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Environmental: 8-3

Section 1.6(b)(20) of the RIEFSB Rules states that the applicant must file all necessary NEPA environmental documentation. The October 2015 application does not contain any NEPA documents. Please explain/clarify.

The National Environmental Policy Act (“NEPA”) established a broad national framework for protecting the environment that requires all branches of the federal government to give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment.  (42 U.S.C. Section 4231 et seq.) It is the responsibility of each federal agency to develop their own NEPA procedures tailored for the specific mission and activities of the agency. 

The CREC project will require an Individual Permit from the U.S. Army Corps of Engineers (“USACE”) for its proposed wetland impacts.  This federal agency permit application will be filed with the USACE by June of 2016. Once the permit application has been filed, the USACE will be responsible for preparing an Environmental Assessment (“EA”) to determine whether an Environmental Impact Statement (“EIS”) will be required for the project.  If required, the preparation of the EIS would be the responsibility of the USACE.

40 CFR 325 Appendix B sets forth implementing procedures for the USACE regulatory program. In cases where the specific activity requiring an USACE permit is merely one component of a larger project, the district engineer is required to establish the scope of the NEPA document (EA or EIS) to address the specific activity requiring an USACE permit and those portions of the entire project over which the district engineer has control and responsibility to warrant Federal review.  The district engineer is considered to have control and responsibility for portions of the project beyond USACE jurisdiction only in cases where the environmental consequences of the larger project are essentially products of the USACE permit action. 

Invenergy Thermal Development LLC’s (“Invenergy”) Application with the RI Energy Facility Siting Board (“EFSB”) and the numerous environmental permit applications which will be filed for the CREC project fully detail the environmental impacts of the project and include all of the elements which would be required for an EIS.  The USACE did not notify Invenergy in the project pre-application meeting that an EIS would be required for the project. For the USACE to require an EIS for the project, the district engineer would need to conclude that the environmental consequences of the project have not been properly considered through the EFSB and other permitting processes, such as RIDEM. If required, the scope of such an EIS would be limited to the aspects of the project for which the USACE has control and responsibility.       

The other air and water permits are under the responsibility of the RI DEM, as the delegated agency from U.S. EPA for these federal air and water permits.  Rhode Island (unlike Massachusetts), does not have a separate state NEPA equivalent requirement, at the state level.  Nonetheless, Invenergy understands that the RI EFSB has the responsibility to evaluate all individual and cumulative environmental impacts of the application.  And RIDEM will be conducting its independence evaluation of the air, water and other natural resource impacts of the project also. 

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SUPPLEMENTAL RESPONSE:

In pre-application meetings, the Rhode Island Department of Environmental Management (“RIDEM”) and the USACE informed Invenergy that the wetlands applications submitted for CREC would need to include the proposed impacts associated with all project elements, including CREC, the transmission line and all water and/or sewer treatment and conveyance systems. Due to design delays associated with the National Grid transmission line, Invenergy was unable to submit the permit application by June 2016, as indicated in the original response.

Pending the transmission line and further water line system developments, the wetlands impacts to the construction of CREC have been determined. See “Clear River Energy Center – Rhode Island Energy Facility Siting Board Application – Addendum – Wetlands,” prepared by ESS Group, Inc., dated August 30, 2016.

RESPONDENT: Michael Feinblatt, ESS Group, Inc.

DATE: August 30, 2016