Press Release May 21, 2018

Parks Group Files Intent to Sue Over Endangered Species Act Violations at Historic Jamestown and James River

New information reveals that federal agencies overlooked the presence of endangered juvenile Atlantic Sturgeon and Shortnose Sturgeon in the James River at Jamestown.

Washington, DC – National Parks Conservation Association (NPCA) today sent the U.S. Army Corps of Engineers and the National Marine Fisheries Service a 60-day notice of intent to sue for violating the Endangered Species Act in connection with the agencies’ review of Dominion Energy’s massive transmission line proposal across the James River at historic Jamestown. This project threatens the endangered Atlantic sturgeon–juveniles of which have been documented year-round where construction for the controversial transmission line has begun in the James River—as well as the endangered Shortnose sturgeon.

In authorizing actions that may have adversely affected federally protected species, such as these sturgeon, federal agencies are obligated by law under the Endangered Species Act (ESA) to ensure that such actions do not jeopardize the existence of any endangered species or adversely affect their critical habitat. In 2017, the U.S. Army Corps of Engineers granted the necessary permit to allow Dominion Energy to proceed with a highly controversial plan to build 17 obstructive transmission towers, some as tall as 295 feet, across the James River at Jamestown, asserting the Atlantic sturgeon in the area would not be harmed by the project. With support from the Duke Environmental Law and Policy Clinic however, NPCA’s notice reveals significant findings charging that the two federal agencies failed to fully evaluate the impacts of the transmission line project on juvenile Atlantic Sturgeon. Additionally, the notice alleges that the agencies’ prior analysis failed to acknowledge the presence of Shortnose Sturgeon in the river. Through this notice, NPCA has formally called for the U.S. Army Corps of Engineers to temporarily halt construction of Dominion Energy’s planned transmission line until potential impacts to these federally protected species can be fully assessed, as required by the ESA and its implementing regulations.

“Dominion Energy’s transmission project poses an enormous threat to endangered sturgeon, their habitat and the surrounding national park landscape,” said Theresa Pierno, President and CEO for National Parks Conservation Association. “Endangered juvenile Atlantic Sturgeon and their critical habitat have been found at the very site where the transmission tower foundations are currently being constructed. Until proper review is completed, construction on the project must stop to prevent irreparable harm to these endangered fish populations and the historic setting of this treasured place.”

Atlantic Sturgeon have existed since the time of the dinosaurs and were once so plentiful in the James River they served as a main source of food for the original Jamestown settlers. A combination of habitat destruction and overfishing put the fish on the brink of extinction. While a population has returned to the James River during the past fifteen years, the species’ recovery remains unstable. The transmission line would slice through the portion of the James River designated by the National Marine Fisheries Service as critical habitat, significantly impeding the continued recovery of this endangered species. Juvenile Atlantic sturgeon, which have been found to inhabit the area year-round, would be even more sensitive to many of the adverse impacts from the project’s operation, including damage to bottom habitat from in-water structures, electromagnetic radiation, loud buzzing from the high-voltage wires and disturbances from the night-time lighting of the towers. The presence of Shortnose Sturgeon in the James River, which has been protected under the ESA since 1967, also requires an analysis of the potential impacts on this vulnerable and endangered population, whose presence has only recently been documented near the project’s construction area.

In a separate legal proceeding concerning the legality of the Army Corps’ decision making process for this project under the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA), NPCA awaits judgment on a lawsuit filed against the Army Corps last summer. The lawsuit aims to block construction of Dominion Energy’s transmission project across the James River at Jamestown until the agency completes an Environmental Impact Statement and considers reasonable alternatives as legally required under NEPA and the CWA. This project would deface historic Jamestown, the James River, and surrounding national park sites like Colonial National Historical Park, Colonial Parkway and the Captain John Smith Chesapeake National Historic Trail, which collectively protect more than 400 years of our shared American history.

NPCA is represented on the 60-day notice of intent to sue under the ESA by the Duke Environmental Law and Policy Clinic, and in the separate pending NEPA/CWA lawsuit by the public interest environmental law firm Meyer Glitzenstein & Eubanks LLP. More information about the years-long campaign to protect historic Jamestown is available here.

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About National Parks Conservation Association Since 1919, the nonpartisan National Parks Conservation Association has been the leading voice in safeguarding our national parks. NPCA and its 1.3 million members and supporters work together to protect and preserve our nation’s most iconic and inspirational places for future generations. For more information, visit www.npca.org.

About Meyer Glitzenstein & Eubanks LLP Since 1993, Meyer Glitzenstein & Eubanks LLP has represented national, regional, and grassroots conservation organizations in federal litigation on issues of national importance. For more information, visit www.meyerglitz.com. Please direct any legal inquiries about this lawsuit to Meyer Glitzenstein & Eubanks LLP.

About Duke Environmental Law and Policy Clinic The Duke Environmental Law and Policy Clinic is a joint enterprise of Duke University’s Law School and Nicholas School of the Environment. The Clinic trains the next generation of environmental leaders while providing support to nonprofit organizations and clients involved in environmental conflicts. Its activities are conducted as part of the schools’ academic mission and do not represent an official endorsement or policy of Duke University. www.law.duke.edu/envlawpolicy/