[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