Category Archives: Natural Resources

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.

Recovery Plan Proposed for Endangered Bumble Bee

Photo by Tamara Smith, USFWS

On January 26, 2020, the Charleston Gazette-Mail reported on a proposed recovery plan for the endangered rusty patched bumble bee. The U.S. Fish and Wildlife Service (USFWS) is seeking public comment on a draft plan for recovery of the species listed as endangered under the Endangered Species Act (ESA) in 2017. The draft plan outlines general management actions aas well as criteria that would indicate when the bee may be considered recovered and eligible to be removed from the endangered listing.

According to the Gazette-Mail article, “In 2018, scientists from the Virginia Department of Conservation found 20 of the bees in surveys conducted in Bath and Highland counties, through which the Atlantic Coast Pipeline is routed after crossing into Virginia from Pocahontas County. In a biological opinion allowing the ACP to receive a permit for building the pipeline through West Virginia and western Virginia, the USFWS concluded that populations of the rusty patched bumblebee and three other endangered species in the project area were unlikely to be harmed by pipeline work. The Southern Environmental Law Center sued on behalf of three conservation groups who challenged Fish and Wildlife’s assessment, and in May 2018, the Fourth U.S. Circuit Court of Appeals ruled in their favor, vacating the pipeline’s construction permit. Fish and Wildlife issued a new permit in September 2018, which was again challenged by the same plaintiffs, whose contentions were once again viewed favorably by the court. Implementation of the permit was again postponed, pending the outcome of arguments scheduled for May 2019.”

After those May arguments, the Fourth Circuit issued an opinion in July 2019 saying the USFWS decision “arbitrarily and capriciously reached its no-jeopardy conclusions” for the rusty patched bumblebee, and that it “runs counter to available evidence, relies on data without providing a meaningful basis for that reliance, fails to consider the species’ status as a whole.”

The Gazette-Mail says, “The draft recovery plan for the rusty patched bumblebee includes improving the quality and quantity of habitat near established colonies, improving connectivity between colonies and reintroducing the bumblebees to now-unoccupied sites within the insect’s former range. In order for the population to recover enough to be removed from Endangered Species Act protection by 2059, 159 populations — just over 10 percent of the pre-decline number of populations — would have to be maintained in five conservation zones.”

The draft recovery plan is available at https://www.fws.gov/midwest/endangered/insects/rpbb/.

Public comments will be accepted through Feb. 24. Instructions on how to submit comments can be found at https://www.regulations.gov/ using docket number FWS-R3-ES-2019-3803.

Read the full Charleston Gazette-Mail article here.

Ten Reasons to Oppose the ACP

Here are 10 reasons why Friends of Nelson opposes the Atlantic Coast Pipeline. In the coming weeks we will be posting expanded information on each of the 10 reasons. We hope this information will help clarify your thinking and help you to explain to family, friends, neighbors, and legislators why you oppose the ACP. (Click here to download a printable version of the list.)

1. No Demand or Need
With evidence of reduced future demand and with recent upgrades to existing pipelines, energy analysts argue that there is no need domestically for the Atlantic Coast Pipeline. Additionally, foreign demand for this gas is better satisfied by nearer sources which can be produced and delivered at a lower cost.

2. Climate Change Implications
Gas pipelines leak methane gas and their compressor and metering stations regularly release methane and other harmful pollutants. The ACP will therefore significantly contribute to climate change.

3. Cost Burden on Ratepayers
The pipeline’s almost $8 billion construction cost will eventually mean rate increases for all Dominion customers as they will have to foot a large part of the ACP cost, regardless of whether it is put into service or not.

4. Discourages Utility Investment in Alternatives
The ACP’s possible construction and its huge capital investment cost will discourage utilities from promoting and developing non-fossil fuel, increasingly cost-effective alternatives such as wind and solar.

5. Eminent Domain Seizures of Private Property
Through the imposition of Eminent Domain, the proposed route confiscates and restricts Nelson landowners’ property rights, lowering their own and adjoining neighbors’ property values.

6. Landslide Danger on Steep Slopes
The proposed construction and placement of the pipeline endangers Nelson citizens’ lives and property, especially on steep slopes which are highly susceptible to landslide failures. Note that ruptured pipelines are likely to explode.

7. Disproportionate Harm to Minority Communities
The ACP will specifically harm the historic African American community of Union Hill by locating a dangerous and polluting compressor station in its midst.

8. Containment Failures Impact on Streams and Drinking Water
As recently demonstrated with the Mountain Valley Pipeline, construction of the ACP will, despite promised containment safeguards, silt up mountain and valley streams, affecting local drinking water and aquatic life.

9. Forest Fragmentation and Effects on Endangered Species
The ACP’s construction will further fragment our vulnerable eastern forests, reducing the habitat and population of Federally-listed endangered species. Such activity could potentially cause their extinction.

10. Detracts from Scenic Views on Public Lands
The pipeline corridor will detract from scenic views on the Blue Ridge Parkway, the Appalachian Trail and National Forest Lands. One of the most prominent viewing locations is at the Parkway’s Raven’s Roost overlook.

Fish and Wildlife Service Redrafting New Permit

From Allegheny-Blue Ridge Alliance’s ABRA Update #256 for December 12, 2019:

The biological opinion and taking statement issued for the Atlantic Coast Pipeline (ACP) by the U.S. Fish and Wildlife Service (FWS), and twice struck down by the Fourth Circuit Court of Appeals (most recently in July of this year), is once again on the drawing boards. Dominion Energy and FWS have begun consultations required under Section 7 of the Endangered Species Act (ESA). According to minutes released this week of an October 22 meeting between officials with Dominion, Duke Energy, FWS staff and the Federal Energy Regulatory Commission (FERC), the status of recent surveys that have been conducted on endangered species that would be affected by the ACP was reviewed. It was indicated that two species that were listed under the ESA since FERC’s approval of the ACP – the yellow land and candy darter – will be included in the new assessment.

Construction on the ACP was halted in December of last year because of questions raised in the Fourth Circuit decision vacating the latest FWS biological opinion. FERC has indicated that it will not approve the resumption of ACP construction until there is a valid biological opinion.

New Study Highlights Negative Water Quality Impacts of Pipeline Projects

From Allegheny-Blur Ridge Alliance ABRA Update #250, October 24, 2019:

A new study commissioned by Trout Unlimited concludes that the impact on water quality of several natural gas pipeline projects in the Appalachian region is profound, even when care is taken to minimize impacts. Pipeline Impacts to Water Quality, prepared by Downsteam Strategies, a West Virginia environmental research firm, examined the construction of four pipeline projects: Mountain Valley Pipeline (MVP) and WB Xpress Pipeline (WBX) in West Virginia and Virginia, the Rover Pipeline in West Virginia and Ohio, and the Mariner East II Pipeline in Pennsylvania. The most significant water quality problems were caused by inputs of sediment-laden water to streams.

In commenting upon the sediment pollution caused by the MVP and WBX, the study notes, “Most of the routes for these two pipelines cross mountainous terrain characterized by steep slopes, headwaters streams, and highly erodible soils. Reasons for failure of erosion and sedimentation controls that led to sedimentation in waterways were notably improper installation and lack of maintenance of the structures.”

Notable recommendations in the study include “requiring site-specific stormwater plans for all stream and wetland crossings, encouraging companies to complete construction projects in shorter sections, and increasing regulatory inspections at the expense of the pipeline companies.”

FERC Asks Fish and Wildlife to Reconsider


On August 28, 2019, the Federal Energy Regulatory Commission (FERC) asked the U.S. Fish and Wildlife Service to “reinitiate consultation,” asking the Service to reconsider its earlier finding that the MVP would not significantly harm protected fish and bats along the route. The Fish and Wildlife Service has said it will comply.

The announcement came two weeks after environmental groups filed an August 12 challenge to the Fish and Wildlife Service’s 2017 opinion (see New Lawsuit Launched Against MVP). On August 15, three days after the challenge was filed, MVP said it was voluntarily suspending work on parts of the project where impacts to endangered species were in question. It is not yet clear whether any, some, or all work on the pipeline would now have to stop.

A statement from the Sierra Club, one of the plaintiffs in the August 12 challenge, said, “Because the project does not have a valid Biological Opinion and Incidental Take Statement, all work on the pipeline should halt until a new one is issued.”

Natalie Cox, director of communications for Mountain Valley Pipeline, attempted to give a positive spin to the FERC request, saying that the company had “received and reviewed the FERC’s letter and we are encouraged that the process is moving forward.”