Commenter:
John Evans, Army Corps of Engineers, Water Resources Division
Army Corps formal comments for wind PBR.
NAO-2010-1594-jde
Renewable Energy Policy Manager
Ms. Carol C. Wampler
Department of Environmental Quality
629 East Main Street
Richmond, Virginia 23219
Dear Ms. Wampler:
These are Norfolk District, Corps of Engineers formal comments regarding 9 VAC 15-40, the Small Renewable Energy Projects (Wind) Permit by Rule (PBR) proposed regulation. We believe that the Virginia Regulatory Town Hall document regarding this regulation is incorrect under “Requirement more restrictive than federal”, where the document states that, “There are no applicable federal requirements.” Indeed, activities proposed by the regulation must meet a great number of federal requirements and applicants cannot construct PBR projects without federal permits issued or verified by the Corps of Engineers.
This letter provides information within the geographical context of the 3-mile (offshore) State (of Virginia) territorial limit to also include the Virginia portion of the Chesapeake Bay and associated tributaries. The information provided below is within the potential use and resource conflict areas within the Corps of Engineers business lines.
The regulatory missions of the Corps of Engineers originate via Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act of 1972. A Department of the Army permit under Section 10 and Section 404 will be required to install structures, perform work, dredge, and discharge dredge and fill material in all waters of the United States (including adjacent wetlands and outer continental shelf waters beyond the Virginia 3-mile territorial limit). Each proposed wind turbine generator site may have fill and/or discharge impacts, as the structure’s foundation will bring new material to the surface for each event. Our previous experience with these energy projects indicates that riprap, a discharge of fill material, is likely at the toe of each wind turbine generator to prevent scour. Additionally, the power cable between the site and shore will or may have an impact (dredging), unless completed by directional drilling. Where the cable comes ashore, there may be impacts to wetlands, mudflats, shallow water areas or submerged aquatic vegetation. Each of these situations will require review on a case by case basis.
In evaluating the permit application, we will conduct a public interest review that weighs the foreseeable benefits of the proposed project against reasonably foreseeable detriments. Prior to making a decision, we will fully consider the views of the Federal and State resource agencies, local government, and the general public. Although our evaluation will focus on navigational and environmental impacts, we will consider all relevant factors of the public interest, including impacts to migratory birds, ducks, marine mammals and fish, recreation, cultural/archaeological resources, and aesthetic/visual. We also note that offshore mining (for beach construction and/or beach nourishment activities) sites are important aquatic resources and may also affect the suitability of a site for wind energy projects. We may be required to consider alternative locations which may have less impact, and actions to avoid and minimize impacts (mitigation). National Environmental Policy Act (NEPA) documentation will be required, which addresses all of these relevant issues. This documentation could be in the form of an Environmental Impact Statement (EIS) or Environmental Assessment (EA) depending on the number and location of the wind turbine generators and the significance of the potential environmental impacts.
Further, the Corps' District Commander is required to consult with the U.S. Fish and Wildlife Service and/or the National Oceanic and Atmospheric Administration consistent with the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) if the issuance of a Corps permit may affect threatened or endangered species or their critical habitat. In that the North Atlantic right whale, Eubalaena glacialis, and several sea turtles, including the loggerhead sea turtle, Caretta caretta, and the Kemp’s ridley sea turtle, Lepidochelys kempi are threatened and endangered species in this area there is the possibility of a "may affect" determination. A permit applicant must be aware that endangered species consultation can take over one year after the receipt of a complete Corps permit application.
The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), also requires all Federal agencies to consult with the National Marine Fisheries Service (NMFS) on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH). The Corps will coordinate with NMFS on EFH after an applicant submits a permit application if the Corps determines that any proposed Corps permit activity may adversely affect EFH.
The District Commander must also comply with Section 106 of the National Historic Preservation Act if the issuance of a permit could affect historic resources. The Virginia Department of Historic Resources (VDHR) has mentioned the potential of wind turbines to affect the "viewshed" of the Cape Henry Lighthouse. A permit applicant must understand that the Corps is required to complete coordination with VDHR and possibly the Advisory Council on Historic Preservation if the proposed Corps permit activity may affect historic properties, including the viewshed.
We recommend the preliminary identification of restricted areas, security and danger zones, and other areas deemed undesirable/unsuitable for the placement of wind turbine generators by the resource agencies. The identification of such areas would be a first step in avoiding and minimizing navigational and environmental effects, and identifying potential subaqueous areas with less resource conflicts.
There are 59 shallow draft and 13 deep draft navigation projects currently authorized within the PBR area. Please note that there are other navigation channels within the PBR area which are not within the civil works authority of the Corps of Engineers. You will need to consult with others (U.S. Navy, U.S. Coast Guard, etc.) for additional information on these areas. In addition, there are restricted areas and danger zones that could affect the suitability of a specific site wind energy projects. 33 CFR 334 provides specific latitude and longitude locations. NOAA has taken this information and has overlaid it on all navigation charts. As the information is readily available on charts, it would be prudent to overlay the navigational channels, restricted areas and danger zones with any PBR guidance or documentation. Impacts to those areas will be a part of any public interest review for a permit application and permit decision.
We can make no decision on whether to issue or deny a permit until an applicant submits a permit application. Once we receive a permit application we will, if required, issue a public notice for the project. As a part of the permit process, the applicant will provide appropriate NEPA documentation, we will determine the size and scope of project impacts, and we will evaluate public comments. In order to issue a permit, the Corps must determine that the project complies with the 404(b)(1) EPA Guidelines (in the case of 404 actions); and we must also find that the project is not contrary to the public interest. If you have any questions regarding these comments, please contact John Evans in the Regulatory Branch, at john.d.evans@usace.army.mil or call 757-201-7794.
