20171559 Ver 3_SELC Comments on Greensboro Megasite_20210917

SOUTHERN 601 West Rosemary Street, Suite 220 Telephone [phone]
ENVIRONMENTAL Chapel Hill, NC 27516 Facsimile 919-929-9421
LAW
CENTER
September 17, 2021
By Electronic Mail
Sue Homewood
N.C. Division of Water Resources
Winston-Salem Regional Office
450 W. Hanes Mill Rd,
Winston-Salem, N.C. 27105
sue. homewood@ncdenr. gov
Re: Greensboro -Randolph Megasite 401 Certification Request
Dear Ms. Homewood:
Please accept these comments on the proposed Greensboro -Randolph
Megasite's 401 Certification Request (DWR # 20171559 Ver 3). The Division cannot
lawfully approve this project under the 401 certification rules. The application
presents two different projects. First, a proposed "transformational advanced
manufacturer."' The applicant uses the manufacturing facility to support the
purpose and need and to define the requirements for the site. But no information
about that facility is provided. The application does not include any information
about the facility layout or present any explanation as to why such a site plan is
necessary. Instead, the actual application is for a 1,000-acre construction pad that
could be used for a "transformational advanced manufacturer," some other
unidentified tenant, or nothing at all. Without information about the ultimate use of
the construction pad, the Division cannot comply with the 401 certification rules2 or
the North Carolina Environmental Policy Act.
A. The Division's decision denying the MVP Southgate project supports
denial of this application.
The federal court decision in Mountain Valley Pipeline v. N.C. Department of
Environmental Quality, et al. is instructive here. In that case, the Division of Water
Resources denied a 401 certification for a proposed natural gas pipeline that was
dependent on future action, namely approval of a larger pipeline that it must be
completed for the pipeline under review to have any purpose.3 Because that larger
1 Letter from V. Miller, HDR Engineering, to S. Homewood, DWR at 1 (July 7, 2021).
2 See 15A N.C. Admin. Code 2B.0506 (limiting analysis to proposed activity).
3 See Mountain Valley Pipeline, LLC v. N.C. Dept of Envtl. Quality, 990 F.3d 818, 826-828 (4th Cir.
2021).
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pipeline's future is in doubt, the Division properly recognized that allowing the
development of a secondary pipeline that may never be used did not comply with
the certification rules' mandate to minimize impacts to streams and wetlands.4
Following the court's remand of the certification denial to the agency for
additional explanation of the basis for the decision, the Division again denied the
certification.5 The Division director found that "in the face of the significant
uncertainty surrounding MVP's Mainline Project, authorizing the water quality
impacts from MVP's Southgate Project would be inconsistent with the avoidance
and minimization requirements in North Carolina's 401 certification and riparian
buffer regulations." 6 The Division recognized that the Fourth Circuit approved its
previous denial as "consistent with the State's regulations and the Clean Water
Act."7
Denial of the 401 certification for the Greensboro -Randolph Megasite is,
likewise, consistent with the state regulations. Those regulations require the
Division to "evaluate if the proposed activity ... has avoided and minimized
impacts to surface waters and wetlands."$ That can only be done if the "proposed
activity" is properly defined.
Here, the applicant has not identified a future tenant for the site or provided
a site layout.9 As more fully explained in the attached letter,10 the applicant has
done nothing to demonstrate that the criteria it has established are necessary to
achieve the purported purpose. The only purpose of the project as described is to
build a construction pad. Just as building a pipeline "from nowhere to nowhere""
fails to minimize impacts to streams and wetlands, building a construction pad
without any description of its purpose fails to avoid and minimize impacts as
required by rule.12
4 Id.
5 Letter from D. Smith, DWR, to K. Salvador, MVP LLC, at 1 (April 29, 2021), available at
http s://files.nc. gov/ncde q/pipelines/2018-1638v3-MVP-Southgate-0429202l .p df.
6 Id.
7 Id. at 2.
8 15A N.C. Admin. Code 2H.0506(b)(1).
9 See Greensboro -Randolph Megasite: 404 Individual Permit Application Supporting Documentation
and Environmental Report, HDR, at 1, 13-16 (May 10, 2021) (404 Permit Application).
10 Letter from G. Gisler, SELL, to A. Williams, U.S. Army Corps of Engineers (Jan. 17, 2019).
11 Memorandum from J. Hennessy, DWR, to D. Smith, DWR, at 11 (Aug. 11, 2020), available at
https:Hfiles.nc. gov/ncdeq/pipelines/HO-Report-signature-081120.pdf.
12 See 15A N.C. Admin. Code 2H.0506(b)(1).
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B. The North Carolina Environmental Policy Act applies to the project
and has not been met.
The North Carolina Environmental Policy Act applies to this project. Under
the statute, any project that includes a "significant expenditure of public moneys or
use of public land for projects ... significantly affecting the quality of the
environment" requires an environmental impact statement.13 Public money
"includes all expenditures in support of the proposed activity by state or local or
quasi -public entities from whatever source derived."14 Public land includes "all land
and interests therein, title of which is vested in ... [any] political subdivision of the
State."15
This project includes a significant expenditure of public money and public
land and would have a significant effect on the environment. The applicant is acting
on behalf of Randolph County and the North Carolina Railroad,16 entities whose
involvement indicates that there will be a significant expenditure of public money.
Even if public money were not spent on the project, Randolph County is a partial
owner of the site and, therefore, public land owned by a political subdivision of the
State will be developed.17 With a proposed impact of 8.4 acres of wetlands and more
than 35,000 linear feet of streams,18 there is undoubtedly a significant
environmental effect.
To comply with the Environmental Policy Act, the applicant must describe:
a. The direct environmental impact of the proposed action;
b. Any significant adverse environmental effects which cannot be
avoided should the proposal be implemented;
c. Mitigation measures proposed to minimize the impact;
d. Alternatives to the proposed action;
e. The relationship between the short-term uses of the environment
involved in the proposed action and the maintenance and enhancement
of long-term productivity; and
f. Any irreversible and irretrievable environmental changes which
would be involved in the proposed action should it be implemented.19
The application plainly fails to meet these requirements because the project
either (1) has no purpose or (2) is incomplete. If the proposed project is to build a
construction pad, then it has no purpose that could support the analysis provided in
13 N.C. Gen. Stat. § 113A-4.
14 1 N.C. Admin. Code 25.0108
15 N.C. Gen. Stat. § 113A-9.
16 404 Permit Application at 1.
17 404 Permit Application at 1.
18 404 Permit Application at 1-2.
19 N.C. Gen. Stat. § 113A-4.
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the application. There is no reason a construction pad must be the size proposed,
regularly shaped, have access to rail or highways, be within 30 miles of an airport,
or have utility access.20 The applicant cannot fill streams and wetlands for the sole
purpose of filling streams and wetlands. Moreover, the project as proposed does not
meet any of the needs stated in the application=building the construction pad will
not "employ upwards of 4,000 workers" 21 or result in any economic benefit.
If, on the other hand, the purpose is to build a "transformational
manufacturing, facility," then the project description is incomplete. The application
does not describe the manufacturing process, the location of buildings on the site, or
the rationale for any of the purported site requirements. If the purpose is to develop
a manufacturing facility, the applicant has not described the "direct environmental
impact of the proposed action" or identified any "adverse environmental effects
which cannot be avoided."22 Because the applicant has not described the
manufacturing facility at all, it has not met the requirement to include "[m]itigation
measures proposed to minimize the impact.1123
The Division cannot lawfully approve this project. Speculative filling of
streams and wetlands in anticipation of an undefined future construction project is
wholly inconsistent with the 401 certification rules and the Environmental Policy
Act. The Division should again deny this application and discourage the applicant
from re -applying until it has identified a tenant and has some basis for the stated
need to fill streams and wetlands.
Thank you for considering these comments.
20 404 Permit Application at 1.
21 404 Permit Application at 6.
22 N.C. Gen. Stat. § 113A-4
23 Id.
Sincerely,
Geoffrey R. Gisler
Senior Attorney
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SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
January 17, 2019
Via U.S. and Electronic Mail
Andrew Williams
Raleigh Regulatory Field office
U.S. Army Corps of Engineers
3331 Heritage Trade Dr.
Suite 105
Wake Forest, NC 27587
[e-mail]
Re: SAW-2015-01268 Greensboro -Randolph Megasite Foundation, Inc.
Dear Mr. Williams:
Please accept these comments on the Greensboro -Randolph Megasite Foundation's
proposal to build a construction pad in Liberty, North Carolina. In short, the Foundation's
apparent purpose is to fill streams and wetlands. Although the Foundation has not identified a
tenant or user for the site, and will not be the tenant or user, it seeks to fill 34,342 feet of
perennial streams, 2,954 feet of intermittent stream, 8.85 acres of jurisdictional wetlands, and
22.60 acres of open water. i The public notice omits any information about what will ultimately
be built on the pad except in the broadest terms, fails to justify the size of the pad, and does not
support its basic assumptions regarding the expected use of the proposed pad. As such, the
Foundation's application is premature and cannot be permitted. At a minimum, the Corps must
prepare an environmental impact statement.
A. The public notice is deficient.
The public notice is intended to perform a critical role in Section 404 permitting. It is
"the primary method of advising all interested parties of the proposed activity for which a permit
is sought and of soliciting comments and information necessary to evaluate the probable impact
on the public interest."2 The public notice must "include sufficient information to give a clear
understanding of the nature and magnitude of the activity to generate meaningful comment."3
That information must include a "description of the proposed activity, its purpose and intended
use, so as to provide sufficient information concerning the nature of the activity to generate
meaningful comments."4 To thwart piecemeal analysis of projects, "[a]ll activities which the
applicant plans to undertake which are reasonably related to the same project and for which a DA
permit would be required should be included in the same permit application" and the Corps
' Public Notice at 6.
2 33 C.F.R. §325.3(a).
3 Id.
4 Id.
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"should reject, as incomplete, any permit application which fails to comply with this
requirement."5
The public notice for the Megasite fails all of these requirements. No information is
provided that supports the project as proposed. Given that no tenant has been identified, it is not
possible to give a full description of the activity that purportedly justifies the substantial impacts
to waters of the United States. The public cannot provide meaningful comment about the extent
of impacts, potential avoidance and minimization, or any other aspect of the 404(b)(1) guidelines
without significantly more detail about the alleged automotive manufacturing facility that the
extensive construction pad is intended to support. For similar reasons, the Corps cannot fulfill its
obligations under the Clean Water Act and the 404(b)(1) guidelines without additional
information.
B. The proposed fill of more than seven miles of streams requires an environmental
impact statement.
The National Environmental Policy Act requires the Corps to prepare an environmental
impact statement for any "major Federal actions significantly affecting the quality of the human
environment."6 This project is plainly a major federal action with significant environmental
effects.
The significance of those effects is plainly stated in the 404(b)(1) guidelines:
"[f]undamental to these Guidelines is the precept that dredged or fill material should not be
discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge will
not have an unacceptable adverse impact."7 The guidelines go on to recognize that "[f]rom a
national perspective, the degradation or destruction of special aquatic sites, such as filling
operations in wetlands, is considered to be among the most severe environmental impacts
covered by these Guidelines."8 As mandated in the guidelines, "[t]he guiding principle should be
that degradation or destruction of special sites may represent an irreversible loss of valuable
aquatic resources."9
It is clear from the public notice that the resources that would be destroyed by the project
are environmentally significant. As recognized in the notice, each of the creeks on the site is
classified as water supplies, as is Dodsons Lake.10 In addition, Little Polecat Creek is a high
quality water, "a supplemental classification intended to protect waters which are rated excellent
based on biological and physical/chemical characteristics."11 The loss of these streams "may
affect federally endangered or threatened species or their formally designated critical habitat." 12
These significant environmental effects of the project warrant an environmental impact
statement.
s 33 C.F.R. § 325.1.
6 42 U.S.C. § 4332(C).
40 C.F.R. § 230.1(c).
s 40 C.F.R. § 230.1(d).
9 Id.
10
Public Notice at 3.
11 Id
12 Public Notice at 8.
OA

C. The purpose and need cannot justify the impact.
The Foundation's stated purpose is little more than to fill streams and wetlands. With this
purpose, the Foundation can never demonstrate "why it is necessary for the [development] to be
located on the wetlands rather than the uplands, except for its preference to build on the
wetlands." Shoreline Associates v. Marsh, 555 F. Supp. 169, 179-80 (D. Md. 1983), affd, 725
F.2d 677 (4th Cir. 1984). The desire to fill streams and wetlands in furtherance of a speculative
desire to lure a third -party to develop some type of manufacturing facility at some point in the
future does not demonstrate that the impacts proposed for this project are necessary.
Even if the purpose is considered to be providing economic stimulus and job creation, the
project should be rejected. Nothing in the public notice or plans demonstrates that construction
of an automotive manufacturing facility is the only practicable alternative that could provide
comparable economic stimulus. As noted in the attached letter, your colleagues in the Savannah
District rejected a similar proposal as "insufficient and speculative." 13
D. The project has not avoided or minimized impacts as required under the 404(b)(1)
guidelines.
The abbreviated alternatives analysis included with document plans cannot support
issuance of a permit. The most fundamental problem with the alternatives analysis is that there is
no basis for the criteria selected. "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."14 The Foundation's purpose —given that it is not the end useris, at
most, to create jobs.15 Although the Foundation has suggested an automotive manufacturing
facility as the vehicle for that job creation, there is no basis for limiting the alternatives analysis
to that industry. Moreover, nothing in the public notice, plans, or alternatives analysis indicates
that the site would be developed in such a manner as to make it only suitable for automotive
manufacturing. Indeed, the Chair of the Greensboro Chamber of Commerce has been quoted as
saying that "[w]e want to cast a wide net and not pigeonhole this site as being for one type of
industry," undermining the very basis for this application.16 The Foundation's purpose, to
stimulate job growth, could be achieved by any number of alternatives which would have
different requirements and could be done with less impact to jurisdictional waters.
Without an identified end user, the criteria for alternatives identified in Section 4.2.1 of
the application have no basis. There is no support for the purported needs of a "transformational
automotive" facility and nothing to justify the Foundation's focus on such a facility to limit the
scope of alternatives. According to at least one industry expert, the "industry has reached a
13 Letter from W. Rutlin, USACE, to H. Tollison at 2 (July 2, 2015).
14 40 C.F.R. § 230.10.
15 More directly, the Foundation's purpose is to fill streams and wetlands, an unlawful purpose that should be
rejected.
16 Winston Salem Journal, "So, Now What? Toyota -Mazda deal leaves polished megasite, team in place" (Jan. 13,
2018) (https://www.joumalnow.com/business/business_news/local/toyota-mazda-deal-leaves-polished-megasite-
team-in-place/article 4079bla6-c783-5lfc-96b5-549092adfl8b.html).

production peak since its near disastrous recession in 2008" and "the recent flow of expansions,
most notably BMW and Volvo, is likely to stop."17
In addition, the complete lack of detail regarding the expected facility renders the on -site
alternatives analysis meaningless and unlawful. The presumption that a 1,000 acre construction
pad must be situated on the site is wholly unjustified. If an actual facility were described,
additional avoidance and minimization would be required by evaluating the size, orientation, and
necessity of specific aspects of the facility.
As described in the regulations, for activities such as the proposed project that do not
require water access, "practicable alternatives that do not involve special aquatic sites are
presumed to be available, unless clearly demonstrated otherwise."18 Courts have recognized that
"[t]his presumption of practicable alternatives is very strong, ... creat[ing] an incentive for
developers to avoid choosing wetlands when they could choose an alternative upland site." Nat'l
Wildlife Fed'n v. Whistler, 27 F.3d 1341, 1344 (8th Cir. 1994) (citing Bersani v. Robichaud, 850
F.2d 36, 44 (2d Cir.1988), cent. denied, 489 U.S. 1089 (1989)) (emphasis in original). To meet
this burden, the Applicant must demonstrate "why it is necessary for the [development] to be
located on the wetlands rather than the uplands, except for its preference to build on the
wetlands." Shoreline Associates v. Marsh, 555 F. Supp. 169, 179-80 (D. Md. 1983), affd, 725
F.2d 677 (4th Cir. 1984). The Foundation has not overcome this presumption due to the limited
information and pure speculation in the alternatives analysis.
Further, the lack of information prevents the Corps from conducting any meaningful
analysis of the project under the 404(b)(1) guidelines. There is no certainty that the proposed
construction pad will meet the needs of an unidentified future tenant, meaning that the Corps
cannot assess whether the project constitutes the full scope of anticipated impacts. Beyond that
uncertainty, the paucity of information provided leaves the Corps unable to assess impacts on
downstream water supplies, fish, wildlife, aquatic ecosystems, fish and wildlife habitat,
ecosystem services, cumulative impacts, or the public interest as required by the guidelines.19
E. The Corps must consult with the U.S. Fish and Wildlife Service.
The Endangered Species Act requires the Corps to initiate consultation with the U.S. Fish
and Wildlife Service when it determines that an action may affect a federally endangered or
threatened species.20 Here, the Co2Ts has concluded that the project "may affect federally listed
endangered or threatened species. 2 Although the public notice acknowledges such a potential
effect, it does not provide any information regarding consultation. The Corps cannot issue the
permit without Section 7 consultation.
17 Id
18 40 C.F.R. § 230. 1 0(a)(3).
19 See 40 C.F.R. § 230.10.
20 16 U.S.C. § 1531(a)(2).
21 Public Notice at 8.
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F. The permit application must be rejected.
The Corps must reject this permit application. There is simply no project that the Corps
can meaningfully review. Filling streams, wetlands, and ponds for an unidentified future tenant
that will carry out some type of unspecified manufacturing or other industrial activity is not a
lawful purpose. The application deprives the public and the Corps of essential information that is
necessary to evaluate the project's compliance with the National Environmental Policy Act,
Clean Water Act, and Endangered Species Act. The only appropriate response to this application
is to direct the Foundation to re -apply when they have identified a future tenant. At that time, the
Corps can meaningfully engage in the required analyses under the applicable laws.
With this letter, I request to be notified when the Corps takes action on this application. If
you have any questions regarding the comments, you may reach me at [phone] or
[e-mail].
GG/rgd
Cc:
Emily Sutton, Haw River Assembly
Sincerely,
Geoffrey R. Gisler
Senior Attorney
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