129
On July 15, 2016, MARAD and the USCG issued a Draft EIS.
285
In the Draft EIS,
MARAD and the USCG addressed potential environmental impacts of the proposed Delfin Port,
including impacts to water, biological, geological, and cultural resources; ocean and land use; air
quality; and cumulative impacts.
286
In accordance with the Council on Environmental Quality’s (CEQ) NEPA regulations,
MARAD and the USCG provided a 45-day comment period on the Draft EIS. During this time,
MARAD and the USCG held two public meetings and accepted written public comments on the
Draft EIS. In total, MARAD and the USCG received five written comments on the Draft EIS.
287
On November 28, 2016, MARAD and the USCG issued the Final EIS.
288
The Final EIS
responded to comments to the Draft EIS, and addressed the potential impacts of Delfin’s
proposed Port on water, biological, geological, and cultural resources; essential fish habitat;
ocean and land use; onshore and offshore recreation; visual resources; transportation; air quality;
noise; socioeconomics; safety; and, cumulative impacts.
289
The Final EIS also reviewed
alternatives to the proposed action.
290
Based on this environmental analysis, MARAD and the USCG concluded in the Final
EIS that Delfin would adequately mitigate any environmental impacts through design
modifications, implementation of Best Management Practices, and implementation of mitigation
measures recommended by federal and state agencies.
291
Consequently, MARAD and the USCG
285
Deepwater Port License Application: Delfin LNG, LLC, Delfin LNG Deepwater Port; Notice of Availability and
Notice of Public Meetings for the Draft EIS, 81 Fed. Reg. 46,157 (July 15, 2016).
286
See supra note 27.
287
See MARAD ROD at 14.
288
See supra notes 8, 29.
289
See Final EIS at ES-9 to ES-17.
290
See id. at ES-6.
291
See generally id. at 4-14 to 4-243.
130
did not recommend additional environmental mitigation measures to be implemented.
292
In December 2016, MARAD and the USCG held the final licensing hearings required by
the Act. According to MARAD, attendees at these hearings expressed support for the anticipated
new jobs and economic development associated with Delfin’s proposed Port.
293
MARAD and
the USCG received one public comment during the final comment period, suggesting that the
FLNGVs should be built in the United States and crewed by U.S. citizens or legal residents.
Additionally, on March 8, 2017, the National Marine Fisheries Service (NMFS) provided
comment on the impacts of Delfin’s proposed port on threatened and endangered species and
designated critical habitat under the Endangered Species Act (ESA) Section 7 consultation
process. In that letter, NMFS concurred with MARAD’s determination of effects on listed
species and designated critical habitat, and indicated that all potential project effects were found
to be discountable or insignificant.
294
On this basis, NMFS found that “the proposed action is
not likely to adversely affect listed species under NMFS’ purview, and therefore “consultation
responsibilities under ESA for species under NMFS’ purview [are] concluded.”
295
C.
MARAD’s Record of Decision
Under the Deepwater Port Act, MARAD is required to make a decision on an application
for a deepwater port license within 90 days after the last public hearing on the application.
MARAD held the last public hearing in this proceeding on December 14, 2016, and MARAD
timely issued the ROD approving Delfin’s Application, subject to certain conditions, on March
13, 2017.
The ROD provides an extensive discussion of MARAD’s findings and conclusions under
292
See generally id.
293
See MARAD ROD at 14.
294
See id. at 23.
295
Id. (citing Federal Docket Mgmt. System, USCG 2015-0472-0119).
131
both the Deepwater Port Act and NEPA. Based on its review of the record, MARAD concludes
that Delfin’s requested license met the nine criteria required under the Deepwater Port Act,
subject to certain conditions.
MARAD explains that these conditions to the deepwater port license were designed to
“protect and advance the national interest, ensure adequate demonstration of financial capability
[to construct and operate the port], and make certain that the deepwater port will be constructed
and operated using best available technology so as to prevent or minimize adverse impact on the
marine environment.”
296
According to MARAD, “some, but not all” of the conditions are
described in the ROD, and the “precise conditions required … will be set forth in the License
upon its issuance.”
297
We note that two of the conditions discussed in the ROD include: (i) a
requirement for Delfin to obtain appropriate DOE authorization to export LNG from the port to
FTA and non-FTA countries; and (ii) a requirement for Delfin to obtain the necessary
authorization from FERC to construct and operate the Delfin Onshore Facility.
298
Additionally, under NEPA, MARAD determined that the construction and operation of
Delfin’s port, as proposed, is the environmentally preferred alternative for the project.
299
Below, we summarize the conclusions reached by MARAD that are most relevant to this
proceeding.
1.
National Interests Under the Deepwater Port Act
MARAD finds that the construction and operation of the Delfin Port ( i.e., the
Liquefaction Facility) will be in the national interest because the Port: (i) will have a beneficial
effect on economic growth, both on local and national levels; (ii) will expand and diversify U.S.
296
MARAD ROD at 16.
297
Id.
298
See id. at 49-50.
299
See id. at 48-49.
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