Category Archives: Floodplains

SELC Challenges Potential Army Corps and FWS Actions

On February 11, 2020, the Southern Environmental Law Center sent two letters, one to the the Army Corps of Engineers and one to the Fish and Wildlife Service, to challenge potential actions by them regarding the Atlantic Coast Pipeline. Both letters have been filed with FERC.

To the Army Corp of Engineers, SELC writes, “This letter is a notice that the United States Army Corps of Engineers, Norfolk District, cannot lawfully reinstate its suspended verification that the proposed Atlantic Coast Pipeline is authorized to be constructed using Nationwide Permit 12. The pipeline developer, Atlantic Coast Pipeline, LLC (Atlantic), expressly plans to violate at least one of the permit’s general conditions and has taken steps to do so, despite making contrary representations to the Corps and other regulators.” The letter then explains in detail that:

  • Atlantic must comply with FEMA-approved local floodplain management requirements to be eligible for Nationwide Permit 12.
  • Atlantic does not intend to comply with an applicable FEMA-approved floodplain management requirement in Nelson County.
  • The Corps cannot reinstate the Norfolk Verification unless Atlantic complies with Nelson County’s floodplain ordinance, regardless of Atlantic’s lawsuit.
  • The Norfolk Verification must be revoked unless Atlantic obtains variances or reroutes the pipeline.

The SELC letter notes that, “Unless Atlantic obtains variances or reroutes its proposed pipeline to avoid SFHAs [special flood hazard areas] in Nelson County, the Corps must revoke the Norfolk Verification and instruct Atlantic to seek an individual permit.”

Read SELC’s full letter to the Army Corps here.

Despite ongoing requests by citizen groups for FERC to issue a stop-work order for the ACP because so many key permits have been rejected, on February 10 FERC staff asked the U.S. Fish and Wildlife Service to reinitiate formal consultation so the proposed Atlantic Coast Pipeline project can resume construction. FERC is asking the FWS to develop a new Biological Opinion and Incidental Take Statement on the company’s proposed pipeline. Two previous Opinions and Take Statements have been vacated by the Fourth Circuit Court.

To the Fish and Wildlife Service, SELC writes, “Yesterday’s request for reinitiation of consultation, and discussion at the October 22, 2019, meeting as documented in the meeting minutes, suggest FWS is once again preparing to commit legal errors in an effort to approve this pipeline along Atlantic Coast Pipeline, LLC’s (Atlantic’s) preferred route.” The potential legal errors to which SELC refers are:

  • FWS Cannot Complete Consultation on the Atlantic Coast Pipeline Without a Final Route
  • FWS Must Fully Assess Impacts to Candy Darter and Its Critical Habitat
  • FWS May Not Authorize Further Impacts to the Clubshell

The letter concludes, “To be clear, FWS may not authorize further impacts to this population, which it has already put on the brink of extinction. ‘Congress foresaw that [consultation under the Endangered Species Act] would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.’ Tenn. Valley Auth. v. Hill, 437 U.S. 153, 186 (1978). This is one of those occasions.”

Read SELC’s full letter to the Fish and Wildlife Service here.

Trump Weakens the Nation’s Clean Water Efforts

Writing in the New York Times on February 10, 2020, Chris Wood, Collin O’Mara, and Dale Hall discuss the presidents “deeply misguided” decision to roll back water protections. Wood is president of Trout Unlimited, O’Mara is president of the National Wildlife Federation, and Hall was director the United States Fish and Wildlife Service.

They write, “The Environmental Protection Agency made a startling admission last month when it announced that many of the nation’s streams and wetlands would no longer be protected under the Clean Water Act, perhaps the nation’s most successful antipollution law. The agency said it could not predict how many miles of streams and acres of wetlands would lose their protection because of ‘existing data and mapping limitations.’ In other words, the E.P.A. was sharply narrowing the reach of a landmark environmental law without understanding the consequences of its actions.”

They state “unequivocally that this ill-informed policy will reduce water protections to a level not seen in more than a generation.”

The authors did what EPA apparently did not do, and used best mapping resources to find out what would no longer be protected. They say, “Trout Unlimited’s research suggests that more than six million miles of streams — half the total in the United States — will now be unprotected by the Clean Water Act, because they flow only after rainfall. More than 42 million acres of wetlands — again, about half the country’s total — will no longer be protected because they are not immediately adjacent to larger waters.”

Under the new laws, for example:

  • In Arizona, 88% of streams and 99% of lakes will lose protection, meaning “98 percent of the permits that limit pollution discharges into waterways will simply no longer be in force.”
  • In New Mexico, invalidated permits will no longer control the levels of mercury and PCBs running off the heavily contaminated grounds of Los Alamos National Laboratory
  • “In West Virginia and Virginia, there will no longer be federal protections for some 82 small streams that are to be excavated if the 600-mile Atlantic Coast Pipeline is built, based on surveys by Dominion”

Wood, O’Mara, and Hall conclude, “You need only consider the name to recognize what’s happening here. What was the Waters of the United States Rule is now the Navigable Waters Protection Rule. This signals a narrow concern only for commerce but not, illogically, for the network of tributaries and wetlands that keep navigable waters healthy. It also completely misses the point of the Clean Water Act, which is to protect the health of all the nation’s waters.”

Update on Status of Floodplain Suit

An update on the status of Dominion’s suit against the Nelson County Board of Supervisors over the refusal of the Nelson County Board of Zoning Appeals to grant a variance for the Atlantic Coast Pipeline to cross flood plains in the County.  Documents below include Judge Moon’s Memorandum Opinion of June 21, 2019, in which he denied the County’s motion to dismiss Dominion’s lawsuit, a subsequent pleading by Dominion in which it reiterates its claim that the County’s floodplain management ordinance is invalid, the pleading in which the County defends its ordinance, and rebuttal brief by Dominion stating again why they think the suit should be dismissed.

A hearing is expected shortly, but no date has been published.  If Judge Moon rules against the County, the next step would be an appeal to the Fourth Circuit Court. That would, however, require the Board of Supervisors to spend the time, energy, and additional money to carry the suit forward.

Dominion vs Nelson County in Federal Court: April 8


Dominion’s suit against Nelson County over the refusal of the Nelson Board of Zoning Appeals to grant a variance for the ACP to cross flood plains in the County will be heard on April 8, 2019, at 11:30 a.m. in the Federal Court in Charlottesville, 255 West Main Street. Respectful attendance at the hearing is encouraged – no signs, no t-shirts, no protesting.  Be aware that seating in the courtroom is limited to ~100.

Dominion vs Nelson County in Federal Court: April 8


Dominion’s suit against Nelson County over the refusal of the Nelson Board of Zoning Appeals to grant a variance for the ACP to cross flood plains in the County will be heard on April 8, 2019, at 11:30 a.m. in the Federal Court in Charlottesville, 255 West Main Street. Respectful attendance at the hearing is encouraged – no signs, no t-shirts, no protesting.

Why is Dominion suing Nelson County? On December 3, 2018, on a 3-2 vote, the Nelson County Board of Zoning Appeals denied four of Dominion’s applications for the variances to the County’s flood plain ordinance needed to construct the Atlantic Coast Pipeline across flood plains in Nelson. (The other seven of the original eleven applications were dismissed in January 2018, meaning ACP will have to submit new applications for them.) The Nelson County Zoning Ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)

Three days after the Nelson BZA denial of variances, on December 6, 2018, Atlantic Coast Pipeline filed a lawsuit against the Nelson County Board of Supervisors in the Western District of Virginia’s federal court, and it is this suit that will be heard on April 8. The suit asks the Court to:

  • enter judgement declaring that Nelson’s zoning ordinance and floodplain regulations are preempted by federal regulations and therefore null and void as applied to the ACP
  • enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction

The ACP has no federal permit to cross any waterbodies, including wetlands and floodplains.

For further information on the four variances denied by the Nelson Board of Zoning Appeals see our story from 2018.

Sidenote: The Virginia Department of Conservation and Recreation has designated March 10-16, 2019, as Virginia Flood Awareness Week. You can read about the function and value of floodplains on their floodplain Web page.

Looking Back on 2018


2018 was an eventful year in our ongoing fight against the Atlantic Coast Pipeline – it’s been four and a half years now, and Friends of Nelson and our allies remain strong and determined. We are honored by your continued support. Whether you sent in a check, showed up for a public meeting, submitted comments at a hearing, held signs in protest, wrote a letter to the editor, provided a comment on a news article, expressed thoughts in social media, walked the ‘line’ with us, or participated in any of the myriad ways to spread the message of our resolve – you have our heartfelt appreciation.

Together we have already achieved a great deal.

  • We have publicized eminent domain abuse and the loss of individual property rights, researched and reported on the potential economic impact to our county, documented the dangers of building the pipeline on steep slopes, emphasized the value of our water and natural resources, helped bring attention to social injustice, and expressed our concern about climate change to those charged with acting in the public interest.
  • We have changed the conversation. The issues raised in response to Dominion’s proposed ACP have become front and center in Virginia; no longer can a candidate or elected official use the easy ‘it’s out of my hands’ excuse to avoid taking a position on fossil fuel infrastructure and eminent domain abuse. Legislation has been introduced to address many of the egregious regulatory statutes written by big energy, for big energy, but paid for by the rest of us.
  • We have held the line. Through our many and various efforts to hold permitting agencies accountable, the project’s initial ‘in service’ date of Winter 2018 has been extended once again. Dominion’s most recent revised estimate? Summer 2020. Our prediction? No pipeline – period.

But there is much more to do. Friends of Nelson will continue this fight in the courts and on the ground. We hope for your continued support through a monetary donation and through participation in one of our 2019 campaigns.

Please start out the New Year by joining us for our annual celebration on January 5, 2019, 6-10 pm (doors open at 5:30) at Rockfish Valley Community Center. Bring a labeled dish to share at our potluck, and bring your dancing shoes – we’ll have live Music by The Findells.

Here’s a review of (just some) highlights of 2018:

  • January 18, 2018: ABRA Members Sue Virginia Over ACP Approvals. A coalition of environmental and conservation organizations filed a legal challenge to the Virginia State Water Control Board’s December 12 approval of a water quality certification for the ACP. The suit, filed with the Fourth Circuit Federal Court of Appeals by the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates on behalf of the client group, charges that the Board’s decision failed to consider the impacts of the project on water quality in Virginia sufficiently to meet the requirements of the Clean Water Act.
  • January 19, 2018: FERC issued an approval for the ACP to proceed with tree felling for its pipeline project.
  • January 22, 2018: ABRA announces Pipeline Compliance Surveillance Initiative (CSI). Since then, Friends of Nelson has partnered with ABRA and other regional organizations in development of a citizen monitoring effort for construction activities related to the ACP. Several orientation and training meetings were well attended in 2018, and more intensive trainings are planned for the coming months. Volunteers can work in the field gathering needed documentation of construction impacts, or can be trained to review submitted documentation for analysis prior to submission to the appropriate governmental agency.
  • February 5, 2018: the Nelson County Board of Zoning Appeals dismissed seven of Dominion’s eleven requests for variance to Nelson’s floodplain ordinance for lack of standing, and granted deferrals for a hearing on the remaining four. “Lack of standing” means that Dominion requested variances on properties it does not own or for which it has no legal right or easements; Virginia law does not permit such requests.
  • February 5, 2018: Southern Environmental Law Center and The Sierra Club on behalf of a coalition of conservation groups filed suit in federal court against the National Forest Service over a grant recently issued to the ACP.
  • March 1, 2018: Judge Moon, of the US Western District of Virginia Federal Court in Lynchburg, granted ‘immediate access’ for tree-felling on 16 of the 27 Virginia properties for which Dominion requested access. Notice issues, meaning parties were not served the lawsuits or did not have adequate time to respond, prevented Moon from ruling on the 11 remaining properties, but he expects “proper notice to be achieved” in the next two weeks.
  • March 6-7, 2018: Dominion clear-cuts on Beech Grove Road at the entrance to Wintergreen at the site of the proposed horizontal directional drilling under the Blue Ridge Parkway and Appalachian Trail at Reeds Gap. As of the year’s end, the clear-cut swath up the side of the mountain remains glaringly visible, covered with still-untouched felled trees. Trees were cut before Dominion received all permits, and, because of a number of stays and denied permits, ACP construction is currently on indefinite hold.
  • March 9, 2018: The Southern Environmental Law Center and Appalachian Mountain Advocates, on behalf of their clients, filed a request asking the Fourth Circuit Court of Appeals in Richmond to halt construction of the ACP until the court decides whether the FERC’s permit is valid.
  • March 16, 2018: ACP seeks an extension to May 15 for tree felling outside of the limitations they agreed to for bats and migratory birds. FERC issued a denial of the request on March 28.
  • May 11, 2018: FERC granted authority for the ACP “to commence full construction in the certificated workspace and select areas with changes, for the 2018 construction spreads in West Virginia.” FERC’s notice also states that “this authorization grants approval to proceed on properties where tree felling has occurred or for which there are no trees, excluding any workspace located on US National Forest Service lands.”
  • May 15, 2018: The Richmond Times-Dispatch reported that, “A federal appeals court has ordered a halt to construction of the 600-mile Dominion Energy-led Atlantic Coast Pipeline, following a legal challenge by environmental opponents who argued a review by the U.S. Fish and Wildlife Service was inadequate. A three-judge panel at the U.S. Court of Appeals for the Fourth Circuit agreed, striking down the review, known as an incidental take statement, which is meant to set limits on harm to threatened or endangered species during construction.”
  • May 30, 2018: Gov. Ralph Northam’s Advisory Council on Environmental Justice reached consensus May 30 on a draft statement recommending a moratorium on new gas infrastructure in the Commonwealth and calling for a stream-by-stream assessment of the impact of both the Atlantic Coast and Mountain Valley pipelines. On August 16, the Council called for a stay on all further permits for the Atlantic Coast and Mountain Valley Pipelines. The Governor rejected the report, saying it was merely a “draft,” The Council stated that it was a final report, the Governor then ignored it.
  • June 7, 2018: Early in the morning on June 7, 2018, a massive explosion in a new natural gas pipeline just south of Wheeling WV sent huge fireballs into the sky that could be seen miles away. The line that ruptured was a brand new, “best-in-class,” 36-inch diameter pipe with operating pressure of 1,440 PSI, just put in service in January 2018. The explosion was triggered by a landslide which caused the “best-in-class” pipeline to rupture. The mountainous terrain where the ACP proposes to build its “best-in-class” pipeline is particularly susceptible to landslides, especially when fill material generated by construction is deposited on slopes after the pipelines are buried.
  • June 28, 2018: Little Pink House showing, to help educate the public about the importance of fighting eminent domain abuse.
  • June 29, 2018: No Pipeline Summer Camp begins, a continuous peaceful and family-friendly encampment on the Bath County property of Bill and Lynn Limpert; the camp runs through September. The ACP is slated to go right through their property, destroying hundreds of its jaw-dropping old growth trees, and decapitating an entire ridgeline known locally as “Miracle Ridge.”
  • July 19, 2018: The Nelson County Service Authority Board voted unanimously against a proposal to set a rate of more than 10 cents per gallon and a connection fee of $500,000 for the ACP, which wanted to purchase 40,000 gallons of water per day for up to two years. The water would have come from Lake Monacan, and the ACP wanted to use it for horizontal directional drilling to bore a path for the pipeline beneath the Blue Ridge Parkway, from near the Wintergreen entrance through to Augusta County.
  • August 6, 2018: The three-judge panel of the 4th Circuit Court of Appeals released a unanimous opinion on its May 15 Order that vacated the Fish and Wildlife Service’s biological opinion for the Atlantic Coast Pipeline. The long-awaited opinion, written by Chief Judge Roger L. Gregory, also vacated the Right-of-Way permit issued by the National Park Service for drilling under the Blue Ridge Parkway. In response, FERC issued a stop-work order for the ACP on August 10, which they lifted on September 17.
  • August 10, 2018: FERC rejected the many petitions that had been pending before it to re-hear its October 13, 2017, decision to issue a permit for building the ACP. The action occurred on a 2-1 vote, with Commissioner LaFleur issuing a strong dissent and Commissioner Glick intentionally not participating, thus allowing challengers to bring a court suit to rehear the decision.
  • August 21, 2018: Rather than taking any strong action on its own, the State Water Control Board adopted a motion calling for the DEQ “to aggressively enforce” the Erosion & Sediment and the Stormwater requirements for the ACP and the MVP. The Board defeated, 4-3, a motion to modify or revoke the state’s certification of a nationwide permit to oversee more than 1,000 water crossings by the MVP and ACP, but agreed unanimously to require more rigorous enforcement of state standards to protect water quality. It was later revealed that Robert Dunn, Chairman of the Virginia State Water Control Board, did not understand the ramifications of the Board’s actions on water quality certifications.
  • September 4, 2018: Friends of Nelson and Wild Virginia submitted a motion to FERC to “rescind and place in abeyance the Certificate of Convenience and Necessity for the Atlantic Coast Pipeline issued by the Commission staff on October 13, 2017, to rescind the Final Environmental Impact Statement (“FEIS”) for the Atlantic Coast Pipeline (“ACP”) issued on July 21, 2017 in the above captioned dockets, to and to initiate a new DEIS/FEIS NEPA process in this matter.” The case will be heard in the Fourth Circuit Court in January 2019.
  • September 24, 2018: The Fourth Circuit Court of Appeals issued a stay in the case challenging the Special Use Permit (SPU) that had been issued by the US Forest Service for the Atlantic Coast Pipeline. The case is scheduled to be argued before the Fourth Circuit on September 28. Thus the SPU allowing the project to cross national forest land is stayed pending the appeal and FERC will be asked to issue a stop work.
  • Fall 2018: Spruce Creek Gathering – Three weekends of public education, support and communion with local and regional activists. Participants learned about the area’s unique history and geology, and how much of our economy and quality of life depends on Nelson’s natural beauty and clean water.
  • November 8-9, 2018: On a 6-0 vote the Virginia State Air Pollution Control Board deferred until its December 10, 2018, meeting a decision on a needed air permit for the proposed compressor station in Buckingham County for the Atlantic Coast Pipeline. A major reason cited by board members for the deferred vote centered upon concerns over the disproportionate impact the compressor station would have on the minority community of Union Hill and the unsatisfactory response by the Department of Environmental Quality staff to those concerns. On November 15, Governor Northam announced he was replacing two members of the Air Pollution Control Board, the members who had raised the most questions about the air permit. Northam said it was because their terms had expired (but so had terms of over 200 citizen members of other boards who were not replaced). Further announcements said that new Board members would not be seated until after the December 10 meeting, meaning 4 Board members would vote on the permit. Organizations, media editorials, and individuals continue to criticize the governor’s actions.
  • November 16, 2018: The ACP and Dominion filed for Quick Take in the US Western District of Virginia Federal Court in Lynchburg against at least 11 Nelson landowners. Quick Take takes away the constitutional right to due process for every defendant. It also usurps Congressional authority to make and change laws.
  • November 20, 2018: Following requests from Appalachian Mountain Advocates (Appalmad) attorneys, the Norfolk, Huntington, and Pittsburgh districts of the Army Corps of Engineers have each suspended its authorization of the ACP. As a result, ACP lacks authorization to do any instream or wetland construction anywhere along its route.
  • December 3, 2018: With a 3-2 vote, the Nelson County Board of Zoning Appeals denied four of Dominion’s applications for the variances to the County’s flood plain ordinance needed to construct the ACP across flood plains in Nelson. The other seven of the original eleven applications were dismissed in January 2018, and ACP will have to submit new applications for them. On December 6, 2018, ACP filed a lawsuit against the Nelson County Board of Supervisors in response to the Board of Zoning Appeal’s denial.
  • December 7, 2018: the Fourth Circuit Court of Appeals issued a stay of the ACP’s Fish and Wildlife Service permit regarding incidental take of endangered species. This action was in response to a petition filed on November 30 by the Southern Environmental Law Center, and said simply, “Upon consideration of the submissions relative to petitioners’ motion to stay, the court grants the motion and stays implementation of the Fish and Wildlife Service’s 2018 Biological Opinion and Incidental Take Statement pending review by the court.” By the end of the day, Dominion had notified FERC that work will stop along the entire ACP route, saying, “In response to a stay of implementation of the US Fish and Wildlife Service’s 2018 Biological Opinion and Incidental Take Statement granted today by the US Court of Appeals for the Fourth Circuit, Dominion Energy, on behalf of Atlantic and itself, has stopped construction on the entire Projects, except for stand-down activities needed for safety and that are necessary to prevent detriment to the environment.”
  • December 19, 2018: The Air Pollution Control Board voted 3-1 on December 19, 2018, to postpone their vote on the Union Hill compressor station air permit and extend the public comment period. On December 21, the Friday before Christmas, DEQ opened a two week comment period to end January 4, 2019 – two weeks which included three state holidays and four weekend days. On December 29, DEQ announced that the Air Pollution Control Board meeting would be held January 8, 2019, and that there would be no public comment at the meeting.

What a year it has been! Thank you for joining us in the journey.