Coastal Zone Management: Federal Consistency Appeal by Virginia Electric and Power Company From an Objection by the North Carolina Department of Environment, Health and Natural Resources

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

Coastal Zone Management: Federal Consistency Appeal by Virginia

Electric and Power Company From an Objection by the North Carolina

Department of Environment, Health and Natural Resources

AGENCY: National Oceanic and Atmospheric Administration, Commerce.

ACTION: Notice of decision.

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On May 19, 1994, the Secretary of Commerce (Secretary) issued a

decision in the consistency appeal of Virginia Electric and Power

Company (VEPCO) (now known as Virginia Power). The decision was reached

on a project proposed by the City of Virginia Beach (City) to withdraw

water from Lake Gaston for the City's water supply needs. The Secretary

has overridden North Carolina's objection, thereby allowing the City to

obtain federal permits to build a pipeline for the withdrawal of up to

60 million gallons of water a day from Lake Gaston.

Lake Gaston, which lies approximately 100 miles west-southwest of

the City, is a man-made lake formed by damming a portion of the Roanoke

River. Lake Gaston is part of a hydroelectric project operated by VEPCO

under a license granted by the Federal Energy Regulatory Commission

(FERC). Lake Gaston lies partly in Virginia and partly in North

Carolina.

To gain access to Lake Gaston, the City proposes to construct a

pipeline. The proposed pipeline would originate in a branch of Lake

Gaston in Brunswick County, Virginia, at a location approximately 400

yards north of the Virginia-North Carolina border, run 76 miles across

southeastern Virginia and end at Lake Prince in Isle of Wight County,

Virginia. The proposed pipeline and point of water withdrawal would be

located entirely within Virginia.

To install and operate its water intake for Lake Gaston, the City

must obtain permission from VEPCO, and VEPCO, in turn, must obtain

approval from FERC. In February 1991, VEPCO applied to FERC to obtain

the necessary permit approval for the pipeline project. The State of

North Carolina requested that the City and VEPCO submit a certification

that the proposed project is consistent with North Carolina's coastal

management program (CMP), a program approved under the Coastal Zone

Management Act of 1972 (CZMA), as amended, 16 U.S.C. 1451 et. seq. The

City and VEPCO jointly submitted such a consistency certification.

The North Carolina Department of Environment, Health and Natural

Resources (State), the State of North Carolina's coastal management

agency, reviewed the City's project pursuant to section 307(c)(3)(A) of

the CZMA. On September 9, 1991, the State objected to the City's

project on the ground that it is inconsistent with several enforceable

policies contained in the State's CMP. Specifically, the State alleged

that the project is not consistent with its guidelines for estuarine

waters and public trust areas because the proposed withdrawal of water

would significantly increase the number of low flow days experienced by

the lower Roanoke River system in coastal North Carolina. This

increase, the State asserted, would cause significant adverse effects

on its coastal zone, including the Roanoke River striped bass fishery.

The State recommended that the City obtain water from other sources.

Under section 307(c)(3)(A) of the CZMA and 15 CFR 930.131, the

State's consistency objection precludes any federal agency from issuing

any license or permit necessary for the City's proposed project, unless

the Secretary finds that the activity is either consistent with the

objectives or purposes of the CZMA (Ground I) or necessary in the

interest of national security (Ground II).

On October 3, 1991, VEPCO, on behalf of the City, filed with the

Secretary a notice of appeal from the State's objection to the City's

proposed project. The City argued that the project satisfies both

Ground I and Ground II.

Upon consideration of the entire administrative record, which

included submissions by the City, VEPCO, and North Carolina, written

information from federal agencies and the public, and views given

during a public hearing, the Secretary made the following findings.

Under Ground I, the Secretary found that the project is consistent

with the objectives or purposes of the CZMA, and accordingly may be

federally permitted. Specifically, the Secretary found that the project

satisfies all four elements required under Ground I of the CZMA: (1) It

furthers one or more of the national objectives or purposes of the

CZMA, (2) its individual and cumulative adverse effects on the coastal

zone are outweighed by its contribution to the national interest; (3)

it will not violate any of the requirements of the Clean Water Act or

the Clean Air Act; and (4) there is no reasonable alternative available

that would permit the proposed activity to be conducted in a manner

consistent with North Carolina's CMP.

Under Ground II, the Secretary found that the project is not

necessary in the interest of national security based upon an evaluation

of comments by interested parties, including agencies of the Department

of Defense.

In making these findings the Secretary decided that: (1) The City's

argument, that North Carolina did not have authority to review the Lake

Gaston project, lacked merit; (2) North Carolina had standing under the

plain terms of the CZMA to review the project since the project affects

North Carolina's coastal zone; and (3) the CZMA employs an effects test

as the basis for a state's consistency review, regardless of a

project's location.

Only one of the two Grounds for a Secretarial override need be

satisfied in order for the project to be federally permitted.

Accordingly, because the proposed project satisfies all of the

requirements of Ground I, the Secretary did override the State's

objection, and the project may be permitted by federal agencies. Copies

of the decision may be obtained from the contact person listed below.

FOR ADDITIONAL INFORMATION CONTACT:

Margo E. Jackson, Assistant General Counsel for Ocean Services,

National Oceanic and Atmospheric Administration, U.S. Department of

Commerce, room 6110, 1305 East-West Highway, Silver Spring, Maryland

20832, (301) 713-2967.

(Federal Domestic Assistance Catalog No. 11.419 Coastal Zone

Management Program Assistance)

Dated: May 20, 1994.

Meredith J. Jones,

General Counsel.

[FR Doc. 94-13123 Filed 5-27-94; 8:45 am]

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