[Federal Register Volume 86, Number 242 (Tuesday, December 21, 2021)]
[Notices]
[Pages 72366-72392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27560]
[[Page 72365]]
Vol. 86
Tuesday,
No. 242
December 21, 2021
Part III
Surface Transportation Board
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Seven County Infrastructure Coalition--Rail Construction & Operation
Exemption--In Utah, Carbon, Duchesne, and Uintah Counties, Utah; Notice
Federal Register / Vol. 86 , No. 242 / Tuesday, December 21, 2021 /
Notices
[[Page 72366]]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 36284]
Seven County Infrastructure Coalition--Rail Construction &
Operation Exemption--In Utah, Carbon, Duchesne, and Uintah Counties,
Utah
In 2020, the Seven County Infrastructure Coalition (Coalition)
filed a petition for exemption under 49 U.S.C. 10502 from the prior
approval requirements of 49 U.S.C. 10901 for authorization to construct
and operate an approximately 85-mile rail line connecting two termini
in the Uinta Basin (Basin) near South Myton Bench, Utah, and Leland
Bench, Utah, to the national rail network at Kyune, Utah (the Line).
According to the Coalition, the Line would provide shippers in the
Basin with a viable alternative to trucking, which is currently the
only available transportation option. (Pet. for Exemption 13-15.)
On January 5, 2021, the Board issued a decision assessing the
transportation merits of the proposed transaction and preliminarily
concluding, subject to completion of the ongoing environmental review,
that the proposal meets the statutory standard for an exemption on the
transportation merits. Seven Cnty. Infrastructure Coal.--Rail Constr. &
Operation Exemption--in Utah, Carbon, Duchesne, & Uintah Cntys., Utah
(January 5 Decision), FD 36284, slip op. at 8-10 (STB served Jan. 5,
2021) (86 FR 1564) (with Board Member Oberman dissenting). The Board
noted that it was not granting the exemption or allowing construction
to begin and that after the Board has considered the potential
environmental impacts associated with this proposal and weighed those
potential impacts with the transportation merits, it would issue a
final decision either granting the exemption, with conditions, if
appropriate, or denying it. Id. at 2. The Board received petitions for
reconsideration of the January 5 Decision and denied those requests in
a decision served on September 30, 2021. Seven Cnty. Infrastructure
Coal.--Rail Constr. & Operation Exemption--in Utah, Carbon, Duchesne, &
Uintah Cntys., Utah (September 30 Decision), FD 36284 (STB served Sept.
30, 2021) (with Board Member Oberman dissenting).
The Board's Office of Environmental Analysis (OEA), in cooperation
with stakeholders, tribes, and federal, state, and local agencies, has
completed a thorough environmental analysis that reviewed the potential
environmental impacts that could result from the proposed project,
culminating in a Final Environmental Impact Statement (Final EIS)
served on August 6, 2021. OEA reviewed a number of build alternatives
and a No-Action (or No-Build) Alternative to take a ``hard look'' at
potential environmental impacts as required by the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370m-12. The
environmental review process has included extensive opportunity for
public participation as well as input from agencies and other
interested parties. Based on this analysis, OEA identifies the Whitmore
Park Alternative as its Environmentally Preferable Alternative for the
Line because it would avoid or minimize major environmental impacts
compared to the two other build alternatives, as discussed in more
detail below. OEA also recommends environmental conditions (including
both voluntary mitigation proposed by the Coalition and additional
mitigation developed by OEA) to avoid, minimize, or mitigate the
transaction's potential environmental impacts.
In this decision, the Board will grant final approval for a
construction and operation exemption for the Whitmore Park Alternative,
subject to OEA's final recommended environmental mitigation measures,
with minor changes. The environmental mitigation is set forth in
Appendix B of this decision.
Background
On May 29, 2020, the Coalition filed a petition for exemption from
the prior approval requirements of 49 U.S.C. 10901 under 49 U.S.C.
10502 to construct and operate the Line, which will connect with Union
Pacific Railroad Company (UP) at Kyune, Utah. The Coalition notes that
it is an independent political subdivision of the State of Utah, whose
member counties include Carbon, Daggett, Duchesne, Emery, San Juan,
Sevier, and Uintah Counties. (Pet. for Exemption 5.) It was formed to,
among other things, identify and develop infrastructure projects that
will promote resource utilization and development. (Id.)
The Coalition asserts that goods produced or consumed in the Basin
now can be transported only by truck and that the proposed project
would give shippers an additional freight transportation option,
eliminating longstanding transportation constraints. (Id. at 13-15.) It
explains that adding a rail transportation option would provide local
industries the opportunity to access new markets and increase their
competitiveness in the national marketplace, and that the removal of
transportation constraints would benefit oil producers, mining
companies, ranchers, farmers, and other local industries. (Id. at 15.)
The Coalition argues that regulation of the construction and
operation of the proposed line under section 10901 is not needed to
carry out the rail transportation policy (RTP) at 49 U.S.C. 10101, that
the project would promote several provisions of the RTP, and that an
application under section 10901 is not required to protect shippers
from an abuse of market power. (Pet. for Exemption 21-22.) In
considering the petition, the Coalition asked that the Board follow a
two-step approach, addressing the transportation aspects of the project
in advance of the environmental issues. (Id. at 26-28.)
The Board received filings both supporting and opposing the
petition for exemption. Several government officials filed comments in
support of the petition for exemption. January 5 Decision, FD 36284,
slip op. at 3.\1\ The opponents included the Center for Biological
Diversity (CBD), the Argyle Wilderness Preservation Alliance (Argyle),
and numerous individuals. Id. at 1.
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\1\ To date, the Board has received letters supporting the
project from the Ute Indian Tribe of the Uintah and Ouray
Reservation (Ute Indian Tribe), U.S. Senators Mitt Romney and Mike
Lee and U.S. Representatives Rob Bishop, Chris Stewart, John Curtis,
Burges Owens, and Blake Moore. The Board also received letters
supporting the project from state officials, including Utah's former
Governor Gary R. Herbert, its current Governor Spencer J. Cox,
Lieutenant Governor Deidre M. Henderson, State Senate President J.
Stuart Adams, and State House Speaker Brad Wilson.
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In its January 5 Decision, the Board addressed the substantive
comments, concluded that an application was not necessary, and found
the requested approach of issuing a preliminary decision on the
transportation merits appropriate. The Board preliminarily concluded,
subject to completion of the ongoing environmental and historic review,
that the proposed transaction meets the statutory standards for
exemption under section 10502. January 5 Decision, FD 36284, slip op.
at 1. As noted above, the Board stated that it was not granting the
exemption or allowing construction to begin and that after the Board
has considered the potential environmental impacts associated with this
proposal and weighed those potential impacts with the transportation
merits, it would issue a final decision either granting the exemption,
with conditions, if appropriate, or denying it. Id. at 2.
The Board received petitions for reconsideration of the January 5
Decision from Eagle County, Colo., on
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January 25, 2021, and CBD on January 26, 2021. The agency denied those
requests in its September 30 Decision, where among other things, the
Board rejected arguments that an application was required because of
concerns related to potential reactivation of the Tennessee Pass Line
in Colorado and that the Board's consideration of the statutory
standards for exemption in the January 5 Decision was inadequate.
September 30 Decision, FD 36284, slip op. at 3, 5-7.
During this time, OEA was conducting its environmental review of
potential impacts from constructing and operating the Line. As part of
this process, OEA issued a Notice of Intent to Prepare an EIS on June
19, 2019, a Final Scope of Study for the EIS on December 13, 2019, and
a Draft EIS on October 30, 2020. The Draft EIS analyzed three Action
Alternatives for the proposed Line, as well as the No-Action
Alternative. The three alternatives examined were the Indian Canyon
Alternative, Wells Draw Alternative, and Whitmore Park Alternative.
(Draft EIS S-5.) Each of the Action Alternatives would extend from two
terminus points in the Basin near Myton, Utah, and Leland Bench to a
proposed connection with UP's existing Provo Subdivision near Kyune.
(Id. at S-7.). A map of the Action Alternatives is found at Appendix A
of this decision. The Indian Canyon Alternative, Wells Draw
Alternative, and Whitmore Park Alternative would be approximately 81
miles, 103 miles, and 88 miles in length, respectively. (Draft EIS S-
7.) In its request for authority, the Coalition identified the Whitmore
Park Alternative as its preferred route for the Line.
Based on the analysis in the Draft EIS, OEA concluded that
construction and operation of any of the Action Alternatives would
result in environmental impacts, some of which would be significant.
(Id. at S-7 to 13.) OEA preliminarily concluded, however, that, among
the three Action Alternatives, the Whitmore Park Alternative would
result in the fewest significant impacts on the environment. (Id. at S-
12.)
OEA invited agency and public comment on the Draft EIS, including
its preliminary conclusion on the Whitmore Park Alternative and the
conditions OEA preliminarily recommended to mitigate the impacts of
constructing and operating any of the Action Alternatives. OEA
established a comment period, which it agreed to extend several times
upon request, until February 12, 2021. OEA also conducted six online
public meetings during the comment period. In total, OEA received 1,934
comment submissions on the Draft EIS, including both written and oral
comments. (Final EIS S-5.)
In the Final EIS, OEA includes all of the comments received on the
Draft EIS and OEA's responses to substantive comments, as well as all
changes to the analysis that resulted from the comments. OEA concludes
that the Whitmore Park Alternative is indeed the Environmentally
Preferable Alternative, and that if the Board decides to permit
construction and operation of a rail line, the Board should authorize
that alternative to minimize impacts of construction and operation on
the environment. (Final EIS 2-48.) OEA also provides its final
recommendations for environmental mitigation to minimize potential
environmental impacts. (Id. at Chapter 4.)
On August 25, 2021, the State of Utah (State) filed in support of
the Coalition's project but asked that OEA modify several mitigation
measures that OEA recommends in the Final EIS. In addition, the U.S.
Environmental Protection Agency (USEPA) filed comments on the Final EIS
on September 2, 2021, recommending certain changes to an air emissions
dispersion model that OEA ran as part of the environmental review
process. On October 1, 2021, the Ute Indian Tribe filed a comment in
response to the Final EIS stating that it supports the rail
construction project. CBD filed a comment on October 18, 2021, and
supplemental exhibits on November 8, 2021, raising objections to the
exemption sought by the Coalition, the Final EIS, and a related
Biological Opinion (BO) issued by the U.S. Fish and Wildlife Service
(USFWS) on September 20, 2021.\2\
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\2\ CBD simultaneously filed a petition asking that the Board
accept its comment into the record. It claims that the Board has a
compelling interest in accepting the filing, partly to allow the
agency to fully consider the impacts of the project. (CBD Comment 1,
Oct. 18, 2021.) The Coalition filed in opposition to CBD's request
on October 22, 2021. In the interest of a complete record, CBD's
filing as well as the other filings commenting on the Final EIS will
be accepted into the record. See Alaska R.R.--Constr. & Operation
Exemption--Rail Line Between N. Pole & Delta Jct., Alaska, FD 34658,
slip op. at 6 (STB served Jan. 6, 2010).
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Discussion and Conclusions
The construction and operation of new railroad lines requires prior
Board authorization, through either a certificate under 49 U.S.C. 10901
or, as requested here, an exemption under 49 U.S.C. 10502 from the
prior approval requirements of section 10901. Section 10901(c) is a
permissive licensing standard that directs the Board to grant rail line
construction proposals unless the agency finds the proposal
``inconsistent with the public convenience and necessity.'' Thus,
Congress has established a presumption that rail construction projects
are in the public interest and should be approved unless shown
otherwise. See Alaska R.R.--Constr. & Operation Exemption--Rail Line
Extension to Port MacKenzie, Alaska, FD 35095 (STB served Nov. 21,
2011), aff'd sub nom. Alaska Survival v. STB, 705 F.3d 1073 (9th Cir.
2013).
Under section 10502(a), the Board must exempt a proposed rail line
construction from the prior approval requirements of section 10901 when
the Board finds that: (1) Application of those procedures is not
necessary to carry out the RTP of 49 U.S.C. 10101; and (2) either (a)
the proposal is of limited scope, or (b) the full application
procedures are not necessary to protect shippers from an abuse of
market power.
In the January 5 Decision, the Board determined that the Line would
enhance competition by providing shippers in the area with a freight
rail option that does not currently exist and that the Line would
foster sound economic conditions in transportation, consistent with
section 10101(4) and (5). January 5 Decision, FD 36284, slip op. at 9.
Additionally, the Board found that section 10101(2) and section
10101(7) would be furthered by an exemption because it would minimize
the need for federal regulatory control over the rail transportation
system and reduce regulatory barriers to entry by minimizing the time
and administrative expense associated with the construction and
commencement of operations. January 5 Decision, FD 36284, slip op. at
9.
The Board also discussed Argyle's claims that section 10101(8),
concerning public safety, and section 10101(11), concerning safe
working conditions, would be undermined by the project because rail
traffic could cause forest fires and substantial truck traffic. Id. at
8. The Board noted that it takes these concerns seriously and that they
would be examined as part of OEA's environmental review and further
examined by the Board in its final decision. Id. at 9.
Nothing in the environmental record calls into question the Board's
determination in the January 5 Decision that section 10101(2), (4),
(5), and (7) would be furthered by the rail construction project.
Moreover, as discussed below and in the Final EIS, nothing in the
environmental record raises significant concerns regarding section
10101(8) and (11). The Board
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therefore reaffirms its analysis here and now turns to consideration of
the environmental aspects of the proposed project.
Environmental Analysis
1. The Requirements of NEPA
NEPA requires federal agencies to examine the environmental impacts
of proposed major federal actions and to inform the public concerning
those effects. See Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462
U.S. 87, 97 (1983). Under NEPA and related environmental laws, the
Board must consider significant potential environmental impacts in
deciding whether to authorize a railroad construction as proposed, deny
the proposal, or grant it with conditions (including environmental
mitigation conditions). The purpose of NEPA is to focus the attention
of the government and the public on the likely environmental
consequences of a proposed action before it is implemented to minimize
or avoid potential adverse environmental impacts. See Marsh v. Or. Nat.
Res. Council, 490 U.S. 360, 371 (1989). While NEPA prescribes the
process that must be followed, it does not mandate a particular result.
See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). Thus, once the adverse environmental effects have been
adequately identified and evaluated, the Board may conclude that other
values outweigh the environmental costs. Id. at 350-51.
The Board has assessed the Action Alternatives, OEA's final
recommended environmental mitigation, and OEA's conclusions regarding
the environmental impacts associated with this construction proposal.
The Board has also fully considered the entire environmental record,
including the Draft EIS, public comments, the Final EIS, and the
comments received following issuance of the Final EIS from the State,
CBD, USEPA, and the Ute Indian Tribe. CBD, generally, argues that the
Final EIS fails to sufficiently analyze and disclose environmental
impacts or recommend appropriate mitigation. (CBD Comment 2-6, Oct. 18,
2021.) Most of these objections, however, are objections CBD already
had raised when commenting on the Draft EIS. Below, the Board briefly
discusses OEA's analysis of several major issues previously raised in
comments on the Draft EIS and then responds to the major issues raised
following issuance of the Final EIS by CBD and the State as well as
USEPA's request to modify some of the recommended environmental
mitigation in the Final EIS. The Draft EIS and Final EIS discuss many
issues beyond what the Board addresses in this decision; however, the
Board adopts OEA's analysis and conclusions in those documents, even if
specific issues are not addressed here.
In the Final EIS, OEA identifies the major environmental impacts
that could result from construction and operation of the Line. These
major impacts include impacts on water resources, impacts on special
status species, impacts from wayside noise during rail operations,
impacts related to land use and recreation, socioeconomic impacts, and
issues of concern to the Ute Indian Tribe, including impacts on
cultural resources. During the EIS process, OEA also analyzed other
types of environmental impacts that OEA concluded would not be
significant if the Coalition's voluntary mitigation measures and OEA's
recommended mitigation measures were implemented. These minor impacts
include impacts on vehicle safety and delay, impacts related to rail
operations safety, impacts on big game, impacts on fish and wildlife,
impacts on vegetation, impacts related to geology and soils, impacts on
hazardous waste sites, impacts from construction-related noise,
vibration impacts, impacts related to energy resources, impacts on
paleontological resources, and visual impacts.
2. Range of Alternatives
NEPA requires that federal agencies consider reasonable
alternatives to the proposed action. Citizens Against Burlington, Inc.
v. Busey, 938 F.2d 190, 195-96 (D.C. Cir. 1991). To be considered, an
alternative must be `` `reasonable [and] feasible' in light of the
ultimate purpose of the project.'' Protect Our Cmtys. Found. v. Jewell,
825 F.3d 571, 580-81 (9th Cir. 2016) (quoting City of Carmel-by-the-Sea
v. U.S. Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997)); see
also Busey, 938 F.2d at 195 (``rule of reason'' applies to the
selection and discussion of alternatives). Here, the three Action
Alternatives were developed as part of a years-long review of routes by
the Utah Department of Transportation (UDOT) and the Coalition, and
finally OEA. (Final EIS Sec. 2.2.) OEA determined the range of
reasonable alternatives by first looking at potential conceptual
routes. (Id.) In evaluating these conceptual routes, OEA looked at many
factors, including logistical constraints, the potential for
disproportionately significant environmental impacts, and construction
and operations costs. (Id.) As explained in detail in Chapter 2 of the
Final EIS, the primary reasons certain identified conceptual routes
were not moved forward for analysis in the EIS were because they were
infeasible due to the prevailing topography surrounding the Basin and
because they would require substantial cut-and-fill and large or
numerous bridges, as well as numerous large tunnels to pass through
mountains. For these reasons and after extensive analysis, OEA
determined that there were three reasonable Action Alternatives, one of
which was the Environmentally Preferable Whitmore Park Alternative.
(Id. at Chapter 2.)
CBD contends that the Final EIS does not consider a reasonable
range of alternatives. (CBD Comment 70-71, Oct. 18, 2021.) CBD,
however, does not identify any alternative routes that OEA did not
analyze that CBD contends are reasonable. Nor does CBD provide any
evidence that conceptual routes not moved forward for analysis as
alternatives in the EIS are in fact reasonable. CBD asserts that OEA
should have considered electrified rail or another ``solutionary
alternative.'' (Id. at 71.) Electrified rail, however, would not
satisfy the proposed project's purpose and need because of the capital
costs associated with electrification. (Final EIS App. T-83-84.) Those
costs, including installing power generating stations and overhead
powerlines for the entire length of the approximately 85-mile rail
line, would render the Line infeasible.\3\ As a result, OEA's
determination as to the range of reasonable alternatives is consistent
with NEPA and the ``rule of reason'' applicable to every environmental
analysis. See Busey, 938 F.2d at 195-96; Jewell, 825 F.3d at 581 (any
potential alternative must be viewed in the context of its feasibility
and consistency with agency goals); Env't Def. Fund, Inc. v. Andrus,
619 F.2d 1368, 1375 (10th Cir. 1980). The Board adopts OEA's analysis
and concludes that the Final EIS's selection of alternatives, along
with the extensive discussion in the Final EIS regarding why numerous
theoretical alternatives were not feasible or did not otherwise meet
the project's purpose and need, was reasonable and in compliance with
NEPA.
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\3\ Additionally, there is a significant possibility that the
infrastructure required for an electrified rail line itself could
adversely affect biological resources, including the greater sage-
grouse. (See, e.g., Final EIS 3.4-33 (discussing potential adverse
effects on wildlife caused by power distribution lines,
communications towers, and fences), 3.15-27 (discussing potential
adverse effects on greater sage-grouse caused by power lines).)
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3. Special Status Species
Special status species include species that are listed or proposed
to be listed as threatened or endangered under the Endangered Species
Act (ESA); candidate species for ESA listing; bald and golden eagles;
and sensitive species listed by the U.S. Bureau of Land Management
(BLM), the U.S. Forest Service (Forest Service), the State, or the Ute
Indian Tribe. (Final EIS Sec. 3.4.1.) Any of the Action Alternatives
would impact special status species. For example, the Action
Alternatives would all cross suitable habitat for several plant species
that are listed as threatened or endangered under the ESA, including
Pariette cactus, Uinta Basin hookless cactus, Barneby ridge-cress, and
Ute ladies'-tresses.\4\ (Id. at S-8.)
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\4\ CBD criticizes the Final EIS for not conducting field
surveys of all of the Action Alternatives to establish a baseline
population for each of the threatened or endangered plants species
and, instead, planning to conduct those surveys after the EIS
process is completed. (CBD Comment 62-64, Oct. 18, 2021.) While
field surveys were conducted to establish the presence and extent of
suitable habitat for each threatened or endangered plant species
along each of the Action Alternatives, OEA appropriately did not
conduct clearance surveys that would establish baseline populations
for those species as part of the EIS process. Per USFWS guidelines,
clearance surveys are only valid for one year and, if construction
is authorized, it is anticipated that construction would last two to
three years and start no earlier than 2022. See USFWS's Utah Field
Office Guidelines for Conducting and Reporting Botanical Inventories
and Monitoring of Federally Listed, Proposed and Candidate Plants
(USFWS 2011) at https://www.fws.gov/utahfieldoffice/Documents/Plants/USFWS%20UtahFO%20Plant%2 0Survey%20Guidelines%20Final.pdf.
Therefore, any clearance surveys conducted during the EIS phase
would be outdated at the time of construction and would not provide
useful information about the locations of individual plants at the
time that impacts on those plants would occur. (Final EIS T-198-99.)
Although OEA did not conduct clearance surveys to establish baseline
populations, OEA, in consultation with USFWS, used a combination of
suitable habitat field surveys and USFWS mapping data as the best
available data to assess impacts on threatened and endangered plant
species, while also providing for clearance surveys to be conducted
after the EIS process so that those clearance surveys will be in
compliance with USFWS guidelines and will provide accurate data
about the locations of individual plants at the relevant time.
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The Coalition has presented voluntary mitigation measures to lessen
the impacts to special status species. Additionally, OEA has consulted
with USFWS and other appropriate agencies to develop appropriate
measures for further avoiding, minimizing, or mitigating impacts on
those species. (Id. at S-8.) For example, pursuant to VM-39 and one of
OEA's mitigation measures, BIO-MM-9, the Coalition must comply with the
terms and conditions of USFWS's BO, which specifies that the Coalition
shall, as appropriate and possible, fund the permanent protection of
habitat for ESA-listed plant species as compensatory mitigation for the
loss of occupied habitat for those plants. (BO 64-71.) The Board is
satisfied that, if implemented, the Coalition's voluntary mitigation
measures and OEA's additional recommended mitigation measures related
to biological resources would lessen impacts of construction and
operation on animal and plant species, including ESA-listed species and
any potential permanent loss of existing habitat in the rail-line
footprint. (Final EIS 3.4-63.)
Any of the Action Alternatives would also cross habitat for the
greater sage-grouse, a bird species that is managed by BLM and the
State. (Id. at S-8.) The Action Alternatives would each pass near one
or more greater sage-grouse leks, which are areas where male grouse
perform mating displays and where breeding and nesting occur. (Id.)
Depending on the Action Alternative, several of those leks could
experience significant increases in noise during construction and rail
operations, which would disturb the birds and potentially cause them to
abandon the leks. (Id.) OEA has determined that the Whitmore Park
Alternative would avoid or minimize impacts on greater sage-grouse that
would result under the other Action Alternatives because the Whitmore
Park Alternative would be located the furthest distance away from the
greatest number of leks and associated summer brood rearing habitat.\5\
(Final EIS S-8.) To lessen impacts on the greater sage-grouse, the
Coalition also volunteered a number of mitigation measures. OEA
recommends additional mitigation measures in the Final EIS. With both
OEA's final recommended mitigation, and the Coalition's voluntary
mitigation, all of which the Board will impose, the EIS properly finds
that, particularly under the Whitmore Park Alternative, the impacts on
greater sage-grouse would not be significant.\6\ (Id.)
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\5\ Reduction in impacts, including those on greater sage-
grouse, is, in fact, one of the primary reasons that the Whitmore
Park Alternative was developed. (Draft EIS 2-25.)
\6\ CBD criticizes the data and methodology OEA used in its
analysis of impacts on the greater sage-grouse, including the
locations of the baseline ambient noise level measurements, the
noise levels deemed to cause disturbance of greater sage-grouse, and
a claimed failure to account for declining population levels. (CBD
Comment 48-56, Oct. 18, 2021.) The Final EIS thoroughly explains why
these criticisms are misplaced and how the data and methodologies
used by OEA in the EIS are supported by the record. (See Final EIS
3.4-45 to 46, 3.4-48 to 49, 3.4-58 to 62; App. T-184, T-203-05, T-
208-09.) Moreover, determining the best data and methodology upon
which to rely is a determination that falls well within the agency's
discretion. Jewell, 825 F.3d at 583-85 (upholding agency's
discretionary decision not to conduct nocturnal migratory bird
survey because agency's determination was a discretionary one and
``founded on reasonable inferences from scientific data'').
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In its comments on the Final EIS, the State asks that OEA remove
BIO-MM-20, a Final EIS mitigation measure prohibiting construction
during greater sage-grouse mating and nesting season. The State
explains that eliminating the condition will help the Utah Division of
Wildlife Resources and the Coalition negotiate a final mitigation
agreement concerning the greater sage-grouse (State Comment 3, Aug. 25,
2021.) The State later filed this agreement on September 27, 2021, and
the document provides significant additional mitigation to further
lessen impacts on the greater sage-grouse. (State Filing 5-6, Sept. 27,
2021.)
Among the mitigation in the final mitigation agreement are steps to
lessen noise during construction and operation, including, to the
greatest degree practicable, limiting railroad operational noise to no
more than 10 decibels above the ambient level at the edge of the lek
during breeding season (March 1 to May 15) and limiting use of horns to
emergency situations.\7\ (State Filing 6, Sept. 27, 2021.) CBD asks
that the Board prohibit train operations during greater sage-grouse
mating season between 6:00 a.m. and 9:00 a.m. (CBD Comment 56, Oct. 18,
2021.) The Board generally does not restrict how railroads choose to
conduct their operations. In any event, it is not necessary to consider
CBD's request as the final mitigation agreement provides more
protection for the greater sage-grouse than the mitigation
[[Page 72370]]
recommended in the Final EIS, including limits on train noise and hours
of operation. (Compare Final EIS Sec. 4-7 with State Filing 5-6, Sept.
27, 2021.) Therefore, the Board will not adopt CBD's request to limit
operations. However, as discussed below in the Board Mitigation
section, the Board will grant the State's request to remove BIO-MM-20
recommended in the Final EIS and instead will impose the measures in
the final mitigation agreement.
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\7\ CBD asserts that the mitigation proposed for the greater
sage-grouse, as well as for numerous other resources and impacts,
such as threatened and endangered plants, big game, geological
hazards, revegetation of temporarily disturbed construction areas,
and recreational resources, is insufficient because it includes
plans to continue developing specific mitigation actions as the
project progresses or as based on continuing consultation with other
agencies and the Ute Indian Tribe. (CBD Comment 72-79, Oct. 18,
2021.) However, explicit concrete detail and definitive actions not
subject to further evaluation or refinement are not required in an
agency's discussion and development of appropriate mitigation.
Rather, what is required under both NEPA and the NEPA-implementing
regulations of the Council on Environmental Quality is ``a
reasonably complete discussion of possible mitigation measures.''
Busey, 938 F.2d at 206 (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 352 (1989)); see also Theodore Roosevelt
Conservation P'ship v. Salazar, 616 F.3d 497, 516-17 (D.C. Cir.
2010) (upholding an adaptive management plan because NEPA does not
require ``agencies to make detailed, unchangeable mitigation plans
for long-term development projects''). The Final EIS's discussion of
mitigation is reasonably complete and therefore complies with NEPA.
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As part of the NEPA process for this project and pursuant to
Section 7 of the ESA, on September 20, 2021, USFWS issued its BO
evaluating the effects of the project on endangered and threatened
species. The BO presents USFWS's conclusions regarding likely impacts
on ESA-listed species and details the data and information on which it
bases those conclusions. The BO concludes that the proposed project is
not likely to jeopardize the continued existence of the ESA-listed
plants or fish or result in the adverse modification of the endangered
fishes' habitat. (BO 47-49.) CBD makes a generalized claim that the BO
is flawed and asserts, among other things, that the BO does not rely on
current data, arbitrarily limits the area of study, and fails to
consider the effects of oil and gas development that would be spurred
by the Line on listed plant species. (CBD Comment 6, Oct. 18, 2021.)
However, the BO is a USFWS document that neither OEA nor the Board have
the authority to revise. Moreover, CBD previously raised these claims
of flaws in its comments on OEA's draft Biological Assessment (BA),
which was appended to the Draft EIS.
OEA addressed comments on the draft BA in the Final EIS and revised
the BA in response to comments, as appropriate, before submitting the
BA to USFWS to begin formal consultation with USFWS. (Final EIS T-203.)
Thus, CBD's concerns do not lead the Board to conclude that it should
not rely on the BO.
4. Wildfires
OEA's analysis also thoroughly addresses the possibility of trains
sparking wildfires along the routes of the Action Alternatives. OEA
notes that the Forest Service has created a Wildfire Hazard Potential
(WHP) map. (Final EIS 3.4-16.) According to the map, approximately 90%
of the study areas for the Indian Canyon Alternative and Whitmore Park
Alternative, and approximately 87.4% of the study area for the Wells
Draw Alternative, are associated with very low, low, or moderate
wildfire hazard potential. (Id.) The Final EIS further determined that
the ``very high'' WHP is not present in the study areas for any Action
Alternative. (Id.) Moreover, the Final EIS concludes that the
probability of a train-induced forest fire is very low because trains
only cause a small percentage of fires (id. at Table 3.4-7) and
improvements in locomotive technology further lessen the risk. (Id. at
3.4-42.)
Nonetheless, to further reduce the risk of wildfires, OEA
recommends mitigation requiring the Coalition to develop and implement
a wildfire management plan in consultation with appropriate state and
local agencies, including local fire departments (BIO-MM-7). Further,
OEA recommends that the plan incorporate specific information about
operations, equipment, and personnel on the Line that might be of use
in case a fire occurs and should evaluate and include, as appropriate,
site-specific techniques for fire prevention and suppression. OEA
reasonably concludes that, if its recommended mitigation is
implemented, the impacts of wildfire on vegetation would not be
significant. (Id. at 3.4-42 to 43.)
In response to comments received on the Draft EIS, OEA also
considered impacts from rail operations along existing rail line
segments downline of the proposed rail line for some biological
resources, including impacts related to wildfires. (Id. at 3.4-43.)
Trains originating or terminating on the proposed rail line could be an
ignition source for wildfires along existing rail lines outside of the
study area. However, because those existing rail lines are active rail
lines that have been in operation for many years, construction and
operation of the Line would not introduce a new ignition source for
wildfires along the downline segments. (Id.) Moreover, for the reasons
discussed above, the probability that a train would trigger a wildfire
is very low, and nearly 90% of the area along the downline segments has
no WHP or has a very low or low WHP. (Id. at Table 3.4-9.) OEA
therefore concludes that the downline wildfire impact of the proposed
rail line would not be significant. (Id. at 3.4-43.) The Board adopts
OEA's reasonable analysis concerning wildfires and will impose OEA's
final recommended mitigation regarding a wildfire management plan.
5. Land Use and Recreation
Most of the area surrounding any of the Action Alternatives is
rural and sparsely populated. The Indian Canyon Alternative and
Whitmore Park Alternative both have five residences in their respective
study areas, and nine residences are located in the study area of the
Wells Draw Alternative. (Id. at 3.11-4.) However, all of the Action
Alternatives could significantly affect land uses on public, private,
or tribal lands. (Id. at S-9.) The Indian Canyon Alternative and
Whitmore Park Alternative would each cross inventoried roadless areas
within Ashley National Forest and Tribal trust land within the Ute
Indian Tribe's reservation. (Id.) The Wells Draw Alternative would
cross the Lears Canyon Area of Critical Environmental Concern and Lands
with Wilderness Characteristics on BLM-administered lands. Noise and
visual impacts would disturb recreational activities on those public
lands, such as camping, hiking, and hunting, as well as recreational
activities on private and tribal lands. (Id.)
As the Final EIS explains, construction and operation of the Line
would result in unavoidable consequences on land use and recreation,
including the permanent loss of irrigated cropland and grazing land,
the severance of properties, and visual and noise disruption of
recreational activities on public and private lands. OEA concludes that
these unavoidable impacts on land use and recreation would be locally
significant because each of the Action Alternatives would permanently
alter existing land use and the availability and quality of
recreational activities in the study area, including special
designation areas on public lands. However, the Coalition has proposed
voluntary mitigation measures and OEA is recommending additional
mitigation measures to avoid or minimize impacts on land use and
recreation. (Id. at 3.11-28.) The Board adopts OEA's reasonable
analysis of impacts on land use and recreation and will impose all of
OEA's final recommended mitigation.
6. Vehicle Safety and Delay
Construction and operation of any of the Action Alternatives would
introduce new vehicles (such as construction vehicles) on public
roadways and would require the construction of new at-grade road
crossings. (Id. at S-10.) Among the three Action Alternatives, the
Wells Draw Alternative would involve constructing the most at-grade
road crossings and would result in the greatest potential for vehicle
accidents and vehicle delays at those new crossings. Because it is the
longest Action Alternative, construction of the Wells Draw Alternative
would also result in the greatest vehicle disruption. (Id. at 3.1-20.)
Because it is the shortest Action Alternative and would require the
fewest new at-grade road crossings,
[[Page 72371]]
the Indian Canyon Alternative would result in the least impacts on
vehicle safety and delay. (Id.)
Any of the Action Alternatives would generate limited additional
road traffic, primarily associated with employees commuting. (Id. at
3.1-8.) On some local roads, operations would reduce truck traffic
because some freight that is currently transported by truck would move
by rail instead. (Id.)
To minimize effects on vehicles, OEA recommends that the Board
adopt the mitigation measures the Coalition has volunteered as well as
various conditions OEA has crafted itself. The voluntary mitigation
measures include a requirement for the Coalition to consult with
appropriate federal, tribal, state, and local transportation agencies
to determine the final design of the at grade crossing warning devices
and to follow standard safety designs for at-grade road crossings,
among other measures (VM 2). Additionally, OEA is recommending a
mitigation measure that would require the Coalition to consult with
private landowners and communities affected by new at-grade crossings
to identify measures to mitigate impacts on emergency access and
evacuation routes and incorporate the results of this consultation into
the emergency response plan identified in VM-11 (VSD-MM-6). OEA is also
recommending additional mitigation measures, (VSD-MM-4, VSD-MM-5),
requiring the Coalition to support Operation Lifesaver educational
programs in communities along the Line to help prevent accidents at
highway/rail grade crossings and to adhere to Federal Highway
Administration regulations for grade-crossing signage. OEA concludes
that, if the recommended mitigation measures in the Final EIS are
implemented, impacts from the new vehicles and at-grade road crossings
would not significantly affect vehicle safety on public roadways or
cause significant delay for people traveling on local roads. (Id. at S-
10.) The Board adopts OEA's reasonable analysis of impacts concerning
vehicle safety and delay and will impose the mitigation recommended in
the Final EIS.
7. Rail Operations Safety
Operation of any of the Action Alternatives would involve the risk
of rail-related accidents, potentially including collisions,
derailments, or spills. (Id.) Because the Wells Draw Alternative is the
longest of the Action Alternatives, OEA predicts that it would have the
highest chance of accidents (0.24 to 0.72 accident per year), followed
by the Whitmore Park Alternative (0.22 to 0.60 accident per year) and
the Indian Canyon Alternative (0.20 to 0.56 accident per year). (Id. at
3.2-7.) Given that approximately one in four accidents involving loaded
trains would result in a release of some crude oil, OEA predicts that
rail operations under the Wells Draw Alternative would result in a
spill approximately once every 11 years (under the high rail traffic
scenario) to approximately once every 33 years (under the low rail
traffic scenario). (Id.) Under the Indian Canyon Alternative, a spill
would be expected approximately once every 14 to 40 years, while OEA
predicts that the Whitmore Park Alternative would experience a spill
approximately once every 13 to 36 years, depending on the volume of
rail traffic.\8\ (Id. at 3.2-7 to 8.)
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\8\ CBD criticizes the methodologies the Final EIS uses and
claims that the Final EIS does not fully disclose its underlying
data. However, OEA's analysis methods for assessing impacts related
to rail operations safety are widely used and accepted and are
consistent with OEA's past practice in railroad construction cases.
Agencies are entitled to choose among reasonable methodologies,
Jewell, 825 F.3d at 584-85, and the EIS fully explains its analysis.
(Final EIS Sec. 3.2, App. T-40-41.)
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To minimize the likelihood and consequences of accidents during
rail operations, the Coalition volunteered mitigation (VM-1, VM-15) to
ensure that train operators using the Line would comply with the
requirements of the Hazardous Materials Transportation Act, as
implemented by the U.S. Department of Transportation, and with Federal
Railroad Administration safety requirements, including any applicable
speed limits and train-lighting requirements. In addition, OEA is
recommending a mitigation measure (ROS-MM-2) that would require the
Coalition to inspect, as part of its routine rail inspections or at
least twice annually, both track geometry and local terrain conditions.
Implementation of this measure would minimize the potential for
problems with the track or track bed that could lead to accidents (ROS-
MM-2). To ensure that the consequences of a potential accident would be
minimized, the Coalition also has committed to developing an internal
Emergency Response Plan for operations on the Line. The plan would
include a roster of agencies and people to contact for specific types
of emergencies during rail operations and maintenance activities,
procedures to be followed by particular rail employees in the event of
a collision or derailment, emergency routes for vehicles, and the
location of emergency equipment (VM-8). In addition, the Coalition's
voluntary mitigation measure (VM-14) and OEA's recommended mitigation
measure (ROS-MM-1), require the Coalition to immediately notify state
and local authorities in the event of a release of crude oil and to
immediately commence cleanup actions in compliance with federal, state,
and local requirements.
Because the operation of rail lines inherently involves the
potential for accidents, some impacts related to rail operations safety
in the project study area would be unavoidable. OEA concludes, however,
that these impacts would be minimized and would not be significant if
the Coalition's voluntary mitigation measures, OEA's recommended
mitigation measures, and all applicable federal requirements are
implemented. (Id. at 3.2-8.) The Board adopts OEA's reasonable analysis
of impacts concerning the safety of rail operations and will impose the
mitigation recommended in the Final EIS.
8. Air Quality and Greenhouse Gases (GHG)
OEA explains in the Final EIS that during the rail construction
phase, construction equipment would emit air pollutants, including
criteria air pollutants that could contribute to poor air quality and
GHGs that would contribute to climate change. (Id. at S-12.) Among the
three Action Alternatives, the Wells Draw Alternative would result in
the most construction-related air pollution and GHG emissions, followed
by the Whitmore Park Alternative and the Indian Canyon Alternative.
Emissions from rail construction activities would be temporary and
would move continually during the construction period. (Id. at 3.7-38.)
Construction-related air emissions would not cause concentrations of
criteria air pollutants to exceed the National Ambient Air Quality
Standards (NAAQS) \9\ and would not exceed the de minimis thresholds
for air emissions within the Uinta Basin Ozone Nonattainment Area. (Id.
at S-12.) With implementation of the Coalition's voluntary mitigation
measure and OEA's recommended
[[Page 72372]]
mitigation measures, OEA concludes that impacts related to air quality
and GHG emissions would not be significant. (Id. at 3.7-38.)
---------------------------------------------------------------------------
\9\ Under the Clean Air Act, USEPA sets air quality standards
for six principal pollutants which can be harmful to public health
and the environment. USEPA designates areas where criteria air
pollutant levels are less than the NAAQS as ``attainment'' areas and
where pollutant levels exceed the NAAQS as ``nonattainment'' areas.
USEPA designates former nonattainment areas that have attained the
NAAQS as ``maintenance'' areas. USEPA has designated the Basin as an
attainment area for all pollutants except ozone because measured
concentrations of ozone in the eastern part of the Basin have
exceeded the NAAQS in winter when the ground is covered by snow and
stagnant atmospheric conditions are present (ozone levels at other
times have been less than the NAAQS). (See Final EIS 3.7-8.)
---------------------------------------------------------------------------
The State responded to the Final EIS, asking that OEA remove AQ-MM-
4, a condition requiring biodiesel fuel to be used during rail
construction, and AQ-MM-8, a condition requiring the use of renewable
diesel fuel during rail construction. (State Comment 2, Sept. 27,
2021.) The State notes that it already has a Utah Clean Diesel Program
and that OEA's recommended measures would pose a regulatory burden.
(Id.) The Board disagrees with the State's opinion that requiring the
Coalition to use alternatives to traditional diesel fuel during
construction in order to reduce GHG emissions would pose an undue
regulatory burden. Therefore, the Board will not remove these
conditions but will further clarify them in the Board Mitigation
section below. Similarly, the State asks that AQ-MM-9 be removed to
encourage voluntary ozone-reduction activities in coordination with the
Utah Department of Environmental Quality. (Id.) That condition
requires, to the extent practicable, that the Coalition avoid
conducting project-related construction activities that could result in
the emission of ozone precursors within the Uinta Basin Ozone
Nonattainment Area in January and February to minimize emissions of
ozone. The Board will not remove this condition but, in response to the
Coalition's concerns, will modify it to explain that if the Coalition
cannot avoid such construction during January and February, it must
consult with OEA and the Utah Department of Environmental Quality's Air
Quality Division to identify and implement other appropriate ozone-
reduction activities for those months.\10\
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\10\ CBD states that OEA should use the most recent global
warming potential (GWP) values in calculating GHG emissions from the
Line and other projects in the area. (CBD Comment 37, Oct. 18,
2021.) OEA appropriately used the GWP values from the
Intergovernmental Panel on Climate Change's (IPCC) Fourth Assessment
Report from 2007, consistent with international GHG reporting
standards under the United Nations Framework Convention on Climate
Change.
---------------------------------------------------------------------------
OEA also examined projected air emissions from rail operations over
the Line and finds in the Final EIS that the primary source of
emissions would be locomotives. (Final EIS 3.7-38.) Because it is the
longest Action Alternative, the Wells Draw Alternative would result in
the most emissions of all pollutants, followed by the Whitmore Park
Alternative and then the Indian Canyon Alternative. (Id.) Based on the
air quality modeling, OEA concludes that operation of the Line would
not cause air pollutant concentrations to exceed the NAAQS at any
location. (Id.) Therefore, OEA finds that operation of the Line would
not result in significant air quality impacts. (Id. at 3.7-39.)
OEA recommends mitigation measures related to GHG emissions, but,
as the Final EIS explains, operation of the Line would still result in
unavoidable GHG emissions even if these measures are implemented. (Id.)
\11\ However, GHG emissions from rail operations would represent a
small percentage (less than one percent) of existing statewide GHG
emissions in Utah, (Final EIS Table 3.7-1), and would not contribute
significantly to global climate change, (id. at 3.7-39).
---------------------------------------------------------------------------
\11\ CBD states that the Board should require the railroad to
achieve net-zero emissions, including emissions from oil and gas
production in the Basin and downstream uses of oil transported on
the rail line. (CBD Comment 44-45, Oct. 18, 2021.) This would be an
unprecedented mitigation that is not mandated by any federal or
applicable state regulatory requirement and would likely be
impossible to implement as proposed.
---------------------------------------------------------------------------
USEPA's comments on the Final EIS discuss several technical issues
related to a computer model that OEA used to predict the dispersion of
air pollutants from locomotive emissions along the Line. Those issues,
however, also were raised in USEPA's comments on the Draft EIS, and
OEA, in response, made changes to its analysis in the Final EIS. (Final
EIS App. M (Air Quality Emissions and Modeling Data); App. T-251.)
USEPA also expresses concern that OEA's use of a ``flagpole height''
(i.e., the height above the ground for which the model predicts the
concentration of a pollutant) for one of the modeling scenarios
described in the Final EIS might under-predict air pollutant
concentrations for that modeling scenario. After receiving USEPA's
letter, OEA reran the model scenario without using a flagpole height,
as USEPA had recommended, and found the new results to be identical to
the results reported in the Final EIS. Therefore, no further air
quality modeling is necessary to support OEA's conclusions, and the
Board agrees with OEA's determination that the Line would not
significantly affect air quality in the project area.\12\
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\12\ As part of its further claim that OEA's analysis of climate
change is insufficient, CBD lists multiple methods that it asserts
OEA should have used in its analysis of climate change, such as
social cost of carbon, carbon budgeting, and carbon ``lock-in.''
(CBD Comment 37-42, Oct. 18, 2021.) Use of these methodologies,
however, is not required under NEPA or its implementing regulations,
and the existence of alternative tools for analysis does not support
a conclusion that the methodologies used in the EIS were
insufficient. (Final EIS, App. T-280, T-283, T-430-31); see also
Jewell, 825 F.3d at 584-85 (agencies are entitled to choose among
reasonable methodologies).
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9. Increased Oil and Gas Drilling and Other Cumulative Impacts
Under NEPA, agencies must analyze direct, indirect, and cumulative
impacts. 40 CFR 1502.16, 1508.7, 1508.8, 1508.25 (as applicable in
2019). To do that, OEA reviewed information on relevant past, present,
and reasonably foreseeable projects and actions that could have impacts
that coincide in time and location with the potential impacts of the
proposed rail line. (Final EIS S-13.) OEA identified 27 relevant
projects, including facility and infrastructure improvements, watershed
improvements, road improvements, two interstate electric power
transmission projects, one crude oil processing facility, one
Programmatic Agreement for cultural resource preservation, projects on
Forest Service lands, and projects on BLM-administered lands. (Id.)
Based on the cumulative impacts analysis, OEA concludes that the
impacts of those projects in combination with the impacts of
construction and operation of the Line could result in cumulative
adverse impacts on water resources, biological resources,
paleontological resources, land use and recreation, visual resources,
and socioeconomics. (Id.)
Apart from these 27 projects, OEA's cumulative impacts assessment
also includes an analysis of potential future oil and gas development
in the Basin and the potential future construction and operation of new
rail terminal facilities near Myton and Leland Bench, Utah. (Id.)
Although OEA expected that the Line would divert to rail transportation
some oil that in the past has been trucked to terminals outside the
Basin, OEA assumed, for purposes of the cumulative-impacts analysis,
that all oil transported on the Line would come from new production.
(Id. at 3.15-4.) For the analysis of potential cumulative impacts, OEA
developed two potential scenarios for future oil and gas development in
the Basin that correspond to the Coalition's estimated range of rail
traffic. (Id. at 3.15-3.) Under the high oil production scenario, total
oil production in the Basin would increase by an average of 350,000
barrels per day and result in 3,330 wells over the first 15 years. (Id.
at 3.15-4 to 6.)
As explained in the Final EIS, construction and operation of any of
the Action Alternatives would, along with oil and gas development
activities in the Basin, contribute to increased vehicle trips in the
cumulative impacts study area that could increase the potential for
vehicle safety and delay impacts. (Id. at 3.15-10.) Under the high oil
production
[[Page 72373]]
scenario, traffic would increase by a maximum of 6% on the major
roadways, leaving substantial remaining capacity. (Id. at 3.15-13.)
Local roads, however, have smaller roadway capacity, and OEA concludes
that the increase in traffic on local roads used to serve the terminals
could result in significant cumulative impacts on vehicle delay in the
absence of road improvements or other mitigation. (Id.)
Additionally, OEA concludes that vehicle traffic stemming from
increased oil and gas development would not result in significant
cumulative impacts on vehicle safety. (Id. at 3.15-15.) OEA notes,
among other things, that vehicle safety in the study area is generally
good and that crash rates in Uintah and Duchesne Counties, where most
oil and gas activity is occurring, are below the national average.
(Id.)
As to air quality and climate change, OEA assumed that total air
pollutant emissions each year would vary according to the number of
wells constructed in that year. (Id. at 3.15-33.) Once a well is
producing, emissions occur from operations and maintenance activities,
which generate truck trips to the well site, and from trucks that
transport the crude oil to the rail terminals. Emissions also occur
from venting, flaring, equipment leaks, and engine exhaust from
equipment located at operating wells. (Id. at 3.15-34.) OEA estimated
aggregate emissions from potential future oil and gas development based
on the best available information regarding emissions from oil and gas
production in the Basin. (Id. at Table 3.15-11.) However, OEA
determined the specific locations of localized air quality impacts in
the cumulative impacts study area are not known because there are no
available data on the characteristics or local site conditions of
potential future oil and gas development projects. (Id. at 3.15-33.)
OEA adds that refiners would refine the crude oil transported by
the Line into various fuels and other products. To the extent that the
crude oil would be refined into fuels that would be combusted to
produce energy, emissions from the combustion of the fuels would
produce GHG emissions that would contribute to global warming and
climate change. (Id. at 3.15-35.) Downstream end use emissions
associated with the combustion of the crude oil that could be
transported on the Line under the high oil production scenario could
represent up to approximately 0.8% of nationwide GHG emissions and 0.1%
of global GHG emissions. (Id. at 3.15-36.) However, the actual volumes
of crude oil that would move over the Line would depend on various
independent variables and influences, including general domestic and
global economic conditions, commodity pricing, the strategic and
capital investment decisions of oil producers, and future market demand
for crude oil from the Basin, which would be determined by global crude
oil prices and capacity at oil refineries, among other factors. (Id. at
3.15-3). Furthermore, to the extent that crude oil transported on the
Line could be refined into products other than fuel and, to the extent
that the fuels produced from crude oil transported on the Line could
displace other fuels from the market, GHG emissions from downstream end
uses would be lower, and potentially significantly lower, than these
estimates.
OEA also reasonably explains that benefits would result from the
increase in annual oil production. Notably, increased production would
generate long-term employment, labor income, and spending on goods and
services in the cumulative impacts study area.\13\ Increased production
would also generate state and local revenue through taxes.
Additionally, new wells drilled on state land or accessing state
minerals would generate additional revenue for Utah through royalties
and lease payments. (Id. at 3.15-51.)
---------------------------------------------------------------------------
\13\ Constructing and operating any of the Action Alternatives
would also generate direct, indirect, and induced employment,
including for tribal members, and create state and local revenue.
(Id. at 3.13-26 to 33.)
---------------------------------------------------------------------------
CBD asserts that the Final EIS is insufficient because it fails to
treat a potential future increase in oil and gas production in the
Basin and downstream emissions from the end uses of oil transported on
the Line as indirect impacts of the project. And, as a result, CBD
argues that the Final EIS does not sufficiently disclose the impacts of
increased oil and gas production in the Basin that could occur as a
result of the Line. (CBD Comment 8-14, Oct. 18, 2021.)
Indirect effects are reasonably foreseeable effects that are caused
by the action but that are later in time or farther removed in
distance. 40 CFR 1508.8. An indirect effect is more than something that
could not occur ``but for'' the federal action at issue and, instead,
to be an indirect effect of an action under NEPA requires a reasonably
close causal connection. Dep't of Transp. v. Pub. Citizen, 541 U.S.
752, 767-68, 770-72 (2004); see also Metro. Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766, 774 (1983). Thus, when an agency
``has no ability to prevent a certain effect due to its limited
statutory authority over the relevant actions, the agency cannot be
considered a legally relevant `cause' of the effect'' for NEPA
purposes. Dep't of Transp. v. Pub. Citizen, 541 U.S. at 770. Here, the
Board has no authority or jurisdiction over development of oil and gas
in the Basin nor any authority to control or mitigate the impacts of
any such development. Accordingly, contrary to CBD's argument, the fact
that this oil and gas development likely would not occur ``but for''
the Board granting authority to construct and operate the Line does not
make this an indirect effect. OEA properly declined to treat oil and
gas development as an indirect effect.
This does not mean that OEA did not consider effects of potential
oil and gas development in the Basin. Rather, OEA determined that
impacts from potential oil and gas development should be considered as
a cumulative impact and conducted a full and appropriate analysis of
those impacts. (Final EIS Sec. 3.15.4.1.) Cumulative impacts are those
which result from the incremental impact of the action when added to
other past, present, and reasonably foreseeable future actions
regardless of what agency or person undertakes such other actions. 40
CFR 1508.7. Oil and gas development that may occur following
authorization of the Line would entail many separate and independent
projects that have not yet been proposed or planned and that could
occur on private, state, tribal, or federal land and could range in
scale from a single vertical oil well to a large lease involving many
horizontal wells.\14\ As a result, the Board agrees with OEA that this
development was properly considered as a cumulative impact.\15\
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\14\ Furthermore, regardless of whether the EIS labeled the
impacts from oil and gas development in the Basin as indirect or
cumulative impacts, OEA conducted a full analysis of those effects.
The impacts and the analysis of those impacts would be the same no
matter which label is used.
\15\ CBD levels several additional criticisms of OEA's analysis
of potential oil and gas development in the Basin, including claims
of inconsistent statements and conclusions. But the Board will not
directly address those here because a fair reading of the Final EIS
shows that they are based on mischaracterizations of the statements
in the Final EIS that CBD relies on and the thorough analysis OEA
conducted. (See CBD Comment 10-13, Oct. 18, 2021; Final EIS Sec.
3.15.4.1.)
---------------------------------------------------------------------------
CBD asserts that OEA erred in relying, in part, on the results of
an EIS prepared by the BLM for the Monument Butte Oil and Gas
Development Project to predict potential air emissions that could
result from future oil and gas production in the Basin as part of OEA's
cumulative impacts analysis.\16\ (CBD Comment 3-4,
[[Page 72374]]
26-36, Oct. 18, 2021.) The Monument Butte EIS was a study of a proposed
oil development project in the Basin and OEA relied, in part, on the
results of that study to make conclusions about the cumulative air
quality impacts of potential future oil and gas production in the Basin
when considered in combination with the potential air quality impacts
that could result from construction and operation of the Line. (Final
EIS 3.15-32.) OEA's use of the results of the Monument Butte EIS in the
cumulative impacts analysis was reasonable and appropriate because the
Monument Butte EIS provides the best available information regarding
potential air emissions from oil and gas production projects in the
Basin. (Final EIS App. T-266, T-401-407.)
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\16\ CBD also asserts that the EIS fails to properly account for
Clean Air Act requirements for Uinta Basin as a nonattainment area.
(CBD Comment 33-35, Oct. 18, 2021.) The record contradicts CBD's
claim that the EIS failed to consider those impacts or
comprehensively explain how it came to conclusions regarding the
same. (See Final EIS Sec. 3.7.1.1; 3.15.5.7; App. M; App. T-268-69,
T-271-76, T-401-02.)
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10. Downline Impacts
As part of its analysis of impacts, OEA examined downline impacts
of the project, i.e., reasonably foreseeable impacts that could occur
outside the project area as a result of construction and/or operation
of trains using the Line. (See Final EIS, Sec. 3.1 (Vehicle Safety and
Delay), Sec. 3.2 (Rail Operations Safety), Sec. 3.6 (Noise and
Vibration), Sec. 3.7 (Air Quality and Greenhouse Gases).) The Board's
regulations at 49 CFR 1105.7(e)(11)(v) governing review of potential
downline impacts refer to the general thresholds for environmental
review concerning air quality and noise. 49 CFR 1105.7(e)(5);
1105.7(e)(6). Consistent with prior practice and based on its
experience, OEA determined that these regulatory thresholds should also
apply to the analysis of downline impacts on freight rail safety and
grade-crossing safety and delay in the EIS here. See Tongue River
R.R.--Constr. & Operation--in Custer, Powder River, & Rosebud Cntys.,
Mont., FD 30186, Draft EIS at Sec.17.1 (STB served Apr. 17, 2015). That
approach is reasonable, as the rationale for finding that minimal
increases in train traffic on existing rail lines over which trains
already operate are unlikely to cause significant impacts on air
quality and, furthermore, that noise applies equally to potential
effects on rail safety and grade-crossing safety and delay.
There are many different potential destinations for Uinta Basin oil
transported by train and even more practical routes available to reach
those destinations. Because it is not possible to identify specific
refineries that would receive shipments of Uinta crude oil, in order to
assess downline impacts, OEA first identified potential refinery
destinations for Uinta crude oil using a regional approach. (See Final
EIS App. C.) After those regions were identified, OEA then considered
potential routing to those destinations and where the estimated
project-related rail traffic would exceed the Board's regulatory
thresholds. (Id.) Using the predicted number and length of trains,
OEA's analysis of likely regional destinations, and the projected
reasonably foreseeable routes for this traffic, OEA identified a
downline impact study area eastward from Kyune to the northern,
southern, and eastern edges of the Denver Metro/North Front Range that
met the Board's regulatory thresholds for analysis and assessed impacts
in that downline study area. (Id.) Using its analysis of predicted
destinations, OEA further concluded that rail traffic outside of the
downline study area would be dispersed and that no individual rail
lines outside of the downline study area can reasonably be expected to
experience an increase in rail traffic in excess of OEA's analysis
thresholds. Therefore, the Final EIS concludes that an analysis of
downline impacts on existing rail lines outside of the downline study
area would not be appropriate.
CBD objects to both the application of the Board's regulatory
thresholds to rail safety and delay, environmental justice, and GHG
emissions from refining Uinta crude oil, as well as the validity of the
thresholds themselves. According to CBD, the Board's thresholds prevent
analysis of reasonably foreseeable impacts. (CBD Comment 14-18, Oct.
18, 2021.) As noted above, the regulatory thresholds place reasonable
limits on OEA's assessment of certain impacts because minimal increases
in train traffic on existing rail lines already in use are not likely
to result in significant additional impacts required to be analyzed
under NEPA. And indeed, CBD points to nothing that would indicate that
the downline impacts here would be significant but instead relies on
speculation. (Id.)
NEPA does not require agencies to examine every possibility that an
impact could occur no matter how speculative, nor does it require
agencies to analyze the impacts of effects over which it has no control
because evaluation of those impacts would not inform the agency's
decision-making. See Dep't of Transp. v. Pub. Citizen, 541 U.S. at 768-
70; Jewell, 825 F.3d at 583 (agencies are entitled to make reasonable
inferences based upon the data); Andrus, 619 F.2d at 1375-76
(discussion of environmental effects must be governed by ``rule of
reason'' and NEPA does not require every action to be discussed in
exhaustive detail). Because the Board cannot regulate downline train
operations by other carriers as part of this proceeding, it cannot
regulate or mitigate impacts caused by those downline operations. The
type of analysis that CBD claims is necessary is therefore neither
required nor useful. As a result, OEA's application of the thresholds
here was appropriate, reasonable, and consistent with NEPA and the
regional analysis of downline rail operations complies with NEPA.
CBD also asserts that OEA should have included in its downline
analysis impacts from operation of trains carrying Uinta crude oil on
the Tennessee Pass Line. (CBD Comment 18-19, Oct. 18, 2021.) The
Tennessee Pass Line is a line of railroad in Colorado that is owned by
UP and has been out of service for many years. See Colo., Midland &
Pac. Ry.--Lease & Operation Exemption Containing Interchange
Commitment--Union Pac. R.R., FD 36471, slip op. at 1, 4-5 (STB served
Mar. 25, 2021). As discussed in the Board's September 30 Decision, even
if it were in service, the Tennessee Pass Line would be unlikely to
carry Uinta crude oil. September 30 Decision, FD 36284, slip op. at 6.
Among other things, the Board noted that the modeling program used by
OEA to examine the patterns for traffic coming off the Line did not
forecast any traffic travelling over the Tennessee Pass Line. (Final
EIS, App. C, C-4, C-6.) Instead, OEA projects that ``all rail traffic
moving from Kyune to destinations in the east would travel over the
existing rail line between Kyune and Denver, Colorado.'' (Id. at C-4.)
\17\ Thus, the Board agrees with OEA that analysis of impacts from use
of the Tennessee Pass Line is not reasonably foreseeable and,
therefore, not appropriate for consideration in the EIS.
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\17\ The Coalition provided additional support for OEA's
independent analysis by submitting a verified statement from Rio
Grande Pacific Corporation, the proposed operator of the Line,
stating that it has no intention of routing trains originating on
the Line over the Tennessee Pass Line and that using the Tennessee
Pass Line to transport crude oil would be impractical and the
highest-cost option. (Coal. Reply, V.S. Hemphill 2, Jan. 26, 2021.)
---------------------------------------------------------------------------
11. Tribal Concerns
OEA coordinated and consulted with tribes in accordance with NEPA,
Executive Order 13175, and Section 106 of the National Historic
Preservation Act (NHPA). (Final EIS 5-7.) Through government-to-
government consultation
[[Page 72375]]
with the Ute Indian Tribe,\18\ OEA identified impacts related to
vehicle safety and delay, rail operations safety, biological resources,
air emissions, and cultural resources as areas of concern for the
tribe. (Id. at S-9.) To mitigate the impacts, OEA has crafted
mitigation measures that require the Coalition to work with the Ute
Indian Tribe to address issues of tribal concern. In particular, OEA
worked with the Ute Indian Tribe and other Section 106 consulting
parties to develop a Programmatic Agreement, which has been executed,
that sets forth how cultural resources would be protected if the Board
were to authorize the Line. (Id. at S-9 to 10.) In addition, OEA has
identified impacts on the Pariette cactus and the Uinta Basin hookless
cactus as disproportionately high and adverse impacts on an
environmental justice community. Because those species are culturally
important to the Ute Indian Tribe, OEA is recommending mitigation
requiring the Coalition to consult with the Ute Indian Tribe regarding
impacts on those special status plant species and to abide by the
tribe's requirements for addressing the impacts. (Id. at S-10.)
---------------------------------------------------------------------------
\18\ As noted earlier, the Ute Indian Tribe filed a letter on
October 1, 2021, in support of the project.
---------------------------------------------------------------------------
NHPA
In accordance with Section 106 of NHPA, OEA surveyed the project
area, identified historic properties, and consulted with interested
parties regarding the potential effects of the project on these
properties. Construction of the proposed rail line would physically
alter and potentially destroy cultural resources located within the
below-ground portion of the area of potential effects (APE) (the
project footprint plus a 50-foot buffer). (Id. at 3.9-13.) The APE for
the Indian Canyon Alternative includes 16 known historic properties,
the APE for the Wells Draw Alternative includes 19 known historic
properties, and the APE for the Whitmore Park Alternative includes 16
known historic properties. (Id. at 3.9-13 to 16.) Some of these
resources could be altered or destroyed during construction of the
Line. (Id.)
Because the APEs have not been surveyed comprehensively, OEA
concludes that additional cultural resources, such as previously
unidentified archeological sites, are likely to be present in the APEs
and could be impacted by construction and operation of the proposed
rail line. (Id. at 3.9-17.) To ensure that any adverse effects on
historic and cultural resources are appropriately avoided, minimized,
or mitigated, OEA recommends that the Coalition be required to comply
with the terms of the executed Programmatic Agreement discussed above.
(VM-42, VM-43). The Board adopts OEA's thorough and reasonable analysis
under NHPA and will impose the recommended mitigation requiring the
Coalition to comply with the Programmatic Agreement.
Environmentally Preferable Alternative
Based on OEA's analysis and consultation with appropriate
government agencies, the Ute Indian Tribe, other interested
stakeholders, and the public, OEA concludes that, among the three
Action Alternatives, the Whitmore Park Alternative would result in the
fewest significant impacts on the environment. (Final EIS S-13.) In
particular, the Whitmore Park Alternative would permanently affect the
smallest area of water resources, including wetlands and perennial
streams; would minimize impacts on greater sage-grouse leks and
associated summer brood rearing habitat, as discussed above; and avoid
impacts on subdivided residential areas. (Id.)
The Final EIS explains that, compared to the Wells Draw
Alternative, the Whitmore Park Alternative would permanently and
temporarily affect a smaller area of wetlands and intermittent streams,
as well as a smaller number of springs. (Id.) It would avoid impacts on
special use areas on BLM-administered lands, including Areas of
Critical Environmental Concern, Lands with Wilderness Characteristics,
and areas classified by BLM as sensitive to visual impacts. The
Whitmore Park Alternative also would affect a smaller area of suitable
habitat for the Pariette cactus and Uinta Basin hookless cactus than
the Wells Draw Alternative and would avoid potential impacts on
moderately suitable habitat for the threatened Mexican spotted owl and
a smaller area of big game habitat. (Id.) In addition, it would result
in fewer total emissions of criteria air pollutants and GHGs during
construction and rail operations; would cross a smaller area of land
that may be prone to landslides; would displace fewer residences; would
involve a lower risk for accidents at at-grade road crossings; and
would cross a smaller area with high potential for wildfires. (Id.)
Compared to the Indian Canyon Alternative, the Whitmore Park
Alternative would permanently and temporarily affect a smaller area of
wetlands, a smaller area of riparian habitat, and a smaller number of
springs and would also require fewer stream realignments. (Id. at S-
14.) It would avoid noise impacts on residences during rail operations,
as well as visual and other impacts on residential areas in the Argyle
Canyon and Duchesne Mini-Ranches areas of Duchesne County. (Id.) The
Whitmore Park Alternative would generate more employment, labor income,
and local and state tax revenue during construction than the Indian
Canyon Alternative and would cross a smaller area of geological units
that may be prone to landslides and a smaller area of land with high
wildfire hazard potential. (Id.) For these reasons, OEA recommends that
the Board authorize the Whitmore Park Alternative if it grants final
approval to the Line. (Id.) For the reasons discussed above and in the
Draft and Final EIS, the Whitmore Park Alternative is the alternative
the Board approves.
Board Conclusions on Environmental Analysis
Upon consideration of the Draft EIS, the environmental comments
submitted to the Board, and the Final EIS, the Board is satisfied that
the Draft and Final EIS have taken the requisite ``hard look'' at the
potential environmental impacts associated with this transaction. The
Draft and Final EIS adequately identify and assess the environmental
impacts discovered during the course of the environmental review,
carefully consider a reasonable range of alternatives (including a No
Action Alternative), and include extensive environmental mitigation to
avoid or minimize potential environmental impacts. Accordingly, the
Board adopts the Draft and Final EIS and all of OEA's analysis and
conclusions, including those not specifically addressed here. The Board
finds that OEA's recommended Environmentally Preferable Alternative
(Whitmore Park Alternative) best satisfies the purpose and need for the
Line, while minimizing potential impacts to residential areas, water
resources, and greater sage-grouse leks and associated summer brood
rearing habitat.
Board Mitigation
The Draft and Final EIS demonstrate that construction of the
Whitmore Park Alternative would result in impacts on the environment,
including impacts not discussed in this decision. However, the
mitigation measures voluntarily proposed by the Coalition along with
the mitigation developed by OEA during its environmental review should
minimize the potential environmental effects of the transaction to the
extent practicable. The Board will therefore impose the voluntary
mitigation measures developed by the Coalition
[[Page 72376]]
and, except as discussed above, all of the additional mitigation
measures recommended by OEA. In addition to the impacts discussed
above, the mitigation measures appropriately address a number of other
environmental issues assessed in the Draft and Final EIS, including
impacts concerning water resources, wayside noise, and hazardous
materials. The Board will also adopt the changes to mitigation measures
concerning air quality and the greater sage-grouse following issuance
of the Final EIS, which are discussed above, as well as modify a
condition in the Final EIS concerning big game migration routes, BIO-
MM-19.\19\ The Coalition will also be required to comply with the
executed Programmatic Agreement developed to address potential adverse
impacts to cultural resources.
---------------------------------------------------------------------------
\19\ Specifically, in light of concerns by CBD, (see CBD Comment
58-62, Oct. 18, 2021), the Board will amend the condition to require
the big game corridor crossing plan to evaluate the use of big game
overpasses or underpasses (including standards for design), wildlife
friendly fencing, reduced train speeds in high-risk areas, use of
sound signaling, and barriers in collision hotspots.
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Weighing Environmental Impacts and Transportation Merits and
Considering Appropriateness of an Exemption
The Board recognizes that, as with most other rail construction
projects, the construction and operation of this Line is likely to
produce unavoidable environmental impacts. But the Board also finds
that the construction and operation of the Environmentally Preferred
Whitmore Park Alternative, with the extensive mitigation conditions
imposed, will minimize those impacts to the extent practicable. And the
construction and operation of this Line will have substantial
transportation and economic benefits. As noted above, the Line will
bring rail service to an area of Utah that does not currently have
service, provide shippers that must now rely on trucks another shipping
option, and create jobs. (See, e.g., Congressional Letter 1, June 28,
2021.) Rail service will eliminate longstanding transportation
constraints. The availability of a more cost-effective rail
transportation option could also support the diversification of local
economies in the Basin, which could support additional employment and
expand the regional economy. (See Governor Cox & Lieutenant Governor
Henderson Letter 1, Aug. 30, 2021.) Moreover, the Board notes the Ute
Indian Tribe's support of the project and the benefits that the Tribe
has stated that it will provide. While the No-Action Alternative would
avoid the potential environmental impacts of the rail project, it would
not bring these benefits to the Basin or meet the goals of the counties
making up the Coalition or the Ute Indian Tribe. The environmental
impacts identified in the Draft and Final EIS have been sufficiently
mitigated so that they do not outweigh the Line's transportation
benefits. Moreover, as explained in the Board's January 5 Decision
(slip op. at 5-6), the Board can grant the Coalition's request for
authority even if all issues involving financing are not yet resolved
because the grant of authority is permissive, not mandatory, and the
ultimate decision on whether to proceed will be in the hands of the
Coalition and the marketplace, not the Board.\20\ A grant of authority
permits a new line to be built if the necessary financing is obtained.
Without moving forward with the process needed to obtain Board
authority, however, no new rail lines could be built, regardless of how
viable the projects might be.
---------------------------------------------------------------------------
\20\ The Board notes that the Coalition has stated its ``plans
for financing the project through a private partner'' and that ``the
project will be privately financed.'' (Coal. Reply 12-13, July 21,
2020.)
---------------------------------------------------------------------------
Concerning the appropriateness of an exemption, one would further
the RTP goals at section 10101 (2), (4), (5), and (7). As noted above,
however, Argyle claims that the RTP goals at section 10101(8),
concerning public safety, and section 10101(11), concerning safe
working conditions, would be undermined by the project. (Argyle Reply
9, July 7, 2020.) Argyle asserts that there will be a substantial
increase in local truck traffic if oil production were to increase to
the extent claimed by the Coalition. (Id. at 10.) Argyle also claims,
among other things, that rail activities could trigger forest fires and
notes that Argyle Canyon was heavily damaged by a fire in 2012. (Id.)
Similarly, CBD argues that the project's many significant environmental
impacts, the undefined nature of certain mitigation measures proposed
in the EIS and BO, and questions about the project's financial
viability require more extensive proceedings to determine whether the
project is financially able to avoid and/or mitigate the project's
environmental effects and operate without detriment to the public
health and safety. (CBD Comment 6, Oct. 18, 2021.)
These concerns do not warrant denying the petition for exemption.
The Board properly considered the statutory standards that govern
exemption requests in the January 5 Decision and the September 30
Decision. The record developed in this proceeding is substantial, and
additional regulatory processes would not likely add to the substance
of what has been presented. OEA has demonstrated in its Final EIS that
there only would be a small risk of forest fire based on various
factors such as the geography crossed by the Whitmore Park Alternative
and that any harm would be lessened by the extensive mitigation
measures the Board imposes here. Similarly, truck traffic would not
significantly increase on major roads as a result of construction and
operation of the Line and problems on local roads would be lessened by
the mitigation measures the Board will impose. As for CBD's concerns
regarding the mitigation, these were previously raised in CBD's
comments on the Draft EIS and were appropriately addressed by OEA in
the Final EIS. Further, the Board is modifying a number of the
mitigation measures that CBD and the State identified as unclear or
inadequately defined. The Board need not revisit the financial concerns
CBD raises as the Board already discussed those issues in its January 5
Decision.
In sum, the transportation merits of the project outweigh the
environmental impacts and the Coalition has demonstrated that an
exemption from section 10901 is appropriate. There also is a
presumption that rail construction projects are in the public interest.
Section 10901(c) provides that the Board ``shall issue a certificate
[authorizing construction activities] [. . .] unless the Board finds
that such activities are inconsistent with the public convenience and
necessity.'' Recognizing the presumption, the Board finds that this
project should be approved.
Conclusions
The Board is satisfied that the Whitmore Park Alternative will meet
the transportation goals of the project. Accordingly, the Board
reaffirms here the analysis it discussed in the January 5 Decision.
After weighing the transportation merits and environmental impacts
and considering the entire record, the Board finds that the Coalition's
petition for exemption under section 10502 from the prior approval
requirements of section 10901 should be granted. The Board is granting
final approval of the construction and operation of the Environmentally
Preferable Alternative--Whitmore Park Alternative--subject to
compliance with the environmental mitigation measures listed in
Appendix B of this decision.
It is ordered:
1. The filings commenting on the Final EIS are accepted into the
record.
[[Page 72377]]
2. Under 49 U.S.C. 10502, the Board exempts the Coalition's
construction and operation of the above-described rail line from the
prior approval requirements of 49 U.S.C. 10901.
3. The Board adopts the environmental mitigation measures set forth
in Appendix B to this decision and imposes them as conditions to the
exemption granted here.
4. Notice will be published in the Federal Register.
5. Petitions for reconsideration must be filed by January 4, 2022.
6. This decision is effective on January 14, 2022.
Decided: December 15, 2021.
By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and
Schultz. Board Member Oberman dissented with a separate expression
Board Member Oberman, Dissenting
I respectfully dissent from today's decision (Today's Decision)
granting the Coalition's petition for exemption. The project's
environmental impacts outweigh its transportation merits, and I would
accordingly deny the Coalition authority to construct the Line.
As an initial matter, as I explained in my dissent to the January 5
Decision, the Board should not have utilized a so-called two-step
process and granted preliminary approval of the transportation merits
before completion of the environmental review. In addition, the Board
should have required the Coalition to submit additional information
before concluding that an application under 49 U.S.C. 10901 was not
necessary. I raised grave concerns then regarding the Line's financial
viability given the increasingly uncertain global market for crude oil,
and the likelihood that it would be the public--and not private
investors--who would bear the cost of constructing an ultimately
unprofitable rail project. These concerns have grown over the last
year, as the world economy has accelerated its transition away from use
of the internal combustion engine and corresponding need for crude oil.
Ever increasing doubt about the future market for oil undermines the
project's transportation merits and counsels against an exemption.
But now that the environmental review has been completed, I have
concluded not only that the financial viability of the Line is in
serious doubt but also that the Line's environmental impacts
significantly outweigh its transportation merits. In my view, it should
be underscored that the Board has the power to deny construction
approval based on weighing all of the environmental impacts that will
arise from oil and gas development in the Basin, and the Board should
consider those impacts as the reasonably foreseeable, indirect effects
that they are, especially since the ``entire purpose'' of this Line is
to stimulate and support oil production in the Basin. Assessing these
impacts solely within a cumulative impact analysis, as Today's Decision
does, badly understates their significance, and in particular the
significance of downstream greenhouse gas emissions that will result
from the combustion of oil moved over the Line. The critical question
presented in this proceeding is whether the Line would serve the public
interest given its centrality to oil development in the Basin and the
broader and dire global warming crisis, as well as the very serious,
significant, and unavoidable environmental impacts that Today's
Decision does in fact attribute to the project.
Absent some particularized national need for increased oil from the
Basin, of which there is none, I cannot support construction of the
Line.
Transportation Merits
As noted in my dissent to the January 5 Decision, it is beyond
controversy that the project's financial success depends entirely upon
increased oil production in the Uinta Basin. January 5 Decision, FD
36284, slip op. at 14 (Board Member Oberman dissenting). But yet,
questions abound regarding the ``future global demand for oil,'' as
well as the ``quantity of oil reserves in the Basin, the demand for the
specific type of oil found there, and whether there are sufficient
proven reserves to provide long term business for the proposed
railroad.'' Id. at 16, 17.
Although the price of oil has rebounded since the January 5
Decision, it remains volatile. Moreover, since that time, government
and business leaders have advanced new commitments and policies to
achieve carbon neutrality in the coming years, with diminished use of
the internal combustion engine--and resulting oil consumption--playing
a significant role. At the federal level, the United States has
rejoined the Paris Agreement and the Biden Administration has set a
goal of achieving net-zero emissions economy-wide by 2050. See Tackling
the Climate Crisis at Home and Abroad, Exec. Order No. 14008, 86 FR
7619 (Jan. 27, 2021). The President has even more recently called for
50% of all new passenger cars and light trucks sold in the United
States to be zero-emission by 2030 and, to help achieve this goal, has
directed the Environmental Protection Agency and Department of
Transportation to develop new emission and fuel efficiency
standards.\1\ Strengthening Am. Leadership in Clean Cars & Trucks,
Exec. Order 14037, 86 FR 43583 (Aug. 5, 2021). Critically, Congress
recently passed the Infrastructure Investment and Jobs Act, which,
among other things, provides $7.5 billion for electric vehicle charging
stations, $5.75 billion for the replacement of public transit vehicles
with zero emission vehicles, and establishes a carbon reduction program
at the Department of Transportation. See Public Law 117-58 (2021).\2\
---------------------------------------------------------------------------
\1\ See also Executive Order on Catalyzing Clean Energy
Industries and Jobs through Federal Sustainability, Exec. Order
14057, 86 FR 70935 (Dec. 8, 2021) (directing executive agencies to
achieve 100% zero-emission vehicle acquisitions by 2035).
\2\ On November 19, 2021, the House of Representatives passed
the Build Back Better Act, which among other things, raises the
electric vehicle tax credit to $12,500 and provides tens of billions
of dollars for electric vehicle infrastructure and the replacement
of heavy-duty vehicles with zero emissions vehicles. See H.R. 5376,
117th Cong. (2021).
---------------------------------------------------------------------------
States as well have passed new legislation meant to curb oil
consumption and have continued to award grants for, or have otherwise
initiated, green infrastructure projects, including to support vehicle
electrification. See, e.g., Act of Mar. 18, 2021, ch. 263, 2021 Va.
Legis. Serv. (H.B. 1965) (West) (codified at Va. Code Ann. section
10.1-1307 & 10.1-1307.04) (establishing low-emissions and zero-
emissions vehicle program for motor vehicles, consistent with
California standards, with a model year of 2025 or later); Washington
Climate Commitment Act, ch. 316, 2021 Wash. Sess. Laws 2606 (creating,
among other things, greenhouse gas cap-and-invest program that includes
declining limits on major emission sources); Press Release, Cal. Energy
Comm'n, California Announces $17.5 million for Public Electric Vehicle
Charging in 13 Rural Counties (May 17, 2021) (advancing September 2020
executive order requiring sales of all new passenger vehicles in
California to be zero-emission by 2035).\3\ Such action has not been
limited to the United States. For example, the European Commission in
July proposed expanding the EU's emissions trading scheme,
strengthening vehicle emissions standards, including by
[[Page 72378]]
requiring that all new cars be zero emission by 2035, and introducing a
carbon price on imports. Press Release, European Commission, European
Green Deal: Commission Proposes Transformation of EU Economy and
Society to Meet Climate Ambitions (July 16, 2021).\4\ And, on May 26,
2021, a Dutch court stunningly ordered Royal Dutch Shell (Shell) to
reduce its carbon dioxide emissions, arising both from its business
operations and sold energy-carrying products, by net 45% by the end of
2030, relative to 2019 levels. Rb. Hague 26 mei 2021,
ECLI:NL:RBDHA:2021:5337 (Vereniging Milieudefensie/Royal Dutch Shell
PLC).\5\
---------------------------------------------------------------------------
\3\ Available at: https://www.energy.ca.gov/newsroom/news-releases. This builds on the California Public Utilities
Commission's (CPUC) prior approval of a $437 million electric
vehicle charging program to be implemented by Southern California
Edison. See Press Release, CPUC, CPUC Expands SCE Charge Ready 2
Transportation Electrification Program (Aug. 27, 2020), https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M345/K822/345822512.PDF.
\4\ Available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_3541.
\5\ Available at: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2021:5339. Since then, Shell has
sold its assets in the Permian Basin and pulled out of a
controversial plan to develop a new oil field near the Shetland
Islands. See Press Release, Shell, Shell Completes Sale of Permian
Business to ConocoPhillips (Dec. 1, 2021), https://www.shell.com/media/news-and-media-releases.html; Danica Kirka, Shell Pulls Out of
Controversial Cambo Project in Scotland, Associated Press, December
3, 2021, https://apnews.com/article/business-europe-environment-economy-scotland-ef91aa323b36cb3d8f3d7dcf9b616a36.
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In response to these trends, and ominously for the future of oil
proposed to be extracted from the Basin and the Line's fiscal
foundation, car manufacturers are increasingly committing to the sale
of electric vehicles in the coming years. Immediately following
President Biden's executive order on clean cars and trucks, Ford,
General Motors and Stellantis jointly announced their intention to
achieve sales of 40-50% of annual U.S. volumes of electric vehicles by
2030. Press Release, General Motors, Ford, GM and Stellantis Joint
Statement of Electric Vehicle Annual Sales (Aug. 5, 2021).\6\
Volkswagen has set a similar global sales target for 2030, while by
that date Ford has separately committed to sell only electric passenger
vehicles in Europe. Press Release, Volkswagen Group, NEW AUTO:
Volkswagen Group Set to Unleash Value in Battery-Electric Autonomous
Mobility World (July 13, 2021); \7\ Press Release, Ford Motor Co., Ford
Europe Goes All-In on EVs on Road to Sustainable Profitability (Feb.
17, 2021).\8\
---------------------------------------------------------------------------
\6\ Available at: https://media.gm.com.
\7\ Available at: https://www.volkswagen-newsroom.com/en/press-releases.
\8\ Available at: https://media.ford.com/content/fordmedia/feu/en/news.html.
---------------------------------------------------------------------------
Other automakers have announced time horizons for transitioning to
fully electrified vehicle fleets, including as early as 2025. See,
e.g., Press Release, Volvo Car USA, Volvo Cars to be Fully Electric by
2030 (Mar. 2, 2021); \9\ Press Release, Tata Motors, Jaguar Land Rover
Reimagines the Future of Modern Luxury by Design (Feb. 15, 2021)
(announcing that Jaguar vehicles will be ``all-electric'' by 2025);
\10\ see also Press Release, Nissan Motor Corp., Nissan Unveils
Ambition 2030 Vision to Empower Mobility and Beyond (Nov. 28, 2021)
(announcing investments of $17.6 billion over the next five years to
accelerate the electrification of its vehicle lineup).\11\ Prevailing
company valuations highlight the internal combustion engine's bleak
future, with electric vehicle manufacturers Tesla and Rivian currently
having enterprise values of approximately $1 trillion and $100 billion,
respectively, making them the first and third most valuable automobile
manufactures by market capitalization. See Yahoo Finance, https://finance.yahoo.com/screener/predefined/auto_manufacturers/ (last visited
Dec. 14, 2021).
---------------------------------------------------------------------------
\9\ Available at: https://www.media.volvocars.com/us/en-us/media/pressreleases/list.
\10\ Available at: https://www.tatamotors.com/investors/jlr-press-release-archive/.
\11\ Available at: https://global.nissannews.com/en/pages/all-news-archive.
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Not surprisingly, the American oil majors uniformly identify
increased political and social attention to greenhouse gas emissions as
risks that may result in reduced demand for their oil. See, e.g.,
ConocoPhilips, Annual Report (Form 10-K) 27 (Feb. 16, 2021) (``[T]he
new administration has recommitted the United States to the Paris
Agreement, and a significant number of U.S. state and local governments
and major corporations headquartered in the U.S. have also announced
their intention to satisfy [the Paris Agreement] commitments.'');
Pioneer Natural Resources Co., Annual Report (Form 10-K) 28 (Mar. 1,
2021) (noting that numerous proposals ``have been made and could
continue to be made at the international, national, regional and state
levels of government to monitor and limit existing emissions of GHGs as
well as to restrict or eliminate such future emissions''); Chevron
Corp., Annual Report (Form 10-K) 22 (Feb. 25, 2021) (``[I]f new
legislation, regulation, or other governmental action contributes to a
decline in the demand for the company's products, this could have a
material adverse effect on the company and its financial condition.'');
Occidental Petroleum Corp., Annual Report (10-K) 10 (Feb. 26, 2021)
(explaining that government action relating to greenhouse gas emissions
could impose increased operating and maintenance costs, such as
``higher rates charged by service providers'' or ``promote the use of
alternative sources of energy and thereby decrease demand for oil'').
This risk is being increasingly reflected in the financial markets.
As noted in my dissent to the January 5 Decision, investment managers--
under pressure from their clients to pursue environmentally sustainable
investing--have begun aligning their portfolios with net-zero
emissions. January 5 Decision, FD 36284, slip op. at 16 (Board Member
Oberman dissenting).\12\ This includes putting pressure directly on oil
producers to develop more sustainable business strategies. For example,
on May 26, 2021, Exxon Mobil Corporation's shareholders elected to its
Board--over the opposition of company management--three insurgent
directors from a small hedge fund, Engine No. 1. Exxon Mobil Corp.,
Current Report (Form 8-K/A) 3 (June 21, 2021). These nominees were
advanced for the express purpose of directing the company towards a
``long-term commitment to only funding projects that can break-even at
much more conservative oil and gas prices,'' and to explore growth
areas in ``net-zero emission energy sources and clean energy
infrastructure.'' Exxon Mobil Corp., Definitive Proxy Statement
(Schedule 14A) 5 (March 15, 2021). In its proxy statement, Engine No. 1
emphasized ``growing long-term oil and gas uncertainty'' arising from a
``decarbonizing world.'' \13\ Id. at 1.
---------------------------------------------------------------------------
\12\ On May 20, 2021, President Biden signed an executive order,
Climate-Related Financial Risk, which sets forth a policy of
``advancing consistent, clear, intelligible, comparable, and
accurate disclosure of climate-related financial risk . . . .''
Climate-Related Financial Risk, Exec. Order No. 14030, 86 FR 27967
(May 26, 2021). The executive order acknowledges the risk to the
competitiveness of companies and markets, as well as workers and
communities, should financial institutions fail to adequately
account for ``the global shift away from carbon-intensive energy
sources and industrial processes.'' Id. at 27967.
\13\ The hedge fund Third Point Investors also recently
announced that it had taken a stake in Shell in part to advance a
growth strategy focused on ``aggressive investment in renewables and
other carbon reduction technologies.'' Available at https://thirdpointlimited.com/wp-content/uploads/2021/10/Third-Point-Q3-2021-Investor-Letter-TPIL.pdf.] Weeks later, Shell announced plans
to simplify its share structure to accelerate ``delivery of its
strategy to become a net-zero emissions business.'' Press Release,
Royal Dutch Shell, Notice of General Meeting--Shell Seeks
Shareholder Approval to Change Articles to Implement a Simplified
Structure (Nov. 15, 2021), https://www.shell.com/media/news-and-media-releases/2021/november-press-release.html.
---------------------------------------------------------------------------
It bears emphasizing that the political and business developments
described above constitute only the latest and a small set of examples
of the global
[[Page 72379]]
transition away from fossil fuels. This broad and rapidly accelerating
trend calls into question both the viability of the Coalition's over $1
billion rail construction project as well as its ability to raise money
from private funding sources. It confirms the significant concerns I
raised previously about the extent to which the project will both
require the backing of, and put at risk, public funds. January 5
Decision, FD 36284, slip op. at 19 (Board Member Oberman dissenting).
These concerns have been exacerbated by the Coalition's decision not to
supply (and indeed, to redact) oil and traffic projections from its
consultant's pre-feasibility study, creating the ineluctable inference
that the withheld data, if revealed, would undermine the commercial
viability of the project. January 5 Decision, FD 36284, slip op. at 14-
15 & n.5 (Board Member Oberman dissenting). The majority's continuing
to turn a blind eye to this glaring omission is even more perplexing in
light of the dramatic changes in the world oil market detailed above.
But make no mistake: The writing is on the wall. The Board has
previously made clear that ``significant questions surrounding the
financial feasibility of [a] proposed rail project'' may diminish its
transportation merits and warrant against the granting of an exemption
under section 10502. Tex. Cent. R.R. & Infrastructure, Inc.--Petition
for Exemption--Passenger Rail Line Between Dallas & Houston, Tex.
(Texas Central), FD 36025, slip op. at 14-15 (STB served July 16, 2020)
(citing the RTP factors at 49 U.S.C. 10101(4) and 10101(5) as a basis
for denying a petition for exemption given ``questions about increased
costs and funding sources,'' the magnitude of the project, and the
substantial public interest). Although the Board in Texas Central
permitted the petitioner there to proceed via application, so as to
provide additional information about the project's financial
feasibility, an application in this case would not have changed the
fact that the Line's transportation merits are greatly impaired by a
future that has little use for the product it will be built to deliver.
Moreover, and as explained in the following section, regardless of
whether the Coalition had proceeded via application or petition for
exemption, the Line's environmental impacts outweigh its transportation
merits.
Environmental Impacts
Consideration of the Line's environmental effects must treat as
indirect effects those impacts associated with oil development in the
Basin that will be supported by the Line, including downstream
greenhouse gas emissions that will result from the oil's eventual
combustion. Contrary to the position taken in Today's Decision, the
Board has the power to act on these impacts, including by denying
construction authority, and accordingly has an obligation to consider
them as reasonably foreseeable effects of the project. Only in doing
so, may the Board reach the central question in this case: Whether it
is in the public interest for the Board to authorize the building of a
railroad for the near exclusive purpose of facilitating oil and gas
development, given all that we know today about the worsening global
warming crisis and the role played by fossil fuel combustion. That
question lies at the heart of whether the transportation merits of the
project outweigh its environmental impacts, including the troubling and
unavoidable disturbance to wetlands and wildlife that are in fact
acknowledged by the majority as effects of this project. In my view,
the Line is not worth these costs.
With respect to downstream greenhouse gas emissions, the Final EIS
recognized that construction of the Line ``would increase
transportation capacity to ship an additional 130,000 to 350,000
barrels of oil on average each day from existing oil fields . . . .''
(Final EIS 3.15-51; see also id. 3.15-3 to 3.15-4.) Further, it assumed
that the oil from this new production would ultimately be refined into
fuel and combusted, and it estimated that the resulting emission of
carbon dioxide equivalents would total 19,785,953 metric tons annually
under a low oil production scenario and 53,269,873 metric tons annually
under a high oil production scenario, the latter of which would
represent approximately 0.8% of nationwide greenhouse gas emissions and
0.1% of global greenhouse gas emissions. (Id. at 3.15-36.) The Final
EIS also identified other, more localized impacts of oil and gas
development on water resources, biological resources, soils, noise,
land use, cultural resources, and socioeconomics, including from the
drilling of new wells. (See generally id. section 3.15.) These impacts
are acknowledged in Today's Decision. Today's Decision 17.
However, they are considered only for the purpose of assessing the
project's cumulative impacts. Accordingly, and importantly, the Final
EIS does not consider as an indirect impact the harm caused to the
environment by downstream combustion of increased oil production
enabled by the Line's construction. The Final EIS focuses instead only
on the incremental de minimis effect of emissions from construction and
operation of the Line when added to emissions from downstream
combustion. (Final EIS 3.15-32); see also Twp. of Bordentown, NJ v.
FERC, 903 F.3d 234, 258 (3d Cir. 2018) (explaining that a cumulative
impact analysis looks at the marginal impact of the jurisdictional
project when added to the non-jurisdictional projects' impacts). The
majority approved this approach and in so doing obscured the centrality
of the Line's construction to oil and gas development in the Basin,
which will foreseeably cause far larger emissions from combustion of
oil that will be moved over the Line.\14\ See Twp. of Bordentown, 903
F.3d at 258 (``Where the other projects' impacts are themselves already
significant or greatly outweigh the jurisdictional projects' impacts,
such that the jurisdictional project will not meaningfully influence
the extent of the already significant environmental impacts, the
cumulative impacts test is inapposite.'').
---------------------------------------------------------------------------
\14\ In contrast to the estimated emissions from the production
scenarios discussed above, the Final EIS estimated that
``[greenhouse gas] emissions from rail operations . . . would
represent a small percentage (ranging from 0.9 percent to 3.5
percent) of regional and statewide GHG emissions . . . and would not
contribute significantly to global climate change.'' (Final EIS 3.7-
39.) Not surprisingly, the majority did not find cumulative adverse
effects on greenhouse gas emissions or air quality, but rather
identified only cumulative adverse effects on water resources,
biological resources, paleontological resources, land use and
recreation, visual resources, and socioeconomics. Today's Decision
16.
---------------------------------------------------------------------------
Considering the environmental impacts of oil development in the
Basin only in the context of a cumulative impact analysis, and not as
reasonably foreseeable impacts attributable to the Line itself,
materially affects how those effects are factored by the Board when
weighing the Line's transportation merits against its environmental
impacts. See Landmark West! v. U.S. Postal Serv., 840 F. Supp. 994,
1011 (S.D.N.Y. 1993) (explaining that a cumulative impact analysis
``entails the consideration of the foreseeable actions of others as
background factors, but does not require that the impacts of others'
actions be weighed in assessing the significance'' of the agency's
actions, only the ``marginal impacts of its own actions''), aff'd, 41
F.3d 1500 (2d Cir. 1994).\15\ Today's Decision justifies this approach
by relying on Department of Transportation v. Public Citizen, 541 U.S.
752 (2004), contending that the
[[Page 72380]]
Board cannot be the ``legally relevant'' cause of impacts from oil and
gas development, and therefore those impacts cannot be considered
indirect impacts of the construction project. Today's Decision 18.
Today's Decision emphasizes that the Board has no authority or
jurisdiction over development of oil and gas in the Basin nor any
authority to control or mitigate the impacts of any such development.
Id. Importantly, and although not said in so many words, its reliance
on Public Citizen necessarily implies that the Board cannot be the
cause of such impacts because it lacks the power to act on them when
deciding whether to approve or deny the Coalition's petition.
---------------------------------------------------------------------------
\15\ Even though the labeling of the effects of oil and gas
development in the Basin as indirect or cumulative impacts may not
have affected their analysis within the Final EIS (Today's Decision
18 n.15), it does affect how they are weighed by the Board.
---------------------------------------------------------------------------
I disagree. In Public Citizen, the Supreme Court indeed held that
where an ``agency has no ability to prevent a certain effect due to its
limited statutory authority over the relevant actions, the agency
cannot be considered a legally relevant `cause' of the effect,'' and
hence need not consider such effects under NEPA. 541 U.S. at 770. That
case, however, is readily distinguishable. At issue in Public Citizen
was the planned lifting of a moratorium by the President (with
authority from Congress) on cross-border truck traffic from Mexico and
related regulations under review by the Federal Motor Carrier Safety
Administration (FMCS). Although the regulations had to be issued before
Mexican traffic could enter the United States, by statute the rules
were limited to safety and financial responsibility issues. Id. at 758-
59. The Supreme Court concluded that the FMCSA had no obligation to
evaluate emissions from the truck traffic when assessing the
environmental impact of its regulations because FMCSA ``simply lack[ed]
the power to act on'' any such emissions data. Id. at 768. Key to this
holding was the Supreme Court's finding that FMCSA had ``no ability to
countermand the President's lifting of the moratorium'' or otherwise
``categorically'' prevent such traffic from entering the United States.
Id. at 766 (emphasis added). As the Supreme Court explained, the
``legally relevant cause of entry of the Mexican trucks is not FMCSA's
action, but instead the actions of the President in lifting the
moratorium and those of Congress in granting the President this
authority while simultaneously limiting FMCSA's discretion.'' Id. at
769.
The scope of Public Citizen becomes even more apparent when
considering how the case has been applied in other circumstances
involving downstream greenhouse gas emissions. For example, in Sierra
Club v. FERC (Freeport), the D.C. Circuit held that the Federal Energy
Regulatory Commission (FERC) had no obligation to consider such
emissions when approving facility upgrades at a liquified natural gas
terminal that would be used to support export operations. 827 F.3d 36,
47-48 (D.C. Cir. 2016). This was because the Department of Energy (DOE)
has exclusive jurisdiction over the export of natural gas as a
commodity and had already authorized the terminal in Freeport to export
gas. Id. at 40. DOE merely delegated to FERC licensing authority over
the siting, construction, expansion, and operation of specific
facilities. Id. at 40-41. Citing Public Citizen, the D.C. Circuit
concluded that FERC could not be the ``legally relevant'' cause of
emissions from gas exported from the terminal because DOE's
``intervening'' and ``independent decision to allow exports--a decision
over which [FERC] has no regulatory authority--[broke] the NEPA causal
chain and absolve[d]'' FERC of responsibility to consider impacts it
``could not act on.'' Id. at 47-48.
Public Citizen, which the majority relied upon, and Freeport, which
shows its application, lay bare the flaw in the majority's reasoning.
Had Congress itself authorized construction of a railroad out of the
Basin, or vested that authority in another federal agency, but left to
the Board the narrower responsibility of deciding where that line
should be placed and the details of its construction, then perhaps
Public Citizen would be instructive. But here, the Board has
independent and plenary authority, and exclusive jurisdiction, over
whether a line of railroad should be built in the first instance. 49
U.C.S. 10501, 10901. See Alaska Survival v. STB, 705 F.3d 1073, 1086
(9th Cir. 2013) (emphasizing that the decision as to ``which
communities are entitled to important railroad development projects''
is ``committed in the first instance to the agency authorized by
Congress to approve rail line construction projects, the STB''). That
the Board has no authority or jurisdiction over development of oil and
gas in the Basin, (Today's Decision 18),\16\ and generally cannot
restrict the types of products and commodities that are transported on
already constructed rail lines, (Final EIS 3.15-36),\17\ are not the
types of overarching limitations like that at issue in Public Citizen
which would diminish, let alone inform, the Board's authority over rail
construction.
---------------------------------------------------------------------------
\16\ See Birkhead v. FERC, 925 F.3d 510, 519 (D.C. Cir. 2019)
(rejecting argument that agency cannot be legally relevant cause of
emissions from gas transported via agency-approved pipeline ``due to
its lack of jurisdiction over any entity other than the pipeline
applicant'').
\17\ The Final EIS cites to Riffin v. STB, 733 F.3d 340, 345-47
(D.C. Cir. 2013), for the established proposition ``that railroads
have a common carrier obligation to carry all commodities, including
hazardous materials, upon reasonable request . . . .'' (Final EIS
3.15-6 (emphasis added).) While that may be true, it has nothing to
do with the Board's authority to license rail construction and its
obligation to consider environmental impacts when doing so.
---------------------------------------------------------------------------
The D.C. Circuit's decision in Sierra Club v. FERC (Sabal Trail) is
on point. That case involved FERC's decision to approve the
construction and operation of certain interstate natural gas pipelines
in the southeastern United States. Sabal Trail, 867 F.3d 1357, 1363
(D.C. Cir. 2017). As here, at issue was whether Public Citizen excused
FERC's decision not to attribute to the pipeline, and consider,
greenhouse gas emissions arising from the end-use combustion of gas to
be moved over the pipeline. Id. at 1365, 1371-72. In its decision, the
D.C. Circuit made clear that the relevant question is not `` `What
activities does [an agency] regulate?' but instead . . . `What factors
can [the agency] consider when regulating in its proper sphere?' '' Id.
at 1373. In other words, is an agency ``forbidden to rely'' on the
effects of the impact as ``justification'' for denying a license? Id.
The Court found that FERC was ``not so limited.'' Id. Critical to its
analysis was that Congress gave FERC broad power over the construction
and operation of interstate pipelines, expansively directing it to
consider the ``public convenience and necessity'' when reviewing an
application. Id. (citing 15 U.S.C. 717f(e).) The Court emphasized that
FERC balances the ``public benefits against the adverse effects of the
project,'' including ``adverse environmental effects,'' and can deny
construction authority ``on the ground that [it] would be too harmful
to the environment.'' Sabal Trail, 867 F.3d at 1373. For all of these
reasons, the Court concluded that FERC ``is a `legally relevant cause'
of the direct and indirect environmental effects of the pipelines it
approves.'' Id. (emphasis added).\18\
---------------------------------------------------------------------------
\18\ See also WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41,
73 (D.D.C. 2019) (holding that because Bureau of Land Management
(BLM) could decline to sell an oil and gas lease if the
``environmental impact of those leases--including use of the oil and
gas produced--would not be in the public's long-term interest,'' BLM
was required to consider downstream greenhouse gas emissions ``as
indirect effects of oil and gas leasing''), appeal dismissed per
stipulation, 2021 WL 3176109 (D.C. Cir. Apr. 28, 2021).
---------------------------------------------------------------------------
As in Sabal Trail, here too the Board has a broad statutory
obligation not to authorize rail construction when doing so would be
``inconsistent with the public convenience and necessity.'' 49 U.S.C.
10901(c). And although in this case the Coalition has proceeded via a
petition for exemption from the prior
[[Page 72381]]
approval requirements of section 10901, use of the exemption process
does not affect the level of environmental review a project receives.
Cal. High-Speed Rail Auth.--Constr. Exemption--in Merced, Madera, and
Fresno Cntys., Cal., FD 35724, slip op. at 21-22 (STB served June 13,
2013). The Board has also made clear that environmental impacts can
lead it to categorically decline to authorize rail construction,
including when considering a petition for exemption. Alaska R.R.--
Constr. & Operation Exemption--Rail Line Between N. Pole & Delta
Junction, Alaska, FD 34658, slip op. at 10 (STB served Jan. 6, 2010).
In either circumstance, and as in Today's Decision, the Board weighs
the project's transportation merits against its environmental impacts
when determining whether to grant construction authority. (Today's
Decision 23-25.) This is in keeping with NEPA, which requires the Board
to consider the environmental impacts of a decision permitting rail
construction, regardless of whether it does so by granting an
application under section 10901 or an exemption under section
10502.\19\ 42 U.S.C. 4332(C).
---------------------------------------------------------------------------
\19\ In any event, the Board may not exempt construction from
section 10901 where regulation is necessary to carry out the RTP,
including those factors calling for the development of a sound rail
transportation system to meet the public need, operation of
transportation facilities without detriment to public health and
safety, and energy conservation. 49 U.S.C. 10502; 49 U.S.C.
10101(4), (8), (14). In my view, these policy directives broadly
warrant the Board's consideration of the environmental impacts to be
caused by oil development in the Basin, including downstream
greenhouse gas emissions.
---------------------------------------------------------------------------
I see no reason why the Line's construction would not otherwise be
a sufficient cause of the oil and gas development impacts and
downstream emissions identified in the Final EIS. It may well be the
case that oil development ``may occur, and is already taking place,
without the proposed rail line,'' (Final EIS T-44), and that the
``actual volumes of crude oil that would move over the Line would
depend on various independent variables and influences,'' (Today's
Decision 17). However, the Coalition's own position has been that
trucking oil produced from the Basin to distant markets is cost
prohibitive and that ``the lack of rail access has effectively capped
oil production in the Basin.'' (Pet. 13-14.) As the Coalition puts it,
a rail line would ``enable local producers to increase their output
under appropriate market conditions.'' (Id. at 15.) It cannot be
disputed that ``but for'' the proposed rail line, significantly less
oil will be extracted from the Basin. See Mid States Coal. for Progress
v. STB, 345 F.3d 520, 548-50 (8th Cir. 2003) (requiring that agency
consider emissions from combustion of coal transported over rail line
as it was ``almost certainly true'' that the line would increase the
``availability of inexpensive coal'' and ``any adverse effects that
result from burning coal'').\20\
---------------------------------------------------------------------------
\20\ The Final EIS suggests that this aspect of Mid States would
not stand today, given the Supreme Court's subsequent decision in
Public Citizen. (Final EIS T-440.) But as explained above, the Court
in Public Citizen grounded its holding on FCMSA's inability to
prevent the relevant environmental effect ``due to its limited
statutory authority over the relevant actions.'' 541 U.S. at 770.
Mid States did not address whether the Board had the authority to
deny or condition its construction approval on the emissions it
originally failed to consider. Mid States appears still to be
relevant for the proposition that the Board may be the legally
relevant cause of downstream impacts that would not occur ``but
for'' the agency's construction approval.
---------------------------------------------------------------------------
Of course, a `` `but for' causal relationship is insufficient to
make an agency responsible for a particular effect under NEPA . . . .''
Public Citizen, 541 U.S. at 767. Instead, ``NEPA requires analysis of
an effect only where there is a reasonably close causal relationship
between the environmental effect and the alleged cause, analogous to
the doctrine of proximate cause from tort law.'' (Final EIS T-43
(citing Public Citizen, 541 U.S. at 767).) As the Supreme Court has
made clear, proximate cause ``turns on policy considerations'' and
where best to ``draw a manageable line between those causal changes
that may make an actor responsible for an effect and those that do
not.'' Public Citizen, 541 U.S. at 767 (citations omitted) (emphasis
added). Notably, in Public Citizen, prevailing policy dictated that the
FCMSA could not possibly be the proximate cause of the motor carrier
emissions at issue since, again, FMCSA had ``no ability categorically
to prevent the cross-border operation of Mexican motor carriers.'' Id.
at 768. That is, in Public Citizen the Court's analysis of proximate
cause turned on its conclusion that the FMCSA's lacked authority over
the traffic.
As explained above, Public Citizen does not ``excuse'' the Board
from considering impacts from oil and gas development. Sabal Trail, 867
F.3d at 1373. And it otherwise seems well within the range of
reasonable policy considerations--and frankly, the only reasonable
policy consideration--for the Board to weigh these impacts when making
its final decision, at least with respect to this particular line. As
noted in my prior dissent, there is no question that increased oil
production is the ``singular rationale'' for the Line: Its potential
use by other industries is ancillary to the movement of oil and not
valuable enough standing alone to justify the line's construction and
continued operation. January 2020 Decision, slip op. at 14 (Board
Member Oberman dissenting) (citing Pet. 13-17). That is, increased oil
output, its refinement into petroleum, and that petroleum's ultimate
sale and combustion are not only ``reasonably foreseeable,'' they are
``the project's entire purpose.'' \21\Sabal Trail, 867 F.3d at 1372.
---------------------------------------------------------------------------
\21\ When weighing the project's transportation merits against
its environmental impacts, Today's Decision stresses that a ``rail
transportation option could also support the diversification of
local economies in the Basin, which could support additional
employment and expand the regional economy.'' (Today's Decision 24.)
But it gives no weight to the nature of the industry the Line is
meant to support and that industry's impact on climate change. While
local economic development may be a reason to support the Line's
construction, if the majority is to weigh the economic benefits of
that development, it should weigh all of its harms as well. When
that is done, it is apparent that the project's environmental
impacts outweigh its benefits.
---------------------------------------------------------------------------
[[Page 72382]]
Moreover, there can be no question about the significance of the
threat that global warming poses to the environment as well as to our
continued prosperity. Days after OEA issued the Final EIS, the United
Nations' Intergovernmental Panel on Climate Change's (IPCC's) Working
Group I released its contribution to the IPPC's Sixth Assessment
Report, which presents the most up-to-date understanding of the current
state of the climate.\22\ The report presents a dire picture. Among
other things, it concludes that: (i) It is ``unequivocal'' that human
influence has warmed the atmosphere, ocean, and land; (ii) global
surface temperature in the first two decades of the 21st century was
.99 [deg]C higher than 1850-1900; (iii) human-induced climate change is
``already affecting many weather and climate extremes in every region
across the globe''; (iv) evidence attributing heatwaves, heavy
precipitation, droughts, and tropical cyclones to human influences has
strengthened in the last several years; (v) global warming of 1.5
[deg]C and 2 [deg]C will be exceeded during the 21st century unless
deep reductions in greenhouse gas emissions occur in the coming
decades; \23\ and (vi) with further global warming, every region around
the world will increasingly experience extreme climate events,
including heavy precipitation, flooding, and droughts. IPCC 2021 at
SPM-5, SPM-10, SPM-17, and SPM-32.
---------------------------------------------------------------------------
\22\ See Richard Allan, et al., Summary for Policymakers in
Climate Change 2021: The Physical Science Basis. Contribution of
Working Group I to the Sixth Assessment Report of the
Intergovernmental Panel on Climate Change (IPCC 2021 Summary for
Policymakers) (Val[eacute]rie Masson-Delmonte et al., eds., in
press), https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Full_Report.pdf.
\23\ According to the Climate Action Tracker--an independent
scientific analysis that tracks government climate action and
measures it against the globally agreed Paris Agreement--current
policies in place around the world are projected to result in 2.7
[deg]C warming above pre-industrial levels. Temperature, Climate
Action Tracker, https://climateactiontracker.org/global/temperatures/# (last updated Nov. 9, 2021).
---------------------------------------------------------------------------
These effects are already being felt. July 2021 was the hottest
month ever recorded, according to global data from the National Oceanic
and Atmospheric Administration (NOAA), with parts of the world
witnessing record high temperatures, unprecedented heat waves, floods,
and other extreme weather events.\24\ The World Meteorological
Organization (WMO), an agency of the United Nations, has predicted that
the annual mean global temperature is likely to be at least 1 [deg]C
above pre-industrial levels in each of the next five years, with a 90%
chance that at least one of those years will be the warmest on record.
Press Release, WMO, New Climate Predictions Increase Likelihood of
Temporarily Reaching 1.5 [deg]C in Next 5 Years (May 27, 2021).\25\ The
past seven years are on track to be the warmest on record. Press
Release, World Meteorological Organization, State of Climate in 2021:
Extreme Events & Major Impacts (Oct. 21, 2021). As detailed above, our
national and state governments and many leading components of the
private sector have accelerated their response to the growing
environmental disaster. Decarbonization is national policy.
---------------------------------------------------------------------------
\24\ See NOAA, It's Official: July was Earth's Hottest Month on
Record (Aug. 13, 2021), available at: https://www.noaa.gov/news-features. On July 11, 2021, the National Weather Service recorded a
temperature of 54 [deg]C (129.2 [deg]F) in Death Valley, which tied
the record (set last year) for the hottest formally recognized
daytime temperature ever. July and August also saw unprecedented
heat waves in the Pacific Northwest, national high temperature
records set in Spain, Tunisia, and Turkey, Germany ravaged by
floods, and parts of China receiving a year's worth of rain in just
three days. Press Release, World Meteorological Organization, State
of Climate in 2021: Extreme Events & Major Impacts (Oct. 21, 2021),
available at: https://public.wmo.int/en/media/press-release.
\25\ Available at: https://public.wmo.int/en/media/press-release.
---------------------------------------------------------------------------
The growing threat from global warming is too great, and its
connection to the combustion of fossil fuel too obvious, for the
environmental impacts of Line-induced oil and gas development in the
Basin to be treated as anything other than what they are: Reasonably
foreseeable effects of the rail construction project itself. For the
reasons explained above, the Board has the power to act on impacts
resulting from that development when deciding whether to approve the
petition, and can and should engage with the central question presented
in this matter: Whether a railroad built for the purpose of supporting
oil and gas development, given the need for decarbonization and the
harmful effects of global warming, is within the public interest.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50
(1989) (holding that under NEPA an agency must ``carefully consider''
information concerning significant environmental impacts when
``reaching its decision''). Such an approach properly situates the
significant environmental impacts that nobody appears to disagree are
attributable to the Line's construction and operation--among other
things, impacts on surface waters and the loss of wetlands, disruption
to habitat of threatened and endangered species, and disturbance of the
use of otherwise pristine land--all of which are unavoidable and cannot
be mitigated. (Final EIS S-8 to S-9.) Is the Line worth all of this
given the activity it is intended to support? Without evidence that
there is some particularized need for oil from the Basin, in the face
of overwhelming evidence to the contrary, and given the irrefutable
fact that this oil's use will contribute to the global warming crisis,
I cannot say that it is.
I dissent.
Jeffrey Herzig,
Clearance Clerk.
Appendix A
Map of Alternatives
[[Page 72383]]
[GRAPHIC] [TIFF OMITTED] TN21DE21.014
Appendix B
Environmental Mitigation Conditions
Voluntary Mitigation Measures
Construction and Rail Operations Safety
VM-1. The Seven County Infrastructure Coalition (Coalition) will
follow all applicable federal Occupational Safety and Health
Administration (OSHA), Federal Railroad Administration (FRA), tribal,
and state construction and operational safety regulations to minimize
the potential for accidents and incidents during construction and
operation of the rail line.
Grade Crossing Safety
VM-2. The Coalition will consult with appropriate federal, tribal,
state, and local transportation agencies to determine the final design
of the at-grade crossing warning devices. Implementation of all grade-
crossing warning devices on public roadways will be subject to review
and approval, depending on location, by the Ute Indian Tribe of the
Uintah and Ouray Reservation (Ute Indian Tribe), Utah Department of
Transportation (UDOT), U.S. Forest Service (Forest Service), or Carbon,
Duchesne, or Uintah Counties. The Coalition will follow standard safety
designs for each at-grade crossing for proposed warning devices and
signs. These designs will follow the Federal Highway Administration
Manual on Uniform Traffic Control Devices for Streets and Highways as
implemented by UDOT and the American Railway Engineering and
Maintenance-of-Way Association standards for railroad warning devices.
They will also comply with applicable UDOT, tribal, city, and county
requirements.
VM-3. For construction of road crossings, when reasonably
practical, the Coalition will consult with tribal and local
transportation officials regarding detours and associated signs, as
appropriate, or maintain at least one open lane of traffic at all times
to allow the quick passage of emergency and other vehicles.
VM-4. The Coalition will develop a plan to consult with private
landowners to determine the final details and reasonable signage for
grade crossings on private roads.
VM-5. Where practical, at-grade crossings for minor roads and
private roads will be combined and consolidated into right-angle, at-
grade crossings for safety, and in order to reduce the total the number
of highway-rail at-grade crossings.
VM-6. The Coalition will consult with affected communities
regarding ways to improve visibility at highway-rail at-grade
crossings, including by clearing vegetation or installing lights at the
crossing during construction.
Hazardous Materials Handling and Spills During Construction
VM-7. Prior to initiating any project-related construction
activities, the Coalition will develop a spill prevention, control, and
countermeasures plan in consultation with federal, tribal, state and
local governments. The plan will specify measures to prevent the
release of petroleum products or other hazardous materials during
construction activities and contain such discharges if they occur.
VM-8. In the event of a spill over the applicable reportable
quantity, the Coalition will comply with its spill prevention, control,
and countermeasures plan and applicable federal, state, local and
tribal regulations pertaining to spill containment, appropriate clean-
up, and notifications.
VM-9. The Coalition will require its construction contractor(s) to
implement measures to protect workers' health and safety and the
environment in the event that undocumented hazardous materials are
encountered during construction. The Coalition will document all
activities associated with hazardous material spill sites and hazardous
waste sites and will notify the appropriate state, local, and tribal
agencies according to applicable regulations. The goal of the measures
is to ensure the proper handling and disposal of
[[Page 72384]]
contaminated materials including contaminated soil, groundwater, and
stormwater, if such materials are encountered. The Coalition will use
disposal methods that comply with applicable solid and hazardous waste
regulations.
VM-10. The Coalition will ensure that gasoline, diesel fuel, oil,
lubricants, and other petroleum products are handled and stored to
reduce the risk of spills contaminating soils or surface waters. If a
petroleum spill occurs in the project area as a result of rail
construction, operation, or maintenance and exceeds specific quantities
or enters a water body, the Coalition (or its agents) will be
responsible for promptly cleaning up the spill and notifying
responsible agencies in accordance with federal, state, and tribal
regulations.
Hazardous Materials Transport and Emergency Response
VM-11. The Coalition will prepare a hazardous materials emergency
response plan to address potential derailments or spills. This plan
will address the requirements of the Pipeline and Hazardous Materials
Safety Administration and FRA requirements for comprehensive oil spill
response plans. The Coalition will distribute the plan to federal,
state, local, and tribal emergency response agencies. This plan shall
include a roster of agencies and people to be contacted for specific
types of emergencies during rail construction, operation and
maintenance activities, procedures to be followed by particular rail
employees, emergency routes for vehicles, and the location of emergency
equipment.
VM-12. The Coalition will work with the affected communities to
facilitate the development of cooperative agreements with other
emergency service providers to share service areas and emergency call
response.
VM-13. After construction is completed, the Coalition will
implement a desktop simulation of its emergency response drill
procedures with the voluntary participation of local emergency response
organizations. If necessary, the Coalition will update the hazardous
materials emergency response plan based on the findings and
observations of the simulated emergency response.
VM-14. In the event of a reportable hazardous materials release,
the Coalition will notify appropriate federal, state, and tribal
environmental agencies as required under federal, state, and tribal
law.
VM-15. The Coalition will comply with FRA, Pipeline and Hazardous
Materials Safety Administration, Transportation Security Administration
regulations and tribal ordinances or plans applicable to the safe and
secure transportation of hazardous materials.
Topography, Geology, and Soils
VM-16. The Coalition will limit ground disturbance to only the
areas necessary for project-related construction activities.
VM-17. During project-related earth-moving activities, the
Coalition will require the contractor to remove topsoil and segregate
it from subsurface soils. Where practical, the contractor will also
stockpile topsoil to be applied later during reclamation activities in
disturbed areas along the right-of-way.
VM-18. The Coalition will place the topsoil and other excavated
soil stockpiles in areas away from environmentally or culturally
sensitive areas and will use appropriate erosion control measures on
and around stockpiles to prevent or contain erosion.
VM-19. The Coalition will submit a notice of intent to request
permit coverage under Utah Pollutant Discharge Elimination System
Construction General Permit UTRC00000 for construction stormwater
management.
VM-20. The Coalition will submit an application for coverage under
the National Pollutant Discharge Elimination System stormwater
construction permits pursuant to Section 402 of the Clean Water Act for
construction stormwater management on tribal land.
VM-21. The Coalition will develop a stormwater pollution prevention
plan, which will include construction Best Management Practices (BMPs)
to control erosion and reduce the amount of sediment and pollutants
entering surface waters, groundwater, and waters of the United States.
The Coalition will require its construction contractor(s) to follow all
water quality control conditions identified in all permits, including
the Section 404 permit from the U.S. Army Corps of Engineers (Corps)
and the Section 401 Water Quality Certification from the Utah
Department of Environmental Quality (UDEQ) and the U.S. Environmental
Protection Agency (USEPA).
VM-22. The Coalition will revegetate disturbed areas, where
practical and in consultation with the Ute Indian Tribe as applicable,
when construction is completed. The goal of reclamation will be the
rapid and permanent re-establishment of native groundcover on disturbed
areas to prevent soil erosion, where feasible. If weather or seasonal
conditions prevent vegetation from being quickly re-established, the
Coalition will use measures such as mulching, erosion-control blankets,
or dust-control palliatives to prevent erosion until vegetative cover
is established. The Coalition will monitor reclaimed areas for 3 years.
For areas where efforts to establish vegetative cover have been
unsuccessful after 1 year, the Coalition will reseed annually for up to
3 years as needed.
Air Quality
VM-23. Where practical and in consultation with the Ute Indian
Tribe as applicable, the Coalition will implement appropriate fugitive-
dust controls such as spraying water or other dust treatments in order
to reduce fugitive-dust emissions created during project-related
construction activities. The Coalition will require its construction
contractor(s) to regularly operate water trucks on haul roads to reduce
dust generation.
VM-24. The Coalition will work with its contractor(s) to make sure
that construction equipment is properly maintained and that mufflers
and other required pollution-control devices are in working condition
in order to limit construction-related air pollutant emissions.
Water Resources
VM-25. The Coalition will obtain a permit from the Corps under
Section 404 of the Clean Water Act before initiating project-related
construction activities in wetlands and other jurisdictional waters of
the United States. The Coalition will comply with all conditions of the
Section 404 permit.
VM-26. The Coalition will obtain a Section 401 Water Quality
Certification from the State of Utah and USEPA. The Coalition will
incorporate the conditions of the Section 401 Water Quality
Certification into its construction contract specifications and will
monitor the project for compliance.
VM-27. The Coalition will minimize impacts on wetlands to the
extent practicable in the final design of the selected alternative.
After all practicable steps have been taken to minimize impacts on
wetlands, the Coalition agrees to prepare a compensatory mitigation
plan for any remaining wetland impacts in consultation with the Ute
Indian Tribe where applicable. Compensatory mitigation may include any
one or a combination of the following five methods: Restoring a
previously existing wetland or other aquatic site, enhancing an
existing aquatic site's functions, establishing (that is, creating) a
new aquatic site, preserving an existing aquatic site, and/
[[Page 72385]]
or purchasing credits from an authorized wetland mitigation bank.
VM-28. Bridges at perennial streams will be designed to maintain a
natural substrate.
VM-29. The Coalition will obtain stream alteration permits from the
Utah Division of Water Rights for crossing waters of the state, and any
applicable tribal permits, and will comply with all conditions of the
permits.
VM-30. The Coalition will construct stream crossings during low-
flow periods, when practical.
VM-31. When practical and in consultation with the Ute Indian Tribe
where applicable, the Coalition will relocate natural streams using
bioengineering methods, where relocation is needed and is unavoidable.
VM-32. For streams and rivers with a floodplain regulated by the
Federal Emergency Management Agency or the Ute Indian Tribe, the
Coalition will design the stream crossing with the goal of not impeding
floodwaters and not raising water surface elevations to levels that
would change the regulated floodplain boundary. If flood elevations
change, the Coalition will coordinate with Federal Emergency Management
Agency and/or tribal or local floodplain managers to obtain a Letter of
Map Revision where construction of bridges, culverts, or embankments
results in an unavoidable increase greater than 1 foot to the 100-year
water surface elevations.
Biological Resources
VM-33. The Coalition will comply with any conditions and mitigation
commitments contained in a biological opinion for sensitive species
that could potentially be impacted by the project.
VM-34. The Coalition will require its contractor(s) to comply with
the requirements of the Migratory Bird Treaty Act in consultation with
the Ute Indian Tribe as applicable. The following measures will be
conducted by the Coalition and/or its contractor(s).
a. Where practical, any ground-disturbing, ground-clearing
activities or vegetation treatments will be performed before migratory
birds begin nesting or after all young have fledged.
b. If activities must be scheduled to start during the migratory
bird breeding season, the Coalition will take steps to prevent
migratory birds from establishing nests in the potential impact area.
Birds can be hazed to prevent them from nesting until egg(s) are
present in the nest. The Coalition or its agents will not haze or
exclude nest access for migratory birds and other sensitive avian
species.
c. If activities must be scheduled during the migratory bird
breeding season, a qualified biologist will perform a site-specific
survey for nesting birds starting no more than 7 days prior to ground-
disturbing activities or vegetation treatments. Birds with eggs or
young will not be hazed, and nests with eggs or young will not be moved
until the young are no longer dependent on the nest. A qualified
biologist will confirm that all young have fledged.
d. If nesting birds are found during the survey, the Coalition will
establish appropriate seasonal or spatial buffers around nests.
Vegetation treatments or ground-disturbing activities within the buffer
areas will be postponed, where feasible, until the birds have left the
nest. A qualified biologist will confirm that all young have fledged.
VM-35. The Coalition will execute a Mitigation Agreement with the
Utah Division of Wildlife Resources (UDWR) to address impacts within
the Carbon Sage-grouse Management Area (CSGMA). The Coalition has
discussed several potential mitigation strategies with UDWR and other
local, state, tribal and federal stakeholders during the EIS process.
The final CSGMA Mitigation Agreement will define the appropriate
mitigation ratio for the project type and its impacts and the final
mitigation approach.
VM-36. The Coalition shall comply with the Ute Indian Tribe's
Greater Sage-Grouse Conservation Ordinance as applicable.
VM-37. If the selected alternative impacts U.S. Bureau of Land
Management (BLM) lands, the Coalition will request that BLM join as a
signatory to the CSGMA Mitigation Agreement.
VM-38. The Coalition will prepare a noxious and invasive weed
control plan in consultation with the Ute Indian Tribe as applicable.
Where practical, the Coalition will include the policies and strategies
in Utah's Strategic Plan for Managing Noxious and Invasive Weeds when
designing response strategies for noxious and invasive weeds.
VM-39. The Coalition will comply with any conditions and mitigation
commitments contained in a biological opinion for sensitive plant
species that could potentially be impacted by the project.
VM-40. The Coalition will work with UDWR, the Ute Indian Tribe, and
adjacent landowners to define areas of the right-of-way that can be
left without fences to maintain big game migration corridors.
VM-41. Where practical and necessary, the Coalition will install
wildlife-safe fences to confine livestock within grazing allotments.
Cultural Resources
VM-42. The Coalition will work with the Ute Indian Tribe and others
to develop training materials to educate construction supervisors about
the importance of protecting cultural resources and the procedures for
handling undocumented discoveries. The Coalition will make reasonable
efforts to include the Ute Indian Tribe in the presentation of these
materials.
VM-43. The Coalition will comply with the requirements of the
Programmatic Agreement being developed by the Office of Environmental
Analysis (OEA), the Advisory Council on Historic Preservation, Utah
State Historic Preservation Office, Ute Indian Tribe, and other federal
and state agencies in consultation with federally recognized tribes and
other consulting parties.
Land Use
VM-44. If temporary construction easements on private property are
needed, the Coalition will document the preconstruction conditions and,
to the extent practical, will restore the land to its preconstruction
condition after construction is complete.
VM-45. The Coalition will consult with landowners regarding grazing
allotments and will install temporary fences during construction to
allow continued grazing, where practicable. Once construction is
complete, the Coalition will replace all permanent fences removed
during construction.
VM-46. Where practical, the Coalition will maintain livestock
access to water sources or will relocate water sources, maintain
vehicle and livestock access to grazing allotments, and install safety
fences and signs for grazing allotment entrances and exits to enable
continuance of livestock operations within grazing allotments.
VM-47. The Coalition will secure agreements with utilities to
establish responsibility for protecting or relocating existing
utilities, if impacted by construction.
VM-48. The Coalition will coordinate with water districts to
develop irrigation infrastructure protection or relocation plans, if
irrigation infrastructure will be impacted by construction.
Community Outreach
VM-49. The Coalition will appoint a community liaison to consult
with affected communities, businesses, and agencies and seek to develop
cooperative solutions to local concerns regarding construction
activities.
VM-50. The Coalition will appoint a tribal community liaison to
address the
[[Page 72386]]
needs and concerns of Ute Indian Tribe members and communities and seek
to develop cooperative solutions to concerns regarding construction
activities and rail operations.
VM-51. The Coalition will maintain a project website throughout the
duration of construction to provide regular updates regarding
construction progress and schedule.
VM-52. The Coalition will install construction warning and detour
signs throughout the corridor and at recreation sites around the
project area as needed.
Noise and Vibration
VM-53. The Coalition, in consultation with the Ute Indian Tribe,
will comply with FRA regulations (49 Code of Federal Regulations [CFR]
Part 210) establishing decibel limits for train operation.
VM-54. The Coalition will work with its contractor(s) to make sure
that project-related construction and maintenance vehicles are
maintained in good working order with properly functioning mufflers to
control noise.
Recreation
VM-55. If needed for the selected alternative, the Coalition will
obtain approval from the Forest Service and will follow the conditions
of the permit regarding access to, or temporary closure of,
recreational features during construction.
VM-56. The Coalition will work with its construction contractor to
maintain access to Forest Service roads during construction, where
feasible.
Additional Mitigation Measures
Vehicle Safety and Delay
VSD-MM-1. The Coalition shall design and construct any new
temporary or permanent access roads and road realignments to comply
with the reasonable requirements of the UDOT Roadway Design Manual
(UDOT 2020), other applicable road construction guidance (e.g., county
road right-of-way encroachment standards), and land management agency
or landowner requirements (e.g., BLM H-9113-1 Road Design Handbook)
regarding the establishment of safe roadway conditions.
VSD-MM-2. During project-related construction activities, the
Coalition and its contractors shall comply with speed limits and
applicable laws and regulations when operating vehicles and equipment
on public roadways.
VSD-MM-3. The Coalition shall obtain and abide by the reasonable
requirements of applicable permits and approvals for any project-
related construction activities within UDOT rights-of way or state
highways where UDOT has jurisdiction and off-system roads that are
maintained by UDOT.
VSD-MM-4. For each of the public at-grade crossings on the rail
line, the Coalition shall provide and maintain permanent signs
prominently displaying both a toll-free telephone number and a unique
grade-crossing identification number in compliance with Federal Highway
Administration regulations (23 CFR part 655). The toll-free number
would enable drivers to report promptly any accidents, malfunctioning
warning devices, stalled vehicles, or other dangerous conditions.
VSD-MM-5. The Coalition shall make Operation Lifesaver educational
programs available to communities, schools, and other organizations
located along the rail line. Operation Lifesaver is a nationwide,
nonprofit organization that provides public education programs to help
prevent collisions, injuries, and fatalities at highway/rail grade
crossings.
VSD-MM-6. The Coalition shall consult with private landowners and
communities affected by new at-grade crossings or that are adjacent to
the rail line to identify measures to mitigate impacts on emergency
access and evacuation routes and incorporate the results of this
consultation into the Coalition's emergency response plan. These
measures may include identifying new ingress and egress routes that
could be used to improve safety in the event of an emergency.
Rail Operations Safety
ROS-MM-1. In the event of a reportable hazardous materials release,
the Coalition shall notify appropriate local (county and city) agencies
in addition to appropriate federal, state, and tribal environmental
agencies as required under federal, state, and tribal law.
ROS-MM-2. As part of routine rail inspections or at least twice
annually, the Coalition shall use appropriate technology to inspect
both track geometry (horizontal and vertical layout of tracks) and
local terrain conditions to identify problems with either the track or
the surrounding terrain. The track inspection shall be designed and
conducted so as to identify changes in track geometry that could
indicate broken rails or welds, misalignments, and other technical
issues with the track itself. The visual inspection of terrain shall be
designed and conducted so as to identify evidence of subsidence,
rockslides, undermining of the track, erosion, changes in runoff
patterns, or other issues that could lead to structural weakening of
the track bed and potentially cause an accident.
Water Resources
WAT-MM-1. To the extent practicable, the Coalition shall design
culverts and bridges to maintain existing surface water drainage
patterns, including hydrology for wetland areas, and not cause or
exacerbate flooding. Project-related supporting structures (e.g.,
bridge piers) shall be designed to minimize scour (sediment removal)
and increased flow velocity, to the extent practicable. The Coalition
shall consider use of multi-stage culvert designs in flood-prone areas,
as appropriate.
WAT-MM-2. The Coalition shall design culverts and bridges on land
managed by federal, state, or tribal agencies to comply with reasonable
applicable agency requirements. All surface water crossings on land
under the jurisdiction of the Ute Indian Tribe shall be designed in
consultation with the tribe's Business Committee, Tribal Water Quality
Department, the Tribal Fish and Wildlife Department, and the Tribal
Water Resources Department to ensure that those crossings would not
adversely affect the quality of surface waters on the tribe's Uintah
and Ouray Reservation.
WAT-MM-3. The Coalition shall design all stream realignments in
consultation with the Corps and Utah Division of Water Rights as part
of the Section 404 permit mitigation plan development and Utah Stream
Alteration Program, respectively, to ensure that effects on stream
functions are taken into account and minimized. The Coalition shall
also consult with the Ute Indian Tribe through the tribe's Business
Committee, Tribal Water Quality Department, the Tribal Fish and
Wildlife Department, and the Tribal Water Resources Department
regarding the design of stream realignments to ensure that those
realignments would not adversely affect the quality of surface waters
on the tribe's Uintah and Ouray Reservation. To the extent practicable,
the Coalition shall design realigned streams to maintain existing
planform, geomorphology, bed material and flows.
WAT-MM-4. The Coalition shall design, construct, and operate the
rail line and associated facilities to maintain existing water patterns
and flow conditions and provide long-term hydrologic stability by
conforming to natural stream gradients and stream channel alignment and
avoiding altered subsurface flow (i.e., shallow aquifer subsurface
flow) to the extent practicable.
[[Page 72387]]
WAT-MM-5. During project-related construction, the Coalition shall
minimize, to the extent practicable, soil compaction and related
effects (e.g., increase runoff and erosion), provide surface treatments
to minimize soil compaction (e.g., break up compacted soils during
reclamation to promote infiltration), and take actions to promote
vegetation regrowth after the facilities (e.g., temporary staging
areas) are no longer needed to support construction.
WAT-MM-6. During project-related construction, the Coalition shall
implement erosion prevention, sediment control, and runoff control and
conveyance BMPs to limit the movement of soils and sediment-laden
runoff. On lands managed by federal, state, or tribal agencies, the
Coalition shall design and implement these BMPs in consultation with
the applicable agency. BMPs may include, but are not limited to,
seeding disturbed ground and stockpiled soil, seed mixes, silt fences,
sediment traps, ditch checks, and erosion monitoring. The Coalition
shall coordinate with the appropriate land management agency, private
landowner, or the Ute Indian Tribe to select seed mixes for use in
restoration and reclamation activities. This may require consultation
with range and ecology specialists to determine seed mixes and timing
of seeding appropriate to the ecological site. Within Ashley National
Forest, disturbed ground area, including stockpiled soil for later
reclamation, shall be seeded to prevent erosion and the influx of weeds
and invasive species. The Forest Rangeland Management or Ecology
specialists shall be consulted for the appropriate seed mix and timing
of seeding on Forest Service lands.
WAT-MM-7. During project-related construction, the Coalition shall
use temporary barricades, fencing, and/or flagging around sensitive
habitats (e.g., wetlands, flowing streams) to contain project-related
impacts within the construction area. The Coalition shall locate
staging areas in previously disturbed sites to the extent practicable,
avoiding sensitive habitat areas whenever possible.
WAT-MM-8. The Coalition shall remove all project-related
construction debris (including construction materials and soils) from
surface waters and wetlands as soon as practicable following
construction.
WAT-MM-9. The Coalition shall implement stormwater BMPs to convey,
filter, and dissipate runoff from the rail line during rail operations.
These could include, but would not be limited to, vegetated swales,
vegetated filter strips, streambank stabilization, and channelized flow
dissipation, as appropriate. On lands managed by federal, state, or
tribal agencies, the Coalition shall design and implement stormwater
BMPs in consultation with the applicable agency.
WAT-MM-10. During rail operations, the Coalition shall ensure that
all project-related culverts and bridges are clear of debris to avoid
flow blockages, flow alteration, and increased flooding. The Coalition
shall inspect all project-related bridges and culverts semi-annually
(or more frequently, as seasonal flows dictate) for debris accumulation
and shall remove and properly dispose of debris promptly.
WAT-MM-11. To address the closing of active groundwater wells and
permanent impacts on springs, the Coalition shall consult with the
owner, the Utah Division of Water Rights, and the Ute Indian Tribe, as
appropriate, to attempt to replace each active well closed with a new
well and to mitigate the water rights associated with springs, as
practicable.
WAT-MM-12. The Coalition shall consider potential future changes in
precipitation patterns caused by climate change when designing surface
water crossings (bridges and culverts) and other rail line features.
Biological Resources
BIO-MM-1. The Coalition shall implement appropriate measures to
reduce collision risks for birds resulting from project-related power
communications towers. The Coalition shall incorporate the design
recommendations in the U.S. Fish and Wildlife Service (USFWS)
Recommended Best Practices for Communication Tower Design, Siting,
Construction, Operation, Maintenance, and Decommissioning (USFWS 2018)
to avoid or minimize the risk of bird mortality at communications
towers.
BIO-MM-2. During project-related construction, the Coalition shall
comply with any federal, state, tribal, or local in-water work windows
and timing restrictions for the protection of fish species, and other
reasonable requirements of in-water work permits issued by UDWR and the
Corps.
BIO-MM-3. During project-related construction, the Coalition shall
use a bubble curtain or other noise-attenuation method (e.g., wood or
nylon pile caps) when installing or proofing pilings below the ordinary
high water line of a fish-bearing stream to minimize underwater sound
impacts on fish.
BIO-MM-4. During project-related construction, the Coalition shall
use a block-net to remove and exclude fish from in-water work areas.
The Coalition shall deploy the block-net toward the water from land,
with the two ends of the net maintained on shore and the middle portion
of the net deployed in the water. Any fish handling, exclusion, and
removal operation shall be consistent with any reasonable requirements
of in-water permits from UDWR and the Corps.
BIO-MM-5. The Coalition shall minimize, to the extent practicable,
the area and duration of project-related construction activities within
riparian areas and along streambanks. Where construction activities
within riparian areas or along streambanks are unavoidable, the
Coalition shall implement appropriate erosion control materials to
stabilize soil and reduce erosion. Following the completion of project-
related construction on a segment of rail line, the Coalition shall
promptly restore and revegetate riparian areas using native vegetation.
BIO-MM-6. The Coalition shall design culverts and bridges to allow
aquatic organisms to pass relatively unhindered, to the extent
practicable.
BIO-MM-7. The Coalition shall develop and implement a wildfire
management plan in consultation with appropriate state, tribal, and
local agencies, including local fire departments. The plan shall
incorporate specific information about operations, equipment, and
personnel on the rail line that might be of use in case a fire occurs
and shall evaluate and include as appropriate site-specific techniques
for fire prevention and suppression. The plan shall also include a
commitment for the Coalition and consulting parties to revisit the plan
on a regular basis (e.g., every 5 years; but to be determined during
plan development) to determine if environmental conditions have changed
(e.g., drier conditions) to the point where aspects of the plan would
need to be revised to address those changing conditions.
BIO-MM-8. The Coalition shall protect bald and golden eagles by
adhering to the Bald and Golden Eagle Protection Act. In addition, the
Coalition shall follow the USFWS National Bald Eagle Management
Guidelines (USFWS 2007), as applicable.
BIO-MM-9. The Coalition shall comply with the terms and conditions
of the USFWS Biological Opinion for the protection of federally listed
threatened and endangered plants and animals that could be affected by
the rail line, and to ensure compliance with Endangered Species Act
Section 7.
BIO-MM-10. The Coalition shall implement the requirements of the
Ute Indian Tribe for minimizing impacts on
[[Page 72388]]
wildlife, fish, and vegetation on Tribal trust lands.
BIO-MM-11. Prior to project-related construction, the Coalition
shall acquire and abide by the reasonable requirements of all
appropriate federal and state permits to possess, relocate, or
disassemble a bald or golden eagle nest, and/or work within 0.5 mile of
a bald or golden eagle nest, regardless of whether the nest is active
or inactive. The Coalition shall also follow the guidelines for
avoiding and minimizing impacts set out in the Utah Field Office
Guidelines for Raptor Protection from Human and Land Use Disturbances
for the protection of bald and golden eagles, as applicable.
BIO-MM-12. Rail employees engaged in routine rail line inspections
that observe carcasses along the rail line shall remove carcasses away
from the rail line to minimize potential eagle strikes. Carcass data
shall be recorded, including species, location, and number, and
submitted to UDWR. The Coalition will consult with UDWR to determine
the best way to submit this data and the frequency at which it will be
transmitted.
BIO-MM-13. The Coalition shall abide by the BLM Utah Greater Sage-
Grouse Approved Resource Management Plan Amendment for approved Action
Alternatives that affect BLM land, and will follow the reasonable
requirements of the Utah Conservation Plan for Greater Sage-Grouse.
BIO-MM-14. During project-related construction, the Coalition shall
employ ecologically sound methods to remove all cleared vegetation and
green debris from construction areas, including trees from woodland and
timber clearing. On lands managed by federal, state, or tribal
agencies, the Coalition shall consult with the appropriate agencies
regarding methods for removal or cleared vegetation and green debris
and shall implement those agencies' requirements.
BIO-MM-15. Prior to any project-related construction, the Coalition
shall consult with the appropriate County Weed Boards/Departments and
the Ute Indian Tribe to develop and implement a plan to address the
spread and control of nonnative invasive plants during project-related
construction. For any construction activities on lands managed by
federal, state, or tribal agencies, the Coalition shall seek input on
the plan from the appropriate land management agency. The plan shall
incorporate the reasonable requirements and recommendations of those
agencies and shall identify and address (1) planned seed mixes, (2)
weed prevention and eradication procedures, (3) equipment cleaning
protocols, (4) revegetation methods, (5) protocols for monitoring
revegetation, and (6) ongoing inspection of the rail right-of-way for
noxious weeds and invasive species during rail operations.
BIO-MM-16. If the Surface Transportation Board (Board) authorizes
the Indian Canyon Alternative or Whitmore Park Alternative, the
Coalition shall comply with the reasonable mitigation conditions
imposed by the Forest Service in any special use permit allowing the
Coalition to cross National Forest System Lands, including complying
with the USDA Forest Service Guide to Noxious Weed Prevention Practices
and the Ashley National Forest Noxious Weeds Management Supplement.
BIO-MM-17. Prior to any project-related construction, the Coalition
shall consult with the Ute Indian Tribe, USFWS, and UDWR to develop and
implement a reclamation and revegetation plan for areas that would be
temporarily disturbed by construction activities. For any construction
activities on lands managed by federal, state, or tribal agencies, the
Coalition shall seek input on the plan from the appropriate agency. The
reclamation and revegetation plan shall incorporate the reasonable
requirements and recommendations of those agencies and shall clearly
identify and address (1) the areas to be reclaimed and revegetated; (2)
the proposed reclamation and revegetation materials, methods, and
timing; and (3) the proposed monitoring schedule and contingency plans.
BIO-MM-18. The Coalition shall not use bird hazing (or scaring)
techniques around documented leks in the Carbon SGMA during
construction.
BIO-MM-19. The Coalition shall consult with the Ute Indian Tribe,
UDWR, OEA, and appropriate land management agencies to develop and
implement a big game movement corridor crossing plan. The plan shall
address the need for dedicated big game crossings of the rail line, the
need to limit fencing (if applicable), and the need for additional data
collection. The plan shall specifically evaluate the use of big game
overpasses or underpasses (including standards for design), wildlife
friendly fencing, reduced train speeds in high-risk areas, and sound
signaling and sound barriers in collision hotspots. The plan shall use
the latest available big game movement corridor data from UDWR and the
Ute Indian Tribe.
BIO-MM-20. The Coalition shall comply with the provisions of the
Final Mitigation Approach and Agreement for Potential Impacts to
Greater Sage-grouse executed by the Coalition and UDWR.
Geology, Soils, Seismic Hazards, and Hazardous Waste Sites
GEO-MM-1. The Coalition shall design and construct the rail line to
balance cut and fill earthwork quantities, to the extent practicable,
in order to minimize the quantities of materials required to be
excavated, transported, or placed off site.
GEO-MM-2. The Coalition shall conduct geotechnical investigations
to identify soils and bedrock in cut areas with potential for mass
movement or slumping. The geologic hazard investigations shall be
conducted in accordance with Utah Geological Survey Circular 122. Where
appropriate, the Coalition shall implement engineering controls to
avoid mass movement or slumping. If mass movement or slumping of soils
or bedrock occurs during project-related construction, the Coalition
shall promptly institute appropriate remedial actions. The Coalition
shall periodically monitor the railbed during operations to identify
changes related to use, cumulative effects of weight and vibration, and
changes in underlying soils to prevent deterioration from settling,
deformation, collapse, and erosion.
GEO-MM-3. The Coalition shall conduct geotechnical investigations
to identify areas within the rail right-of-way where soils with high
corrosivity to concrete or steel could affect the rail line. The
Coalition shall implement appropriate site-specific measures to address
the soil corrosivity in areas identified during the geotechnical
investigations, potentially including replacing soils with high
corrosivity with non-corrosive engineered soils, as applicable. If soil
materials are removed and replaced due to corrosivity to steel or
concrete, the Coalition shall consult with the appropriate land
management agencies to determine the sites for disposal and the
appropriate replacement soil materials. All replacement soil materials
shall be certified weed-free engineered material, or shall be checked
for the presence of weeds and sprayed for weeds to prevent bringing in
invasive species.
GEO-MM-4. The Coalition shall conduct geotechnical studies to
identify unmapped abandoned mines that could affect the rail line and
shall take actions to appropriately stabilize areas where unmapped
mines are identified.
GEO-MM-5. The Coalition shall conduct geotechnical investigations
to identify areas within the rail right-of-way that are at risk of
seismically
[[Page 72389]]
induced liquefaction. The geologic hazard investigations shall be
conducted in general accordance with Utah Geological Survey Circular
122. The Coalition shall implement appropriate site-specific measures
to minimize the risk of liquefaction in areas identified during the
geotechnical investigations, including replacing soils subject to
liquefaction with engineered soils that are not prone to liquefaction,
as applicable. If soil materials are removed and replaced due to
liquefaction hazards, the Coalition shall consult with the appropriate
land management agencies to determine the sites for disposal and the
appropriate replacement soil materials. All replacement soil materials
shall be certified weed-free engineered material, or shall be checked
for the presence of weeds and sprayed for weeds to prevent bringing in
invasive species.
GEO-MM-6. The Coalition shall design and construct any tunnels in
accordance with applicable OSHA guidelines for underground construction
(OSHA 2003). Conformance shall include ventilation, air monitoring, and
emergency procedures.
GEO-MM-7. In consultation with applicable land management agencies
and other agencies with expertise in avalanche mitigation, the
Coalition shall identify areas with a high risk of snow slab avalanche
that have the potential to affect the rail line and investigate the use
of nonstructural and structural methods to control the effects of slab
avalanches. Nonstructural methods can include triggering and closures.
Structural methods can include avalanche dams and retarding structures,
starting zone structures, and avalanche sheds.
GEO-MM-8. Prior to construction, the Coalition shall conduct
geophysical investigations to identify risks associated with the
Duchesne-Pleasant Valley fault that could affect the rail line.
Noise and Vibration
NV-MM-1. Before undertaking any project-related construction
activities, the Coalition shall, with the approval of OEA and in
consultation with appropriate tribal and local agencies, develop and
implement a construction noise and vibration control plan to minimize
project-related construction noise and vibration affecting residences
along the rail line, including noise and vibration from general
construction equipment, specialized equipment, and tunnel construction.
For tunnel construction in particular, the plan shall include estimates
of construction noise and vibration levels and identify measures that
shall be taken if predicted construction noise or vibration levels
exceed Federal Transit Administration (FTA) criteria. The Coalition
shall also conduct noise and vibration monitoring for receptors that
would exceed FTA criteria. The Coalition shall designate a noise
control officer to develop the construction noise and vibration plan,
whose qualifications shall include at least 5 years of experience with
major construction noise projects, and board certification from the
Institute of Noise Control Engineering or registration as a
Professional Engineer in Mechanical Engineering or Civil Engineering.
NV-MM-2. The Coalition shall minimize, to the extent practicable,
construction-related noise disturbances in residential areas. The
Coalition shall avoid nighttime construction and pile-driving near
residential areas and employ quieter vibratory pile-driving or noise
curtains for project-related construction where FTA construction noise
criteria are exceeded.
NV-MM-3. In consultation with OEA and appropriate tribal and local
agencies, the Coalition shall employ reasonable and feasible noise
mitigation for receptors that would experience noise impacts at or
greater than the regulatory analytical threshold of 65 day-night
average sound level (DNL) and an increase of 3 A-weighted decibels
(dBA). The design goal for noise mitigation shall be a 10 dBA noise
reduction. Using industry standard loudspeaker testing, the building
sound insulation performance shall be determined in accordance with
ASTM 966-90, Standard Guide for Field Measurements of Airborne Sound
Insulation of Building Facades and Fa[ccedil]ade Elements. The
calculated noise reduction shall be at least 5 dBA. Should the
calculated noise reduction be less than 5 dBA then no mitigation is
warranted as the receptor has sufficient sound insulation.
NV-MM-4. The Coalition shall install and properly maintain rail and
rail beds on the rail line according to American Railway Engineering
and Maintenance of Way Association standards and shall regularly
maintain locomotives, keeping mufflers in good working order to control
noise. The Coalition shall install rail lubrication systems at curves
along the rail line where doing so would reduce noise associated with
wheel squeal for residential or other noise-sensitive receptors. The
Coalition shall regularly inspect and maintain rail car wheels on
trains that operate on the rail line in good working order and minimize
the development of wheel flats (where a round wheel is flattened,
leading to a clanking sound when a rail car passes).
Air Quality
AQ-MM-1. In consultation with the TriCounty Health Department and
the Ute Indian Tribe as applicable, the Coalition shall implement
appropriate fugitive-dust controls such as spraying water or other dust
treatments to reduce fugitive-dust emissions created during project-
related construction activities. During project-related construction,
the Coalition shall ensure that construction contractors offer workers
daily transportation to the work site from a central location to
minimize vehicular traffic on unpaved roads in the area and thereby
reduce exhaust emissions and fugitive dust.
AQ-MM-2. The Coalition shall ensure that all engine-powered
equipment and vehicles used in construction, operation, and maintenance
of the rail line are subject to a regular inspection and maintenance
schedule in order to minimize air pollutant emissions, greenhouse gas
emissions, and fuel consumption. Preventive maintenance activities
shall include, but shall not be limited to, the following actions:
Replacing oil and oil filters as recommended by
manufacturer instructions.
Maintaining proper tire pressure in on-road vehicles.
Replacing worn or end-of-life parts.
Scheduling routine equipment service checks.
AQ-MM-3. The Coalition shall develop and implement an anti-idling
policy for both rail construction and operations and ensure that
equipment operators receive training on best practices for reducing
fuel consumption to reduce project-related air emissions. The anti-
idling policy shall include required warm-up periods for equipment and
prohibit idling beyond these periods. The policy shall define any
exceptions where idling is permitted for safety or operational reasons,
such as when ambient temperatures are below levels required for
reliable operation. In addition, the policy shall include provisions
addressing the use of technologies such as idle management systems or
automatic shutdown features, as appropriate.
AQ-MM-4. During project-related construction, the Coalition shall
require that construction contractors use renewable diesel fuel to
minimize and control greenhouse gas emissions from diesel-fueled
construction equipment and on-road diesel trucks, to the extent
practicable. Renewable diesel refers to biofuel that is chemically
identical to
[[Page 72390]]
diesel derived from petroleum, meets the most recent ASTM D975
specification for Ultra Low Sulfur Diesel, and has a carbon intensity
no greater than 50 percent of traditional diesel. If the Coalition
believes that renewable diesel is not available at a reasonable price
from suppliers within 200 miles of the construction site, the Coalition
may request an exemption from OEA to instead require construction
contractors use traditional diesel fuel with the highest biodiesel
content reasonably available. The Coalition shall document the
availability and price of renewable diesel to meet project demand in
consultation with OEA.
AQ-MM-5. The Coalition shall consider procuring alternative engine
and fuel technologies, e.g., hybrid-electric diesel equipment, for
construction and operation of the rail line to reduce greenhouse gas
emissions.
AQ-MM-6. The Coalition shall evaluate the feasibility of installing
solar and wind microgeneration technologies on site offices, lodgings,
and other project-related facilities to reduce the use of grid or
privately generated electricity to reduce greenhouse gas emissions. As
part of its evaluation, the Coalition shall consider the suitability of
site conditions and location of solar and wind generation and the
technical and economic feasibility of supplementing site electricity
demands with renewable power.
AQ-MM-7. The Coalition shall post signage and/or fencing during
project-related construction, including tunnel construction, to ensure
that members of the public would be unable to enter areas within the
construction easement that could experience temporary adverse air
quality impacts.
AQ-MM-8. To the extent practicable, the Coalition shall avoid
conducting project-related construction activities that could result in
the emission of ozone precursors within the Uinta Basin Ozone
Nonattainment Area in January and February to minimize emissions of
ozone precursor chemicals in the nonattainment area. Construction-
related activities covered by this measure include the use of diesel-
powered construction equipment and the transportation by truck of
materials to construction sites. If the Coalition believes that
project-related construction activities that could result in the
emission of ozone precursors in the Uinta Basin Ozone Nonattainment
Area during January and February cannot practically be avoided during
one or more years of the construction period, the Coalition shall
consult with OEA and UDEQ's Air Quality Division to identify and
implement other appropriate ozone-reduction activities for those
months.
Energy
ENGY-MM-1. The Coalition shall design any project-related road
realignments to allow continued vehicle access to existing fixed energy
facilities, such as oil pads, during and following construction of the
rail line. The Coalition shall work with the owners of the energy
facilities to coordinate continued access during construction and rail
operations.
ENGY-MM-2. The Coalition shall ensure that any oil and gas-
producing wells within the rail right-of-way are plugged and abandoned
in accordance with Utah Administrative Code Rule R649-3-24, Plugging
and Abandonment of Wells. The Coalition shall consult with the Utah
Division of Oil, Gas, and Mining prior to undertaking any construction
activities that could affect existing wells and shall follow that
agency's reasonable recommendations regarding appropriate safety
procedures for the abandonment of wells.
ENGY-MM-3. The Coalition shall design any crossings or relocations
of pipelines or electrical transmission lines in accordance with
applicable Utah Division of Public Utilities' regulations and
guidelines. The Coalition shall consult with appropriate utility
providers to develop a plan to ensure that construction activities that
could affect existing electrical transmission lines or energy pipelines
avoid any interruption of utility service to customers to the extent
possible.
ENGY-MM-4. The Coalition shall consult with oil and gas operators
of existing facilities (e.g., wells, well pads, gathering pipelines,
access roads) that would be affected by construction and operation of
the rail line during the final engineering and design phase for the
rail line and prior to undertaking project-related construction
activities to develop appropriate measures to mitigate impacts on these
facilities. These measures may include, but are not limited to,
adjusting the location of construction activities to avoid oil and gas
facilities or relocating the facilities if impacts cannot be avoided
during construction and operations.
Paleontological Resources
PALEO-MM-1. The Coalition shall contract with a qualified
paleontologist to develop and implement a paleontological resources
monitoring and treatment plan to mitigate potential impacts on
paleontological resources on lands classified as Potential Fossil Yield
Classification 3, 4 or 5. The plan shall include the following
requirements:
A preconstruction survey where appropriate to describe and recover
paleontological resources found on the surface.
Monitoring of ground-disturbing activities during construction to
recover paleontological resources, including inspection of spoils piles
created by tunnel construction.
Identification, preparation, and documentation of fossils collected
during surveys or monitoring.
Curation and deposition of significant paleontological resources
into a federally approved repository.
Increasing public awareness about the scientific importance of
paleontological resources by developing web-based education material,
interpretive displays, or other means.
Land Use and Recreation
LUR-MM-1. The Coalition shall consult with the Ute Indian Tribe
during the final engineering and design phase of the rail line and
prior to undertaking any project-related construction to ensure that
construction and operation of the rail line would not significantly
impact land uses on land under the tribe's jurisdiction.
LUR-MM-2. The Coalition shall implement any mitigation measures
imposed by the Ute Indian Tribe as a condition of a right-of-way across
Tribal trust lands.
LUR-MM-3. If the Indian Canyon Alternative or the Wells Draw
Alternative is authorized by the Board, the Coalition shall adhere to
the reasonable mitigation conditions imposed by BLM in any right-of-way
granted by BLM allowing the Coalition to cross BLM lands and shall
ensure that construction and operation of the rail line is in
compliance with applicable Resource Management Plans, including any
potential amendments to those plans, for BLM lands that the rail line
would cross.
LUR-MM-4. If the Indian Canyon Alternative or the Whitmore Park
Alternative is authorized by the Board, the Coalition shall adhere to
the reasonable mitigation conditions imposed by the Forest Service in
any special use permit allowing the Coalition to cross National Forest
System Lands. These reasonable mitigation conditions may include
identifying areas where use and storage of petroleum products,
herbicides, and other hazardous materials should be avoided during
construction and operation. Conditions may also include avoiding or
minimizing impacts on horse pastures to maintain adequate
[[Page 72391]]
pasture size and replacing pasture fences removed during construction,
as determined appropriate through consultation with the Forest Service.
The Coalition shall consult with the Forest Service to ensure that
construction and operation of the rail line complies with Ashley Forest
Land and Resource Management Plan, including any existing or potential
amendments to that plan, and with the Forest Service 2001 Roadless
Rule.
LUR-MM-5. The Coalition shall adhere to the reasonable mitigation
conditions imposed by the State of Utah School and Institutional Trust
Lands Administration (SITLA) in any right-of-way grant allowing the
Coalition to cross SITLA lands.
LUR-MM-6. If the Indian Canyon Alternative or the Whitmore Park
Alternative is authorized by the Board, the Coalition shall obtain a
right-of-way from the U.S. Bureau of Indian Affairs (BIA) to cross
Tribal trust lands and shall implement the reasonable terms and
conditions imposed by BIA in any decision granting a right-of-way on
Tribal trust lands.
LUR-MM-7. Prior to project-related construction, the Coalition
shall consult with BLM, the Forest Service, the Ute Indian Tribe,
SITLA, and local agencies as appropriate, to develop a plan to limit,
to the extent practicable, impacts on recreational resources under
those agencies' management or jurisdiction, including roads used for
recreation and recreational site access. The Coalition shall also
consult with private landowners to develop appropriate measures to
mitigate impacts on land uses and recreational activities on private
land. The Coalition shall develop the plan prior to completing the
final engineering plans for the rail line and following the above-
mentioned consultation to determine the location of all public roads
used as access points to a recreation area that would be crossed by the
rail line. The plan shall designate temporary access points if main
access routes must be obstructed during project-related construction.
The plan shall also include the number and location of access points as
decided during consultation with the applicable agencies.
LUR-MM-8. The Coalition shall coordinate with owners of properties
used for recreation during project-related right-of-way acquisition
negotiations to provide adequate private road at-grade crossings to
ensure that recreationists maintain access to and movement within
recreational properties and areas. The Coalition shall coordinate with
UDWR, the Ute Indian Tribe, SITLA, BLM, and the Forest Service, as
appropriate, to develop reasonable measures to maintain access to
hunting and recreation access points.
LUR-MM-9. The Coalition shall consult with appropriate land
management agencies to develop appropriate measures to mitigate impacts
of construction and operation of the rail line on grazing allotments on
public lands. These measures could include improving forage production
in other areas of affected allotments through implementation of
vegetation treatment projects, including sagebrush reduction treatments
and/or seedings, to increase forage production and maintain
preconstruction carrying capacity.
LUR-MM-10. The Coalition shall install cattle guards, livestock
exclusion fencing, or other design features, as appropriate, within
grazing areas along the rail line to prevent livestock from entering
rail tunnels or congregating at tunnel entrances or in other areas in
the rail right-of-way that could be hazardous to livestock. The
Coalition shall work with landowners and land management agencies, as
applicable, to identify appropriate locations for cattle guards,
fencing, and other design features and to plan for ongoing maintenance
of any of these features.
LUR-MM-11. The Coalition shall consider installing cattle
underpasses along the right-of-way, as appropriate and practical. These
underpasses could also be used by wildlife. The Coalition shall work
with landowners to identify appropriate locations for cattle passes.
LUR-MM-12. The Coalition shall coordinate with landowners and
holders of conservation easements crossed by the rail line to develop
appropriate measures to mitigate impacts of construction and operation
of the rail line on affected conservation easements.
Visual Resources
VIS-MM-1. The Coalition shall install visual barriers, as
appropriate, to obstruct views of project-related construction
activities and to maintain the privacy of adjacent landowners.
VIS-MM-2. The Coalition shall direct nighttime lighting, if used
during construction, onto the immediate construction area during
project-related construction to minimize impacts from shining lights on
sensitive viewers, sensitive natural resource areas, recreational
areas, and roadway or trail corridors.
VIS-MM-3. During project-related construction, the Coalition shall
grade contours to create slopes with undulations and topographical
variations that mimic natural terrain, where possible. If this grading
practice results in larger areas of cut or fill that would further
degrade natural features of scenic value, the Coalition shall not
implement this measure at those locations. For example, a steeper cut
slope may be more desirable than removing many trees to create more
rounded terrain. The Coalition shall grade and restore roadbeds that
are abandoned because of roadway relocation due to project-related
construction to mimic the adjacent natural landscape and revegetate the
roadway surface.
VIS-MM-4. The Coalition shall design bridges, communications
towers, and other project-related features to complement the natural
landscape and minimize visual impacts on the landscape. To the extent
practicable, the Coalition shall use paint colors that are similar to
colors in the surrounding landscape and shall implement design features
that mimic natural materials (e.g., stone or rock surfacing) and colors
to reduce visibility and to blend better with the landscape.
VIS-MM-5. If the Board authorizes construction and operation of the
Indian Canyon Alternative or Whitmore Park Alternative, the Coalition
shall implement the reasonable requirements of any Forest Service
decision permitting the rail line within Ashley National Forest and
shall ensure that construction and operation on National Forest System
lands complies with the requirements for visual resources management in
Ashley National Forest Land and Resource Management Plan, including any
potential amendments to that plan.
VIS-MM-6. If the Board authorizes the Indian Canyon Alternative or
the Wells Draw Alternative, the Coalition shall consult with BLM during
all phases of project design to ensure that construction and operation
of the rail line on BLM lands would be in compliance with all
applicable BLM Visual Resource Management requirements and procedures.
The Coalition shall incorporate visual design considerations into the
design of the rail line on BLM lands; undertake additional visual
impact analyses on BLM lands, as appropriate, in consultation with BLM
and considering applicable BLM Visual Resources Inventories; and
implement appropriate measures to mitigate visual impacts on BLM lands,
as requested by BLM.
VIS-MM-7. If the Board authorizes the Indian Canyon Alternative or
the Wells Draw Alternative, the Coalition shall, in consultation with
BLM, implement appropriate additional measures to minimize light
pollution on BLM lands, potentially including limiting the height of
light poles,
[[Page 72392]]
limiting times of lighting operations, limiting wattage intensity for
lighting, and constructing light shields, as applicable.
VIS-MM-8. The Coalition shall implement the requirements of the Ute
Indian Tribe regarding the design of the rail line on Tribal trust
lands for minimizing visual disturbances to Tribal trust lands.
Socioeconomics
SOCIO-MM-1. The Coalition shall negotiate compensation--for direct
loss of agricultural land in the right-of-way and the indirect loss of
agricultural land from severance--with each landowner whose property
would be affected by construction and operation of the rail line,
consistent with applicable state law. The Coalition shall assist
landowners in developing alternative agricultural uses for severed
land, where appropriate. The Coalition shall apply a combination of
alternative land use assistance and compensation as agreed upon during
right-of-way negotiations, pursuant to state law. Where capital
improvements are displaced by construction or operation of the rail
line, the Coalition, in consultation with the landowner and relevant
agencies, such as water districts or the local Natural Resources
Conservation Services office, shall relocate or replace these
improvements or provide appropriate compensation based on the fair
market value of the capital improvements being displaced, consistent
with applicable state law.
SOCIO-MM-2. The Coalition shall consult with landowners to limit
the loss of access to properties during rail construction. The
Coalition also shall consult with landowners to determine the location
of property access roads that would be crossed by the rail line. The
Coalition shall install temporary property access points for landowner
use if main access routes must be obstructed during project-related
construction. The Coalition shall coordinate with landowners while
negotiating the railroad right-of-way easement to identify key access
points that would be affected by construction and operation of the rail
line. The Coalition shall install at-grade crossings and relocate roads
to maintain adequate access to and movement within properties after
rail operations begin.
Environmental Justice
EJ-MM-1. The Coalition shall consult with the Ute Indian Tribe
regarding potential impacts on the Pariette cactus and Uinta Basin
hookless cactus and shall abide by the requirements of the tribe's
Sclerocactus Management Plan and the tribe's other requirements and
recommendations for project-related activities on Tribal trust lands,
which may include soil assessments, complying with mitigation measures
to be developed in consultation with the tribe, and contributing to a
conservation mitigation fund, as appropriate.
EJ-MM-2. The Coalition shall consult with the Ute Indian Tribe
regarding the final design of the rail line, including the locations
and designs of rail-related features, such as sidings, communications
towers, culverts, bridges, and warning devices, to ensure that impacts
on tribal members and land and resources under the tribe's jurisdiction
are minimized.
Monitoring and Compliance
MC-MM-1. The Coalition shall submit quarterly reports to OEA on the
progress of, implementation of, and compliance with all Board-imposed
mitigation measures. The reporting period for these quarterly reports
shall begin on the date of the Board's final decision authorizing the
project until 1 year after the Coalition has completed project-related
construction activities. The Coalition shall submit copies of the
quarterly reports within 30 days following the end of each quarterly
reporting period and distribute the reports to appropriate federal,
state, local, and tribal agencies, as specified by OEA.
[FR Doc. 2021-27560 Filed 12-20-21; 8:45 am]
BILLING CODE 4915-01-P