Sample Comment Letter
You are free to use as much or as little of this example letter as you like. Letter are due by close of business on November 16th.
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Ms. Elaine Holley
US Army Corps of Engineers
Richmond Field Office
9100 Arboretum Parkway, Suite 235,
Richmond, VA 23236
Ms. Jaime Robb
Virginia Department of Environmental Quality
Piedmont Regional Office
4949-A Cox Road
Glen Allen, VA 23060
RE: Comment in Opposition to Draft Permit NAO-2012-02369 and 19-2036
Dear Ms. Holley and Ms. Robb,
Thank you for the opportunity to provide comment on the above-referenced draft permit. As many of the issues around these two permits are identical, I have chosen to make one comment to both agencies. In the event that a specific item applies to one agency, I will note it. I request that the US Army Corps of Engineers (“USACE”) conduct a public hearing, and that both agencies deny the issuance of permits NAO-2012-02369 and 19-2036 for the following reasons:
There has been a lack of transparency and community engagement. USACE has not fulfilled its statutory responsibilities to make information available. USACE has made no attempt to resolve these issues informally as contemplated by 33 CFR Part 327, and I request that a formal Public Hearing be scheduled so that the community’s views may be appropriately presented.
The wetlands delineation remains incomplete and inaccurate. Although USACE correctly eliminated the mosaics and now regards those areas as 100% wetlands, there was no attempt to address the other issues. The improper work conducted in Fall 2019 has been allowed to stand without sufficient scientific basis. This delineation was incorrectly performed in drought conditions, and areas identified as wetlands are still outside the official wetlands boundaries. The property owner refused permission to allow USACE and the Department of Environmental Quality (“DEQ”) to review any wetlands other than what had previously been labeled mosaics. The history of mistakes at this site, along with the amount of wetlands to be destroyed, make this limited review unacceptable. A proper delineation in accordance with the USACE manual and regional supplement must be performed.
USACE and DEQ have not appropriately considered secondary impacts to off-site wetlands. Many of the wetlands on the property have hydrological connections to wetlands on other properties that border the Air Park site. The destruction of wetlands at Air Park will have a dramatic impact on these off-site wetlands. This destruction has not been considered in the permit application, or the mitigation plan. This failure is contrary to the no net loss principle of wetlands mitigation.
The Air Park site is not the Least Environmentally Damaging Practicable Alternative (“LEDPA”). Both DEQ and USACE must find that this site is the LEDPA in order to issue permits. It is not. USACE has not shared its analysis, but since this site qualifies as a special aquatic site, and the proposed project not water dependent, USACE must presume that practicable alternatives exist. Wegmans has not overcome this presumption. DEQ admits that other sites are less environmentally destructive, but finds that Air Park is the LEDPA based on cost. In its application, Wegmans provides inaccurate and improper costs to justify this permit. For example, Wegmans reports that the Town of Ashland would require Wegmans to finance a new road costing $10 million to build at the Archie Cannon site. The Town of Ashland advises that it would not require this road. Wegmans further identifies “opportunity costs” related to any delays in building related to zoning etc. These costs are not allowed as a matter of law, and the alternatives analysis must be performed at time of “market entry.” Wegmans cannot use their choice of a site that is not LEDPA to make a site LEDPA. In fact, alternative sites that were available at time of market entry must continue to be considered as alternatives, even if they are no longer available.
The LEDPA must be both off-site and on-site. For the sake of argument, if one accepts this flawed LEDPA analyses from USACE and DEQ, Wegmans must still demonstrate that the plans for the proposed project make all practicable efforts to avoid and minimize impacts to wetlands. The main portion of the building that Wegmans proposes sits atop a large portion of wetlands that Wegmans makes no effort to avoid. This proposed project is not the on-site LEDPA.
Wegmans has not met its burden to promote environmental justice through meaningful involvement of the Brown Grove community as required by Va. Code § 2.2-235. Meaningful involvement means that “affected and vulnerable community residents have access and opportunities to participate in the full cycle of the decision-making process about a proposed activity that will affect their environment.” Va. Code § 2.2-234. To the contrary, Wegmans has continued to limit opportunities for Brown Grove’s involvement, and minimized and devalued the oral history and memory of Brown Grove elders as to the existence of graves on site. DEQ asked Wegmans about their EJ outreach, and all Wegmans could report was that they conducted a meeting with five people on February 7, 2020 and followed that up with an email on February 14, 2020. USACE directed Wegmans to consider EJ as part of their LEDPA analysis but Wegmans did not. Instead, Wegmans asserts, through the use of the Environmental Protection Agency (EPA) EJSCREEN tool that there is no bona fide EJ community in the area. The use of EJSCREEN under these conditions is contrary to both EPA guidance and the sworn testimony of DEQ. (See Friends of Buckingham v. State Air Pollution Control Board, 4th Cir. 2020.) These activities are insufficient to meet Wegmans’ EJ responsibilities, and the denial of Brown Grove’s existence as an EJ community is ignorant, offensive and contrary to law.
USACE prematurely determined that no Environmental Impact Statement (“EIS”) was necessary under the National Environmental Policy Act (“NEPA”), indicating without further explanation that the agency believes that this project poses no significant environmental impact. However, DEQ’s records show that this permit, if approved, will be both the largest destruction of wetlands outside of the Hampton Roads area and the second largest destruction of non-tidal wetlands in Virginia over the last five years. In consideration of the extensive community concern, ongoing and uncorrected critical flaws in the delineation, unaddressed environmental justice failures and sheer volume of wetlands to be destroyed, this project will significantly affect the quality of the human environment, and therefore must be classified as a major Federal action under the Act. Permitting action should not progress unless and until an appropriate and comprehensive EIS is performed.
For the reasons discussed above, I respectfully request that both USACE and DEQ deny the draft permit, and that USACE provide a public hearing on this matter. Thank you for consideration of these requests.