[Federal Register Volume 59, Number 103 (Tuesday, May 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13123]
[[Page Unknown]]
[Federal Register: May 31, 1994]
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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]
BILLING CODE 3510-08-M
