Amazon Data Center Site Development Violations, Oversight and (Lack of) Town Enforcement
March 11, 2023,
To the Warrenton Town Council and Mayor:
Protect Fauquier remains opposed to the Amazon data center on Blackwell Road. We continue to deplore the process followed by the Town. Nonetheless, we expected the Town to oversee Amazon’s actions on the site and ensure compliance with the SUP and with Virginia and local environmental laws.
Instead, over the past two weeks, we have been stunned to see the Town turn a blind eye and respond slowly—or not at all—while Amazon and its contractors started site work and (a) violated SUP conditions; (b) ignored Virginia environmental laws; and (c) appear to be circumventing the Federal Endangered Species Act.
Specifically, we raise the following issues:
1) Route 29 Access to the Blackwell Site:
SUP condition 12 explicitly states: “There shall be no access from either routes 17 or 29.” However, starting the week of February 27, Amazon contractors were accessing the Blackwell site from Route 29. Multiple contractor vehicles used Route 29 for access to the site, on an ongoing basis. In fact, it was the only way contractors were accessing the site. In addition to violating the SUP condition, the access from 29 created a safety hazard to others using Route 29 and we are aware of at least one close call due to this. When the Town failed to take any action, Protect Fauquier members called this to the Town’s attention. The Town was slow to respond. Then the Town’s acknowledgement of the issue to us was curt and unspecific. (From Tommy Cureton on March 8: “The Town holds the responsibility of enforcement and has done so.”)
Please assure us that the Town issued a formal Notice of Violation to Amazon, imposed a significant fine, and ordered Amazon to erect a physical barricade to prevent further incursions. Without a physical barrier, there will be nothing to stop future access from Route 29. Without a formal Notice of Violation and significant fine, Amazon will feel free to commit other violations, knowing there is no penalty and no formal record of the violation.
2) Tree Cutting:
SUP condition 19 states: “Tree Save: The Applicant shall provide a tree preservation plan at time of Site Plan that seeks to minimize land disturbance and maximize on-site vegetation.” Also, Warrenton’s Site Plan Development Checklist requires “A Tree Protection Plan that indicates the location of trunks and driplines for trees or wooded areas that are to be retained.”
Furthermore, your own Comprehensive Plan states: “The Town of Warrenton is designated by the Arbor Day Foundation as a Tree City USA, boasting a plentiful variety of trees. The promotion of the urban tree canopy is embraced as a means to enhance economies, protect the environment, and enhance healthy lifestyles. In fact, citizen comments during the public outreach of the Comprehensive Plan repeatedly referenced the Town’s trees: the desire to preserve them, the desire to increase the numbers, and the desire to maintain the existing canopy.”
Contrary to the SUP, your site development requirements, and your Comprehensive Plan, you are ignoring massive tree cutting by Amazon contractors that began the week of February 27 and is ongoing. Hundreds of mature, large trees have been cut down, and chain sawing of trees is continuing. It is blatant, obvious to everyone, and was highlighted in a news story in the Fauquier Times. The number of trees already cut down, and the geographic area affected, is significantly in excess of the Amazon Tree Study prepared in April 2022—a study that Amazon said it would update to protect more trees in view of the elimination of an on-site substation—but which Amazon has failed to do. We ask that each of you go to the site, look at the extent of tree cutting, and compare that to Amazon’s Tree Study. The cutting far exceeds Amazon’s Tree Study.
We ask that you issue a formal Notice of Violation for tree cutting without the Tree Preservation Plan required in the SUP, order Amazon to halt tree cutting immediately, impose a stiff penalty on Amazon for trees already cut down, and require restitution for that tree loss, based on the value of each tree destroyed. If you fail to act, the message you are sending to Town and County residents is that you are ignoring the tree destruction and allowing Amazon a free hand in chainsawing trees.
3) Land Disturbance:
Virginia Law and the Warrenton Zoning Ordinance establish detailed requirements for Land Disturbance, including permit requirements and Sediment and Erosion Control Plans. We believe that the massive tree cutting already constitutes land disturbance and inevitably will create erosion and sediment problems. Moreover, we expect shortly to see significantly more land disturbance from use of skidders to remove or consolidate the destroyed trees. State and local requirements are in place for important reasons: to avoid runoff, sediment in local streams and waterways, and impairment of the Chesapeake Bay watershed. We ask that you bring in an expert to assess the situation and investigate potential violations. Please assess the risk of sediment and erosion risks created by the large scale tree cutting. Direct Amazon to order its contractors not to bring in skidders to move or consolidate the trees already destroyed without meeting all permitting and substantive requirements for Land Disturbance. We have asked the Virginia Department of Environmental Quality to investigate and are bringing it to the attention of other agencies and the Chesapeake Bay Foundation.
4) Endangered Species Act (ESA):
Based on information from DEQ, it appears that Amazon’s precipitous and massive tree cutting may have been in anticipation of a new ESA listing. March 31, 2023 is the effective date for listing the Northern Long-Eared Bat (NLEB) as endangered. After March 31 federal requirements and guidelines kick into effect for the NLEB, especially for tree-cutting in NLEB habitat, including Virginia. Several things suggest that Amazon may have ordered its contractors to start tree cutting in order to avoid restrictions under the ESA: (a) The precipitous start of tree cutting during the week of February 27, just two weeks after the Town Council approved the SUP; (b) the failure to wait to submit a Tree Preservation Plan, as required in the SUP; (c) the extent of tree cutting substantially in excess of Amazon’s Tree Study; (d) information indicating that the contractors will cease work on March 31—the day the ESA listing takes effect. Forest clearing in anticipation of new ESA listings has been found to be a violation of State and Federal law. We ask that you contact an appropriate law enforcement agency to investigate this. We also ask that you require Amazon to explain, in writing, why it acted so precipitously, and why tree cutting will cease on March 31, the day the new ESA listing takes effect.
5) Noise Baseline Study:
Large scale tree removal fundamentally alters ambient noise conditions. Removal of vegetation will increase the dB(Z) from traffic noise at AWS property boundary and thus raise the violation thresholds for enforcement purposes. The Warrenton Noise Ordinance is based on noise emitted by a facility without including ambient noise. If the Town is to have any ability to enforce the Noise Ordinance, the Town had to establish an ambient noise baseline, measured at six or more times of day, prior to any change in the site or any construction on the site. To our knowledge the Town has not conducted an ambient noise baseline and had it certified, so you have already tipped the scales against protecting your residents from noise violations. If you have not established a certified ambient noise baseline, for multiple hours of the day, you are further compounding your failures in the SUP to require a valid noise study and to nail down the specific equipment Amazon will be using. Collectively, this constitutes flagrant and willful disregard for protecting your citizens from noise levels that will harm their health, quality of life, and property values. We ask that you bring in a certified noise expert immediately, using appropriate dBZ measurement, to take ambient baseline noise levels for at least six different times of day (including within the 1 a.m. to 3 a.m. timespan), at eight different points on the perimeter of the Amazon property, and have it certified and codified as the ambient conditions for purposes of noise enforcement.
6) Enforcement:
We note that SUP condition 25 states:
“Violation of any of the conditions of this SUP may result in appropriate enforcement action by the Town, including issuance of a Notice of Violation and Corrective Order and, after notice and an opportunity to be heard, revocation of the SUP. (Emphasis added.) This statement does not limit the remedies of the Town in the event of a violation of the conditions of this SUP…”
The above flagrant violations by Amazon and its contractors are an early signal that they cannot be trusted to abide by any of the SUP conditions and state and local laws. You have ample reason to revoke the SUP, and we ask that you do so. If you do not revoke the SUP, if you allow the project to continue, you risk even more significant violations to come. You have been willfully disrespected by Amazon and its contractors. More important, you will be endangering the health and well-being of the residents of the Town—which is your first and foremost obligation as elected officials of the Town of Warrenton.
In closing, we want to point out your own statements at the January 10, 2023 Amazon hearing about oversight and enforcement:
3:39:15: Brett Hamby: "It would be like Harris Teeter, us denying a SUP and them building a gas station anyway … these are the things we deal with in the government … our side has become strict where we require an SUP. This stuff isn't "by right". . . The SUP controls that we have in Warrenton are much more stricter [sic] than Fauquier County itself. That's why we're here talking about it … trying to set the conditions of this SUP … I don't disagree that somebody can't not follow the law … happens everyday … but we have used occupancy enforcement for hotels in town, we've used occupancy permits for all kinds of different things. That is the greatest thing the government has. They can pull your occupancy permit and shut you down … We don't need to send in a SWAT team, we just call them on the phone … They are standing here before us and they are agreeing to terms of an SUP.”
3:35: Bill Semple asks if we are going to march over there and shut them down if they are not compliant. Brett Hamby responds: "That's exactly what I'm saying."
3:35:50: Jay Heroux in response to Bill Semple's concern about being able to condition and stop operations. Heroux: "This is the standard that we want them to deliver to and if you don't meet it then you don't operate … we can walk into any facility around here in this town, whether it's Giant Food a pharmacy you name it and say if they are not compliant we can pull 'em. It's a condition that they know … when you are doing business here …”
3:38:30: McGuire: “We're going down a bad road here thinking we can enforce this [meaning conditions].”
3:38:44: Mayor: "An SUP is a conditional use, correct? So the conditional use rests in the allowance of the governing body of the town, so if they are in violation and we deny them occupancy they will have to cease operations …”
On behalf of the 1,500 members of Protect Fauquier, especially the residents of the Town of Warrenton, we ask that you oversee site development and enforce the SUP and state and local laws. We also ask that you honor your own words at the public hearing. We look forward to your response—and your decisive action to address these violations and prevent further violations.
Sincerely,
Spencer Snakard, President Protect Fauquier
Mike Fultz, Vice President Protect Fauquier
Cindy Burbank, Secretary Protect Fauquier
Chuck Cross, Member Protect Fauquier Leadership Team, Resident of Warrenton
Eric Gagnon, Member, Protect Fauquier Leadership Team, Resident of Warrenton
Denise Schefer, Member Protect Fauquier Leadership Team, Warrenton Property Owner