Category Archives: Natural Resources

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.”

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“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.”

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“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.”

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“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. ”

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“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.”

FERC Approves ACP Construction Start in NC

As reported by the Virginia Mercury and WVNews, on July 24, 2018, FERC gave approval for the start of ACP construction in North Carolina, despite a federal court challenge that seeks to halt construction. In May the 4th Circuit Court in Richmond invalidated a key environmental review of U.S. Fish and Wildlife Service’s “incidental take statement,” which sets limits for harming or killing certain sensitive species along the pipeline route, finding it too vague to be enforced. Although the 4th Circuit has yet to release its full opinion, opponents of the project argue the court’s opinion should have stopped the entire project. However, in a letter to FERC last month, the Fish and Wildlife Service said the take statement was only relevant to habitat and species in Virginia and West Virginia.

Patrick Hunter, a North Carolina attorney with the Southern Environmental Law Center, which handled the 4th Circuit case on behalf of environmental groups, said, “These piecemeal authorizations of a project that doesn’t have all the approvals it needs just doesn’t make sense.” A request that the 4th Circuit halt construction in pending before the court, he added.

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.

Take a Day Hike or Camp Overnight in a Bath County Old Growth Forest


The biggest regional land-clearing project since the federal highway program of the 1960s is now underway in Virginia. In order to build the Atlantic Coast and Mountain Valley pipelines, Dominion Energy and EQT are targeting vulnerable communities, destroying precious ecosystems, and threatening the livelihoods of Virginians far and wide.

Enough is enough! Visit Bath County this summer for a continuous peaceful and family-friendly encampment on the property of Bill and Lynn Limpert. The Atlantic Coast Pipeline 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.” To participate, sign up here. For more information, check out a recent article in the Richmond Times-Dispatch

DPMC Posts Summary of Comments on Stream Crossings

The Dominion Pipeline Monitoring Coalition has posted links to the Virginia Conservation Network’s collection of comments to the State Water Control Board, along with an initial summary of comments to which the SWCB must respond.

From the DPMC Web page (many thanks to DPMC for their fine summary!):

The Virginia Conservation Network (VCN) has collected  comments submitted in response to the State Water Control Board’s request for public input concerning the Army Corps of Engineers’ Nationwide Permit 12 and where it falls short in upholding state water quality standards and where stream-by-stream reviews are needed for the Atlantic Coast and Mountain Valley Pipelines. VCN has established a webpage to provide access to these comments:  http://www.vcnva.org/pipeline-comments/.

An extensive review and summary of comments will be prepared and made available to the public and the Water Control Board. A initial summary of assembled comments follows. Additional comments can be shared with David Sligh, DPMC Regulatory System Investigator, at david@wildvirginia.org.

Initial Summary of Comments: NWP12 is Not Sufficient to Protect Virginia Streams

The Army Corps of Engineers’ Nationwide Permit 12 (NWP12) is insufficient to meet Virginia’s water quality standards. This permit is for “activities that have no more than minimal individual and cumulative adverse environmental effects.” The Atlantic Coast Pipeline (ACP) and the Mountain Valley Pipeline (MVP) clearly do not meet this description. Consider the following synopsis from a selection of comments to the State Water Control Board.

    • Damage to streams is already being caused by construction activities: mudslides and sediment discharges from MVP have inundated Virginia streams and covered roads and neighboring properties; NWP12 is currently allowing damage to streams in South Carolina from a Dominion Energy project; West Virginia regulators have already issued four Notices of Violation for serious erosion problems and stream impacts from MVP. SELC and Appalachian Mountain Advocates comments discuss the current on-the-ground situation in detail.
    • Mitigation measures as planned are inadequate to protect water quality: plans from developers are generalized and site-specific analyses are inadequate; many designs currently exceed engineering specifications; plans fail to consider combined impacts from upland activities and stream crossings. Sierra Club’s comments describe specific inadequate engineering evaluations and designs in detail.
    • NWP12 ignores cumulative effects of multiple crossings: the permit looks at individual crossings in isolation and ignores the cumulative effects of multiple crossings on the same stream or small watershed. Wild Va/DPMC comments identify and describe potential individual and combined impacts from numerous sites within four “clusters” of crossings.
    • DEQ presented incomplete and inaccurate information to the public: at least 81 crossings proposed by ACP and many for MVP are omitted from tables provide by DEQ (which were to provide the bases for comments to the SWCB); the tables also mischaracterize waterbody features. Crossings not identified or accurately described cannot have been adequately reviewed by the Corps or DEQ.
    • When violations occur at specific crossings, as highlighted by the VA Environmental Justice Collaborative, the impacts disproportionately impact low-income and/or minority communities.
    • The SWCB cannot defer to other agencies to protect our waters: the Corps admits it does not assess whether projects can meet state standards and that recreational uses may be impaired or eliminated. Anti-degradation analyses required by state regulations were not conducted by the Corps or DEQ. Wild Va/DPMC comments describe numerous high quality waters where state standards cannot be met and Virginia’s Department of Game and Inland Fisheries has already granted variances to time of year restrictions that are crucial to protect endangered species and sensitive trout streams.
    • The Water Board must use its authority to protect VA’s streams, specifically:
      • Require individual stream crossing reviews for the most sensitive streams and watersheds
      • Insist on complete and accurate information from the developers on the proposed designs, mitigation measures, and disallow variances that threaten water quality
      • Conduct a 30-day comment period on the DEQ draft individual permits
      • Suspend all activity until these reviews are complete