Category Archives: Floodplains

Court Denies Request for A Stay of Keystone XL Decision Affecting NWP 12

From Allegheny-Blue Ridge Alliance’s ABRA Update 274, April 30, 2020:

Chief Judge Brian Morris for the U.S. District Court for the District of Montana said on April 28 that he would not issue an administrative stay to his April 15 order blocking the Army Corps’ Nationwide Permit 12 (NWP12) program, pending consultation with other federal agencies under the Endangered Species Act. The judge’s earlier decision effectively halted the authority of the U.S. Corps of Engineers from issuing any permits for any project subject to NWP12. This includes the Atlantic Coast Pipeline, which at this date does not have a valid NWP12 permit in any of the four Corps districts in which the project’s route runs. Last week, the Corps suspended issuing any NWP12 permits. Judge Morris in his April 28 ruling establish a briefing schedule for the April 15 decision to be appealed.

See Court Ruling on Army Corps Permit for Keystone XL Will Impact ACP for the story on the April 15 order.

ACP Effects on Virginia Wetlands


From the Digital Commons at Longwood University comes this interesting 15 minute video presentation on The Atlantic Coast Pipeline: Effects on Wetlands in Virginia, a Longwood University Student Showcase by Travis Wood and Coleman Behne, April 22, 2020.

Their summary statement:

Wetland mitigation banking is a familiar topic in Virginia, especially with the introduction of the Atlantic Coast Pipeline. The proposed pipeline, which extends from West Virginia to North Carolina, impacts nearly 315 acres of wetlands in Virginia alone. Under current Virginia law, wetlands are to be undisturbed by any destruction-related actions. The pipeline, however, has raised many questions as to why the State is making certain exceptions for a natural gas pipeline. There is a gap between society’s demand for natural gas and the negative environmental impacts the pipeline brings. Environmental justice is also a concern, when groups of people resist placing compressor stations in their communities (e.g. Buckingham County). The wetlands that will see the largest impact is the Great Dismal Swamp National Wildlife Refuge, with 22 proposed wetland crossings that will impact 75.9 acres of wetlands. This paper examines how the pipeline is able to disturb wetlands that are deemed ‘untouchable’. The proposed pipeline also comes within 100 feet of wildlife boundaries. Additionally, 13 forested wetlands will be crossed resulting in 21.7 acres of permanent conversion to scrub-shrub or herbaceous wetlands. In preparing plans and scoping areas the natural gas pipeline can pass through, many wetlands and other nationally protected areas are being disturbed and we examine whether the potential benefits outweigh the negatives.

Judge Moon Rules Against Nelson County on Floodplain Challenge

Senior U.S. District Judge Norman Moon issued an opinion on Monday March 9, 2020, finding that the Natural Gas Act preempts Nelson County’s floodplain ordinance, siding with the Atlantic Coast Pipeline and finding federal law superseded the county’s effort to block the project from crossing designated flood plains.

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 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, asking 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, and to enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction. The case was heard before Judge Moon on April 8, 2019.

In his opinion, Judge Moon wrote, “Nothing gives these floodplain regulations, as modified, the force of federal law now,” – referring to the county’s zoning ordinances. “Rather… because the floodplain regulations and their application through the [county] to deny Atlantic’s variance request stands as a clear obstacle to the meaning and purposes of the [Natural Gas Act], it is therefore preempted as applied to the Atlantic Coast Pipeline.”

Nelson County now must decide whether to appeal the ruling to the Fourth Circuit Court of Appeals in Richmond. The Fourth Circuit has vacated a number of permits that Dominion needs in order to construct and operate the Atlantic Coast Pipeline, finding repeatedly that Dominion and relevant Federal agencies have acted arbitrarily, capriciously and not in accordance with law.

In addition, Nelson County’s floodplain ordinances play a critical role in potentially stopping the Army Corps of Engineers from authorizing construction of the Pipeline, even if the ruling is upheld. On February 11, 2020, the Southern Environmental Law Center sent a letter to the United States Army Corps of Engineers, Norfolk District, stating that they cannot lawfully reinstate their 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 stated that the Norfolk District cannot reinstate its suspended verification because:

  • General Condition 10 of Nationwide Permit 12 requires Atlantic to “comply with applicable FEMA-approved state or local floodplain management requirements.”
  • Nelson County’s floodplain ordinance adopts a FEMA recommendation that critical facilities not be located within floodplains by mandating that any such facility proposed to be located in a special flood hazard area receive a variance.
  • Atlantic will not satisfy General Condition 10 unless Atlantic complies with the variance requirement, regardless of the outcome of Atlantic’s separate lawsuit that is referred to above.
  • The Corps cannot lawfully excuse Atlantic’s plan to violate General Condition 10 by failing to comply with the variance requirements.

The letter stated that, under the circumstances, reinstating the suspended verification would be arbitrary, capricious, and not in accordance with law.

Judge Moon’s full opinion is here.

Judge Moon’s order is here.

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.