Wilson County NC Voices Concern Over “Development Dead Zone”

The October 17, 2017 Wilson Times reports that “”Wilson County commissioners unanimously passed a resolution Tuesday calling for Atlantic Coast Pipeline officials to be more transparent in their dealings with property owners and local government when it comes to development and safety issues. Commissioners expressed reservations on several issues related to the pipeline project and its officials Tuesday, including a ‘development dead zone’ in Wilson County, full and complete disclosures and transparency in project planners’ dealings with property owners and the pipeline’s quality of construction and safety.

“Commissioner say ACP officials failed to inform property owners or local government that there is an ‘industry [effort] to create a “consultation planning zone” which extends 660 feet from the center of any high pressure natural gas pipeline,’ according to the resolution. The purpose of the zone or corridor is to ‘restrict development’ within those parameters for the ‘lifetime of the pipeline,’ the resolution states.

“Property owners within that zone have not been offered compensation for restrictions placed on their property outside of the construction and permanent easements, commissioners said. They say these types of development restrictions will severely affect the value of land and property owned by county residents. That planning zone, according to the resolution, would create a ‘development dead zone’ 1,300 feet wide by 12 miles long running through the heart of western Wilson County. And that would lower property values and ‘adversely affect’ both residents and Wilson County as a whole.”

Read the full article here.

Court Allows West Virginia DEP to Start Over on MVP Review

A joint press release on October 17, 2017, from Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Chesapeake Climate Action Network, Appalachian Voices, and Appalachian Mountain Advocates:

Court Allows West Virginia DEP to Start Over on Necessary Review of Disputed Pipeline: DEP Must Conduct Comprehensive Review of Fracked Gas Pipeline After Previous Assessment was Incomplete

CHARLESTON, WV — The Fourth Circuit Court of Appeals today granted an unusual request from the West Virginia Department of Environmental Protection (DEP) – to throw out DEP’s approval of the Mountain Valley Pipeline (MVP) and let them start anew. Under section 401 of the Clean Water Act, states must certify that proposed pipelines will not violate state water quality standards before construction can begin. DEP has the responsibility to determine whether or not to issue that certification for West Virginia. Although the MVP received FERC approval last week, pipeline construction cannot proceed until DEP issues a new decision.

DEP previously certified the MVP, but filed a motion to invalidate it after environmental groups challenged it in court. Attorneys with the public interest law firm Appalachian Mountain Advocates filed that challenge on behalf of a coalition that included the Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Appalachian Voices, and Chesapeake Climate Action Network.

In response, Sierra Club West Virginia Chapter Gas Committee Chair Justin Raines issued this statement:

“We are pleased to see the court is giving West Virginia’s Department of Environmental Protection the chance to fulfill its responsibility and conduct a comprehensive and adequate review of the threats posed to our water quality by the Mountain Valley Pipeline. West Virginians, like all Americans, deserve access to clean, healthy water and DEP would fail at its most basic duty if it doesn’t protect us from fracked gas pipelines. This dirty, dangerous pipeline needlessly endangers West Virginia’s waterways, wilderness, and communities, and it should be rejected.”

Anne Havemann, General Counsel for the Chesapeake Climate Action Network said:

“With [today’s] action, the court has given the DEP a second shot at truly protecting hundreds of West Virginia streams and rivers from the impacts of the massive Mountain Valley Pipeline. We expect that DEP will take its responsibility seriously and do everything within its extensive power under section 401 of the Clean Water Act to ensure West Virginians have safe, clean water. Anything less would be an abdication of its duty.”

Angie Rosser, Executive Director of the West Virginia Rivers Coalition said:

“It’s assuring that DEP is taking its obligations under the Clean Water Act seriously, especially on a project that is likely the largest the agency has ever reviewed under Section 401. The agency could have simply thrown up its hands and waived its authority, but it didn’t. It is up to this task. When FERC issued its certification of MVP last Friday, it expressly said that DEP still has the opportunity through this process to protect water quality. After investing considerable taxpayer resources in this process, if DEP were to waive its authority now and forego that opportunity, it would be an inexcusable breach of the public trust. Citizens of this state must rely on thorough efforts of DEP to make sure the over 600 streams impacted by this pipeline are not adversely affected.”

Judy Azulay, President of Indian Creek Watershed Association, said:

“MVP has charted a brutally challenging and destructive route across 200 miles of West Virginia mountains, forests and farmlands. It is clear in its order that FERC is relying on DEP to fill the holes that the FERC certificate does not address. We look to DEP to now make a close and careful analysis of the effects of pipeline construction on every stream crossed, as well as the critically important impacts of upland disturbances and “ridgetop removal”. If DEP abdicates its responsibility and rubber stamps MVP’s faulty application, how can our landowners and communities trust them to enforce any permit conditions to protect our water and the health of our citizens?”

Peter Anderson, Virginia Program Manager for Appalachian Voices said:

“The federal government has recently indicated it will not protect communities from the harsh environmental and public health impacts of a gas pipeline-building bonanza. Fortunately, states still have the power and the obligation under the Clean Water Act to ensure that projects like the Mountain Valley Pipeline will not violate water quality standards. We are confident that the West Virginia DEP will take its duty seriously and use this opportunity to thoroughly evaluate all of the impacts this project will have on its citizens.”

Virginia Outdoors Foundation Approves Easement Swaps

Meeting in Richmond on October 16, 2017, the Virginia Outdoors Foundation (VOF) voted to approve Dominion’s application for 11 land conversions of open-space easements on the route of the proposed Atlantic Coast Pipeline through southern Highland, northern Bath, Augusta and Nelson counties, and approved a single swap for the proposed Mountain Valley Pipeline near Roanoke.

The VOF Web page discusses the vote:

“In the resolutions approving the applications, the trustees said that, while the developers failed to demonstrate the projects are “essential to the orderly development and growth of the locality” under section 1704 of the Virginia Open-space Land Act, this requirement is superseded and preempted by the federal Natural Gas Act that authorizes FERC’s certificate process. The Natural Gas Act does not, however, strip VOF’s authority to review the projects and require substitute land of greater conservation value under Virginia law.

“The two resolutions, which were adopted 5-0 and 7-0 (two trustees abstained during the ACP vote for personal reasons), included several conditions. Among them are restrictions on the footprint of the pipelines and access roads, the conveyance to VOF of more than 1,100 acres of substitute land in Highland, Nelson, and Roanoke counties, and the transfer of $4.075 million in stewardship funding for the properties’ long-term care and maintenance.

“The staff reports describing the substitute lands can be found here: Hayfields report (ACP); Rockfish River report (ACP); Poor Mountain report (MVP).

“As a result of these approvals, the VOF easements will remain in place on the properties with overlaying permanent rights-of-way for the pipeline developers.

“‘After three years of exhaustive review, several public meetings, and hundreds of comments from the public, our board felt that utilizing the long-established conversion process in state law was preferable to forcing the developers to condemn our easements through eminent domain,’ says VOF Executive Director Brett Glymph. ‘Their decision was a difficult one, but they firmly believe this outcome is in the best interests of both the public and the long-term sustainability of Virginia’s open-space conservation program.'”

According to coverage in The Recorder, “During the two-hour closed session preceding the approval, the board grappled with the question of whether VOF can defend the easements through a federal process and whether the land swap proposal was subject to the state law allowing for easement swaps. In the end, the board found the proposal did not qualify under the section 1704 law permitting the swap but nonetheless ruled FERC’s certificate preempts ‘any authority of VOF to evaluate the project,’ the substitute land at Hayfields Farm in Highland is of greater value and the swaps will result in a net gain of open space.”

The speakers opposing the swaps said they would show a lack of stewardship, would redefine “in perpetuity,” and that VOF’s approval would negatively affect future conservation easements.

It remains to be seen how many future landowners will be unwilling to put their property in conservation easements because they no longer trust VOF to keep its promises.

The ACP Is NOT a Done Deal!


We all knew that FERC would use its rubber stamp to issue a Certificate to Atlantic Coast Pipeline LLC, but we weren’t sure just when. Now that FERC has given its blessings to this wretched project, Friends of Nelson, and our many friends and colleagues throughout Virginia, North Caroline, and West Virginia are moving forward on strategies that could not be initiated until now!

Friends of Nelson is continuing to fight to stop the ACP in every way that we can.  

This includes:

  • Keeping our membership and allies informed and engaged through e-mail, Facebook and the Friends of Nelson Webpage.
  • Acting on strategic opportunities with our board of directors, our membership, our allies and our colleagues
  • Being represented in legal actions wherever possible and whenever necessary
  • Keeping pressure on all Federal, State and local agencies to do the right thing.
  • Continuing to build the public record through continued water monitoring and engagement with experts and resource professionals.

Remember: it only takes one agency or one judge doing the right thing to stop this runaway train.

Friends of Nelson cannot, of course, give legal advice.  However, this is what we know and this is what we recommend:

  • The FERC process was expedited by executive order and has left many regulatory requirements incomplete.  The only FERC Commissioner who had a deep understanding of the ACP, and with whom Friends of Nelson representatives met three years ago, filed a dissent and voted against the issuance of the permit on grounds that it was not deemed necessary.  The only two commissioners who voted for the certificate have served less than 2 months with FERC and were both Trump appointees.
     
  • A legal challenge to the issuance of the FERC certificate is in the works.
     
  • Construction on the ACP cannot begin until ALL necessary permits have been obtained by Dominion.  This includes approval from:
  1. ​The Forest Service on required forest plan amendments and special use permits
  2. The US Fish and Wildlife Service on its regulatory requirements for endangered species
  3. The Federal Emergency Management Agency and affected counties on regulations for construction and hazardous materials in floodplains
  4. the Virginia Outdoors Foundation on affected lands with conservation easements
  5. Section 401 (water quality, erosion and sediment control and storm water management) and 404 (water discharges) permits under the Clean Water Act by the Virginia State Water Control Board and Department of Environmental Quality (or Army Corps of Engineers) 
  • Tree clearing MAY be able to begin on properties that have recorded easement agreements with Dominion, but it also MAY NOT.  If you have a signed easement agreement and Dominion either contacts you about entering your property for tree clearing or enters your property without notice we strongly recommend that you CONTACT YOUR ATTORNEY immediately.  There are a variety of possible legal challenges that may prevent entry to your property in the short or long term, whether you have signed an easement or not.
  • If you are an impacted landowner and do not yet have an attorney, we STRONGLY advise that you contact Appalachian Mountain Advocates (434-529-6787), Lollar Law (757-644-4657), or one of the other firms (see our website) that specialize in these matters.  Representation is usually offered on a no-fee, contingency basis.  Even if you opt to negotiate an easement rather than go to court for an eminent domain hearing, it has been our observation that individuals with legal representation have obtained much better settlements than those without it.
  • If you have not signed an easement agreement, then you can continue to deny access to your property until the entire eminent domain process has run its course.  This includes Dominion bringing a lawsuit for entry under eminent domain, you obtaining legal representation, a court hearing and a judge ruling on appropriate compensation.  This process takes time to run its course. No property owner is under any obligation to allow eminent domain condemnation or access without this full process being completed.  There is one existing lawsuit already filed and the possibility of others that could stall or obstruct this process. 
     
  • If you feel that your property rights have been violated and your property is being entered illegally, immediately contact Nelson County Sheriff David Hill at: 434-263-7050.
     
  • If you filed with FERC as an intervener and if you submitted comments to FERC on their Draft Environmental Impact Statement, we invite you to join Friends of Nelson in filing a Request for Rehearing with FERC which is the next step in challenging the FERC decision.  For more information, contact Ernie Reed at 434-971-1647. And, most importantly…

KEEP IN TOUCH!
WE ARE HERE!

Ernie Reed, President, Friends of Nelson

The Fight Continues


Pipeline opposition and challenges continue, despite FERC’s October 13, 2017, rubber stamp approval of the Atlantic Coast and Mountain Valley Pipelines, issued with a highly unusual dissenting opinion by Commissioner Cheryl A. LaFleur. The FERC permit is not the final word on the projects. VA, NC and WV must still issue environmental permits. The NC Department of Environmental Quality recently declined to issue water quality, soil erosion control permits for the project, requesting additional information from the pipeline. The WV Department of Environmental Protection recently vacated and remanded their water quality certification, saying they want to reevaluate the complete application. The VA Department of Environmental Quality has yet to make a decision, and will hold public hearings in December. Citizens still have the opportunity (and the responsibility) to express their concerns to DEQ (and may sign a petition to protect Virginia waters here).

The Wild Virginia Web page has concrete suggestions on how you can continue the fight against the Atlantic Coast and Mountain Valley Pipelines.

“It’s only being built because Dominion and Duke Energy will make $2 billion off of it even if it never comes into service,” said Friends of Nelson President Ernie Reed when interviewed at the Nelson Farmer’s Market the morning after the FERC announcement. “We only need one Federal Agency or one State Agency to do the right thing or one judge to force them to do the right thing to stop this runaway train.”

Greg Buppert, a senior attorney for the Southern Environmental Law Center, called the FERC order a long-anticipated “rubber stamp” and said his organization intends to challenge the decision. “The utilities involved in the construction of the Atlantic Coast Pipeline claim utility customers will save money, when in fact this pipeline will drive up ratepayers’ bills – and cause harm to national forests and to rivers and streams while threatening to commit our states to fossil fuels for decades to come,” he says.

Bold Alliance and more than 50 landowners, have a federal lawsuit challenging the use of eminent domain for private gain and intend to continue the fight for property rights in the court system.

Carolyn Reilly, impacted landowner and Pipeline Fighter with Bold Alliance, said, “Thousands of landowners and citizens have stood strong in the battle to defend land, protect water and preserve communities. FERC has, yet again, pulled out its rubber stamp and permitted two more risky, fracked gas pipelines that put our homes, our land, our water, and our communities at risk. But, our fight is far from over. The ACP and MVP are not a done deal; between the Bold lawsuit against FERC and water permits needed from West Virginia, Virginia and North Carolina, we, the people, press on and persevere to defend and protect what is sacred.”

In an interview with WVTF, Reilly said, “I think it’s been an amazing thing to see people coming together despite many differences and political affiliations. This is not a partisan issue, this fight. There’s environmentalists and there’s conservative property rights activists that are united in this fight to protect our homes, our lands, the whole Appalachia, and especially water.”

Yes, we are all still here, and the fight goes on!