Category Archives: HDD

Congressional Act to Allow Pipelines to Cross Appalachian Trail and Blue Ridge Parkway?


Say “NO!”

On December 3, 2018, KPVI6 reported that “Legislation is pending in Congress that would give the National Park Service clear authority to allow construction of the Atlantic Coast Pipeline beneath the Appalachian Trail and Blue Ridge Parkway, both potentially critical obstacles under litigation pending in the 4th U.S. Circuit Court of Appeals. Dominion Energy, lead partner in the $7 billion project, confirmed the legislative proposal, which first surfaced in a blog post from an Alabama group that suggested aid for the 600-mile natural gas pipeline is ‘tucked into the omnibus spending bill’ being negotiated by Sen. Richard Shelby, R-Ala., chairman of the Senate Appropriations Committee.”

Dominion’s Aaron Ruby emailed the Richmond Times-Dispatch, saying that, “Congress is considering a legislative amendment that would explicitly authorize the park service to grant a permit for such a crossing.”

The Park Service has twice issued permits for the ACP to cross the Parkway. After the first permit was issued, the 4th Circuit Court of Appeals vacated it in early August as an “arbitrary and capricious” exercise of the agency’s powers. At the same time, the Court also issued a stay of the permit the Forest Service issued for the ACP to cross the Appalachian Trail. After the two agencies [minimally] revised their permits, FERC lifted the stay order, but appeals against the reissued permits are pending, and legal briefs to the Court are due at the end of this week.

In vacating the Park Service permit in early August, Judge Gregory did not rule decisively on whether the Park Service has authority to issue the permit under the Blue Ridge Parkway Organic Act, but he said it had failed to show how the project is consistent with the purposes of the parkway and National Park System. For example, the Park Service had conducted a visibility study and found that because the crossing at Reeds Gap near the Wintergreen entrance would be very visible, it would “thus significantly decreasing the park’s scenic value.”

In trying to get Congress to pass a bill (buried in the omnibus spending bill where they surely hoped no one would notice it) giving the Park Service authority to allow construction, Dominion is clearly trying to make an end run around pending Court rulings that might not be in their favor. Austin “DJ” Gerken, an attorney for the Southern Environmental Law Center, commented, “It’s disappointing but not surprising that Dominion would try to bend the law to its will. It’s already tried to bend the agencies to its will.” And he added, “The fact that Dominion is trying to work around [the law] before it even knows what the court has ruled is really shocking and bold.”

Take action! Contact your Senators and Representatives to urge them to oppose any legislative amendment that would give the National Park Service unchecked authority to allow pipeline construction. Contact Senator Shelby and other members of the Senate Appropriations Committee. Senator Kaine’s office says he does not support the measure, so thank Senator Kaine for protecting the land held in common for all of us to enjoy.

4th Circuit Court Vacates Two ACP Permits


On 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.

The Court said the Fish and Wildlife’s “taking order,” authorizing the pipeline to “‘take’ — i.e. kill, harm, or harass — five species that are listed as threatened or endangered” is “arbitrary and capricious” because the so-called “take limit” is unenforceable.

The Court also said that because the National Park Service failed to explain how the ACP crossing of the Blue Ridge Parkway “is not inconsistent with the purposes of the Parkway and the overall National Park System,” that permit is also “arbitrary and capricious.”

Defenders of Wildlife, the Sierra Club, and the Virginia Wilderness Committee, represented by the Southern Environmental Law Center, had challenged both the Fish and Wildlife Service and the National Park Service decisions.

Read the full opinion here.

The Court’s decision to vacate the National Park Service permit for the ACP to cross the Blue Ridge Parkway was unexpected. Thanks to Friends of Nelson’s Marilyn Shifflett, who has provided the following summary quotes from the decision:

“A visual impact study conducted by ACP and overseen by NPS concluded that the corridor would be visible from at least one key observation point along the Parkway, thus significantly decreasing the park’s scenic value. J.A. 1020. Specifically, the analysis concluded that ‘[v]iews of the ACP corridor from the Three Ridges overlook . . . would likely be inconsistent with NPS management objectives, given the proximity to the viewer, the axial nature of the view, and the corridor’s contrast with the surrounding forest.’

In other words, NPS enabled and virtually ensured the alleged harm to the Parkway’s aesthetic value.”

***
“In this case, if this Court were to invalidate the NPS permit as requested, the pipeline cannot exist in its proposed form with its current authorizations and would have to be re-authorized with a new permit or possibly a new route to proceed.”

***
“Even assuming that either § 460a-3 or § 460a-8 confers general authority on NPS to grant oil and gas rights-of-way through Blue Ridge Parkway property, we conclude that NPS has acted arbitrarily and capriciously by failing to explain why ACP’s pipeline is not inconsistent with parkway purposes.”

***
“The Blue Ridge Parkway also has its own conservation and preservation purpose, according to NPS’s General Management Plan for the Parkway. Under the Plan, the Parkway’s specific purposes are to “connect . . . national parks by way of a ‘national rural parkway’—a destination and recreational road that passes through a variety of scenic ridge, mountainside, and pastoral farm landscapes”; “conserve the scenery and preserve the natural and cultural resources of the parkway’s designed and natural areas”; “provide for public enjoyment and understanding of the natural resources and cultural heritage of the central and southern Appalachian Mountains”; and “provide opportunities for high quality scenic and recreational experiences along the parkway and in the corridor through which it passes.” The Blue Ridge Parkway Organic Act then forbids NPS from authorizing any right-of-way that is not consistent with those parkway purposes. See 16 U.S.C. §§ 460a-3, 460a-8. Thus, the right-of-way permit in this case would violate statutory requirements if not accompanied by a valid agency determination that the pipeline is not inconsistent with the Parkway’s scenic value and the public’s enjoyment thereof. ”

***
“Having concluded that both FWS and NPS erred in issuing their respective authorizations, we turn to the final question of remedy. Respondents argue that this Court lacks authority to vacate the agency actions under the Natural Gas Act. However, Respondents’ position is contrary to the plain text of the Natural Gas Act. The judicial review provision at issue provides, If the Court finds that such order or action is inconsistent with the Federal law governing such permit and would prevent the construction, expansion, or operation of the facility subject to section 717b of this title or section 717f of this title, the Court shall remand the proceeding to the agency to take appropriate action consistent with the order of the Court.

Because FWS and NPS have both granted authorizations in contravention of their respective statutory requirements, we conclude that the correct remedy is to vacate the ITS and the right-of-way permit, respectively.”

According to Reuters news coverage, Dominion’s Aaron Ruby says, “We believe the court’s concerns can be promptly addressed … without causing unnecessary delay.”

NCSA Votes Unanimously to Deny Sale of Water to ACP

At their meeting on July 19, 2018, the 5-member 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.

The proposed connection fee of $500,000 and the per gallon connection rate were more than 10 times the regular rate and would have resulted in about $3.5 million in revenue over two years for the service authority. Several NCSA Board members said they did not see the need for a rate scale that would accommodate huge construction or industrial projects that did not fit the vision of the county, and that approving the rate could bring risks and liabilities to the county.

The Board’s legal counsel noted that, although the special rate and permit had been denied, the ACP could come back to the service authority asking to become a regular customer and pay the regular rate and connection fee. The Board then unanimously approved a new requirement that starting July 19, 2018, any applicant wishing to purchase more than 100,000 gallons of water per month would have to petition the Board for approval.

According to ACP spokesperson Aaron Ruby, the company now has another source to meet their water needs, with about 10 tankers making 10 round trips daily to the construction site.

ACP construction has not yet started in Virginia because the required permits have not yet been received from the Department of Environmental Quality and the State Water Control Board.

Service Authority Board Votes 2-2 on Selling Water for ACP

At their meeting on June 21, 2018, the Nelson County Service Authority Board voted 2-2 on the question of setting a rate for Dominion to purchase 40,000 gallons of water per day from Lake Monocan for ACP construction, to be used primarily for the proposed HDD drilling at Reeds Gap. (George Miller, Executive Director of the Service Authority, stated that they cannot provide water for testing.)

There are normally 5 members of the Board, one from each district, but Russell Otis resigned last week and thus did not attend. Tommy Harvey and Robert McSwain voted against setting a rate for Dominion, Gary Sherwood and David Hight voted in favor of setting a rate. Since there was a tie vote, the matter will be discussed again at the July meeting, at which time the composition of the Board will have changed, with Justin Shimp, Ernie Reed, and Jesse Rutheford replacing Harvey, Otis, and McSwain.

According to the News & Advance, “with the contract, which could result in $3.5 million for the authority over two years, yet to be finalized, ACP indicated after the meeting it also is exploring other options for the water it needs for construction. ‘We’ll continue working with the service authority in the hopes of reaching an agreement,’ said Aaron Ruby, spokesman for leading ACP partner Dominion Energy, ‘but at this time we’re moving forward with our alternative solution to meet the project’s water needs.’ That alternative would be to truck in water each day for use in the horizontal directional drilling (HDD) process that would bore a path for the pipeline under the Blue Ridge Parkway from Nelson County into Augusta County. HDD construction is planned to start this summer, with activity focused near Beech Grove Road and along the border with Augusta County. The trucking alternative would mean increased traffic in the Wintergreen area to at least 10 daily trips by trucks to and from the site.”

Public Hearing: Water from Lake Monocan for ACP

On Thursday June 21, 2018, at 2pm Nelson County Service Authority will hold a public hearing on the proposed water rates in the proposed contract between the Service Authority and Dominion. The contract would allow the Service Authority to sell 40,000 gallons per day of Wintergreen’s Lake Monocan water to Dominion to build the Atlantic Coast Pipeline, specifically for the horizontal directional drilling (HDD) under the Blue Ridge Parkway at Reeds Gap. That’s 29 million gallons of water Dominion wants to buy over the next 2 years to build ACP and use for drilling fluid.

According to the May 23, 2018, article in the Nelson County Times reporting on the Service Authority’s meeting on May 17, which yielded no final decisions on a contract to provide water to the ACP for construction, the board could vote on the contract following the public hearing. A public hearing is required to set the special rates for ACP. The ACP engineer attending the May 17 meeting said the water would be used for HDD, but could be used for other aspects of construction, and the water used as part of the HDD drilling fluid will be “hauled off.” [How? where? what will be done to purify it?]

Below is a map showing Lake Monocan, the proposed source of water for Dominion’s pipeline drilling fluid, and the surrounding area.

WPOA Asks DEQ to Intervene


Wintergreen Property Owners Association filed comments with DEQ on June 12, 2018 asking DEQ not to accept the insufficient review the Army Corps of Engineers deemed acceptable as part of Nationwide Permit 12. Their comments relate specifically to VA AP-10237 (MP 158.7) and VA AP-10237 (MP 158.9} near the sole entrance/exit to Wintergreen. They state, “Wintergreen has already shared abundant information supporting the need for careful review, given the unique environmental and public safety challenges present where the ACP passes the only entrance and exit of our community. As required, this filing includes an analysis of the inadequacies of NWP 12 for this project and provides additional new information showing current site conditions, and clear evidence of pressurized ground water within the ACP route. This new evidence reinforces the need for DEQ to provide additional scrutiny of the environmental and public safety impacts of the ACP project near milepost (MP) 158.7, and for DEQ to not accept the previous insufficient review the Corps deems acceptable as part of NWP 12.”

The WPOA filing discusses debris flow and rockslides, ground water, soil and geologic concerns, and drilling under Reeds Gap, and includes detailed diagrams and LIDAR mapping. Wintergreen engineers and geologists use underground radar to show DEQ and FERC that ACP’s pipeline is not safe to build on on unstable land, fault lines, and underground aquifers. One result — water gushing from ACP soil borings.

The filing says, “In the interest of getting this project approved, the ACP has not carefully studied the geologic conditions present in and around MP 158. Had the ACP presented all of the evidence to FERC and DEQ at the time of permitting, it would have triggered additional review/discussion about; the steep slopes, the unstable colluvial material, the large volume of groundwater present, the potential for debris avalanches, catastrophic damage to the headwaters of the Rockfish River, and the public safety concerns over the entrapment of an entire community. None of the evidence presented to date suggests there has been careful review of the existing conditions and the potential problems this project may cause to Virginia Water. As part of the 401 certification, the Commonwealth should force transparency of the engineering plans related to this project, and in doing, will greatly reduce the negative, and possibly catastrophic, consequences that could result from a lack of oversight.”

In conclusion, the filing notes, “As this project gets underway, more and more evidence is coming to light that, the ‘best practices’ and ‘best in class’ approach to pipeline construction is inadequate. Environmental disasters recently occurred on a Dominion project near Spartanburg SC and on the Mountain Valley Pipeline project in Franklin County VA. The news coverage of contaminated spring fed waters in Montgomery County VA and the pipeline explosion last week in Marshall County WV, should give additional cause for serious concern. The pipeline that exploded in Marshall County was put into service in January of this year and was described as ‘best in class’ for safety, reliability, and efficiency by the company who built and is currently operating this brand-new pipeline. It is important to note that Dominion Energy regularly uses the phrase ‘best in class’ to describe the construction, operation, and safety of the ACP. With failures mounting on similar projects, DEQ should recognize the need to scrutinize the engineering and construction plans more carefully and make sure the ACP is in fact constructed in a way that protects the citizens of Virginia and the water we depend on.”

Read the full WPOA filing here, with copies of their previous relevant filings as attachments.

Blue Ridge Life news coverage includes photographs, discussion with Jay Roberts, Executive Director of WPOA, and a brief video of water pushing out around a locked cap on a test well within a few hundred feet of the entry-exit of Wintergreen Resort.  The story was also covered in the Richmond Times-Dispatch on 6-17-18 (for digital subscribers only) and in the Daily Progress on 6-18-18.