OLF Updates~
Waterfowl Gain Victory!The Navy has announced that they are no longer considering the site adjacent to Pocossin Lakes National Wildlife Refuge, where tens of thousands of tundra swans and snow geese overwinter, as a site for the construction of a practice landing field for jet planes.
NCWF has been a plaintiff in this case and fought hard-thanks to all of you who supported this wildlife issue and assisted in seeing its final positive outcome!
NAVY STATEMENT REGARDING SECNAV OLF ANNOUNCEMENT JANUARY 22, 2008
The Secretary of the Navy and Chief of Naval Operations’ staffs have reviewed U.S. Fleet Forces Command’s assessment of new information provided by State officials in North Carolina and Virginia about locations that potentially meet Navy Outlying Landing Field (OLF) requirements.
The Navy commends Virginia and North Carolina leadership for their cooperation in collecting and providing new information about locations within their respective States. Their involvement in this process has been instrumental in facilitating the Navy’s careful consideration of the public comments on the draft Supplemental Environmental Impact Statement.
After thorough review of the new information provided by the states, and a similarly thorough reassessment of the Navy’s operational requirements, the Navy has decided, under the National Environmental Policy Act, to terminate the current draft Supplemental Environmental Impact Statement, and initiate a new Environmental Impact Statement (EIS) to analyze the impacts of construction and operation of an OLF at five new potential OLF sites to support Field Carrier Landing Practice training requirements for all Carrier Air Wing aircraft based at NAS Oceana and Naval Station Norfolk, Virginia. Three of the sites are in Virginia, and two are in North Carolina. The Virginia sites include Cabin Point (formerly known as sites 2A, B and C in the information provided by Virginia officials), Dory (formerly known as site 3A) and Mason (formerly site known as site 3B). The North Carolina sites to be considered are Hale’s Lake in Camden and Currituck Counties, and Sandbanks in Gates County. Based on our evaluation of available information, these sites each have operational, environmental, and population characteristics that make them viable site alternatives for further analysis.
The five sites analyzed in the draft Supplemental Environmental Impact Statement (Bertie, Craven, Hyde, Perquimans and Washington/Beaufort Counties, NC) are no longer under consideration as potential OLF sites. The Navy will hold public scoping meetings on the new Environmental Impact Statement (EIS) in Spring 2008. A Federal Register notice is being developed that will announce opportunities for the public to provide input and propose additional sites for the new EIS. That notice is scheduled to be published in March/April 2008.
These five alternative sites, as well as the no action alternative, will be fully evaluated in a new EIS in compliance with the National Environmental Policy Act before making any further decision on constructing an additional OLF. This analysis is expected to take about 30 months to complete.
Throughout this process the Navy will continue to work closely with the Commonwealth
of Virginia and the State of North Carolina on these new sites and the Congress
on this matter. The Navy believes that by working with state and local officials,
we can understand their perspective on the issues and seek common ground on
ways to mitigate impacts and identify potential benefits.
The proposed site for building a landing field-Washington
County, NC near the Pocossin Lakes National Wildlife Refuge, has been once
and for all denied!
*The proposed area was established specifically as a waterfowl sanctuary
where thousands of birds winter annually. At peak, there are about 25,000
tundra swans and more than 65,000 snow geese which regularly overwinter.
This is extremely welcomed news. NCWF appreciates all the support in fighting
this ill-conceived location and remains steadfast in our resolve to advocate
for the protection of our state's National Wildlife Refuges (and all public
lands) for wildlife!
The House of Representatives passed legislation that effectively shuts the
door on this location.
The following is the language contained in the Defense Authorization from
Division B; Title XXII-Navy; page 1219.
Repeal of authorization for construction of Navy outlying landing field, Washington County, North Carolina (Sec. 2207)
The House bill contained a provision (sec. 2205) that would amend section 2201(a) of the Military Construction Authorization Act of Fiscal Year 2004 (Public Law 108-136), as amended, and section 2201(a) of the Military Construction Authorization Act for Fiscal year 2005 (Public Law 108-375), as amended, to repeal the authority for construction of an outlying landing field at Washington County, North Carolina.
House Axes Washington County OLF Site
Wednesday, Dec 12, 2007 - 05:30 PM Updated: 06:26 PM
By Press Release
Washington, D.C. - In approving the annual defense authorization bill today,
Congressman G. K. Butterfield said the House closed the door on the Navy's
proposed outlying landing field in Washington County.
"The House has taken the Washington County site off the table because
it posed a danger to the community, pilots and aircraft," Butterfield
said. "This is a clear message that if the Navy wants to move forward
with an OLF it must have the support of the community."
The conference report on the FY 2008 National Defense Authorization Bill includes
language repealing "the authority for construction of an outlying landing
field at Washington County, North Carolina." The language goes on to
say conferees "expect the Department of the Navy to request new authorization
for an outlying field once a study of the impact to the environment is complete
and a site is selected."
The House approved the bill by a 370 to 49 vote. The bill now goes to the
Senate for an up or down vote, and, if approved, it goes to President Bush
to be signed into law.
The Navy has already purchased more than 2,000 acres in Washington and Beaufort
counties as part of a 30,000-acre OLF the Navy says it needs in order to train
pilots to land on aircraft carriers. The proposed site lies just west of an
area that was established specifically as a waterfowl sanctuary where thousands
of birds winter annually. At peak, there are about 25,000 tundra swans and
more than 65,000 snow geese which regularly fly out to feed in the farm fields
just west of the site.
More recently, the Navy has been working with the states of North Carolina
and Virginia to find an alternative site.
Last month, Butterfield wrote to Navy Secretary Donald C. Winter to express
concerns about sites being considered in Gates and Camden counties. Butterfield
said that while northeastern North Carolina would be asked to bear all the
economic and quality-of-life burdens, Virginia Beach would enjoy all the benefits.
"The small number of new jobs associated with the OLF simply could not
offset the shock to the lifestyle and viability of these communities,"
Butterfield said.
The following is the language contained in the Defense Authorization from
Division B; Title XXII-Navy; page 1219.
Repeal of authorization for construction of Navy outlying landing field, Washington
County, North Carolina (Sec. 2207)
The House bill contained a provision (sec. 2205) that would amend section
2201(a) of the Military Construction Authorization Act of Fiscal Year 2004
(Public Law 108-136), as amended, and section 2201(a) of the Military Construction
Authorization Act for Fiscal year 2005 (Public Law 108-375), as amended, to
repeal the authority for construction of an outlying landing field at Washington
County, North Carolina.
The Senate amendment contained no similar provision.
The Senate recedes.
The conferees expect the Department of the Navy to request new authorization
for an outlying field once a study of the impact to the environment is complete
and a site is selected.
Washington Daily News
Posted Friday October 19, 2007
Local News
Study group to hold hearing amidst opposition to OLF
Northeastern counties resolve against Navy's practice field
By DAN PARSONS, Staff Writer
http://www.wdnweb.com/articles/2007/10/18/news/news01.txt
The task force assembled by Gov. Mike Easley to study sites for a proposed
outlying landing field in North Carolina is helping the Navy "measure
the temperature of the neighborhood" in the northeastern part of the
state.
The OLF Study Group, reassembled in September after a three-year hiatus, is
holding its own public hearing Tuesday at Elizabeth City State University
from 3 p.m. until 8 p.m. to hear what residents in that part of the state
have to say about an OLF in their backyards.
"Our hope is that we will get the same sort of citizen input that we
have gotten from other hearings on the OLF," study group chairman and
N.C. Court of Appeals Chief Judge Sidney Eagles Jr. said in a telephone interview
Wednesday. "We're trying to set it so everyone, especially the folks
that work for a living, can have their voices heard."
The N.C. Department of Environment and Natural Resources is also accepting
comments about the proposed OLF sites by e-mail at olfstudygroup@ncmail.net.
The hearing comes in the wake of sweeping political opposition to four of
six new sites proposed by the Navy and DENR at the study group's meeting last
month.
Two of the newly proposed sites, Sandbanks and Hales Lake are in Gates County
and two are in Camden County in the northeast portion of the state. Two others
are in southeastern North Carolina. They are Angola Bay Gamelands in Duplin
and Pender counties and Hofman Forest, land owned primarily by North Carolina
State University in Jones and Onslow counties.
Rear Adm. David Anderson, the Navy's top officer on the OLF project, has said
his goal is to find a viable alternative to the Navy-preferred Site C in Washington
and Beaufort Counties.
That site came under intense fire from the state's congressional delegation
and environmental agencies because of the possible social and economic impact
of an OLF there and its proximity to the Pocosin Lakes National Wildlife Refuge,
a wintering spot for hundreds of thousands of migratory waterfowl. The Navy
also heard overwhelming opposition to that and four other proposed sites in
eastern North Carolina during a series of court-mandated public hearings in
March and April.
Representatives from state environmental groups gave a tentative OK to the
six new sites at the study group's second meeting Oct. 4. But local political
opposition has sprung up in northeastern North Carolina, mirroring local reaction
to Site C.
Commissioners in Pasquotank and Currituck counties both adopted resolutions
Monday opposing an outlying landing field in neighboring counties.
They join Camden, Hertford, Perquimans, Gates and Chowan counties, which have
all adopted resolutions opposing an OLF in their counties since the new sites
were announced.
Despite that opposition, Eagles said the study group will continue to perform
the task it was given by Gov. Easley - to provide a funnel for information
between state residents, Gov. Easley and the Navy.
"We're want to help the Navy get the temperature of the neighborhood,
so to speak," Eagles said. "We want to provide a forum to let the
Navy hear what they people have to say and what's on their hearts in a non-threatening
environment. They don't let us choose."
The OLF Study Group has also set its next meeting in Raleigh for Nov. 1 at
10 a.m. at the administration building, 116 W. Jones Street.
Charlotte Observer
Posted on Tue, Sep. 25, 2007
Observer forum: Letters to editor
http://www.charlotte.com/opinion/story/291744.html
Does Navy really need problematical OLF?
The writer is deputy director, conservation programs, N.C. Wildlife Federation.
In response to "Navy's new attitude" (Sept. 20 editorial):
The Observer rightly welcomes the Navy's new willingness to "cooperate
with state and local officials to find a site that fills the Navy's needs
and avoids environmental problems or displacing large numbers of local residents."
Hunters, birders, wildlife enthusiasts and others outraged by the Navy's doggedness
in trying to situate a practice landing field adjacent to Pocosin Lakes National
Wildlife Refuge, along with state and federal elected officials, certainly
hope for such a positive outcome.
How the Navy got to this new stance matters not -- whether from litigation,
public outcry or political pressures. What does matter is that it is now heeding
N.C. officials in determining a suitable location.
And let's remember, as you note, the Navy "must show it still needs a
landing field."
Tim Gestwicki
Raleigh, NC - Tuesday,
September 18, 2007
Six new North Carolina potential OLF sites unveiled
Two of the North Carolina sites are in Camden County, two are in Gates County and a fifth is at Hofmann State Forest on the Jones-Onslow county border. The last straddles the Duplin-Pender county line at the Angola Bay game lands.
1. Moyock
2. Sandbanks
3. Northwest River
4. Old Railroad Grade
5. Hofmann State Forest
6. Angola Bay
Click here to see the full Washington Daily News article http://noolf.com/index.cfm/sid.356/nid.1925/do.s?PAGENUM_GET=1
NCWF opposes Navy preferred site for landing field. Birds, red wolves and Wildlife Refuge impacts would be significant
May 9, 2007
Naval Facilities Engineering Command
Attn: OLF SEIS Project Manager, Code EV21
North Hampton Blvd.
Norfolk, VA 23508-1278
Re: Draft Supplemental Environmental Impact Statement (SEIS) for the Introduction of F/A-18 E/F (Super Hornet) Aircraft to the East Coast of the United States (Construction and Operation of an Outlying Landing Field) (February 2007)
Dear Project Manager:
These comments on the above referenced DSEIS are submitted on behalf of the National Audubon Society, Defenders of Wildlife, and North Carolina Wildlife Federation. These organizations represent hundreds of thousands of citizens interested in the conservation of wildlife and protection of wildlife habitat, including components of the national wildlife refuge system. The organizations, along with Washington and Beaufort Counties, challenged the Navy's FEIS on this project because it failed to take the required "hard look" at the impacts of the proposed OLF at Site C. Unfortunately, the Navy has again failed to adequately assess the impacts and objectively consider alternative sites, and identified Site C as its preferred alternative, despite clear evidence that the site poses unacceptable risks to pilots from collisions with waterfowl and unacceptable impacts to waterfowl and the nearby National Wildlife Refuge from the drastic measures that will be necessary to attempt to address the Bird Aircraft Strike Hazard (BASH) risk.
As discussed in detail below, the DSEIS again fails to adequately assess
and candidly acknowledge the impacts of the proposed OLF on waterfowl and
the refuge, as NEPA and the courts require. The U.S. Fish & Wildlife Service
(USF&WS), a cooperating agency in the preparation of the DSEIS, see 40
C.F.R. § 1501.6, has taken the extraordinary step of rejecting the conclusions
of its own environmental document. The Navy's analysis in the DSEIS can not
support its conclusions that the BASH risk can be managed and that impacts
to waterfowl and the refuge will be "minor." In addition, construction
and operation of the proposed OLF at Site C will jeopardize the continued
existence of the endangered red wolf by appreciably reducing the likelihood
of recovery of the only extant wild population. The Navy's DSEIS has the following
additional deficiencies that must be corrected:
· The Navy erroneously determines that the proposed OLF at Site C is
consistent with North Carolina's coastal management program.
· The Navy's wetlands analysis is flawed.
· The DSEIS fails to adequately assess cumulative impacts.
· The DSEIS fails to explain how the Navy will mitigate adverse impacts.
· The DSEIS fails to explain and assess the extensive water management
that would be required at Site C.
· The Navy fails to address significant new information in the BRAC
Report bearing directly on the underlying need for the OLF.
· The Navy has failed to fulfill its mandatory environmental justice
obligations.
An objective assessment and consideration of alternative sites for an OLF is a requirement of NEPA. A month prior to publishing the DSEIS, the Navy submitted a budget request to Congress requesting funds for an OLF "to be built in Washington County, NC." The Navy's budget request to Congress confirms again that the Navy continues to attempt to justify a predetermined decision to construct the OLF at Site C rather than objectively explore a range of alternative sites as NEPA requires. We strongly urge the Navy to recognize that Site C is an inappropriate site for construction and operation of an OLF and find an alternative location.
1. The court's ruling
In July 2005, the Fourth Circuit Court of Appeals upheld an injunction prohibiting the Navy from constructing an OLF at Site C until the Navy complies with NEPA. National Audubon Society v. Dep't of the Navy, 422 F.3d 174 (4th Cir. 2005). The court ruled that the Navy failed to take the required "hard look" at the environmental impacts of the proposed OLF, which requires both a "thorough investigation into environmental impacts and forthright acknowledgement of potential environmental harms." Id. at 186, 187. In particular, the court found deficient the Navy's analysis and assessment of the bird aircraft strike hazard (BASH) risk, impacts to waterfowl and the national wildlife refuge, mitigation measures, and cumulative impacts. The Navy's DSEIS is not the thorough evaluation of environmental impacts and the forthright and candid acknowledgement of environmental risks and harms the court required.
With respect to BASH at Site C, the court concluded: "In light of the serious environmental consequences of BASH and the proximity of the proposed OLF to a bird sanctuary, a more extensive investigation into BASH issues was required." Id. at 92. With respect to the Navy's consideration of the scientific literature on the effects of aircraft and noise on waterfowl, the court found: "On the one hand, to the extent the Navy wishes to adhere to its conclusion that impacts on waterfowl would be 'minor,' its investigation falls short of providing adequate support. … On the other hand, to the extent the Navy maintains its investigation was thorough, it has failed to make a forthright acknowledgement of the likely environmental harm. The most relevant literature indicates that the impacts may be much greater." Id. at 194.
2. The DSEIS is not the thorough evaluation and forthright acknowledgement
of impacts and harms to waterfowl and the refuge NEPA and the courts require.
In the DSEIS, the Navy concludes operation of the OLF at Site C will have
"minor" impacts on waterfowl at roosting sites at Pocosin Lakes
NWR, and "moderate" impacts on distribution of waterfowl by removal
of food sources in the agricultural lands surrounding the landing field. To
support these conclusions, the Navy relies on a literature review, noise response
study, and comparative airfield analysis.
a. The Navy failed to adopt the proposals and use the analysis of the expert cooperating agency.
The Navy requested and the USF&WS agreed to be a cooperating agency in the preparation of the SEIS based the special expertise of the USF&WS. As a cooperating agency, federal regulations implementing NEPA require that the Navy use the environmental analysis of the USF&WS in its areas of special expertise:
Upon request of the lead agency, any other Federal agency which has jurisdiction by law shall be a cooperating agency. In addition, any other Federal agency which has special expertise with respect to any environmental issue, which should be addressed in the statement may be a cooperating agency upon request of the lead agency. … The lead agency shall … [u]se the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise, to the maximum extent possible consistent with its responsibility as lead agency.
40 C.F.R. § 1501.6. Through various laws, Congress has charged the USF&WS with managing and conserving the nation's migratory birds, administering a system of wildlife refuges, and protecting and restoring endangered species. The USF&WS is the nation's expert agency on waterfowl and other wildlife, endangered species, and the wildlife refuges it administers.
In a striking indictment of the adequacy of the DSEIS, USF&WS Director Dale Hall issued a thorough critique of the DSEIS on March 17, 2007. Director Hall stated that the USF&WS has continuing concerns regarding loss of foraging habitat for waterfowl, impacts of noise on waterfowl, cumulative impacts to waterfowl, the ability to monitor wildlife resources, effects on endangered red wolves, and the effects of aircraft noise on the integrity of the refuge and the experience of visitors. Director Dale Hall's Statement, Public Hearing regarding the Navy's Proposed Outlying Landing Field in Northeastern North Carolina on March 19, 2007 (Hall Statement). In sum, the USF&WS Director expressed strong concerns about the adequacy of the environmental analysis and disclosure of environmental harms on all the issues the court found deficient in the previous EIS.
Moreover, USF&WS comments on the DSEIS point out the fundamental flaw in the Navy's approach to analyzing impacts of the proposed OLF on waterfowl and the refuge. Rather than accepting the expert cooperating agency's proposal to investigate impacts as instructed by the Council on Environmental Quality's (CEQ) NEPA regulations, the Navy adopted its own inadequate approach and drew conclusions the expert agency concludes the DSEIS can not support.
The Navy's approach to the past year's analysis was to draw on a number of sources of information and expert opinion with some additional investigations, as opposed to an integrated set of specifically designed controlled experiments. This approach, while understandable, can be hampered by a preponderance of small, disconnected, anecdotal or correlational studies as opposed to coherent programs of controlled experiments (Bowles et al., 1991). We continue to believe that the Navy's approach has made it difficult to ascertain the degree to which limitations of a given data set or investigation can be appropriately offset by another.
DSEIS Appendix E, September 25, 2006 letter of U.S. Fish & Wildlife Service at 2.
The fundamentally flawed approach to the Navy's analysis of impacts to waterfowl and the refuge led the USF&WS to conclude the DSEIS is inadequate:
[I]t is our view that the working draft SEIS does not provide sufficient information regarding the effects of the proposed action and potential alternative actions on waterfowl, refuges, and listed species to provide an adequate basis for informed decision-making. In general, it appears clear from the information provided in the working draft that construction and operation of an OLF at Site C or Site D would adversely affect waterfowl. However, the information provided is not sufficient to determine the magnitude of those effects in terms of the continuing ability of the refuges to fulfill their mission, or the availability of practical measures to mitigate those effects.
DSEIS Appendix E, August 3, 2006 letter of U.S. Fish & Wildlife Service at 2.
b. The assessment of the Bird Aircraft Strike Hazard (BASH) is inadequate.
Three former heads of the U.S. Air Force BASH team have examined the bird aircraft strike risk at Site C and concluded it is severe, unmanageable and unacceptable (Ronald Merritt, Col. Jeffrey Short, Dr. Russell DeFusco). These experts agree the proximity of the proposed OLF to large concentrations of waterfowl will result in conditions hazardous to operations and training that will present an unacceptable risk to pilots and severely compromise the facility and the Navy's flying mission. They strongly recommend finding an alternative suitable site.
Despite the warnings and recommendations from these BASH experts that Site C is unacceptable, the Navy proposes extraordinary and destructive measures to attempt to manage the severe bird aircraft strike risk. The proposed plan would remove approximately 17,765 acres of potential waterfowl foraging habitat by prohibiting the growing of corn, wheat and soybeans. Removing the birds' food source would be supplemented by other "standard techniques" including harassment and lethal methods employing toxicants. Bird/wildlife Aircraft Strike Hazard (BASH) Assessments and Conceptual BASH Plans: USDA APHIS WS Technical Report in support of the Supplemental Environmental Impact Statement for a Proposed U.S. Navy Outlying Landing Field in North Carolina.
While the Navy proposes these drastic measures to address the BASH risk at Site C, it has still failed to conduct the required wildlife hazard assessment to have a "complete (i.e., non-conceptual) BASH plan." The stated reason is that a real plan would take a complete annual cycle of monitoring Site C. Yet the Navy has had nearly five years since proposing Site C as its preferred Site and nearly two years after the court's decision finding its BASH analysis inadequate to complete a plan. The Navy still has only a conceptual idea of a range of wreckful measures it will employ in an attempt to address the severe and unacceptable BASH risk at Site C. This is not the thorough and thoughtful analysis of the BASH risk at Site C the court required.
c. The Navy continues to misuse scientific studies.
The court rejected the Navy's assertion in the FEIS that the scientific literature supported its conclusion that impacts to waterfowl from construction of an OLF at Site C would be "minor." The court concluded "[t]he most relevant literature indicates that the impacts may be much greater." Audubon Society, 422 F.3d at 194. In reaching this conclusion, the court noted: "The Navy did not distinguish in the FEIS the species-specific studies as to snow geese that tend to directly contradict its conclusions. Nor did it explain the its reliance on black duck studies in light of its general position that effects of aircraft noise are species-specific." Id. In the DSEIS, the Navy continues to ignore studies that show the most abundant waterfowl at Site C, snow geese, are particularly sensitive to disturbance by aircraft while continuing to find "highly relevant" duck studies despite its own conclusion that the effects of noise on waterfowl are species specific.
The Navy identifies 42 studies it considered in preparing the DSEIS, and concludes 12 of these studies are "highly relevant" to the proposed OLF. Of the 12 "highly relevant" studies, ten examine effects of aircraft on ducks. The authors of the duck studies warn readers not to infer conclusions on the effects of aircraft on ducks to other species not included in the study, such as snow geese and tundra swans, because one of the conclusions of the duck studies is that different species respond differently to aircraft.
In contrast, the Navy concludes two studies that found a Cessna disturbed snow geese, in one study up to nine miles away, were of "low relevance." The court admonished the Navy not to "sweep [] negative evidence under the rug," id., yet the Navy continues to dismiss scientific studies that are counter to its preconceived characterization of impacts, while relying on studies that are irrelevant to the primary waterfowl species that will be affected by the proposed OLF.
d. The Navy's noise response study and comparative airfield analysis are inadequate to determine impacts of the proposed OLF to waterfowl at Site C.
As discussed above, the Navy has selectively and inappropriately used existing scientific studies on the effects of aircraft on waterfowl. As the USF&WS pointed out in its comments, the Navy's piecemeal noise response study and comparative airfield study are inadequate to determine the actual impacts of the proposed OLF on waterfowl.
In its noise response study, the Navy conducted simulated flights by one aircraft at Site C while field teams assessed the response of waterfowl at various locations. The Navy concludes "tundra swans did respond to simulated FCLP operations; however, the data on snow geese were inconclusive" due to the small sample size and distance of the snow geese flocks from Site C. The study did find that tundra swans responded by alert behavior or flushing at all distances assessed, up to nearly 16 miles away at Phelps Lake. The Navy attempts to mask this study result by focusing on the fact that tundra swan flocks responded more when nearer the OLF site.
From the noise response study involving one jet on three trials, the Navy concludes: (1) nothing about impacts to snow geese; (2) tundra swans were disturbed at all distances observed from the OLF site; and (3) the closer to the OLF site, the more the swans were disturbed. As stated by the USF&WS, what we can not conclude from the study is anything about the actual impacts of operation of the OLF because actual operations will involve simultaneous sessions by multiple aircraft with cumulative impacts resulting from year-round operations. The study also fails to assess physiological impacts to the waterfowl from disturbance, which is the critical factor to their survival, because the Navy failed to conduct the studies recommended by the USF&WS.
With selective reliance on scientific studies and a noise study that says nothing about the actual impacts of operation of the OLF on waterfowl, the Navy next assesses airfields it finds "comparable" to the proposed OLF. The Navy identifies nine parameters of a "comparable" airfield, but is unable to find any other airfield that is truly comparable and meets all these parameters. Only one of the airfields examined has a bird hazard rating of severe at least 25% of the year that is comparable to the proposed OLF. This airfield, Dover Air Force Base, supports fixed wing transport planes and not supersonic jets. The Navy's literature review consistently discounts the relevancy of scientific studies on the effects of aircraft on waterfowl that do not involve the same type of aircraft that would utilize the OLF. See Review of Studies Related to Aircraft Noise and Waterfowl. In addition to not finding a truly comparable airfield to examine, the Navy's analysis of the airfields it chose to examine tells us nothing about what effect those airfields had on waterfowl in the area because no information is provided on the distribution and abundance of waterfowl in the vicinity of the airfield prior to construction and operation of the airfield.
e. The proposed OLF will adversely impact Pocosin Lakes NWR.
The Navy characterizes the impact of the proposed OLF at Site C on nearby Pocosin Lakes NWR as "minor." The USF&WS, which manages the refuge, disputes this conclusion and considers the impact and risk to the refuge from construction and operation of the OLF to be significantly higher. The Pungo Unit of Pocosin Lakes NWR was established by Congress 45 years ago as an inviolate waterfowl sanctuary. The Navy continues to inaccurately understate the impacts and risks to the refuge if the OLF is constructed. As Director Dale Hall stated, the purpose of the refuge is to attract waterfowl. It is the fundamental conflict with the mission of the refuge and the mission of the Navy to construct and safely operate an OLF that seems to perplex everyone except the Navy. It is likely that construction and operation of the OLF will result in severe impacts to the waterfowl that utilize the refuge and will greatly diminish the visitor experience. More detailed discussion of the adverse impacts of the proposed OLF on the refuge is included in section 5, infra.
In sum, the Navy has not provided the thorough analysis of impacts to waterfowl from construction and operation of the OLF that the court required. Lacking a thorough analysis, the DSEIS provides no support for the Navy's conclusion that impacts to waterfowl will be "minor to moderate." The inadequacies of the Navy's studies and the Navy's unsupportable conclusions led the cooperating agency in preparing the DSEIS, the USF&WS, to take the extraordinary step of rejecting its own environmental document in order to accurately state the expected impacts and risks to waterfowl and the refuge.
3. The Navy's wetlands analysis is flawed.
The analysis of wetland impacts from construction of the OLF at the alternative sites is fundamentally flawed and not supported by the underlying technical analysis. The DSEIS apparently uses the term "potential wetlands" that could be impacted at each of the alternative sites because the supporting technical report states "hydrologic monitoring data collected and presented within this report is insufficient to define accurate jurisdictional boundaries for Sites B, D, and E." Land Management Group, Inc., Outlying Landing Field (OLF) Wetland Mapping Project (Supplemental EIS) (May 2006) at VII (hereinafter "Wetland Technical Report"). In other words, the Navy does not know the extent of wetlands that may, or may not, be present at these sites and could be affected by construction of the OLF.
Wetlands are areas that are "inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." 33 C.F.R. § 328.3(b). A wetland must have hydrophytic vegetation, hydric soils, and be inundated or saturated to the surface for 5% of the growing season. As a part of its analysis of the presence of wetlands at the five alternative sites, Land Management Group installed monitoring wells to determine if wetland hydrology was present.
The Wetland Technical Report reveals that the hydrology monitoring wells installed at Site C to determine the presence of wetlands were not recovered, yet the Navy proclaims in the DSEIS that only 6 acres of wetlands are present within the core area of Site C. DSEIS at 4-160. In contrast, four hydrology monitoring wells were installed on Site E and all data were recovered. Site E is a wetland drained for pine plantation production. Wells 1, 2, and 4 at Site E showed water table depths well below the surface, and well below wetland jurisdictional criteria. Well 3 data at Site E was analyzed using DRAINMOD and the site met jurisdictional criteria only 2 of the last 30 years, insufficient to claim wetland jurisdiction. Despite this analysis, the DSEIS inexplicably concludes construction of the OLF at Site E would impact up to 902 acres of wetlands. DSEIS at 4-162.
The DSEIS also mischaracterizes the required assessment to determine whether a Clean Water Act permit may be issued to construct the OLF. The Navy must demonstrate that its preferred alternative would not result in significant degradation of the aquatic environment and is the least damaging practicable alternative with respect to impacts on the aquatic ecosystem. 40 C.F.R. § 230.10(a) and (c). The "aquatic environment" and "aquatic ecosystem" mean "waters of the United States, including wetlands, that serve as habitat for interrelated and interacting communities and populations of plants and animals." 40 C.F.R. § 230.3(c). The Navy's analysis focuses only on the direct impacts to "potential" wetlands, which are designated special aquatic sites. National Wildlife Refuges also are designated special aquatic sites. 40 C.F.R. § 230.40. Since construction and operation of the OLF at Sites C or D would result in significant degradation of the nearby National Wildlife Refuge special aquatic sites, a permit may not be issued for these sites. Moreover, practicable alternative sites exist that would not adversely impact National Wildlife Refuges.
4. The proposed OLF will jeopardize the continued existence of the endangered
red wolf.
The red wolf population on the Albemarle Peninsula is unique. It is the only wild population of the wolves in the world. The population was established in the Alligator River National Wildlife Refuge in 1986. As a result of intensive management by the USF&WS, the population has expanded westward within the peninsula to the Pocosin Lakes National Wildlife Refuge and Site C. If not inhibited, prior growth indicates that the population will continue to expand westward.
The Navy has entered into formal consultation under the Endangered Species Act (ESA) with the USF&WS regarding the impacts to endangered red wolves of the construction and operation of an OLF at Site C. DSEIS at 7-4. While the DSEIS's purpose is to comply with NEPA, and it is not focused on the ESA, applying the ESA jeopardy standard to the impacts of the project on red wolves provides the appropriate context for evaluating the impact of an OLF. Moreover, the project would jeopardize the continued existence of the wolf, result in a violation of section 7 of the ESA, and can not be constructed and operated at the Navy's preferred site.
The USF&WS regulations implementing the ESA state that an action jeopardizes the continued existence of a species when it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. Building and operating the OLF at Site C would reduce wolf reproduction, numbers, and distribution by disrupting territory dynamics, eliminating habitat and prey, interfering with wolf communications, promoting hybridization with coyotes, and complicating monitoring programs. These substantial impacts, and the USF&WS's assessment of their effects on the wolves, provide strong evidence that constructing and operating an OLF at Site C would jeopardize the continued existence of the red wolf. The Navy concludes otherwise, yet the DSEIS does not provide evidence to support that conclusion, as discussed in detail below. The Navy should amend these deficiencies in the DSEIS or conclude that the OLF would jeopardize the red wolf.
a. Constructing and operating an OLF at Site C would adversely affect wolf territory dynamics.
Red wolves are wide ranging predators that live in packs with home ranges that may vary from 50 sq. km to 100 sq. km depending on habitat. Phillips, M., Conserving the Red Wolf, 3 CANID NEWS 13 (1995). By establishing and maintaining home ranges, or territories, wolves ensure regular and secure food, shelter, and breeding grounds. According to recent surveys, 40 wolves established or maintained territories in or around Site C in 2006. Benjamin 9/14 Letter. These wolves are not an isolated group, but rather are a substantial portion of the single population of red wolves on the Albemarle-Pamlico Peninsula since they are "in common spatial arrangement" with other wolves that allows them to "interbreed when mature." 50 C.F.R. § 17.3.
As a result of this geographical and biological relationship, the direct and indirect effects that the OLF would have on territory dynamics would extend beyond the area in and around Site C and would drastically affect wolves in the Pocosin Lakes National Wildlife Refuge and further east on the Peninsula. The wolves in and around Site C would be pushed out of their territories and into the territories of other wolves, causing a dramatic increase of intra-specific competition for prey, shelter, and mates. There are two consequences of this elevated competition; both would result in dead wolves and a declining population. First, wolves would kill each other in struggles to establish new territories or defend existing territories. See Benjamin 9/14 Letter at 3. Second, wolves displaced from current territories would be forced into interactions with humans, resulting in wolf mortalities through automobile accidents and gunshots. Id. These territorial disturbances would, at a minimum, disrupt or displace one to two packs and elevate wolf mortality rates "for an extended period of time." Id.
The DSEIS dismisses the adverse impacts of territorial disruptions, claiming that "geographical shifts would occur regardless of the potential construction and operation of an OLF at Site C" and "the general trend for red wolf geographical shifts has been westward from the coast, away from the Alligator River and Pocosin Lakes NWR." DSEIS at 4-167. This assessment of the effects of an OLF on the territorial dynamics of red wolves is fatally flawed in that it fails to acknowledge the reality of territorial shifts and misrepresents the westward expansion of the wolf population. First, while territories may shift geographically, wolves do not willingly abandon quality habitat. Barring a habitat-eliminating event such as an OLF, wolves would not abandon Site C as habitat; it would be within a pack's territory even though the pack in control of the territory may change. In contrast, if an OLF is constructed on Site C, the existing habitat would be eliminated, and would not be part of any pack's territory. Ignoring these obvious deleterious impacts of the OLF on wolf territory dynamics based on the stated reasons is disingenuous at best and must be corrected in the Final SEIS.
Second, the red wolf population has consistently expanded westward, but hardly in the leap-frog method the DSEIS describes. The population has expanded westward, it has not shifted westward. See Exhibit A. This important distinction is lost in the DSEIS analysis. While the population has grown to the west, it has remained firmly entrenched in quality habitat throughout the Peninsula as evidenced by the numerous wolf territories in and around Site D. See Exhibit B. The wolves have not shifted westward away from Alligator River and Pocosin Lakes NWR, but rather have solidified territories in those areas and used them as launching pads to propel the growth of the population westward. See Exhibits B and C. The notion that wolf territories would not be affected by an OLF because the population is shifting "away from the Alligator River and Pocosin Lakes NWR" is absurd, and the Final SEIS should reflect an evaluation of the population's actual territorial distribution.
The DSEIS analysis also fails to acknowledge that building the OLF at Site C would essentially eliminate the western expansion of the population. The DSEIS' hope that the wolf population will jump from east of Site C to west of Site C fails to consider the geographic reality of the Albemarle Peninsula. The Peninsula is surrounded by three large bodies of water that are impenetrable to wolves. Therefore, the population has expanded to the west, resulting in the current distribution of wolves in the vicinity of Site C. The western boundary of the population, however, is partially restricted as well. North of Pettigrew State Park, the towns of Plymouth, Creswell, and Roper force the wolves south. See Exhibit D. South of Pocosin Lakes NWR, the towns of Belhaven, Pantego, and Pungo push the wolves north. See Exhibit D. The remaining corridor for further western expansion of the population is through Pocosin Lakes NWR and Site C. Constructing and operating the OLF at Site C would create a western boundary, minimizing, and possibly eliminating, the potential for further western expansion of the population. This possibility, as well as its consequences for extended disruption of territory dynamics, should be analyzed in the Final SEIS.
b. BASH management at Site C will adversely affect red wolf habitat and prey.
It is clear from current wolf distribution that the area in and around Site C is suitable habitat for both wolves and their prey. Red wolves are predators, generally preying on "raccoon, rabbit, white-tailed deer, nutria, and other rodents." DSEIS at 3-85. These animals rely on a diversity of habitats, including edge habitat. See Benjamin 9/14 Letter at 3. Without these habitats, these prey populations would decline, causing a decline in wolf numbers, limiting wolf distribution, and stifling reproduction.
According to the DSEIS, wolf prey species must be eliminated in order to operate a safe OLF. "Mammals such as white-tailed deer, coyote, and various small mammal species are expected to be present near OLF Site C and can constitute or contribute to an increased BASH risk." DSEIS at 3-221. Specifically, "[w]hite-tailed deer and coyote are recognized as hazards to aviation at civilian and military airfields." Id. Not only does the DSEIS identify wolf prey species as BASH risks, it also identifies the coyote as a threat, a canine that is substantially similar in body type to the red wolf. The DSEIS essentially concludes that red wolves and their prey must be eliminated from the area in and around Site C to minimize the BASH risk associated operating an OLF at the site.
The Navy would control the BASH risk created by the presence of wolves and their prey by eliminating habitat. Small mammals would be controlled by creating a turf-grass monoculture, eliminating the vegetative diversity that small mammal populations require. DSEIS at 4-51. Larger mammals, including white-tailed deer, coyote, and red wolves would be excluded by erecting a "proper fence." Id. Outside the core area, where red wolves and their prey could theoretically remain, their habitat would be compromised through a shift to cotton production and farming techniques intended to eliminate the availability of crops to wildlife. See DSEIS at 4-52, 4-55. The purpose of converting agricultural production in the fields in and around Site C is to "reduce their attractiveness to migratory waterfowl and other bird species" by removing "potential forage habitat." Id. The DSEIS fails to acknowledge that the fields are attractive to birds for the same reason that they are attractive to wolf prey species: the presence of leftover grain. By removing "potential forage habitat" for birds, the OLF also removes "potential forage habitat" for wolf prey species. The loss of prey populations ultimately means "fewer prey for red wolves to eat in relation to overall red wolf needs for feeding, breeding and sheltering." Benjamin 9/14 Letter at 3.
The DSEIS dismisses the consequences of drastic alterations to wolf and prey habitat, claiming that new land uses would "attract small mammals, important red wolf prey." DSEIS at 4-167. While planting trees may ultimately provide some prey habitat, the DSEIS' focus on this limited land use to the exclusion of the remaining 30,000 affected acres fails to address the full impact. Much of the land would remain in agricultural production, but would make use of crops and farming techniques intended to discourage wildlife from using the fields. The DSEIS fails to consider the impact to the wolves of losing prey populations on these lands. It attempts to cover this gap in analysis by asserting that if "all 30,000 acres of land . . . were converted to discourage waterfowl, this would not adversely impact wolves using Pocosin Lakes NWR due to the large amount of undeveloped habitat surrounding Pocosin Lakes NWR." DSEIS at 4-167. This bold claim is not only unsupported in the DSEIS, but is contradicted by the USF&WS, the expert agency responsible for facilitating red wolf recovery, in letters to the Navy included in Appendix E. Although there may be "undeveloped habitat" near Pocosin Lakes, much of that habitat is already within existing wolf territories and therefore would be unavailable to those wolves displaced by the OLF. See Exhibit C.
The DSEIS' analysis of wolf habitat and prey population impacts is inadequate. To mend these flaws, the FSEIS should identify the number of wolves in and around Site C that would be affected by the conversion of agricultural uses surrounding the OLF and describe the effects of the conversion on those wolves. That assessment should acknowledge that techniques used to make agricultural fields hostile to birds will also make those fields hostile to wolf prey and therefore indirectly hostile to wolves. It should also include an analysis of wolf prey populations in existing fields on Site C compared to fields that implement the proposed wildlife limiting farming techniques to determine whether Site C would maintain any wolf habitat under the Navy's plan. The FSEIS should identify nearby habitat that is not only undeveloped, but is also unoccupied, and therefore may be available to displaced wolves. It is clear that impacts on wolf habitat and prey populations would reduce the wolf population, its distribution, and its reproductive success. The FSEIS should acknowledge these effects or provide a detailed analysis that is supported by scientific evidence to refute them.
c. Noise from operation of the proposed OLF will interfere with essential wolf communications.
Red wolves are social creatures that rely on vocalizations to "find mates, maintain territories and communicate with pack members." Benjamin 9/14 Letter at 4. Wolf vocalizations are particularly important at night. See id. This timing creates a conflict between wolf vocalizations and the primary purpose of the OLF, training for nighttime carrier landings. The consequences of this conflict would be significant for the wolves, considering that the "elevated noise levels" would be loud enough to "disturb classes and services" at Terra Ceia Church and School, 10.6 and 9.5 miles away, respectively. DSEIS at 4-99, 4-97. Noise levels that disturb classes and church services undoubtedly have the potential to disrupt wolf communications.
The consequences of decreased wolf communication are important to the recovery of the red wolf. Loss of the ability to communicate would stress wolves and wolf packs. Benjamin 9/14 Letter at 4. That stress would lead to an increase in conflicts between wolves as well as make the population vulnerable to infiltration by eastern coyotes. Id. Stress would also diminish the likelihood of wolves pairing and establishing territories in the area surrounding the OLF. Id. These adverse effects directly impact the number of wolves, their distribution, and their reproduction.
The DSEIS addresses these impacts by stating that "[t]he Navy believes that, since their release, reintroduced wolves have been exposed to very low-altitude disturbance from active military training activities on a regular basis." DSEIS at 4-168. Apparently, the Navy is the only agency that "believes" this to be the case. The USF&WS clearly disagrees, stating "[i]t is not clear what data form the basis for assumptions by the Navy and its contractors that red wolves are habituated to military aircraft activity." Benjamin 9/14 Letter at 5. In fact, the USF&WS "see[s] no evidence that red wolves are habituated to the kinds of activity that will be associated with OLF Sites C and D." Id. The Navy bases its "belief" on the Dare County Bombing range, a reliance the USF&WS, the cooperating agency in this NEPA analysis, "caution[s] the Navy to be careful" in making. Id. The activity at the Dare County Bombing Range "is much less frequent, of shorter duration, with aircraft moving in linear paths at higher elevations, allowing quicker exits from the local area." Id. In contrast, at Site C "aircraft will frequently, repeatedly and continuously circle and touch down onto the landing strip over longer periods of time." Id. The Navy's "belief" allows the DSEIS to avoid discussing the implications of interrupting wolf communications, but lacks the factual or experimental basis to do so. The FSEIS should analyze the impact of operating an OLF at Site C on wolf communications or provide a factual basis demonstrating that the OLF would not interfere with those communications.
d. Building the OLF at Site C would increase the opportunity for hybridization with coyotes.
One of the primary threats facing the red wolf is the loss of genetic diversity. See USF&WS. 1989. Red Wolf Recovery Plan. USF&WS, Atlanta, Ga. 110 pp. at 80 (Recovery Plan). Red wolf genetic diversity is vulnerable because all existing red wolves are descendants from a small breeding population, id. at 12, and they are capable of reproducing with coyotes. Id. at 11. When red wolf mates are available, wolves naturally prefer to mate with wolves over coyotes, id. at 18, but when populations are fragmented and stressed to the point that locating mates is difficult, wolves hybridize with coyotes. Id. at 18.
Constructing and operating the OLF at Site C would promote hybridization with coyotes for the reasons addressed above. Wolf territories would be disrupted and displaced, creating opportunities for coyotes to establish territories. Prey populations and habitat would be disturbed and eliminated, favoring the more adaptable coyote. Finally, increased noise levels would interfere with the wolves' ability to defend their territories and find mates, creating opportunities for coyotes to intervene. This suite of effects that would result from operating an OLF at Site C creates an ideal situation for hybridization with coyotes - habitat would open up for coyotes to become established and wolves would have increasing difficulty locating mates.
The DSEIS proposes to mitigate these difficulties in an INRMP, which the Navy has not yet developed. DSEIS at 4-167. The potential effects of coyote infiltration of the red wolf population are significant environmental effects related to the project and must be considered in the FSEIS under NEPA. Without any analysis in the DSEIS, it is not possible to determine how the Navy intends to counteract this potentially devastating effect on red wolves.
e. Building the OLF at Site C would interfere with or preclude vital monitoring programs.
The recovery of the red wolf depends on monitoring the wolf population by airplane. Benjamin 9/14 Letter at 4. By tracking wolves through the air, the USF&WS is able to "gather location data, monitor wolf activity, monitor eastern coyote activity, monitor wolf mortality, coordinate with law enforcement, and identify potential conflicts with people ahead of time for preventative resolution." Id. Constructing and operating the OLF at Site C would not only introduce a host of obstacles for the red wolf population, it would also necessarily limit the USF&WS's ability to monitor the wolves' reaction to those obstacles and population stability. Airspace surrounding the OLF would be substantially restricted, including airspace instrumental to USF&WS monitoring. See DSEIS at 4-13. The loss of monitoring ability due to restricted airspace and safety concerns related to the OLF would limit the USF&WS' ability to manage wolves, coyotes, conflicts, and coordinate with law enforcement. Benjamin 9/14 Letter at 4. The adverse affects on red wolves as a consequence of diminished monitoring are omitted from the DSEIS, and should be fully addressed in the FSEIS.
f. Building the OLF at Site C would prevent the red wolf from meeting the recovery plan goals.
To adequately assess the impacts of the proposed OLF on red wolves, the Navy must evaluate the adverse impacts within the context of the Red Wolf Recovery Plan. The DSEIS appears to have been developed without any reference to the Recovery Plan. The Recovery Plan goals are:
1) To preserve 80 to 90 percent genetic diversity of the species for 150 years.
2) To remove those threats that have the potential to bring about extinction
of the species. Achieving this objective will require a wild population of
approximately 220 animals and a captive population of approximately 330 animals.
3) To maintain the red wolf in perpetuity through cryogenic preservation of
sperm and embryo banking.
Recovery Plan at 79.
The proposed OLF would halt progress towards red wolf recovery and prevent the red wolf from meeting two of the three recovery goals for the species identified in the Recovery Plan. Constructing and operating the OLF would "reduce appreciably the likelihood of both the survival and recovery of the [red wolf] in the wild by reducing the reproduction, numbers, or distribution of [the red wolf]." 50 C.F.R. § 402.02. In fact, locating the OLF at Site C would reduce the reproduction, numbers, and distribution of the red wolf, and therefore it would jeopardize the species. The relationship between the effects described above and the ability of the red wolf to meet these recovery goals is not described by the DSEIS, and therefore should be evaluated in the FSEIS.
Evaluating the DSEIS through the lens of the ESA jeopardy standard shows the Navy's analysis of effects of the proposed OLF on the endangered red wolf to be severely wanting. While the impacts described by the DSEIS and the USF&WS concerns expressed in the letters included in Appendix E clearly indicate that the proposed OLF would jeopardize the continued existence of the red wolf, the Navy concludes that little, if any, harm would result. That conclusion is premised on a selective and erroneous view of the reality of the red wolf population on the Albemarle Peninsula. The Navy spurns evidence that indicates that an OLF would "reduce appreciably the likelihood of both the survival and recovery" of the red wolf, including evidence from the expert agency responsible for managing the red wolf recovery program, the USF&WS. The DSEIS, however, fails to provide any scientific basis for the Navy's contrary conclusions. The FSEIS must detail a scientific basis supporting the Navy's conclusions that building and operating an OLF at Site C would not jeopardize the continued existence of the red wolf, or it should retract that conclusion and accept that the threats noted by the USF&WS make Site C inappropriate for an OLF.
5. The proposed OLF at Site C is inconsistent with North Carolina's coastal management program, and the Navy's conclusion to the contrary is wrong.
The DSEIS concludes that "the proposed action is consistent to the maximum extent practical with the relevant enforceable policies of the federally-approved North Carolina Coastal Management Program." DSEIS D-2, D-3. Specifically, the Navy determined that building and operating an OLF at Site C is consistent with state requirements applicable to Areas of Environmental Concern ("AECs") under the Coastal Area Management Act ("CAMA"). DSEIS D-4. The analysis in the DSEIS does not support these bold assertions. It fails to fully consider the purpose and role of the affected AECs, does not sufficiently address CAMA requirements regarding AECs, and does not adequately respond to the USF&WS concerns.
a. Coastal Zone Mangement Act consistency
The Coastal Zone Management Act requires that federal agency activity that affects the coastal zone is "consistent to the maximum extent practicable" with approved state management programs such as CAMA. 16 U.S.C. § 1456(c)(1). This consistency requirement "is at the heart of the statutory scheme of encouraging . . . state management of coastal areas." Cape May Greene, Inc. v. Warren, 698 F.2d 179, 191 (3rd Cir. 1983). The consistency requirement is of even greater importance where a federal agency "seeks to . . . impose a federal standard on private activity traditionally subject only to state and local regulation." Id. Since the Navy's proposal involves control of an area of traditional state regulation, land use, the Navy's proposal requires heightened scrutiny when evaluating its consistency with CAMA.
A primary goal of CAMA is "[t]o provide a management system capable of preserving and managing the natural ecological conditions of the estuarine system, the barrier dune system, and the beaches, so as to safeguard and perpetuate their natural productivity and their biological, economic and esthetic values." N.C. GEN. STAT. § 113A-102(b)(1). Estuarine waters, coastal wetlands, public trust areas, and estuarine and public trust shorelines are some of the areas that have been designated as AECs. 15A N.C. ADMIN. CODE 07H .0201.
Pungo Lake, within the Pocosin Lakes National Wildlife Refuge, is a public trust area in the coastal region, and is recognized as an AEC. DSEIS at D-6. Lake Phelps is within Pettigrew State Park and is also a public trust water and an AEC. To be consistent with CAMA, the Navy must determine that locating an OLF at Site C will "safeguard and perpetuate the[] biological, economic, and aesthetic value" of Pungo Lake and Lake Phelps as AECs. See 15A N.C. ADMIN. CODE 07H .0203. The Navy concluded that construction and operation of an OLF at Site C will affect the lakes, but determined that the construction and operation of the proposed OLF would be consistent with CAMA. DSEIS at 7-7. However, considering the histories, purposes, and public uses of Pungo Lake and Lake Phelps, the information presented by the Navy in the FEIS and DSEIS, and the U.S. Fish and Wildlife Service's concerns, it is clear that that the OLF would be inconsistent with CAMA.
b. History and management of Pungo Lake and Lake Phelps.
An assessment of the "biological, economic, and aesthetic value" of Pungo and Lake Phelps requires consideration of the public ownership of these lakes and management as components of a National Wildlife Refuge and State Park. Pungo Lake was set aside and preserved as a wildlife refuge in 1963 to serve as an "inviolate sanctuary" for migratory wildlife. DSEIS at 3-160. In 1990, the 12,000 acre Pungo NWR was combined with 93,000 acres of new refuge lands to form the Pocosin Lakes NWR. Id. The area formerly known as the Pungo NWR is now the Pungo Unit of the Pocosin Lakes NWR. See Exhibit E.
The implementing statute of the National Wildlife Refuge System states that "[t]he mission of the System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife and plant resources and their habitats . . . ." 16 U.S.C. § 668dd(a)(2). Congress has expressly found that "[t]he Pocosin Lakes National Wildlife Refuge . . . provides unique opportunities for observing and interpreting the biological richness of the region's estuaries and wetlands." Pub. L. No. 103-232, § 301(1), 108 Stat. 336, 339 (1994).
The importance of the Pocosin Lakes NWR to wildlife in North Carolina cannot be overstated. It has been recognized as a globally Important Bird Area due to its importance for migratory species. DSEIS at 3-161. In addition to providing habitat for neotropical migrants, the refuge supports tremendous numbers of migratory waterfowl. The majority of the waterfowl are located in the Pungo Unit, where more than 100,000 birds have been counted during the migratory season. Id. These migratory waterfowl arrive in October, and remain in the refuge, roosting on Pungo Lake and foraging in the surrounding farm fields, through early March. See DSEIS at 3-162. This congregation of migrants draws bird watchers, photographers, and nature enthusiasts from throughout the country to Pocosin Lakes NWR each year.
Lake Phelps, the second largest natural lake in the state, is surrounded by Pettigrew State Park and is near Pocosin Lakes NWR. Pettigrew was established as the sixth state park in the state of North Carolina in 1939. See Exhibit C. According to the State Legislature, the State Park System should represent the State's "unique archaeologic, geologic, biological, scenic, and recreational resources." N.C. GEN. STAT. § 113-44.8. It should preserve the "heritage of a people" by protecting land "to be used by the people of this State and their visitors in order to promote understanding of and pride in the natural heritage of this State." Id.
Tundra swans, Canada geese, and many types of ducks use Lake Phelps as primary wintering grounds. This collection of birds makes Lake Phelps a prime bird watching location and a tourism destination.
c. Impacts of the proposed OLF on Pungo Lake and Lake Phelps.
The impacts on Pungo Lake and Lake Phelps if the OLF is built at Site C would be significant. Some of these impacts have been documented in the multiple volumes of the FEIS, the DSEIS, and technical support documents. The migratory waterfowl for which these lakes are world famous and the visitor experience at these sensitive AECs would be significantly and adversely affected by the proposed OLF. The impacts of the OLF as described by the Navy would diminish the biological, economic, and aesthetic values of the lakes, and therefore the project would not be consistent with CAMA. The inconsistency of the proposed OLF with CAMA is also evident in the USF&WS comments regarding the project. In a series of letters, the USF&WS expressed serious concerns that the operation of an OLF at Site C would hamper their ability to preserve the biological and visitor values of the Pocosin Lakes NWR, including Pungo Lake. A closer look at the analyses of the Navy and USF&WS reveals the inconsistencies between the proposed OLF and CAMA. The information in the DSEIS illustrates that the proposed OLF at Site C is not consistent with CAMA. The OLF would adversely affect the biological, economic, and aesthetic values of the lakes.
i. Biological Impacts
The proposed OLF at Site C would compromise the biological value of Pungo Lake and Lake Phelps. The lakes' value as roosting habitat and sanctuary for wintering waterfowl are biological values of international importance. The biological value of the migratory waterfowl that over-winter on the lakes would be adversely affected by the proposed project. The birds would be significantly affected by elimination of foraging grounds, increases in ambient noise levels, and the hazard of air strikes. These adverse impacts are evident in the Navy's assessment of the proposal and are inconsistent with CAMA.
The information compiled by the Navy clearly shows that the Site C proposal would not protect the biological value Pungo Lake. This inconsistency is primarily the result of the habitat demands of the snow geese and tundra swans that roost on Pungo Lake through the winter. Pungo Lake is a blackwater lake that does not support submerged aquatic vegetation (SAV). Therefore, the more than 100,000 birds that migrate to the lake over the winter must leave the lake to feed in crop fields, specifically fields of corn, soybeans, and winter wheat. See Exhibits F and G. There are only approximately 1,200 acres of crops near the lake, within the Pungo Unit, meaning that most of the flocks' foraging grounds are outside the Pungo Unit and within the area that would be directly affected by the proposed project. DSEIS Figure 3-41. Over 22,000 acres within the 30,000 acres that would be altered by the development of Site C include fields planted in corn, soybeans, or winter wheat. DSEIS at 3-172. Current foraging areas would be replaced with buildings, the runway, turf grass, and non-food crops such as cotton in an effort to deter the birds and other wildlife from entering the buffer area.
While there are other agricultural areas in Washington and Beaufort Counties,
there is a strong likelihood that the loss of these foraging areas will stall
the recent increases in migratory waterfowl at Pungo Lake and even cause numbers
to decline as the area food supply is reduced. The DSEIS provides evidence
that the loss of these foraging areas would have a significant impact. As
shown in Figure 3-40, building the OLF at Site C would eliminate an important
portion of current tundra swan foraging grounds. Tundra swans would also be
affected because, as the DSEIS notes, they avoid foraging in mixed land use
areas, preferring large, contiguous agricultural lands. DSEIS at 3-113. In
addition to eliminating much of the tundra swans' current foraging habitat,
the OLF would further fragment the agricultural fields near Pungo Lake, making
those fields unappealing to the swans. This elimination and disruption of
foraging habitat would significantly diminish the biological value of Pungo
Lake as a sanctuary for migratory waterfowl.
Building the OLF at Site C also would affect Pungo Lake and Lake Phelps migrants
by creating more frequent noise disturbances. The activities at the OLF would
affect the waterfowl at the lakes and at their foraging sites. The Navy acknowledges
this disturbance in the DSEIS, stating that "[a]ircraft sounds during
FCLP simulations were also audible at Pocosin Lakes NWR." DSEIS at 4-179.
The Navy's own modeling shows that sound levels at Pungo Lake would reach
62 dBA, just 3 dBA less that what the Navy considers unacceptable for residential
areas. DSEIS at 4-220, 4-90. That modeling shows that sound levels at Lake
Phelps would actually reach 65 dBA, the barrier for residential areas. DSEIS
at 4-220.
According to the Navy's own study on waterfowl reactions to experimental test flights, these increased ambient noise levels are likely to have a significant impact on the snow geese and tundra swans that winter on the lakes. In order to simulate the effects of the OLF, the Navy observed waterfowl reactions to three single plane test flights on Lake Phelps, Pungo Lake, and fields between Pungo Lake and the proposed OLF site. DSEIS at 4-176. During their monitoring, the Navy observed that snow geese and tundra swans demonstrated alert or flushing behavior an average of three times per hour more during test flights than before or after those flights. DSEIS at 4-180. When only looking at tundra swans, the study found that the birds showed alert behavior more frequently both during and after test flights than prior to the test flights. DSEIS at 4-180. Tundra swans showed alert behavior up to 24 times per hour during the test flights and up to 18 times per hour following the tests compared to a maximum of 12 times per hour before test flights. Id. These results are not surprising considering that the Navy had to discontinue test flights near Site D because of the large number of waterfowl in impoundments and public complaints that the flights interfered with sport hunting in the area. DSEIS at 4-176.
The limitations of the Navy's studies further show that constructing the OLF at Site C would not be consistent with state law. The DSEIS states that while the test flights consisted of one plane, the training missions would consist of four to five planes. DSEIS at 4-176. Additionally, the single test plane never went below an altitude of 600 feet AGL during daytime trials and 3,000 feet AGL during nighttime trials, but actual training missions would consist of a series of touch and go landings that would bring the planes closer to the birds both in their foraging and roosting sites. DSEIS at 4-177. As a result, the noise disturbances that occurred every 2.5-3 minutes during the test flights would occur approximately once every minute during training exercises. DSEIS at 4-183. Given these limitations on the study, it is likely that the significant effects on migratory waterfowl that the Navy observed as a result of the test flights would be multiplied as the result of the more frequent, noisier training flights. The proposed OLF at Site C would be inconsistent with the management objectives for Pungo Lake and Lake Phelps if the test flights represented the actual noise impacts of the OLF. Since they are likely conservative estimates, and represent only the absolute minimum noise impacts of the proposed project on the waterfowl that roost on the lakes, the actual impact on the birds is likely to be more severe.
The third way in which the Navy's proposed OLF at Site C is not consistent with CAMA is that it will directly harm migratory waterfowl through air strikes and active strike prevention controls. These two impacts of the proposed OLF would result in the death and disturbance of birds that roost on the lakes. The risk of air strikes is greatest when the aircraft are below 600 feet AGL, within the altitude of daily tundra swan movement. DSEIS at 4-50. Since the operations at the OLF would consist of repetitive touch and go landings, the flight path of the Super Hornets and tundra swans and other waterfowl would frequently collide. This intersection of flight paths has the potential to result in many bird casualties.
In addition to the adverse effects of direct air strike, the Navy would also use active controls on tundra swans within the vicinity of the OLF site. DSEIS at 4-66. These controls include pyrotechnics, bioacoustics (bird alarm calls), repellents, dogs, and lethal controls with the appropriate permits. DSEIS at 4-66. These controls have two obvious adverse effects. The lethal controls would directly kill foraging tundra swans. The other active controls are intended to frighten and disturb tundra swans, driving them away from the OLF. These controls would result in a more nervous, unsettled population of migrants roosting on Pungo Lake and Lake Phelps, if not abandonment of the refuge, an effect of the proposed OLF the Navy characterizes as "remote" but possible. DSEIS at 4-227. As discussed later, USUSF&WS disputes this conclusion and believes the OLF poses higher risk to waterfowl and the refuge.
The threat of bird and aircraft collisions is substantial with the proposed
OLF at Site C. The potential for direct air strike and the active controls
intended to avoid air strikes both cause the proposed project to be inconsistent
with the management objectives of Pungo Lake and Lake Phelps as AECs. The
biological value of the lakes would not be protected if the OLF were built
at Site C because the tundra swans that over-winter on the lake would be killed
by air collisions and harassed by active control methods. Since the OLF would
not protect the biological value of Pungo Lake and Lake Phelps, it is not
consistent with CAMA.
ii. Aesthetic Impacts
The proposed OLF at Site C is not consistent with the CAMA obligation to safeguard and protect the aesthetic value of Pungo Lake and Lake Phelps. According to the FEIS and DSEIS, constructing the OLF at Site C would require extensive efforts to disrupt the current foraging patterns of migratory birds roosting on the lakes. These efforts would include eliminating their food sources in large areas and harassing the birds through the use of bird distress calls, pyrotechnics, dogs, and other active controls. These actions will likely result in a more nervous, unstable population of roosting birds that are more easily disturbed and prone to flushing. Additionally, jet noises would be audible at the lake at a frequency of once per minute during training exercises. These actions will disrupt the flock and diminish the serenity that currently characterizes the lakes.
The visitor experience at the lakes will also be substantially diminished by the noise of the Navy's jets. The Navy claims there will be only minimal impact on the visitor experience due to the frequent flyovers. DSEIS at 4-135. This conclusion demonstrates the shallowness and bias of the assessment. The DSEIS simply compares decibel counts and ambient sound levels, failing to consider the source of those sounds. See DSEIS at 4-135, 4-136. According to the Navy's analysis, the effect on the visitor experience of noise caused by jet flyovers is no different than the vocalizations of tens of thousands of migratory waterfowl. The Navy's disregard of the Pungo Lake and Lake Phelps visitor experience in their analysis demonstrates a lack of understanding the purpose of the lakes and the meaning of the visitor experience these AECs. The Navy's determination that the OLF will not diminish the visitor experience, and the aesthetic values, at Pungo Lake and Lake Phelps reflects a failure to consider the true impacts of the OLF. The OLF will not protect the aesthetic values of the lakes and is not consistent with CAMA.
iii. Economic Impacts
The proposed OLF at Site C is not consistent with CAMA's mandate to safeguard and protect the economic value of Pungo Lake and Lake Phelps. As a globally important bird refuge, Pungo Lake draws birders, photographers, and nature enthusiasts from throughout the nation each winter. Lake Phelps, as the centerpiece of Pettigrew State Park, also draws visitors from throughout the state and region. The economic boost this tourism brings to the surrounding region is a vital economic value of the lakes. Washington County highlights the waterfowl on their county tourism website, www.visitwashingtoncountync.com, in an effort to draw tourists to the area. The Pettigrew State Park website identifies birding as part of the park's appeal.
The direct and indirect impacts of the OLF at Site C will significantly diminish this economic value. The Navy's primary method of avoiding air strikes is to eliminate a significant portion of waterfowl foraging grounds to force the birds to relocate. However, considering the decline in the populations of migratory waterfowl in the Chesapeake Bay area following the loss of their food supply, there is no guarantee that the birds will continue to roost on the lakes. The Navy will use active controls to harass or kill those birds that it cannot force to relocate. These efforts to reduce and relocate the bird populations will undoubtedly diminish the birding experience at the lakes and make them less attractive as birding destinations. Additionally, the Navy acknowledges that jet noise would be audible at the lakes, further disturbing the flocks and interfering with the primary economic value of the lakes, eco-tourism. DSEIS at 4-220. The proposed OLF at Site C would interfere with the primary economic value of Pungo Lake and Lake Phelps, eco-tourism, and therefore is not consistent with CAMA.
d. USF&WS analysis of impacts to the refuge.
The USF&WS comments on the proposed OLF at Site C also indicate that the project would be inconsistent with CAMA. The USF&WS expressed those concerns in a series of letters to the Navy. The final letter, dated September 25, 2006, summarizes the USF&WS' concerns and highlights several ways that the proposed OLF is not consistent with the management objectives for Pungo Lake. See Appendix E DSEIS. Although the USF&WS letters focus on the area they manage, Pocosin Lakes NWR, the effects on Lake Phelps would be similar to those described for Pungo Lake.
The USF&WS letter identifies multiple ways in which constructing an OLF at Site C would not protect the biological value of Pungo Lake. The Service cites studies that indicate that low-altitude flights cause physiological stress to waterfowl, and expresses concerns that the physiological stress of migratory waterfowl near the OLF will increase due to training operations. Letter from Benjamin to Blend of September 25, 2006 at 2 ("Benjamin 9/25 Letter"). While some birds may adapt, the flock is likely to remain sensitive to the disturbances caused by the OLF because the flight response of the flock is based on the most sensitive birds, often the birds that are relatively new to the disturbance. Benjamin 9/25 Letter at 3. Additionally, the USF&WS is concerned that the cumulative effects of the OLF reducing foraging area, increased noise disturbance, and transition of other fields in the area to cotton will adversely affect the waterfowl in the NWR. Benjamin 9/25 Letter at 4. Perhaps most indicative of the biological impact of the OLF on Pungo Lake is the USF&WS's concern that it will be forced to implement additional measures on the refuge to compensate for the adverse effects of the OLF on the wildlife within the refuge, including on Pungo Lake. Id. Each of these concerns demonstrates the USF&WS' belief that constructing the OLF at Site C would adversely affect the biological value of Pocosin Lakes NWR and the waterfowl that roost at Pungo Lake.
As the agency in charge of operating the Pocosin Lakes NWR, the USF&WS is also concerned about the impact of the OLF on the visitor experience in the refuge. One of the primary concerns is that the additional noise caused by the OLF could degrade "the value of the refuge as a destination for visitors." Benjamin 9/25 Letter at 4. Part of that concern may be fueled by the agency's observation that following the third trial flight, more than half of the geese and many of the swans in the refuge left. Benjamin 9/25 Letter at 3. The USF&WS's concerns as the expert agency governing the Pocosin Lakes NWR emphasizes that the OLF would not safeguard and perpetuate the biological, economic, and aesthetic values of Pungo Lake. The OLF would disturb the migratory flocks, diminish the draw of the refuge, and interfere with the serenity of the lake. Therefore, the OLF is not consistent with CAMA.
e. The proposal is inconsistent with CAMA's mitigation policy.
The OLF's adverse impacts on Pungo Lake and Lake Phelps are also inconsistent with CAMA's mitigation policy. According to CAMA regulations, "[i]t is the policy of the State of North Carolina to require that adverse impacts to coastal lands and waters be mitigated or minimized through proper planning, site selection, . . . ." 15A N.C. ADMIN. 07M .0701 (emphasis added). This policy represents the minimum environmentally acceptable standards for development in the coastal region of North Carolina. The Navy fails to meet even this broad policy goal by demonstrating poor planning and site selection in their preference for locating the OLF at Site C. The Navy failed to properly plan the OLF by proposing to build it in an area bordering Pocosin Lakes National Wildlife Refuge and near Pettigrew State Park, in lands where tens of thousands of large migratory birds gather each winter. This failure in planning has caused unnecessary conflict between the Navy's preference and the environment, and would result in significant adverse environmental impacts if the OLF were built at Site C. Similarly, the Navy failed to satisfy the site selection requirement of the policy by only superficially examining alternative sites. Since the initial identification of Site C as the preferred site, the Navy has only feigned interest in alternative, less environmentally damaging sites. The Navy's failed planning and site selection fail to minimize the adverse impacts to the coastal region as required by CAMA.
The Navy's failure to satisfy the State's mitigation policy is even clearer when the requirements for mitigation candidacy are considered. Although these regulations apply to development activities within AECs, they are representative of the mitigation policy's purpose. They illustrate, with specific requirements, the type of development that is consistent with the State's mitigation policy. The regulations require the applicant for mitigation candidacy demonstrate each of the following:
1) there is no reasonable or prudent alternate design or location for the
project that would avoid the losses to be mitigated;
2) the entire project for which the permit is requested is dependent upon
being located within or in close proximity to public trust waters and coastal
wetlands;
3) benefits to the public interest will clearly outweigh the long range adverse
effects to the environment.
15A N.C. ADMIN. CODE 07M .0703.
The Navy's preference for Site C does not meet these requirements. As is evident in the DSEIS, there are multiple alternative sites that would have less overall adverse environmental impact. The OLF is not dependent on its close proximity to Pungo Lake and Lake Phelps; in fact that close proximity creates a substantial hazard both for Navy pilots and migratory waterfowl. Finally, the public benefits do not clearly outweigh the long range effects to the environment as evidenced by the overwhelming opposition by local residents and local and state politicians, including Governor Easley, DENR, and the NC WRC. The Navy's failure to meet these three criteria demonstrates that the proposed OLF is not consistent with the State's management policy.
The information presented by the Navy and the USF&WS clearly demonstrates
that constructing the proposed OLF at Site C would not be consistent with
the management objectives for Pungo Lake and Lake Phelps as defined in CAMA
regulations. The OLF would adversely impact the biological, economic, and
aesthetic values of the lake by eliminating foraging habitat, increasing the
risk of air strikes, harassing birds near the site, and diminishing the visitor
experience at the lakes. These impacts are so significant that the USF&WS
has expressed concerns that they will not be able to protect the biological
functions and visitor experience at Pocosin Lakes NWR. These serious concerns
highlight the inconsistency of the proposed OLF with CAMA regulations. The
DSEIS does not provide full analysis of the OLF in terms of CAMA. The FSEIS
must provide a detailed consistency analysis including an explanation of how
the Navy has determined that the OLF is consistent with CAMA and evidence
supporting that determination. The DSEIS assertion that the OLF would be consistent
with CAMA is unsupported and contrary to the information presented in the
DSEIS and by the USF&WS. The FSEIS should explain this apparent contradiction
or conclude that the OLF is not consistent with CAMA
6. The DSEIS fails to adequately assess cumulative impacts.
In the challenge to the Navy's original FEIS, the courts found the Navy's
analysis
of cumulative impacts inadequate, and ordered the Navy to correct this deficiency
if it wished to move forward with an OLF, consistent with NEPA's mandate.
40 C.F.R. § 1508.25(c)(3). CEQ regulations define cumulative impact as
"the impact on the environment which results from the incremental impact
of the action when added to other past, present and reasonably foreseeable
future actions regardless of what agency (Federal or non-Federal) or person
undertakes such other actions. Cumulative impacts can result from individually
minor but collectively significant actions taking place over a period of time."
40 C.F.R. § 1508.7. The terms "impacts" and "effects"
are used interchangeably, and "include ecological … aesthetic, historic,
cultural, economic, or health …" 40 C.F.R. § 1508.8. "The purpose
of the cumulative impact analysis is to provide readers with a complete understanding
of the environmental effect a proposed action will cause." North Carolina
Alliance for Transp. Reform v. United States Dep't of Transp., 151 F. Supp.
2d 661, 698 (M.D.N.C. 2001). The Navy has failed to meet its obligations and
provide that complete understanding to either the public or the Navy's own
decision-makers.
Although the Navy corrected one defect in its assessment of cumulative impacts by expanding the geographic scope of its review to include the region in which the OLF would be operated, a reading of the cumulative impacts section demonstrates the Navy's continued misunderstanding of the requirement for this type of analysis. In accordance with the regulations and case law that guide NEPA's implementation, the Navy must consider impacts of ALL past, present and reasonably foreseeable actions, not just those the Navy selects for review. For example, the introduction of the Joint Strike Fighter should be included in the cumulative impact analysis; as Admiral Willard noted in the midst of the BRAC Commission hearings, the JSF is anticipated to be introduced as early as 2012, squarely within the time frame the Navy identified for analysis of impacts. BRAC Informational Hearing, Certified Transcript (July 18, 2005).
Another example concerns the Mattamuskeet/Gunny MOA the Navy proposes to establish immediately east of OLF Site C. The DSEIS acknowledges that the Mattamuskeet/Gunny MOA would be used by multiple aircraft, including the Super Hornet, and would be used approximately 7 hours per day for an estimated 2,400 sorties each year. DSEIS at 5-13. This, added to the OLF, represents a significant increase in military aircraft activity in the region, with significant increases in "transient" noise events and modeled average noise levels. The Navy's conclusory statement that this increase would constitute a "minor" impact is baseless, with no explanation or analysis offered to support the conclusion. The Navy is obligated by NEPA to conduct an actual analysis of the impacts, including cumulative impacts, that support its statements.
In addition, the Navy must consider the cumulative impacts associated with existing military airspace in the region. While the DSEIS does identify the location of the various SUAs, MOAs and MTRs in the region, nowhere is any reference made to the impacts on birds or other natural resources from the existing use of those areas, much less the cumulative impacts from the proposed OLF. As the federal courts have ruled, an agency must "provide adequate analysis about how [existing] projects, and differences between the projects, are thought to have impacted the environment." Lands Council v. Powell, 379 F.3d 738, 745 (9th Cir. 2004). Sufficient detail is needed to enable the public and decision makers to make an informed assessment of the environmental considerations and policy choices.
The Navy also must analyze the cumulative impacts not only on airspace, but also cumulative impacts on the ground and over time. For example, an analysis of the cumulative impacts to birds, the refuge and other resources from multiple years of training at the OLF site is necessary. The DSEIS includes no analysis or insight based on the Navy's long-term usage at "comparable" airfields from which an assessment could be made. Moreover, the Navy declined to consider impacts over time in the DSEIS, stating merely that whether "the existence of training sessions possibly throughout the overwintering season over many years would have a cumulative effect on waterfowl responses … cannot be fully determined through this evaluation." NEPA requires a more thorough analysis of cumulative impacts.
Another significant flaw in the cumulative impacts section is the lack of
analysis of the projected impacts from implementation of the "conceptual"
BASH plan, despite the changes to agricultural uses and crop patterns, and
associated loss of foraging habitat, such a plan would impose. The implementation
of the BASH plan, even in its conceptual form, would result in significant
land use changes designed to make the region unattractive to - even hostile
to - the migratory waterfowl that Pocosin Lakes is managed to attract. As
such, the BASH plan itself may be expected to have adverse effects on waterfowl,
in addition to the intense and erratic noise levels and other activities posed
by
the military aircraft that will use the OLF. As the USF&WS has noted,
the Navy's foraging habitat analysis was inadequate, as it excluded factors
critical to assessing the suitability and availability of alternative feeding
areas that could replace those that would be lost due to the implementation
of the BASH management plan. See Hall Statement. It is this type of synergistic
relationship that the cumulative impacts analysis is intended to analyze.
It is difficult to reconcile these shortcomings with the federal courts' rulings on the initial FEIS, which they found to violate NEPA in part because of the Navy's failure to evaluate and consider cumulative impacts. The district court found that the OLF and proposed MOAs would involve "significant training" that would have cumulative impacts, which the Navy was obligated to discuss. Washington County et al. v. Dep't of the Navy, 357 F. Supp. 2d 861, 874 (E.D.N.C. 2005). The 4th Circuit went even further, noting that the "Navy's hard look requires analysis of the combined impact that may result from tens of thousands of flights potentially passing over or near the same geographic area." Audubon Society, 422 F.3d at 197. The appellate court went on to state that the region's location relative to a National Wildlife Refuge "heightens the Navy's statutory duty." Id. Here, as with the original FEIS, the simple description of the airspace without an analysis of the cumulative impacts does not satisfy NEPA's mandate, much less the heightened obligation imposed by the court. Id. at 196.
7. The DSEIS fails to explain how the Navy will mitigate adverse impacts.
The courts also required the Navy to improve its discussion and analysis of
mitigation measures. Pursuant to the CEQ regulations, the EIS must also include
appropriate mitigation measures and discuss means to mitigate adverse environmental
impacts. "[O]mission of a reasonably complete discussion of possible
mitigation measures would undermine the 'action-forcing' function of NEPA.
Without such a discussion, neither the agency nor other interested groups
and individuals can properly evaluate the severity of the adverse effects."
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989). While
an agency's mitigation plan need not detail the "precise mitigation measures,"
the proposed measures must be "developed to a reasonable degree."
National Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 734 (9th
Cir. 2001). "A 'perfunctory description' or 'mere listing' of mitigation
measures, without supporting analytical data is insufficient…" Id. (internal
citations omitted). See also Friends of the Earth v. Hall, 693 F.Supp. 904
(W.D. Wash. 1988) (finding the Navy's mitigation plan in violation of NEPA.
The court ruled that given the Navy's reliance "on the existence of a
monitoring plan to avoid resolving uncertainties or evaluating risks,"
its "[r]eliance on a detailed plan to be developed in the future with
other agencies … does not meet an agency's NEPA obligations." Id. at
938-39 (emphasis added)).
The Navy misapprehends its legal responsibilities for mitigating the negative environmental impacts of its proposed project. The Navy's discussion of mitigation measures in the DSEIS consists of a mere five pages, with bullets of vague statements about what the Navy would do to mitigate impacts at each alternative OLF site. Only one page is devoted to measures to mitigate the adverse impacts to water quality, red wolves, waterfowl, and the refuge itself that are anticipated to result from the construction and operation of an OLF at Site C, the Navy's preferred alternative. The bulk of those bullets refers to measures to mitigate the risk of collisions between waterfowl and military aircraft, measures which themselves impose adverse environmental impacts that are nowhere evaluated, much less discussed for mitigation purposes. The other measures list a permitting requirement the Navy will have to comply with (i.e., obtaining a dredge and fill permit where wetlands would be destroyed), or reference ongoing consultation with the USF&WS. See DSEIS at 6-1 - 6-5. Missing are references to other permits the Navy would have to obtain (such as stormwater management or erosion and control permits), measures under consideration for mitigating the loss of wetlands or impacts to water quality, plans for replacing foraging habitat for waterfowl, or measures for protecting the endangered red wolf. With regard to the red wolf, the Navy states simply that it would develop an Integrated Natural Resource Management Plan. Id. at 6-5.
From the time the Navy began considering Site C, citizens, environmental
organizations, and agencies have raised concerns about the effects of the
OLF on wildlife and the risk of BASH. There is no doubt the Navy was aware
of this central criticism of Site C, yet it brushed aside the concerns with
vague and general pledges in the ROD to "develop" a BASH plan in
the future and "consider" use of bird detection radar. (68 Fed.
Reg. at 53356). In fact, Rear Adm. Richard Cellon, in his declaration in support
of the Navy's Motion to Stay, stated "the EIS highlighted the need for
a [BASH] plan and the ROD stated our intent to develop one." (Cellon
Decl., 23). Rear Adm. Stephen Turcotte's Declaration is even clearer: "The
details of how the [BASH] risk will be managed at the OLF also remain to be
determined as a result of ongoing studies, as well as development of an Integrated
Natural Resources Management Plan (INRMP) for the OLF." (Turcotte Decl.,
13).
Although the Navy appended to the DSEIS a "conceptual" BASH plan
developed by the US Department of Agriculture, the fact remains that the Navy
plans to develop a detailed BASH plan and INRMP in the future. In fact, responding
to public outcry over some of the measures identified for controlling bird
interference with flight operations, mainly those involving depredation -
or killing - of the birds, the Navy has sought to distance itself from the
"conceptual" BASH plan, asserting that the mere use of such measures
at "other airports" does not mean they will be used at an OLF at
Site C. Statement of Ted Brown, "Navy Plans Don't Fly with Folks in North
Carolina," L.A. Times (May 7, 2007). This lack of detail prevents the
public from understanding, and commenting on, the Navy's plans and the impacts
they would present. As Hall teaches us, the "subsequent preparation of
an elaborate mitigation plan" and "reliance on a detailed plan to
be developed in the future" violate NEPA. Hall, 693 F.Supp. at 939.
When the courts reviewed the Navy's FEIS, they found the Navy's mitigation
measures inadequate. Audubon Society, 422 F.3d at 200; Washington County,
357 F. Supp. 2d at 875. Despite the courts' admonition and clear mandate for
the Navy to do more, the Navy's discussion of mitigation measures in the DSEIS
remains inadequate. As in the National Parks case cited above, the Navy has
done nothing more than provide a "mere listing" of mitigation measures
(and an incomplete list at that), "without supporting analytical data."
As before, the Navy's mitigation plans violate NEPA.
8. The Navy fails to address significant new information in violation of NEPA.
A federal agency must supplement its EIS if "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c). An analysis of the Report and Recommendations of the Base Realignment and Closure ("BRAC") Commission is needed to comply with this mandate, as it contains significant new information that affects the scope and purpose, and most importantly, the underlying need for the proposed OLF. Yet the DSEIS omits any reference to the BRAC Report and contains no analysis of its implications for a new OLF. In contrast, the Navy does disclose new information at water management needed at Site C, yet does not take the requisite "hard look" at the environmental impacts or measures necessary to mitigate those impacts.
a. The Navy fails to address significant new information in the BRAC Report bearing directly on the underlying need for the OLF.
The omission of reference to the BRAC Commission Report is remarkable and
inexplicable, considering the potential magnitude of its impact on Oceana
and the Navy's plans for an OLF. The BRAC Commission found that Oceana is
compromised by encroachment and ordered that this be rectified or the base
would be closed. BRAC Commission, Final Deliberations and Decisions, Certified
Transcript, Aug. 24, 2005. Since that time, the Inspector General for the
Department of Defense has determined that Virginia and the City of Virginia
Beach failed to comply with the BRAC Commission's orders. The underlying need
for the OLF, to mitigate noise impacts at Oceana and Fentress, may no longer
be relevant if the base is closed in the near future, a scenario that is clearly
foreseeable based on the Commission's order and the Inspector General's determination.
While the BRAC Commission hearings were under way, several Navy officials testified in defense of Oceana and Fentress, time and again offering assurances to the Commissioners that encroachment is not a serious problem and that training at neither facility is compromised. Certified Transcripts, BRAC Informational Hearings July 18, 2005 (statement of Admiral Willard); August 5, 2005 (statement of CNO, Admiral Mullen); and August 20, 2005 (statement of Captain Granfield). Captain Granfield asserted that the alterations to the flight syllabus at Oceana and Fentress were inconsequential, emphasizing that the flight syllabus is different at every OLF, and that none of them mimic the syllabus required for actual carrier landings. Certified Transcript, BRAC Informational Hearing August 20, 2005. He further explained that naval studies confirmed there was no difference in skill, ability or accuracy between pilots who trained in "degraded" night-time conditions (i.e., with urban light pollution) and those who trained under more poorly lit conditions. Id. When discussing the possibility of closing Fentress and moving its assets to a new facility, Admiral Willard asserted that no other location would provide better operational readiness and training attributes than those currently provided at Oceana. Id. Finally, when asked about the need for a new OLF (i.e., the one at Site C that is the subject of the DSEIS), Admiral Willard downplayed its importance, stating that it was being explored "to help mitigate some of our noise challenges there." Certified Transcript, BRAC Informational Hearing July 18, 2005.
Nothing could be more significant than removing the underlying need for the OLF, yet the DSEIS has no discussion of the implications of the BRAC Commission Report and Recommendation. If Oceana is closed, an OLF will not be needed. Conversely, if, as Navy testified in BRAC hearings, Oceana is not compromised and encroachment is not a problem, then no OLF is needed. The Navy cannot have it both ways: either Oceana is severely compromised, or it is not. Either way, a new OLF is not needed. The Navy must acknowledge and explain this discrepancy.
b. The DSEIS fails to explain and assess the extensive water management that
would be required at Site C.
As the Navy notes in the DSEIS, Site C is a wet area, receiving more than 50 inches of rainfall each year - far more than can be soaked up by the forests and farms. The area is characterized by poorly-drained soils and a high water table (within 0-12 inches of the surface). Formerly part of the Great Dismal Swamp, the region has been extensively ditched and drained over the past 100 years, with drainage canals crossing the area. The drainage canals are so vital to agricultural production and human habitation that the North Carolina General Assembly has enacted a complex statutory scheme governing the creation of drainage districts and the placement, construction and management of the canals within each district. See N.C.G.S. §§ 156.1 et seq.
The area identified for OLF Site C is governed by the Albemarle Drainage District, which covers approximately 35,000 acres is Washington and Beaufort Counties, and the Pungo River Drainage District. These districts were created nearly 100 years ago to ensure the regular and proper maintenance of the canals. In the absence of regular maintenance, the area would flood and revert to swampland, and crop production would cease. The Albemarle Drainage District consists of 16 canals, each one more than 10 feet wide and 15-20 feet deep. They collect and convey millions of gallons of water each day, ultimately discharging the water into Pantego Creek, which empties into the Pungo River and then into the Pamlico Sound. A runway at Site C would cross four of those drainage canals, numbers 7-10. Rerouting or filling those canals would be a serious and challenging undertaking to prevent flooding upstream. Even small snags within the canals, such an accumulation of grasses or tree branches, can quickly back up water and cause flooding in the upper reaches of the district.
The Navy has noted that it would have to intensively manage water to keep Site C functional. See DSEIS at 2-41, Table 2-3. Table 2-3 documents the extent of the effort that will be required, including the filling or rerouting of nearly 13,000 linear feet of existing canals and the creation of more than 70,000 linear feet of new drainage. This is a far more significant undertaking than what would be required at any of the other alternatives considered for the new OLF. According to a bid solicitation posted by the Navy on the Federal Business Opportunities website, proper maintenance will include earthwork, sediment and erosion control, clearing and grubbing, and ongoing drainage improvements. Officials with the Albemarle Drainage District have underscored the importance of this work, and the Navy's willingness to pay fees to the district, to maintain the region's productivity and prevent flooding. It is significant that the Albemarle Drainage District has expressed its opposition to an OLF at Site C, citing these concerns with water management.
Despite the magnitude of these tasks and the significant maintenance burden involved, nowhere in the DSEIS does the Navy address the location of those new canals, the impact rerouting existing canals would have on the existing intricate drainage system, where new canals would be constructed and how they would affect the region's agricultural production, where the water from the canals would be discharged or what the impacts of that discharge might be on the receiving waters, or how it would mitigate those impacts. The Navy also has not disclosed the cost of such endeavors.
Answers to these questions are essential to a thorough understanding of the impacts, both direct, indirect and cumulative, and trade-offs associated with the construction and operation of the OLF. For example, increasing the drainage of the area could result in dramatically increased flows of freshwater to the estuary, reducing its salinity and increasing sedimentation, with resulting adverse impacts to nursery areas, fisheries and shellfishing waters (including the Pungo River and Pamlico Sound). Similarly, increased drainage could accelerate impacts to the region's aquifers, which already are under so much stress that the state has created the Central Coastal Plain Capacity Use Area (which includes Washington and Beaufort Counties) and imposed severe restrictions on groundwater withdrawals to prevent permanent damage to and saltwater intrusion into shallow coastal aquifers. Without this information an informed decision cannot be made.
9. The Navy has failed to fulfill its mandatory environmental justice obligations
The DSEIS does not adequately address the Navy's environmental justice ("EJ"), obligations. The Navy is subject to Executive Order 12898, 59 Fed. Reg. 7629 (Feb. 16, 1994), as well as the guidance issued by CEQ in December 1997, on environmental justice. These policy documents establish federal agency duties to address environmental justice issues during the NEPA and agency decision-making processes. In projects of large scale federal spending, like construction of the proposed OLF, the Navy must consider whether certain environmental harms will disproportionately impact low income and minority populations. The Navy did not address these issues in the DSEIS.
In its FEIS of July 2003, race and economic data is compared for census tracts within the very high noise zones for each of the proposed OLF sites to race and economic data in the whole county, or another representative community of comparison. FEIS at 12-100 - 12-106. Specifically, for Site C, the preferred alternative in Washington County and a small portion of Beaufort County, North Carolina, there are comparisons of census tract data for sites within the very high noise zones in Washington County, to the census tract data for the entire county and to the census tract data within the very high noise zone in Beaufort County to the census tract data for the entire county. Id.
Based on these comparisons, the Navy concludes that "implementation of the proposed OLF at this site could result in disproportionately high and adverse effects on minority populations," and "implementation of the proposed OLF at Site C could result in disproportionately high and adverse noise impacts on low-income populations in census tracts 9901 and 9502." While this analysis reveals the potential for disparate impact, another analysis that should have been included in the FEIS and the DSEIS compares Site C to Chesapeake, Virginia, where NALF Fentress is located. In a Department of Navy letter dated October 30, 2000, Admiral Natter states: "It is precisely because of community concerns over jet noise that we are carefully exploring the establishment of an additional outlying landing field to accommodate Super Hornet training - should these aircraft come to our community - and reduce aircraft operations at our airfields at Oceana and Fentress."
In effect, the FEIS justifies taking the noise burden away from communities near Oceana and Fentress, and moving it to Washington County. Given this circumstance, the lack of comparison to Ocean and Fentress is unreasonable and indefensible. The preferred alternative is an area with a significant low-income and minority population. FEIS at Table 12-102,103. Where a comparison population based upon a geographic area that would experience similar noise impacts is not included in the EJ analysis in the EIS, the analysis is unreasonable. See Communities Against Runway Expansion v. FAA, 355 F.3d 678 (D.C. Cir. 2004).
In the DSEIS, the Navy discusses some of the socioeconomic impacts on Site C, Washington County. First, there will be a loss of agricultural production in Washington County, due to the land being converted for use as the outlying landing field. The DSEIS acknowledges that this will be a significant loss, ranging from $3.8 million to $6.9 million annually, in gross income to property owners and farm workers. DSEIS Executive Summary at 25. It then states that tax revenue loss would be no greater than 1% and considered minor under all land acquisition scenarios. Id. However, in the cumulative impacts section, the Navy estimates that the overall amount of property removed from the property tax base due to federal jurisdiction will increase to 13%, resulting in a significant socioeconomic impact to the county.
This economic harm, taken into consideration with the fact that minority and low-income populations will already be disproportionately impacted by very high noise at Site C, paints a picture of an already affected community becoming even more adversely affected due to tax revenue lost from the county. See FEIS 12-103. The EJ analysis neglects to take a "hard look" at the demographic and economic information necessary to support a decision for any particular site, including Site C. The record demonstrates that the Navy has not considered alternatives that will avoid causing a disproportionate impact on minority and low income communities, thus rendering any decision based on the record unsupportable.
We appreciate the opportunity to submit these comments.
Sincerely yours,
Derb S. Carter, Jr. Michelle B. Nowlin
Director, Carolinas Office Senior Attorney
Geoff R. Gisler Chandra T. Taylor
Associate Attorney Staff Attorney
Cc: Chris Canfield, Audubon Society of North Carolina
Larry Thompson, North Carolina Wildlife Federation
Noah Matson, Defenders of Wildlife
Ray Owens, Kennedy Covington
Kiran Mehta, Kennedy Covington
Chris Lam, Kennedy Covington
MEDIA RELEASE
For further information contact:*Larry Thompson, Executive Director, NC Wildlife Federation
(919) 833-1923
*Tim Gestwicki, Deputy Director, Conservation Programs, NC Wildlife Federation
(704) 332-5696
FOR IMMEDIATE RELEASE
Date: February 23, 2007
Navy Misses Again!
Impacts to National Wildlife Refuge and Waterfowl Still off course
Raleigh, NC- In spite of the U.S. Navy's Thursday release of its Supplemental
Environmental Impact Statement (SEIS) on the construction of an Outlying Landing
Field in eastern North Carolina, many issues are still left in question regarding
the building of an Outlying Landing Field in Washington and Beaufort counties.
This second reanalysis fails again to accurately address the impacts on over
100,000 waterfowl in one of the most ecologically valuable and sensitive regions
in the Country. It also downplays the jeopardy to human life of putting top
naval pilots and $70 million aircraft in harm's way.
"The Navy continues to try and pull a fast one on American citizens,"
says Larry Thompson, Executive Director of the North Carolina Wildlife Federation.
"Hunters, anglers, and wildlife-enthusiasts should be outraged by this
latest attempt to circumvent Federal acts. The U.S. Navy minimizes the severity
of the wildlife and habitat impacts that will come with construction of the
OLF at this site. We do not wish to be in the position of having to say 'I
told you so' to the Navy when plane/bird collisions occur."
The issue -The much-contested Outlying Landing Field, or OLF is a 30,000+
acre landing field facility for F/A-18 Super Hornet practice landings. As
proposed, it would handle an average of 70 daily touch-and-go landings. The
proposed OLF site is near the Pocosin Lakes National Wildlife Refuge, which
is one of the East Coast's most important sanctuaries for wildlife. Encompassing
parts of Hyde, Washington, and Tyrrell counties, the refuge is part of the
Atlantic Flyway for migratory birds and provides migratory habitat for more
than 100,000 waterfowl including tundra swans and snow geese. Additionally,
not only would the flights cause extreme noise disruptions to area wildlife,
but the purchasing of farmland as a buffer around the landing field would
adversely effect important foraging sources.
Compeeling conservation evidence presented in court forced the Navy to go
back and do further analysis and studies. In his strongly worded decision,
U.S. District Court Judge Terrence Boyle wrote that "construction of
the OLF would irreparably harm the natural habitat of hundreds of thousands
of waterfowl and would negatively affect the bird population through the increased
noise that would be produced by the Super Hornets, the loss of essential nourishment
for the birds t