20150525 Ver 1_Other Agency Correspondence_20050204

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SOUTHERN ENVIRONMENTAL LAW CENTER
200 WEST FRANKLIN STREET, SUITE 330
CHAPEL HILL, NC 27516-2520
Telephone [phone] Charlottesville, VA
Facsimile 919-929-9421 Chapel Hill, NC
[e-mail] .Atlanta, GA
February 3, 2005
Col. Charles R. Alexander
District Engineer
U.S. Army Corps of Engineers
Post Office Box 1890
Wilmington, NC 28402
James Palmer
Regional Administrator
U.S. EPA Region IV
61 Forsyth Street, SW
Atlanta, GA 30303
Bill Ross
Secretary
NC Department of Environment and Natural Resources .
1601 Mail Service Center
Raleigh, NC 27699
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RE: Section 404 Permit and State Water Quality Certification for Proposed Navy
Outlying Landing Field in Washington County, North Carolina
Dear Sirs:
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The Department of the Navy has proposed to construct an outlying landing field (OLF) in
Washington County, North Carolina. We represent three environmental organizations that, along
with Washington and Beaufort Counties, have challenged the Navy's decision to construct the
OLF as violating the National Environmental Policy Act. In the course of this litigation, the
Navy has stated its immediate. intent to apply for a permit under section 404 of the Clean Water
Act to construct the OLF. This permit also will require a section 401 Water Quality Certification
from the State of North Carolina. This letter respectfully requests that you notify us immediately
of any application by the Navy for a permit, nationwide or general permit authorization, or water
quality certification to construct the proposed OLF.
The Navy's record filed as a part of the case includes two letters from the Corps of
Engineers advising the Navy that if a section 404 permit is required for the proposed OLF, the
section 404(b) guidelines require that the Navy demonstrate that alternative sites do not exist that
would have less adverse impact on the aquatic environment. The Corps also informed the Navy
that it was relying on "outdated" and "inaccurate" National Wetland Inventory Maps in
reviewing potential OLF sites. The Corps further advised the Navy that detailed wetland
delineations would be required for the proposed OLF site and alternative sites. The Navy
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ignored the Corps of Engineers' advice and request, chose the proposed site in Washington
County for the OLF, and has now stated its intent to apply for a section 404 permit. Copies of
these record documents are attached.
As you are aware, the 404(b) guidelines, 33 C.F.R. § 230, allow issuance of a permit only
for the practicable alternative that would have the least adverse impact on the aquatic
environment. If a proposed activity is not water-dependent, such as the proposed OLF, the
applicant has the burden of demonstrating by clear and convincing evidence that practicable
alternatives with less adverse impact on the aquatic environment do not exist. "[T]he applicant
and the [Corps] are obligated to determine the feasibility of the least environmentally damaging
alternatives that serve the basic project purpose. If such an alternative exists...the CWA
compels that the alternative be considered and selected unless proven impracticable." Utahns for
Better Transp. V. U.S. Dept. of Transp., 305 F.3d 1152, 1188-1189 (10th Cir. 2002). In its final
EIS, the Navy identified six alternative sites for an OLF that would meet the Navy's operational
needs (i.e., practicable alternatives) but failed to determine the extent of wetlands or other waters
of the U.S. that would be affected by construction of an OLF on these sites. One of these
alternative sites (site E) was in fact eliminated from consideration not because of the presence of
wetlands, but because of the time involved to determine to establish the extent of wetlands that
may be present on the site. In addition, the Navy eliminated from consideration alternative sites
that could have less adverse impact on the environment and still meet the Navy's operational
requirements. These include three existing military bases in Virginia and the site of Open
Grounds Farm in Carteret County, North Carolina. Other. practicable alternative sites may exist
with less adverse effect on the environment.
It is unfortunate that the Navy ignored the comments and advice of the Corps as it
evaluated and chose a proposed site for the OLF. We commend the Corps for its attempts to
advise the Navy of its obligations under section 404 of the Clean Water Act should it need a
permit and for the Corps' efforts to maintain the integrity of the 404 permitting process. In its
application for a permit, the Navy must demonstrate by clear and convincing evidence that no
alternative sites exist for the proposed OLF that would have less adverse impact on the
environment. This assessment of impact must include not only the direct impacts of dredge and
fill activities on wetlands or other waters present on the site, but also the affects of the proposed
OLF on the surrounding environment including the tens of thousands of waterfowl that winter on
the adjacent Pungo Unit of Pocosin Lakes National Wildlife Refuge. Issuance of a section 404
permit also is a federal action that must comply with NEPA. The Navy already has determined
that the proposed action has a significant effect on the environment.
We appreciate your attention to this request. If you or your staff have any questions,
please feel free to call me at [phone].
Sincerely yours,
G~.~sc.~.(~
Derb S. Carter
Senior Attorney
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