Category Archives: Certificates of Approval

Virginia Water Board Urged to Revoke MVP Water Certification

From ABRA Update 219 on February 28, 2019:

Attorneys representing 10 local, state and regional organizations sent a letter on February 28 to the members of the Virginia State Water Control Board, urging the Board to start promptly a process to revoke the water quality certification issued for the Mountain Valley Pipeline (MVP). At the same time, the attorneys strongly urge the Board to use enforcement tools available to it to stop work on the pipeline while the revocation process goes forward. The Water Control Board is to meet March 1 at 10 am to discuss how to proceed with considering a possible revocation of the MVP certification, a decision the Board made over two months ago. A live streaming of the Water Board meeting will be available at http://www.facebook.com/vasierraclub.

The attorneys’ letter was written in response to a letter MVP sent to Department of Environmental Quality Director David Paylor on February 12, and subsequently given to Water Board members, claiming that a “cooperative effort [between MVP and DEQ] on the Project has achieved a high level of environmental protection and overall is in very good order.” The attorneys’ letter takes issue with that view:

The State Water Control Board (Board) has the authority to revoke the water quality certification for upland activities that it issued to Mountain Valley Pipeline, LLC (MVP). The violations MVP has committed and the damage it has done easily meet and exceed the thresholds defined in Virginia law upon which revocation may be based.

We strongly urge the Board to order the Department of Environmental Quality (DEQ) to schedule and issue notice for a formal hearing by a specific date not to exceed ten days from the date of your decision. The delay that has followed the Board’s order to DEQ to take those steps, issued on December 13, 2018, has already allowed harm to the environment and people to continue unabated for eleven weeks. In addition to proceeding to a revocation hearing for the water quality certification, we ask the Board to take all possible steps to stop work on this project immediately.

Organizations represented by the signers of the letters include six ABRA members: Appalachian Mountain Advocates, Appalachian Voices, Chesapeake Climate Action Network, Southern Environmental Law Center, Sierra Club and Wild Virginia, plus Preserve Floyd, Chesapeake Bay Foundation, Preserve Bent Mountain, Preserve Craig and POWHR Coalition (Protect Our Water, Heritage Rights).

4th Circuit Hearing on ACP Not Expected Until May

On February 18, 2019, WVNews reported that the Fourth Circuit Court has moved from March until May its scheduled hearing of ACP arguments on the December decision which stayed an authorization previously issued by the U.S. Fish and Wildlife Service.

DJ Gerken, senior attorney with the Southern Environmental Law Center, says that, although lawyers have been told to hold availability in May, no date has yet been set for a May hearing, and if the court is unable to hold the hearing in May, the next available court week is in September.

Read the full article here.

Forest Service Joins Dominion to Challenge 4th Circuit Decision

ABRA Update 217 from Allegheny-Blue Ridge Alliance reports that on February 11, 2019, the US Forest Service (NFS) filed a petition for review of the Fourth Circuit Court of Appeals decision in December vacating the NFS permit for the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail. Atlantic Coast Pipeline, LLC (ACP, LLC) had previously filed a challenge to the decision, on January 28. The NFS petition states:

. . . the Forest Service seeks rehearing of the panel’s holding that National Forest System land traversed by the Appalachian National Scenic Trail “is land in the National Park System.” Slip op. 52. That holding presents “a question of exceptional importance,” Fed. R. App. P. 35(a)(2), because it may preclude the construction of infrastructure for any pipeline across all federal lands traversed by the 2100-mile Appalachian Trail in states within the jurisdiction of this Court, and because it contradicts the plain language of the National Trails System Act and the agencies’ consistent practice over eighty years of Appalachian Trail management. The panel’s holding also calls into question the validity of dozens of Forest Service permits for electrical transmission lines, telecommunications sites, municipal water facilities, roads, and grazing areas.

Reaching this issue was unnecessary to the judgment. The Forest Service seeks rehearing to preclude the above-described holding from having precedential effect— with disruptive consequences for the many operations of the Forest Service and the Park Service in this Circuit.

The NFS petition, like the previously one filed by ACP, LLC, requests that all fifteen members of the Fourth Circuit hear the appeal. At this writing, the Court has not yet acted on either petition.

Where’s the Promised Hearing?

Writing in the Virginia Mercury on February 13, 2019, members of the POWHR Coalition ask, “Where’s the pipeline hearing you promised?”

The State Water Control Board passed a motion on December 13, 2018, requiring a hearing on whether the water quality certificate for the Mountain Valley Pipeline should be revoked. But eight weeks later, no hearing date has been announced and the MVP continues to inflict damage.

“MVP’s ongoing pattern of violations disproves the assertion that formed the basis for certification, that compliance with water quality standards was reasonably assured. Every day that passes without a stop work order from the commonwealth undermines the board’s intention to reconsider the question of reasonable assurance. The Department of Environmental Quality’s refusal to issue stop-work orders where harm continues and imminent threats to water quality now exist betrays the state’s duty to use its full authority to protect our resources.”

The authors call on the Board to:

  • meet as soon as possible
  • vote that DEQ and the attorney general act immediately to stop work and prevent even further damage
  • provide an opportunity for meaningful citizen input. “In this case, participation by citizens is especially necessary to ensure that the interests of the public and the environment are represented. Recent disclosures by a former board member show that DEQ Director David Paylor is hostile to citizens.”

“It is important to stress that the authority for the notice and hearing process lies with the board; DEQ is merely tasked with carrying out the board’s order.”

Read the full article here.

On February 14, 2019, a meeting was announced for March 1, 2019, to discuss details on when the actual hearing will take place, and the format it will take.  The Water Board meeting to discuss a time and process for the actual hearing is scheduled to begin at 10 a.m. at the DoubleTree by Hilton, 1021 Koger Center Blvd., Richmond.

Crossing the Appalachian Trail

Many have worried that Dominion Energy would make a concerted effort to convince Congress to grant permission for the Atlantic Coast Pipeline to cross the Appalachian Trail after the Fourth Circuit Court of Appeals found the Forest Service did not possess the right to allow the crossing. At this time (February 11, 2019), there is no Dominion amendment attached to any piece of pending legislation in the Congress. However, it now appears it would be useful and important to express concerns to relevant members of Congress.

If you are worried about this unwarranted attempt by Dominion, we urge you to contact your Representative within the next several days. Ask the Representative to contact Congressional leadership to make clear their ACP concerns and opposition, including opposition to the idea of Congress stepping in to help the ACP sidestep fundamental permitting problems that are currently being sorted out in the normal regulatory process and in the courts, and opposition to and concerns about ACP in general. Many of these members have voiced concerns about or outright opposition to ACP in the past; others are new to Congress.

This congressional “fix” is a problem because it would:

  • Imply a congressional endorsement for the ACP, stacking the deck for building the ACP as proposed, on its current route.
  • Set the wrong example for special congressional exceptions to the federal law that otherwise disallows pipelines across national parks.
  • Limit the otherwise-required further analysis of alternatives to the ACP.
  • Leave decisions about key ACP permits entirely in the hands of federal agencies, which already have short-changed public and environmental review of ACP permits.

As a resource for your communication, see this set of talking points, with supporting citations, with detailed information about the fundamental lack of need for the ACP, and about the Fourth Circuit’s Forest Service decision and the Appalachian Trail.

Park Service to Vacate ACP Permit to Cross Parkway

On January 16, 2019, the US Park Service filed a motion (made public on January 18) with the Fourth Circuit Court of Appeals for a voluntarily remand of the construction and right-of-way permits for the Atlantic Coast Pipeline. The Park Service explains that upon the Court granting the request, the agency will vacate the previously issued permit for the ACP to cross the Blue Ridge Parkway and “consider whether issuance of a right-of-way permit for the pipeline to cross an adjacent segment of the Parkway is appropriate.”

The Fourth Circuit granted the Park Service’s request to remand the permit back to the agency for reconsideration on January 24, 2019.

Read a copy of the motion.

Read Platt S&P Global January 18 coverage of the motion and the Richmond Times-Dispatch coverage.