 143, 153 (D.C. Cir. 1985)

(finding that the consequences of dispersing genetically altered organisms were uncertain);

Anderson v. Evans, 371 F.3d 475, 492 (9th Cir. 2004) (finding that the impact of first ever whale

hunt on local whale population and ecosystem was highly uncertain and supported the need for an

EIS). The case before the Court is inapposite The impacts to the environment of the current

project were well studied. 'I`he photo-simulations demonstrate what the Project will look like and

how it will be observed from various sites. And this is certainly not the first time that the impacts

from an infrastructure project had to be considered See e.g. Pogliani v. USACE, 166 F. Supp. 2d

673, 698 (N.D.N.Y. 2001), afd, 306 F.3d 1235 (2d Cir. 2002).

e. Violation of Federal Law

Finally the Court rejects NPCA’s contention that an EIS is required because the action

“threatens a violation of Federal law or requirements imposed for protection of the

environment.” 40 C.F.R. § 1508.27(b)(10). NPCA posits that the Project will cause impairment

under the NPS Organic Act, because the Corps will have “acted in a manner that undermines NPS’ s

duty to effectively promote and regulate lands under its jurisdiction and avoid impairment of these

unique resources.” 17-cv-1361, ECF No. 85 at 51 (quotation omitted). But that Act does not bind

the Corps, only the Secretary of the Interior. 54 U.S.C. § 100101(a) (“The Secretary [of Interior]

... shall promote and regulate the use of the National Park System . . . in such manner and by such

means as will leave them unimpaired . . . .”). Therefore, the Corps cannot violate the law by issuing

this permit Plaintiffs cite no case law in support of their argument NPCA also argues that the

CWA will be violated by issuing the permit But the Court will separately address this issue later

in this Opinion and find that the Corps fully complied with the CWA. In sum, the Corps had

rational reasons for not finding that this action would threaten violation of a federal law.

25

ii. Mitigation Measures

Plaintiffs also advance a number of arguments to demonstrate that the Corps failed to

properly address the topic of mitigation and was therefore arbitrary and capricious in issuing a

FONSI. The mitigation measures are outlined in the MOA, signed by the Corps, Dominion, the

Director of the Virginia Department of Historic Resources, the Executive Director of ACHP, the

Acting Assistant Secretary of Interior for Fish, Wildlife and Parks (on behalf of NPS), and the

Chief of the Chickahominy Tribe. The MOA recognized the signatories “agreement . . . as the

resolution of the Project’s adverse effects on the historic properties identified in Attachment C in

compliance with Section 106 of the NHPA and 36 C.F.R. § 800.6.” AR 3128. Federal defendants

summarize the requirements of the MOA as follows:

With respect to the minimization and mitigation of adverse visual

impacts to historic properties such as Carter’s Grove, Colonial National

Historic Park, and Jamestown National Historic Site, the MOA requires

specific mitigation measures to decrease impacts. For example, the Project

uses naturally weathered galvanized steel towers for visibility reduction,

AR 3133; prohibits construction or placement of new transmission

infrastructure, AR 3156; and requires Dominion to examine the ongoing

electrical need for the Project every 10 years, and assess the feasibility of

submerging the river crossing at the end of the 50-year lifespan of the

Project, id. See also AR 741.

ln addition, the Corps has required compensatory mitigation

outlined in the MOA, including interpretive signage, AR 3131-32;

landscape documentation, AR 3132; a heritage tourism and visitor

experience study, AR 3136-37; and site-specific projects that consulting

parties must approve to ensure they “enhance and/or contribute to

preservation of the setting and feeling” of historic sites.

l7-cv-l36l, ECF No. 78-1 at 52.

Plaintiffs’ primary argument challenging the mitigation plan is built on a false premise.

They contend that the Corps prepared a Mitigated FONSI and were therefore responsible for

identifying “‘specific mitigation measures which completely compensate for any possible adverse

environmental impacts stemming from the original proposal ’ to ensure that ‘the statutory threshold

26

of significant environmental effects is not crossed and an EIS is not required.”’ 17-cv-1361, ECF

No. 86 at 16 (citing Cabinet Mountains Wilderness/Scotclzman ’s Peak Grizzly Bears v. Peterson,

685 F.2d 678, 682 (D.C. Cir. 1982). And since, according to the plaintiffs, the mitigation measures

will certainly not “completely compensate” for the impacts of the Project, the Corps issuance of

the permit based on a FONSI was arbitrary and capricious.

There are circumstances where an agency must prepare a Mitigated FONSI. Namely,

agencies are required to undertake that work “[i]f the action will not have such [significant] impact

because of the agency's commitment to ensure the performance of mitigation measures ....”

Standing Rock Sioux Tribe, 255 F. Supp. 3d at 113 (emphasis added). But that is not what is

happening here. The Corps found that the impacts of the Project, independent of any mitigation

measures, were not significant See e.g. AR 688 (“[t]he majority of environmental impacts

associated with this [P]roject are minimal in nature”); AR 694 (“[w]hile properties within the

projects view shed may experience some impact we expect it to be minimal”); AR 695 (“any

impacts to water quality and marine life will be insignificant”); AR 696 (“[w]hile cumulative

visual impacts will accumulate with past, present, and reasonable foreseeable actions, the

incremental effect of the proposed project will not amplify the effects to a greater level”); AR 733

(impacts on navigation are “negligible”); AR 73 9, 742 (“the cumulative impacts are not considered

to be significantly adverse”); AR 771 (“we conclude that the actual aesthetic effect of this project

will be moderate at most”).

NPCA posits that the federal defendants, through their own words, concede that the Corps

undertook a Mitigated FONSI. NPCA points to federal defendants’ explanations that “mitigation

measures incorporated in the MOA would help compensate for harm to setting and feeling,

ensuring the Project’s impact remains below the level of signifz`cance’7 and that “while the

27

proposed project may have detrimental aesthetic effects, the proposed mitigation will balance

those effects[,] resulting in a net minimal effect.” l7-cv-1361, ECF No. 86 at 15 (emphases in

original) (citing ECF No. 78-1 at 35, 30). But both of those comments do not prove that federal

defendants believed the harms were above the significance threshold absent the mitigation

measures Rather, they reinforce the notion that the mitigation measures will further reduce the

impacts from “moderate at most” to something even lower. At no point in the record, as far as the

Court is concemed, does the Corps represent that the impacts, absent mitigation measures, will be

significant

Plaintiffs additional critiques can be bucketed into three categories: (1) that the dollar

amount of the mitigation efforts (approximately $85 million) itself confirms that the impacts are

significant; (17-cv-1361, ECF No. 85 at 17; 17-cv-1574, ECF No. 69 at 16-17); (2) that the

mitigation plan does not adequately address the impacts of the project (17-cv-1361, ECF No. 85

at 17-22; 17-cv-1574, ECF No. 69 at 17); and (3) that the specific mitigation measures are

uncertain and unenforceable (17-cv-1574, ECF No. 69 at 17-18). All three arguments are without

merit 1

First, it is entirely conjectural to argue that merely because Dominion plans to spend

approximately $85 million in mitigation efforts that the impacts must be significant The plaintiffs

confound monetary value with what is legally significant Nowhere in NEPA is that connection

made and plaintiffs provide no authority for that supposition.

Plaintiffs’ second argument is built on the false premise that the Court discussed above.

Namely, that the mitigation plan is required in order to get the impact level below the significance

threshold. But, the Corps made a “convincing case” why the impacts are “moderate at most,”

meaning that mitigation efforts are not required to justify the decision to issue a FONSl. Even

28

when an agency must discuss mitigation measures in the context of an ElS, it is only required to

discuss mitigation “in sufficient detail to ensure that environmental consequences have been fairly

evaluated....” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989)). The

Corps met that standard in this case. lt devoted considerable effort to studying mitigation

measures. For instance, federal defendants highlight that the Corps considered the following

minimization and avoidance measures:

o the construction of overland portions of the Project in existing transmission rights

of way;

0 the clearing of wetlands by hand;

0 the placement of towers by maximum span lengths in the J ames river;

0 the use of bubble curtains during pile driving activities to protect sturgeon;

0 the use of an April 24, 2017 MOA that requires Dominion to develop and

implement an approved avoidance plan for underwater and terrestrial

archaeological sites; and

0 the use of an April 24, 2017 MOA that imposes obligations on Dominion to

examine all available and feasible tower coatings.

17-cv-1574, ECF No. 61-1 at 51-52 (citing AR 665-67, 738-39).

Moreover, multiple drafts of the MOA were circulated to consulting parties, with the Corps

requesting written comments on each draft Ultimately the MOA was signed by consulting parties,

including leadership at DOI and ACHP, further supporting the Corps’ finding that the impacts

were below the significant level. AR 3128 (signatories recognized their “agree[ment] as the

resolution of the Project’s adverse effects on the historic properties identified in Attachment C in

compliance with Section 106 of the NHPA and 36 C.F.R. § 800.6.”); S. Utah Wilderness All. v.

29

Norton, 326 F. Supp. 2d 102, 119 (D.D.C. 2004) (recognizing “concurrence [of consulting parties

in the NHPA process] cannot be ignored, as this concurrence evidences a small likelihood of

significant effects on the environment”).

The Court also finds plaintiffs’ third argument meritless Plaintiffs National Trust and

Preservation Virginia contend that “neither MOA nor the MFR details the specific compensatory

actions that must be taken” and that the MOA does not require that all of the approximately $85

million be spent 17-cv-1574, ECF No. 69 at 17-18. But the D.C. Circuit has explained that “[t]he

procedural requirements of NEPA do not force agencies to make detailed, unchangeable mitigation

plans for long-term development projects.” Theodore Roosevelt Conservation P'ship v. Salazar,

616 F.3d 497, 517 (D.C.Cir. 2010). Plaintiffs are trying to hold the Corps to a more stringent

standard than what NEPA contemplates The Corps comprehensively analyzed how the mitigation

measures will work in Attachment F to the MOA, which was incorporated into the MFR. AR

3226-50; 752. The Corps has met its obligations under NEPA.

2. Analysis of Altematives to the Project

Plaintiffs also allege that the Corps failed to meet its NEPA obligations to consider

alternatives to the permitted Project To comply with NEPA, an Environmental Assessment must

include a “‘brief discussion[ ]’ of reasonable alternatives to the proposed action.” Myersville

Citizensfor a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1323 (D.C. Cir. 2015) (quoting 40 C.F.R.

§ 1508.9(b)). This consideration “need not be as rigorous as the consideration of alternatives in

an EIS.” Id.; compare 40 C.F.R. § 1508.9(b) (requiring “briefdiscussion[]”) with id. § 1502.14(a)

(requiring agency to “[r]igorously explore and objectively evaluate all reasonable alternatives”

when ElS required). “An alternative is ‘reasonable’ if it is objectively feasible as well as

‘reasonable in light of [the agency's] objectives.”’ Myersville, 783 F.3d at 1323 (quoting Theodore

30

Roosevelt Conservation P'ship 616 F.3d at 72). An agency's “specification of the range of

reasonable alternatives is entitled to deference.” Id. And “an agency need only ‘briefly discuss

the reasons’ why rejected possibilities were not ‘reasonable altematives.”’ Tongass Conservation

Soc’y v. Cheney, 924 F.2d 1137, 1141 (D.C. Cir. 1991) (quoting 40 C.F.R. § 1502.14(a)).

The Corps’ stated purpose for the Project is “[t]o continue providing the North Hampton

Roads Load Area (NHRLA) with reliable, cost effective, bulk electrical service consistent with

mandatory North American Electric Reliability Corporation (NERC) Reliability Standards for

transmission facilities and planning criteria.” AR 675. The MFR includes an analysis of at least

twenty-eight altematives. AR 699-709. The Corps concluded that of those twenty-eight

altematives, only two were practicable in light of the project purpose- the permitted Project and

the Chickahominy-Skiffes Creek altemative. Of those two, the Corps found the permitted Project

to be the less environmentally impactful option. Plaintiffs, however, focus their critique not on

that analysis and decision, but rather contest whether the other twenty-six alternatives should have

been eliminated as impracticable Plaintiffs highlight two sets of altematives_underwater options

and alternatives suggested by the engineers at Tabors (a firm retained by plaintiff National

Trust)_that they believe the Corps arbitrarily and capriciously dismissed from consideration as

viable altematives. The Court disagrees

The record indicates that the Corps adequately considered multiple variations of

underwater transmission lines, including the possibility of an underwater line combined with

additional transmission facilities_the alternative that plaintiffs believe would be feasible. See 17-

cv-1574, ECF No. 53-1 at 26-27. The Corps concluded that the “option would only achieve

electrical compliance with NERC Reliability Standards until 2032 (about ten years less than the

proposed Project), be ‘cost prohibitive,’ take ‘5 years to construct,’ and have greater aquatic

31

resource impacts” l7-cv-1574, ECF No. 59 at 45 (citing AR 4344; AR 691). That option was

found to be unreasonable because it would take twice as long to complete and cost three times as

much to build. AR 710; 711-12; AR 691. Additionally, the Corps concluded that once the

underwater line Was constructed it would be far more difficult to repair, leading to longer outages.

AR 691.

Given those considerations, it Was proper for the Corps to find the underwater alternatives

not reasonable ln light of its stated purpose for the Project, the Corps could consider compliance

time and cost in deciding to eliminate altematives. lt was certainly not arbitrary and capricious to

do so. See Citizens Against`Burlington, 938 F.2d at 198 (upholding elimination of alternatives that

“would mean technological problems and extravagant costs”); see also Friends of Capital

Crescent T rail v. Fed. Transit Admin., 877 F.3d 1051, 1063 (D.C. Cir. 2017) (approving the

agency’s approach to narrowing of alternatives based on “effectiveness in meeting project goals,

engineering feasibility, [and] cost” among other factors). Despite plaintiffs’ concems, the Court

is convinced that the Corps adequately analyzed the issue and came to a reasonable conclusion

See AR 4337 (“[T]he Corps has independently evaluated information supplied by Dominion, as

well as information on alternatives supplied through public, agency, and consulting party

comments, including the latest input and proposed alternatives provided by [PERI] and

[Tabors].”).

The Corps also considered the alternatives presented by Tabors and eliminated them on the

basis that they would not be NERC compliant,3 another of the stated purposes of the Project AR

702-03. The Corps carefully considered Tabors’ perspective that the alternatives would not be

3 Dominion also asserted that the alternatives were not reasonable given cost and

construction time. AR 5720-22.

32

costly and Would be NERC compliant, See e.g., AR 6212, but ultimately “found Dominion’s

information in support of the preferred alternative compelling from a technical perspective,” AR

5548-49, and concurred that “the other alternatives outside of Dominion’s preferred, are either

electrically unavailable or not practicable due to cost and/or logistics.” AR 5549. ln reaching its

conclusion, the Corps also considered the analysis of a third-party, PJM, on the topic of NERC

compliance AR 6199. PJM reviewed the alternatives and “completed a series of analyses

consistent with RTEP procedures and found that none of the four proposed alternatives address all

of the [NERC] reliability criteria violations that are being addressed by the Skiffes Creek 500kV

project.” AR 5132. On that basis the Corps dismissed alternatives for failing to meet a critical

purpose of the Project_NERC compliance AR 702-03.

The Corps reasonably arrived at that conclusion, given its consideration of Dominion’s,

PJM’s, and its own analysis The Court will not second guess those findings, despite Tabors’ and

the plaintiffs’ misgivings All NEPA requires is for the agency to “briefly discuss” its reasons for

eliminating an altemative. The Corps certainly met that burden here and did not act arbitrarily and

capriciously in considering alternatives to the Project

3. Opportunilfv for Public Review of the EA and FONSI

Finally, the Court turns to plaintiffs’ argument that the Corps violated its NEPA obligation

by failing to circulate a draft EA and FONSI for public review and comment, and failing to allow

meaningful participation in the NEPA process NEPA requires federal agencies to “[m] ake

diligent efforts to involve the public in preparing and implementing their NEPA procedures.” 40

C.F.R. § 1506.6@)). And must only involve the public “to the extent practicable” in the preparation

of the EA. 40 C.F.R. § 1501 .4(b). Under CEQ regulations,

ln certain limited circumstances which the agency may cover in its

procedures under § 1507.3, the agency shall make the finding of no

33

significant impact available for public review for 30 days before the

agency makes its final determination whether to prepare an [EIS] and before

the action may begin. The circumstances are: (i) The proposed action is or

is closely similar to, one which normally requires the preparation of an

environmental impact statement under the procedures adopted by the

agency pursuant to § 1507.3, or (ii) The nature of the proposed action is one

without precedent

40 C.F.R. § 1501 .4(e)(2). The D.C. Circuit has indicated that an “agency has significant discretion

in determining when public comment is required with respect to EAs.” TUMAC, Taxpayers of

Michigan Against Casinos v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006). Here, the Court finds

that the Corps properly exercised its discretion in not circulating a draft of the EA and FONSl.

The first “limited circumstance” identified in the regulation above is whether the action is

closely similar to one normally requiring an EIS under the agency’s procedures And under Corps

regulations adopted pursuant to 40 C.F.R. § 1507.3, individual permitting actions “will normally

require only an EA,” and not an EIS. 33 C.F.R. § 230.7(a). Therefore, since the Project here is a

regulatory permitting action, the first circumstance is not implicated.4

The second “limited circumstance” also does not apply to this case This action is not

without precedent, both within the region that the Project is proposed to be built and more broadly.

As the Court has already discussed in detail, the geographic area at issue already contains

numerous modern intrusions Plaintiffs continue to contest that those intrusions pale in

comparison to this Project, given that they are situated on land and are better screened. But the

4 Plaintiffs strenuously contest this logic, arguing that “the project-which by any definition

is a major transmission line project and associated infrastructure affecting myriad NPS-managed

national park, historic, and cultural resources-is the kind of project that ordinarily does require

an ElS, and NPS and others identified similarly situated transmission line projects that all required

preparation of an EIS despite having far less impact than the project at issue here.” l7-cv-136,

ECF No. 85 at 69. But that is of no moment The regulation specifically limits the circumstance

to an action normally requiring an ElS “under the procedures adopted by the agency.” 40 C.F.R.

§ 1501.4(b). As explained above, the Corps normally requires an EA for regulatory permitting

actions which no matter how large in scope is what is at play in this case

34

Court has already addressed that argument earlier in this opinion, The Corps demonstrated that a

number of the modern intrusions can be seen from the river, including “[t]he Highway 17 Bridge,

Ft. Eustis, Surry Nuclear Plant, [and the] VDOT J ames River Ferry.” AR 729-30. Therefore, it

was reasonable for the Corps to conclude that the Project was not without precedent See All. to

Protect Nantucket Sound, Inc. v. U.S. Dep ’t of Army, 398 F.3d 105, 115 (lst Cir. 2005) (finding

that a data tower proposal was not without precedent because similar intrusions existed in Martha’ s

Vineyard). ln addition, the Project is not without precedent given that courts have approved

modern development in a similar context without the requirement that an EIS be produced. See,

e.g., Pogliani 306 F.3d at 1238 (2d Cir. 2002) (per curiam) (denying injunction of Corps permit

for construction of power plant near Hudson River).

NEPA requires circulation of a draft EA and FONSI in limited circumstances Neither of the

two circumstances outlined in CEQ regulations apply to this context Accordingly, the Corps

properly exercised its discretion and its decision to not circulate the EA and FONSI was not

arbitrary and capricious5

B. The Corps’ Compliance with the CWA

5 ln arguing that circulation of a draft EA and FONSI was required, plaintiffs also rely on a

document entitled “CEQ’s Forty Most Asked Questions” (“Forty Questions”). 46 Fed. Reg. at

18,037. That document clarifies that public review and comment is necessary whenever (i) there

is a reasonable argument for preparation of an EIS; (ii) the proposed action is new, unusual, or

precedent-setting; (iii) there is either scientific or public controversy over the proposed action; or

(iv) the proposed action is located in a floodplain or wetland. See 46 Fed. Reg. 18026, 18037 (Mar.

23 , 1 98 1 ).

The parties dispute whether that document is persuasive authority in this context Notably,

the D.C. Circuit has held it to be “merely . . . informal statement[s]” and “not a regulation, and we

do not find it to be persuasive authority.” Cabinet Mountains Wilderness v. Peterson, 685 F.2d

678, 682 (D.C. Cir. 1982) (citations omitted). That being said, the Court need not delve into that

analysis because it is clear based on CEQ regulations_that the Corps must consider_that public

review and comment was not necessary.

35

Plaintiffs in both cases also move for summary judgment on the basis that the Corps violated

its obligation under the CWA. As discussed earlier in this opinion, in order to grant a permit

pursuant to Section 404 of the CWA, the Corps must conduct a “Public Interest Review.” 33

C.F.R. § 320.4(a). The Corps evaluates the “probable impacts including cumulative impacts of

the proposed activity and its intended use on the public interest.” Id. at 320.4(a)(1). The Corps

must carefiilly weigh the benefits of the proposed action against the “reasonably foreseeable

detriments” Id.

The Corps must also consider if there is a “practicable alternative to the proposed discharge

which would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a). “An

alternative is practicable if it is available and capable of being done after taking into consideration

cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2).

1. Public Interest Review

The MFR indicates that the Corps undertook a careful weighing of the detriments and

benefits of the proposed project Contrary to the claims of plaintiffs National Trust and

Preservation Virginia, the Corps gave due consideration to historic, cultural, scenic and

recreational values impacted by the Project See e.g., AR 729-731. As the Court has already

discussed, the Corps reasonably concluded that the impacts were moderate at best The Corps

weighed against those impacts the “public safety and welfare implications of rolling blackouts and

cascading electrical grid failures in the absence of the permitted Project on a peninsula that

contains more than 590,000 citizens several major military installations an airport and military

airfield, universities industrial facilities recreational facilities deep-water shipping channels and

36

a port complex.” l7-cv-1574, ECF No. 61-1 at 73 (citing AR-672-675, 689-690, 727-729, 733-

735).6

Plaintiffs continue to stress the vociferous opposition voiced by NPS and others, For

instance, NPS concluded that “granting a permit would be contrary to the public interest given the

severe environmental consequences of this project." AR 29992. But in performing a public

interest review, “the Corps is not bound to agree with the conclusions reached by these resource

agencies but simply required to listen to and consider their views in the decisionmaking process."'

Sierra Club v. USACE, 772 F.2d 1043, 1054 (2d Cir. 1985). And that is precisely what the Corps

did here In this case the “Corps solicited the other federal and [] agencies' views encouraged

their participation in the [] process and gave full consideration to their comments [], all of which

is evident from the detailed responses that the Corps prepared in assessing those agencies'

comments.” Id. As with the Corps obligations under NEPA, the Court will require no more

because the CWA requires no more The Corps carefully considered the comments before it, but

independently weighed the benefits against and costs and determined that the Project is in the

public interest

2. Altematives Analysis

Under the CWA, an agency must first consider whether there is a practicable alternative

that is less damaging before permitted the proposed action, Crucially, the Corps determines

whether an alternative is practicable before it is required to assess impact 40 C.F.R. § 230.10(a).

6 NPCA challenges whether there are truly public health and welfare implications because

the Department of Energy has committed to reissue emergency orders to run two coal-fired units

at Dominion’s Yorktown Generating Station until the project is completed. 17-cv-1361, ECF No.

63-64. But as defendant-intervenors rightly point out, those orders are necessary because there is

an emergency. Completing a project that will allow the emergency stop gap measures to abate is

certainly a benefit that should be considered in a public interest review.

37

“Practicable” takes into account cost, existing technology, and logistics in light of overall project

purposes 40 C.F.R. § 23 0.3(1). F or reasons already discussed in the NEPA section of this Opinion,

the Corps reasonably concluded that twenty-six of the twenty-eight alternatives were not

practicable Specifically, seventeen fail to meet the project’s purpose because they are not NERC

compliant, and nine were deemed not practicable given that they were either too costly, too time

consuming, or not logistically feasible See AR-706-707, 710, 715-716. Ultimately, the Corps

took this responsibility seriously. lt engaged in a multi-year analysis of alternatives and drew upon

comments from other parties

Plaintiffs counter by arguing that the Corps failed to independently determine that twenty-

six of the twenty-eight alternatives were not practicable for reasons of NERC compliance, time,

cost, and logistics Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254, 1265-68 (S.D. Fla.) (finding

that the Corps failed to independently evaluate the practicability of altematives). Plaintiffs assert

that, as in Sierra Club, the Corps merely accepted Dominion’s analysis without any independent

evaluation. But this case is inapposite The record is rife with evidence that the Corps did not

blindly accept Dominion’s analysis

For example, the Corps independently authored white papers analyzing alternatives AR

4337-45, AR 73302-09, and concluded that it “considered all information supplied to date from

both Dominion and the public. Additionally, Corps Electrical Engineers have evaluated the

information for technical accuracy. ln screening the various altematives the Corps focused on the

ability to sustain sufficient power supply to meet current demand and predicted future growth,

existing technology, implementation cost and ability to maintain/achieve compliance with federal

laws.” AR 73308. Moreover, the Corps’ chief electrical engineer noted that he “found Dominion’s

information in support of the preferred alternative compelling from a technical perspective and for

38

the reasons elaborated upon in the White Paper concur with the preliminary conclusion that other

altematives, outside of Dominion’s preferred, are either electrically unavailable or not practicable

due to cost and/or logistics.” AR 4567.

Given the extensive analysis conducted here, the Corps succeeded in rebutting the

presumptions arising under 40 C.F.R § 230.10(a)(3). Under Section 230.10(a)(3), applicants that

seek permits for non-water-dependent projects must rebut two presumptions (1) that other

“practicable alternatives exist that do not involve special aquatic sites” and (2) that “practicable

alternatives . . . which do not involve a discharge into a special aquatic site that are presumed to

have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a)(3). The record of this

case demonstrates that the Corps reasonably concluded that the only practicable alternative to the

permitted Project-the Chickahominy-Skiffes Creek altemative-also requires crossing the J ames

River. Since that alternative would have a greater overall impact, the Corps properly concluded

that the proposed Project could be permitted

C. The Corps’ Compliance with the NHPA

The Court turns to addressing Whether the Corps met its obligations under the NHPA.

Section 106 of the NHPA requires that agencies undertaking a project expected to adversely affect

a public or private site listed on the National Register of Historic Places “take into account the

effect of the undertaking on any historic property.” 54 U.S.C. § 306108. The ACHP has

promulgated regulations governing the Section 106 consultative process which the Corps carried

out in the present case. Plaintiffs have not brought a challenge pursuant to Section 106. Rather,

plaintiffs National Trust and Preservation Virginia assert that the Corps failed to meet its_

obligations under Section 110(f) of the NHPA, which applies to National Historic Landmarks

(“NHLs”). Section 110(D provides:

39

Prior to the approval of any Federal undertaking that may directly and

adversely affect any National Historic Landmark, the head of the

responsible Federal agency shall to the maximum extent possible undertake

such planning and actions as may be necessary to minimize harm to the

landmark The head of the Federal agency shall afford the Council a

reasonable opportunity to comment with regard to the undertaking

54 U.S.C. § 306107.

There is no disputing that Carter’s Grove, an NHL, will be impacted by the proposed

Project The key question, though, is whether Carter’s Grove will be directly impacted.

Defendants argue that the Corps was not required to comply with Section l 10(f) because it applies

only to actions that “directly” affect an NHL. And when the statute refers to “direct” effects it

refers to effects with a physical impact Since the Project will not be built on the site of Carter’s

Grove, and because the closest visible tower will sit 1.76 miles from the main house at Carter’s

Grove, the impacts are strictly visual, not physical. Accordingly, Carter’s Grove is indirectly

affected, not directly affected, as is required for Section 110(f) to be implicated

Plaintiffs on the other hand, argue that the plain meaning of “directly” as used in the

Section refers to whether the “effects on Carter’s Grove will be the direct result of the Project

itself.” 17-cv-1574, ECF No. 69 at 33. Since “[t]here is no intervening cause,” Carter’s Grove is

directly affected and Section 110(f) applies to this case ln other words “directly” refers to

causation rather than physicality, and NPS asserted during the consultative process that the Project

would directly impact Carter’s Grove

The Court is aware of no case that speaks directly to the definition of “directly” in Section

110(f). But defendant-intervenor does highlight that the cases where courts have found Section

110(f) to be implicated all involved physical, not visual, impacts to NHLs. 17-cv-1361, ECF No.

87 at 33 (citing Presidio Historical Ass ’n v. Presidio Tr., 811 F.3d 1154 (9th Cir. 2016); Coliseum

Square Ass ’n, Inc. v. Jackson, 465 F.3d 215 (5th Cir. 2006); Neighborhood Ass ’n of the Back Bay,

40

Inc. v. Fed. Transit Admin., 463 F.3d 50 (lst Cir. 2006),' see Vieux Carre Prop. Owners, Residents

and Assocs., Inc. v. Pierce, 719 F.2d 1272 (5th Cir. 1983); Lee v. Thornburgh, 877 F.2d 1053

(D.C. Cir. 1989); Lesser v. City of Cape May, 110 F. Supp. 2d 303 (D.N.J. 2000).

The Court is persuaded that the meaning of “directly” in Section 110(f) refers to physical

impacts not causation. ln addition to the fact that every court that has found Section 110(f) to be

implicated in a project dealt with physical effects ACHP regulations outlining the Section 106

consultative process explain that an “adverse effect is found when an undertaking may alter,

directly or indirectly, any of the characteristics of a historic property.” 36 C.F.R. § 800.5

(emphases added). An ACHP and CEQ guidance document on the Section 106 process further

defines “direct effects” as including “demolition of a historic building, major disturbance of an

archaeological site, or any other actions that occur to the property itself.” AR 29716 (emphasis

added). “lndirect effects” are those that “change the character of the property’s use or physical

features within the property’s setting that contribute to its historic significance; are often audible,

atmospheric, and visual ejects; and may relate to viewshed issues.” Id (emphasis added). The

Corps relied on these definitions in finding that Section l 10(f) did not apply. AR 25871.7

Plaintiffs counter that the guidance document cited by the defendants relates to

coordinating the Section 106 consultative process with NEPA, and is not meant to interpret an

agency’s obligations under Section 110(f). They also note that Congress gave NPS, not ACHP,

the authority to implement guidelines interpreting Section 110(f). See, e.g., 54 U.S.C. § 306101.

But, “Section 110(f) cannot be read in a vacuum” as it “builds on the general consultation process

7 The fact that the Corps in a June 2016 email noted that Section 110(f) does not apply

because the effects of the Project are indirect on Carter’s Grove rebuts plaintiffs’ argument that

the finding is a post hoc litigation position. lt is not clear to the Court whether that would even

matter since whether the statute applies is a legal question for the Court to determine But in any

event, the Corps held that position for almost a year prior to signing the MOA.

41

set out in Section 106.” Presidio Historical Ass ’n, 811 F.3d at 1169. lt makes sense to consider

how ACHP guidance documents interpret the difference between “direct” and “indirect” when

they speak directly to that issue ln contrast, plaintiffs do not point to any reference within the

NPS Guidelines interpreting Section l 10(f) that addresses the definition of “indirectly.” The NPS

Guidelines are silent on that issue 63 Fed. Reg. 20,496. That NPS took the position that the

effects were direct in this case does not provide the Court with reason to defer to their interpretation

of Section 110(f).8 Ultimately, the Court is convinced that “directly” within the statute is best

understood to refer to physical damages to the property itself, not visual impacts There is no basis

to find that “directly” in Section 110 means something different from how “direct” effects are to

be considered in the Section 106 consultative process

Finally, even if Section 110(f) did apply in this context, the plaintiffs have not

demonstrated that the Corps failed to follow the heightened procedural requirements Plaintiffs

have not cited to, and the Court is not aware of, a single case where a court held an agency Violated

Section 110(f). That does not mean that there will never be a first, but this case is not it “Section

110 does not affirmatively mandate the preservation of historic buildings or other resources” and

only requires an agency “to comply to the firllest extent possible with, and in the spirit of, the

8 Defendants also make much of the fact that NPS itself appears inconsistent in its approach

to visual effects They highlight the Cape Wind energy project, which involved building 130 wind

turbine generators up to 440 feet tall, that were visible but not physically outside two NHLs (the

Nantucket Historic Landmark District and the Kennedy Compound). AR 30087. NPS concluded

that the Project would “have no direct adverse effect” because the effects were “visual only.” AR

30098. Defendants argue that NPS’s position in that case demonstrates that it too interprets purely

visual effect to be indirect But defendants failed to mention that NPS continued as follows: “[a]s

these determinations are necessarily made on a case by case basis the conclusions the NPS reaches

[for Cape Wind] that the visual intrusions are not a direct and adverse effect does not affect the

NPS’s ability in other circumstances to find that a visual intrusion can cause a direct and adverse

effect on an NHL.” Id. lt appears then that NPS’s approach with regard to the Cape Wind project

was not inconsistent with their approach to this Project

42

Section 106 consultation process ....” Oglala Sioux Tribe v. U.S. Army Corps of Eng ’rs, 537 F.

Supp. 2d 161, 173 (D.D.C. 2008) (quoting Nat’l Tr. for Historic Pres. v. Blanck, 938 F. Supp. 908,

925 (D.D.C. 1996)).

Plaintiffs highlight that the Corps failed to follow NPS’s Section 110 Guidelines ln

particular, the Guidelines require the lead agency to “consider all prudent and feasible alternatives

to avoid an adverse effect on the NHL.” And before determining that any alternative is infeasible,

the agency must undertake a three-part balancing test to weigh the potential grounds for

infeasibility against the preservation purpose of Section 110(f). 63 Fed. Reg. at 20503. But these

guidelines are non-binding Lesser v. City of Cape May, 110 F. Supp. 2d 303, 323-24 (D.N.J.

2000) (citing 63 Fed. Reg. 20,496 (April 247 1998) (“These guidelines have no regulatory effect

Instead, they are the Secretary‘s formal guidance to each federal agency on meeting the

requirements of section 110 of the Act.”)).

Ultimately, the NHPA, like NEPA, “is a procedural statute requiring government agencies

to ‘stop, look, and listen’ before proceeding when their action will affect national historical assets.”

Presidio Historical Ass’n, 811 F.3d at 1169 (intemal citations omitted). Section 110 does not

impose heightened substantive requirements but rather additional procedural requirements Id. at

1171. The Ninth Circuit in Presidio found that the heightened procedural requirement amounted

to requiring agencies to consider alternatives Here, as has already been discussed at length, the

Corps considered twenty-eight alternatives to the Project Moreover, the Corps noted that the

approved Project was chosen in part because it had the fewest towers visible from Carter’s Grove

(two) from the other alternatives considered AR 716-718. Finally, the MOA outlines measures

to reduce the visual impacts to Carter’s Grove. AR 741. The Corps carefully considered the

adverse effects to Carter’s Grove and explored methods to reduce that impact The Corps’

43

procedural undertakings meet the heightened standard of care imposed by Section 110(f) to

undertake “to the maximum extent possible planning and actions to minimize harm to the

landmark.” 54 U.s.c. § 306107. 9

IV. CONCLUSION

For the reasons stated herein, the Court DENIES the plaintiffs’ motions for summary

judgment and GRANTS federal defendants’ and defendant-intervenor’s motions for summary

judgment in their entirety. The case is hereby DISMISSED. A separate Order accompanies this

Memorandum Opinion.

lt is SO ORDERED.

Date; May 1_"5, 2018 .

R ce C. Lamberth

United States District Judge

9 The Court is also not persuaded by plaintiffs’ argument that the Corps was required to

articulate its Section 110(f) findings in the MFR. Section 110(f) makes no such requirement

Ultimately what matters is whether the agency complied with the heightened procedural standards

44