Category Archives: Floodplains

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.

ACP Files Suit Against Nelson County

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. On December 3, 2018, the Nelson County Board of Zoning Appeals denied Dominion’s request for variances to the County’s floodplain ordinance which would have allowed ACP construction across four Nelson County wetlands. The ACP suit is in response to the Board of Zoning Appeal’s denial.

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, and the Fourth Circuit Court of Appeals has vacated three other critical federal permits. It is, therefore, questionable what standing ACP has to file suit.

Read the full ACP complaint here.

Read CBS19 news coverage here.

Fuller coverage in the Lynchburg News & Advance.

ACP’s Floodplain Variance Request Denied


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, and 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)

Friends of Nelson issued the following press release on December 4, 2018:

Friends of Nelson commends the Nelson County Board of Zoning Appeals for its 3-2 vote to deny the applications for variances that would allow the Atlantic Coast Pipeline to cross four floodplains along its route through Nelson. These four applications were deferred by Dominion earlier this year. ACP had originally filed applications for 11 floodplain sites, but easement agreements at that time were only in place for the 4 sites applied for and heard by the BZA on Dec. 3.

Board of Zoning Appeals’ member Gifford Childs, made the motion to deny, expressing concerns that the ACP’s application did not offer sufficient detail and assurances that these areas would be protected during construction.

Friends of Nelson agrees and remains very concerned about the inevitable negative impacts to our water, to surrounding properties, and the long-term damage to the fragile ecosystems that exist naturally in floodplain areas. We are convinced that the ACP’s plans do not meet the standards required by Nelson County’s current floodplain ordinance. The preferred route chosen by the ACP through 11 floodplain areas in Nelson is the highest number in any jurisdiction in Virginia, and begs the question of any earnest effort on the ACP’s part to avoid areas that will increase risks associated with large natural gas transmission pipelines. One of the major causes of pipeline “failures” is soil movement and the industry, as well as key agencies, recommend avoiding areas prone to flooding when selecting pipeline routes.

Friends of Nelson will continue to monitor the ACP’s applications on the remaining floodplain sites and is most grateful to the residents who commented during the public hearing.

See press coverage by the Lynchburg News & Advance.

FERC Asked to Issue Stop Work Order for ACP

On November 27, 2018, a group of six ABRA members – Appalachian Voices, Chesapeake Climate Action Network, Sierra Club, West Virginia Highlands Conservancy, West Virginia Rivers Coalition, and Wild Virginia – asked the Federal Regulatory Commission to issue a stop work order for the Atlantic Coast Pipeline (ACP). On November 9, the same organizations had requested a stop-work order. The new request, sent by Appalachian Mountain Advocates on behalf of the six organizations, supplements the November 9 request, noting that the project has recently lost permits from three U.S. Army Corps of Engineers districts (Norfolk, Wilmington and Huntington) to construct the ACP over streams under the Corps’ Nationwide 12 permit. FERC’s October 13, 2017 Certificate to the ACP requires all federal authorizations to be in place in order for construction to take place. The letter states:

As a result of the suspensions of those three authorizations, Atlantic no longer has the requisite federal approval to construct any stream or wetland crossing along its entire route. Atlantic also lacks NWP 12’s authorization for “temporary structures, fills, and work necessary for the remediation of inadvertent returns of drilling fluids to waters of the United States through subsoil fissures or fractures that might occur during horizontal directional drilling [HDD] activities,” meaning that Atlantic lacks the ability to promptly and legally control the all-too-common inadvertent releases from HDD operations that might be performed in lieu of in-stream crossings. Because those mandatory federal authorizations are now lacking, FERC must not allow pipeline construction to continue, not only in waters of the United States but anywhere along the pipeline route.

Appeals Court Vacates MVP Nationwide Permit


On November 27, 2018, the US Fourth Circuit Court of Appeals ruled that the Army Corps of Engineers violated the Clean Water Act when it verified that construction of the Mountain Valley Pipeline project could proceed under Nationwide Permit 12 in West Virginia. The Court vacated the Corps’ verification in its entirety, leaving the project with no authorization under the Clean Water Act. The Court’s November 27, 2018, decision supports and expands upon their October 2, 2018, decision to vacate the Corps’ verification on more limited grounds.

A copy of the Court’s opinion is here.

A detailed explanation and interpretation from the Policy Resolution Group is here.

Coverage in the Charleston Gazette-Mail is here.

Dec. 3: Nelson Hearing on ACP Request to Cross Floodplains

A Public Hearing will be held at 7 pm Monday December 3, 2018, in the auditorium at Nelson County High/Middle School (6919 Thomas Nelson Hwy, Lovingston) to review four of the deferred floodplain variance applications submitted by the Atlantic Coast Pipeline in early 2018. On January 31, 2018, ACP requested the deferrals until such time as they could provide the additional information requested by Nelson County on behalf of the Board of Zoning Appeals (BZA) for these four applications to cross designated floodplains.

There are no NEW applications at this time. The hearing will be on the four prior permit applications that were deferred at ACP’s January 31, 2018, request. The other seven of the original eleven applications were actually dismissed in January 2018, and ACP will have to submit new applications for them.  Based on a Friends of Nelson phone call to the Planning Office on November 26, no new information or documentation on the four variance requests had been received from ACP as of that date, and as of November 29 the meeting packet for BZA members, which would include relevant information, had not been posted to the BZA Web site.  The request to reopen the Variance Appeal process came to the Zoning Office via phone call rather than in writing.

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)

The ACP Statement of Justification for Floodplain Crossings contains the usual boiler plate ACP language: “this project is needed,” “FERC agrees this is the best route,” “it will not have adverse impacts,” “it will not affect existing or future development”, etc. Clearly not valid justifications for a variance for a 42-inch pipeline carrying natural gas at 1400 psi, and we need to speak out against it.

Come to the hearing and speak out against granting variances to ACP!  Those wishing to speak will be required to sign in before the meeting.  (As usual, ACP will probably stack their speakers at the beginning.) Nelson County has guidelines for speakers at hearings; note that speakers representing a group will have 5 minutes, individual speakers will have 3 minutes (and may not allocate their time to another individual). If you have general comments (vs site-specific ones), you should state when speaking that you want your comments entered into the public record for all four permits.

Permits are being considered for the following applications/parcels/landowners, all of whom have signed easements with ACP: