Category Archives: Certificates of Approval

State Water Control Board Meeting on August 21

The Virginia State Water Control Board’s (SWCB) next regular meeting is scheduled for Tuesday, August 21, beginning at 9:30 am, at the Pocahontas Building, First Floor House Committee Room, 900 East Main Street, Richmond, VA 23219. The tentative meeting agenda includes the following items at the end of the meeting:

  • VII. Mountain Valley Pipeline/Atlantic Coast Pipeline Reports Nationwide Permit 12 Comment Period Update in Response to April 12 Requests from Board
  • VIII. Other Business Future Meetings (September 20 and December 13)
  • IX. Public Forum
  • ADJOURN

A summary of the more than 13,000 comments filed with the Virginia Department of Environmental Quality on the adequacy of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for the ACP supposedly is being prepared by DEQ for the SWCB’s review and supposedly is to be made available to the public. At this writing, the DEQ summary is not yet available, although Wild Virginia and Dominion Pipeline Monitoring Coalition posted a summary on August 15, 2018.  We hope SWCB members have been studying that!  DPMC and Wild Virginia also posted the full set of comments on July 20, 2018, and the full set is finally available on the DEQ Web page.

In the Executive Summary of their summary document, Wild Virginia/DPMC state, “However, we were recently old by a DEQ official that new comments will not be accepted at the Board meeting and that any written comments must have been submitted 10 days before that meeting. This approach is clearly not designed to allow full and effective public participation and the Board should not accept it. DEQ’s failure to issue its summary in a reasonable period of time deprives citizens of any chance to reply, if the 10-day limit is enforced. We’ve been told further that citizens will not have the chance to speak at the upcoming Board meeting about these issues. This differs from the normal case, where the public is given an opportunity to review and comment upon the staff’s response to comments. We believe these decisions negate the principle of transparent and open government and that it is an outrageous approach for public servants to follow. We ask the Board to reject DEQ’s rulings and allow for public comments on August 21.”

A section of the Wild Virginia/DPMC document summarizes major substantive issues that have not been addressed by DEQ, including “crossings not identified in tables; waterbodies characterized incorrectly or incompletely; crossing method not specified; combined impacts from multiple crossings; antidegradation; trout and other sensitive species; impacts on Tier III waters; groundwater threats; variances; direct discharges from “uplands” areas; impacts from horizontal directional drilling and spills; impacts on designated and existing uses; temperature impacts; enforcement and compliance issues; and lack of historical information on effectiveness of Nationwide Permit 12.”

We wonder how the State Water Control Board will review all the comments and address all issues in the designated portion of their meeting.

SELC Asks FERC to Reject Request to Proceed

On August 13, 2018, Dominion asked FERC to ignore the stop work order FERC had issued for the ACP on August 10 and allow Dominion to continue construction on some segments of the ACP (see story below). On August 15, the Southern Environmental Law Center, on behalf of multiple organizations, submitted a letter asking FERC

  • to reject Dominion’s request to proceed with construction of three separate segments, and
  • to reject Dominion’s request that the Commission’s stop-work order only relates to the vacatur of the National Park Service’s right-of-way permit, and not to the vacatur of the Fish and Wildlife Service’s Incidental Take Statement

The letter states, “The Commission must not approve construction of portions of the ACP because the three segments proposed by Atlantic would constitute new interstate projects, distinct from the ACP, with different purposes and different potential customers. Atlantic has not submitted a certificate application to the Commission for any of these projects, and the Commission has not reviewed the public convenience and necessity of these segments as required by the Natural Gas Act.”

In a footnote commenting on the August 15 submission by Dominion of a second request to continue construction on additional segments on the basis of “independent utility,” SELC says the arguments in their letter “apply equally to this second, and any subsequent, request to continue construction.”

The letter further states that “the Fourth Circuit has resolved any ambiguity about the effects of its vacatur of ACP’s Incidental Take Statement: Atlantic will violate its certificate of public convenience and necessity if it proceeds with construction without a valid ITS. Again, the Commission must decline Atlantic’s invitation to make a finding that is squarely in conflict with the Court’s opinion on this issue.”

The letter continues with a detailed explanation of why FERC “must reject Atlantic’s request to construct segments of the Atlantic Coast Pipeline on the basis of ‘independent utility,'” and why “all construction must stop until Fish and Wildlife Service approvals are in place.”

Read the full letter here.

Dominion Asks to Proceed Piecemeal

Immediately after FERC issued the Atlantic Coast Pipeline stop work order late on Friday August 10, 2018, Dominion issued a statement saying it was already working with agencies to resolve issues in the stop work order, and separate project sections not impacted by the court ruling could become viable gas infrastructure.

In a letter to FERC on Monday August 13, 2018, Mathew Bley, director of gas certificates for Dominion Energy Transmission, explained that independent segments unaffected by the court ruling could serve as gas transportation infrastructure by themselves.

“Natural gas received via (supply header project in West Virginia), at Marts, can be redelivered by the planned ACP pipeline to its Long Run delivery point into Columbia Gas Transmission Corporation LLC, in Randolph County, West Virginia … The Long Run interconnection thus would provide a substantial, viable, competitive supply option for existing Columbia Transmission shippers, even if other portions of ACP were not constructed. Subject to avoidance of any areas affected by the vacatur of the ITS … Atlantic should be allowed to proceed with construction of this useful component of the ACP.

“The ACP infrastructure from its Buckingham, Va., interconnection with Transcontinental Gas Pipe Line Company LLC (Transco) to points downstream could be used for gas deliveries to markets in both North Carolina and eastern Virginia. These markets are chronically constrained in terms of natural gas supply. Independent of ACP’s proposed construction of pipeline upstream of the Buckingham – including areas affected by the Aug. 6 court order – ACP could receive up to 885,000 Dt/day from Transco for service on the ACP main line and the Virginia lateral.

“Depending on the availability of supply and relative operating pressures on the Transco system, ACP expects that its physical receipts at Buckingham could exceed 885,000 Dt/day. Although this approach would not provide the full benefit of access to the DETI system and the liquid South Point market hub (which customers expect upon completion of the ACP), this portion of the ACP infrastructure … would serve to redeliver gas to Hampton Roads and eastern North Carolina markets, where interstate pipeline capacity is either already fully subscribed, or nonexistent.”

Dominion asked FERC to “promptly allow construction to resume for the independently useful portions of the projects.”

It appears Dominion is tacitly admitting that the entire ACP is not necessary, and gas could be delivered to both existing and future markets by other means.

However, as pointed out by Southern Environmental Law Center in its letter of August 15, 2018 urging FERC to deny Dominion’s request to move forward on certain parts of the ACP, “If these segments do not serve the purpose Atlantic intended them to serve as interdependent parts of the approved ACP, they are separate projects that must go through the approval process set forth in the Natural Gas Act.” (See story above)

50+ Leaders Urge Northam to Oppose ACP and MVP


Press release from Chesapeake Climate Action Network on August 14, 2018:

Fifty-four Virginia Organizations Call on Gov. Northam to Visit “Miracle Ridge,” Pristine Forest in Path of Atlantic Coast Pipeline, and Oppose Pipelines

Leaders from environmental advocacy, justice, and business organizations send letter to Northam one week ahead of key State Water Control Board hearings on the controversial pipelines.

READ THE LETTER IN FULL HERE.

“Miracle Ridge has been designated by the Virginia Department of Conservation and Recreation as one of the finest oak-hickory forests they have ever seen in all of Virginia,” said Joan Maloof, Executive Director of the Old-Growth Forest Network. “It is imperative that Governor Northam and the Virginia State Water Control Board visit this land first-hand to fully appreciate the magnitude of devastation that the Atlantic Coast Pipeline would have on this old-growth forest.”

The Limperts have been hosting a summer-long “encampment” on their property in Bath County dedicated to stopping Dominion Energy’s proposed Atlantic Coast Pipeline. This pipeline is slated to go right through their property, destroying hundreds of old-growth trees — some as old as 300 years — and decapitating much of the 3000-foot-long ridge known as “Miracle Ridge.”

“Our property is a natural treasure, and we wish to preserve it for future generations,” said Bill Limpert, landowner at Miracle Ridge. “There are countless other properties in the cross hairs of the Atlantic Coast Pipeline that are treasures as well. We wish to draw Governor Northam’s attention to these lands which should be preserved under his own criteria for protection of high quality natural resources. We hope that the Governor can join us on our property and visit other properties as well that would be lost to the unneeded and destructive Atlantic Coast Pipeline.

The signers also ask Northam to direct the Virginia Department of Environmental Quality (DEQ) to require an individual review of the 1,000 water crossings these pipelines will cross. The DEQ has the authority to do so under section 401 of the Clean Water Act, but it has instead relied on a “blanket” permit from the Army Corps of Engineers that approved crossings for all waterways.

“As a pediatrician, I know that every child needs clean water, clean air, and a safe and stable climate to be healthy and thrive,” said Samantha Adhoot, Chairperson of the Virginia Clinicians for Climate Action. “This pipeline threatens the health and safety of all children in Virginia, particularly those living in communities directly affected by large scale environmental destruction for pipeline infrastructure. We should not be sacrificing the health of Virginia’s families, children and natural heritage for the sake of corporate profits.”

This letter comes amid setbacks for both the Atlantic Coast Pipeline and the Mountain Valley Pipeline. Last week, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit threw out two key permits for the Atlantic Coast Pipeline. The same court revoked a different permit from the U.S. Forest Service for the Mountain Valley Pipeline. The Federal Energy Regulatory Commission (FERC) has issued stop-work orders for both the Mountain Valley Pipeline and the Atlantic Coast Pipeline until their respective multiple permit issues are resolved.

Reverend Kevin Chandler, Branch President of the Virginia Conference NAACP, stated: “Currently, both Atlantic Coast and Mountain Valley Pipelines are steeped in regulatory challenges. Due to the adverse impacts of the Atlantic Coast Pipeline on African-American communities, particularly in Buckingham County and the Georgetown community in Chesapeake, all construction activities along the route of the pipeline should cease immediately.”

During his campaign for governor, Northam pledged to look at the scientific evidence and use a transparent process to ensure that Virginia’s environment would be fully protected from any pipelines. He also called for site-specific permitting for every water crossing of these pipelines, instead of blanket permits.

One week from today, the Virginia State Water Control Board (SWCB) will hold a hearing on the pipelines. This is the first SWCB meeting since the opening of a comment period re-examining the ability of the Nationwide Permit 12 to provide sufficient protections for Virginia waterways threatened and currently being impacted by the Mountain Valley and Atlantic Coast Pipelines.

“Governor Northam must see first-hand what is at stake for the people whose lives are being so profoundly harmed by work already been done for these pipelines and the threats that loom over them,” said David Sligh, Conservation Director, Wild Virginia. “He can’t possibly see the forests and waters in Little Valley and what Dominion wants to do there and think the science supports it or that Virginia citizens are being treated fairly. He has pledged to be guided by those principles.”

Kendyl Crawford, Director of Virginia Interfaith Power and Light, stated: “As communities of faith, it is our duty to be conscientious stewards of our planet and treat all of creation, including members of the human family, with respect and dignity. Miracle Ridge and the Limperts stand to be part of the sacrifice zone of the Atlantic Coast Pipeline. Within minutes of visiting their land one is immediately struck by the immense immorality of fossil fuel infrastructure that destroys so much in its wake.”

Jamshid Bakhtiari, Virginia Field Coordinator of the Chesapeake Climate Action Network, stated: “Together, the Atlantic Coast and Mountain Valley Pipelines threaten to chain Virginians to another generation of dangerous and unnecessary fracked-gas fossil fuel extraction. Additionally, the construction of these pipelines threatens numerous endangered species, ridgelines, waterways and vulnerable communities across the Commonwealth. Governor Northam and the Water Control Board need to bear witness to the unconscionable sacrifices Virginians are being asked to make for pipelines that aren’t needed.”

Regulators Change the Rules to Ease Pipeline Approval

“A review by the Charleston Gazette-Mail, in collaboration with ProPublica, shows that, over the past two years, federal and state agencies tasked with enforcing the nation’s environmental laws have moved repeatedly to clear roadblocks and expedite the pipeline, even changing the rules at times to ease the project’s approvals.” What Happens When a Pipeline Runs Afoul of Government Rules? Authorities Change the Rules, discusses the many ways authorities have changed or ignored rules, citing numerous examples related to the Mountain Valley and Atlantic Coast Pipelines.

For the MVP:

  • “The court had found that the U.S. Forest Service had suddenly dropped — without any explanation — its longstanding concerns that soil erosion from the pipeline would harm rivers, streams and aquatic life. It also found that the Bureau of Land Management approved a new construction path through the Jefferson National Forest, ignoring rules that favor sticking to existing utility rights-of-way.”
  • “After citizen groups brought a lawsuit challenging how West Virginia regulators concluded that the pipeline would not violate state water quality standards, the state Department of Environmental Protection dropped its review and instead waived its authority to decide if the project complied with its rules. This effectively ended the legal challenge and paved the way for construction to begin.”
  • “Confronted with a similar lawsuit filed by the same citizen groups, the state and the U.S. Army Corps of Engineers moved to rewrite their rules for how long pipeline construction could block the flow of rivers. Environmentalists fear that, under the plan approved by the Corps, four West Virginia rivers could be left dry for long periods of time, potentially harming aquatic life during construction.”
  • “Developers persuaded judges to speed court proceedings and grant them access to private property along the route to cut down trees, saying they needed to do so before protected bats came out of hibernation. But then, despite guidelines saying no logging could take place after March 31, the Federal Energy Regulatory Commission twice extended the company’s deadline.”
  • “Since April, state water quality inspectors have issued citations along the pipeline route in West Virginia: sediment-laden water leaving the construction site; missing or improperly installed runoff controls; failure to add more pollution protections when existing ones were shown to be inadequate. So far, the MVP has not paid any fines for those violations.”
  • “In early July, the Corps of Engineers rewrote its approval of the pipeline to essentially waive the 72-hour time limit on the river crossing construction. In a court filing, Corps lawyers defended the move, saying the alternative of digging a trench for the pipeline without diverting water flow would cause more environmental damage. And just this Wednesday, the DEP released a proposal to exempt the stream-crossing method Mountain Valley Pipeline proposed from the 72-hour limit.”
  • “The federal agency also has approved other requests by the MVP developers that residents along the route say affect their quality of life in more straightforward ways. In recent weeks, residents fought a request for FERC to extend the construction day until as late as 9 p.m. Letters poured in from residents, organizations and county governments, urging FERC to turn it down. …. FERC approved the request over the residents’ objections.”

The ACP construction process is not as far along as that of the MVP, but the article notes the start of the same disturbing trend of agencies ignoring their own rules and mandates. In issuing the August 10, 2018, stop work order for the ACP, “Chief Judge Roger Gregory wrote that the U.S. Fish and Wildlife Service approved the project without setting any real limits on damage to endangered species, and the National Park Service granted permission for pipeline developers to drill under the Blue Ridge Parkway without determining if doing so was consistent with the road’s protection as a unit of the Park Service.”

Read the full article here.

FERC Rejects Rehearing Request for ACP


Around 11 pm on Friday evening August 10, 2018, the Federal Energy Regulatory Commission posted on its website and sent to intervening parties its decision to reject the many petitions that have been pending before the Commission to rehear its October 13, 2017 decision to issue a permit for building the Atlantic Coast Pipeline
. The action occurred on a 2-1 vote, with Commissioner LaFleur dissenting. Commissioner Glick did not participate and posted on his own website page a short explanation of why he decided not to participate (discussed below).

The 162 page Order, including Commissioner LaFleur’s 12 page dissent, is available at https://elibrary.ferc.gov/idmws/file_list.asp?accession_num=20180810-3073. Mindful that some people may not wish to wade through the entire document, ABRA’s Lew Freeman has reviewed it and prepared a 3-page summary of highlights from the Order as it addressed some of the issues raised by the various petitioners.

Commissioner LaFleur’s excellent dissent begins on page 152 of the Order, but you can also access it directly from her website page at https://www.ferc.gov/media/statements-speeches/lafleur/2018/08-10-18-lafleur-ACP.pdf. In her opening paragraph, she states:

I did not support the Commission’s underlying order authorizing the ACP Project because I concluded the project as proposed was not in the public interest.2 My consideration of the ACP Project was influenced by my consideration of the certificate application of the Mountain Valley Pipeline (MVP) Project,3 which was decided on the same day as the ACP Project. After carefully balancing the aggregate environmental impacts resulting from the authorization of both of these projects against the economic need of the projects, I could not find either proposal in the public interest. I am dissenting today on the rehearing order for the following reasons: (1) I still do not find the ACP Project is in the public interest. I disagree with the Commission’s approach to evaluating system and route alternatives, particularly in light of the recently-issued Fourth Circuit Court of Appeals (Fourth Circuit) decision which vacated the National Park Service’s (NPS) federal authorization allowing the ACP Project to cross the Blue Ridge Parkway; (2) I disagree with the treatment of climate impacts; and (3) I have serious concerns regarding the majority’s articulation of how a project’s environmental impacts weigh into the Commission’s finding that a project is required by the public convenience and necessity under the Natural Gas Act (NGA).

Commissioner Glick’s says in his explanation of why he did not participate in the vote:

I chose not to participate in today’s order denying rehearing of the Commission’s October 13, 2017 order issuing a Certificate of Public Convenience and Necessity to the Atlantic Coast Pipeline (ACP) Project (CP15-554-002; CP15-555- 001; and CP15-556-001) solely to enable those parties challenging the Certificate to have their day in court. If I had voted, the rehearing order would have failed on a 2-2 vote (Chairman McIntyre also is not participating in this proceeding), and pursuant to the requirements of section 19 of the Natural Gas, the appellate courts would not have had jurisdiction to review the Commission’s decision to grant the Certificate. I share many of the concerns articulated in Commissioner LaFleur’s dissenting opinion and I do not believe that the ACP Project has been shown to be in the public interest.

Glick’s complete statement is at https://www.ferc.gov/media/statements-speeches/glick/2018/08-10-18-glick-ACP.pdf.

(Many thanks to ABRA’s Lew Freeman for organizing this information and preparing the summary!)