Category Archives: Natural Resources

Nelson BOS Comments to FERC

Central District Supervisor Ernie Reed, writing on behalf of the Nelson County Board of Supervisors, commented to FERC on the proposed Treatment Plans and Mitigation for impacts to cultural and historical resources in the Rockfish Historical District and Warminster Historical District from the proposed Atlantic Coast Pipeline.

The Nelson Board of Supervisors is a consulting party in the Section 106 process for the ACP. The letter outlines the numerous procedural difficulties in the Section 106 process.

After listing deficiencies the letter continues, “The scar left by the ACP across the face of our mountains, farms, rivers and streams and historic places would deform a unique and pristine natural environment rich in cultural memory and traditions that bring home the historic and cultural contributions of generations of Nelson families—white, black, red and brown. This unique and vital interplay of historic and natural landscapes is increasingly rare in this country. Qualities and cultural values that have been carefully stewarded on the land in Nelson over many generations would be altered by the ACP. Moreover, the 29 miles of proposed Atlantic Coast Pipeline (ACP) would bisect Nelson County and destroy the cultural and historical integrity of the entire County in perpetuity.”

The letter notes, “Nelson County’s agricultural, historical, cultural and archeological significance must be treated as a whole by any Treatment Plan mitigating these damages: ie. damage to the parts of the County must be addressed as damage to the whole county.”

Speaking of the December 28, 2017 Memorandum of Agreement for Mitigation of Virginia Forest Fragmentation Impacts of the Atlantic Coast Pipeline, the letter points out that “Areas not directly impacted by the proposed ACP will benefit from these mitigation dollars; for instance, the $5m CACF funds are targeted to be spent totally in Albemarle County at Biscuit Run State Park. Not a single inch of the ACP will be located in Albemarle County. It is noteworthy that not a single penny of these allocated mitigation funds for fragmentation impacts has been allocated to benefit Nelson County.”

After describing the several forest conservation and agricultural-forestal areas in Nelson County that would be bisected or destroyed by the ACP, and noting that “Nelson County forests are scheduled to be totally bisected by a 125’ clearcut for a total of 29 miles. Including clearing for new access roads, nearly 440 acres of Nelson County’s forests will be destroyed,” the letter says, “Rather than mitigation for these egregious violations, the MOA provides funds designated for ‘forest fragmentation’ specifically to build parking lots, roads, bathrooms, etc. at Biscuit Run Park, as previously mentioned, in Albemarle County. ”

The letter concludes, “We are again reminded the extent to which Dominion, our Commonwealth, and federal government have failed to strive for a just compensation of the cultural damages to our communities and people. No individual, government, much less a corporation should be allowed immunity to the damages and liability that may be caused by this pipeline in a single lump-sum payment.”

Read the full letter here.

Thanks to Supervisor Ernie Reed for this well-written letter, and to the Nelson County Board of Supervisors for their position on the proposed treatment plan and mitigation plan outlined by Dominion for the proposed ACP.

Rainy Days, High Water

Watch Richard Averitt’s quick video, made on Sunday, February 11, 2018, to document the very regular but significant rainfall over the weekend and how the proposed location of the ACP staging areas and pipe across Spruce Creek is destined to fail and wreck this pristine stream. This same thing is playing out across thousands of streams in Virginia.

Conservation Groups File Challenge to Forest Service’s Hasty Decision

Press release from the Southern Environmental Law Center, February 5, 2018:

For Immediate Release: Monday, February 5, 2018
Contact: DJ Gerken, Senior Attorney, djgerken@selcnc.org, 828-258-2023
Claudine McElwain, Communications Manager, cmcelwain@selcva.org, 434-977-4090
Doug Jackson, Deputy Press Secretary, doug.jackson@sierraclub.org, 202-495-3045

Conservation Groups File Challenge to National Forest Service’s Hasty Decision
NFS Decision Fails to Protect Public Lands from Destructive Pipeline Richmond, VA

Today, the 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 developers of the fracked gas Atlantic Coast Pipeline.

“Political pressure forced approval of this boondoggle through steep slopes and landslide-prone areas on a treasured national forest,” said Southern Environmental Law Center Senior Attorney DJ Gerken. “Forest Service staff warned of the impacts this project would have, but the agency ignored them and granted special exceptions to let these pipeline developers get their way.”

The Forest Service repeatedly requested additional information from developers yet moved ahead and approved this risky project with its questions unanswered. The pipeline is slated to cut through 20 miles of steep, rugged mountainous regions of national forest land in West Virginia and Virginia. Much of this land provides habitat for rare and endangered species and is land that is regularly used by hikers and campers.

“The terrain which developers propose to cross with this pipeline is completely inappropriate for this kind of project,” said Sierra Club Attorney Nathan Matthews. “This fracked gas pipeline would cause permanent damage to the public lands that are so important to West Virginia’s and Virginia’s natural beauty. It is reckless to threaten the pristine land and tourism economy of those states with a dirty, dangerous project that they don’t even need.”

Pipeline developers have yet to receive all the permits needed for this project, including a water certification from Virginia meant to ensure protection of sensitive waterways. The Forest Service should not allow any work to move forward on national forest lands until this project is fully permitted.

Today’s petition was filed in the U.S. Court of Appeals for the Fourth Circuit on behalf of the Cowpasture River Preservation Association, Highlanders For Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee, and Wild Virginia.

Say Goodbye to Forests, Vital Habitat


The following editorial is reprinted with permission from The Recorder for January 24, 2018. The list of legislators at the end has been expanded to include those who represent Bath, Highland, Augusta, Nelson, and Buckingham Counties.

Say Goodbye to Forests, Vital Habitat

Readers may or may not have noticed the news recently about federal regulators giving Dominion Energy the green light to begin slicing huge swaths of mountain forests in preparation for building the proposed Atlantic Coast Pipeline.

We think it stinks.

Cutting an interstate-highway sized void through a forest means only one thing. What was forest is no longer forest. It’s now a pustule, a barren scar, open for all sorts of nasties to wreak havoc on water quality, bordering vegetation and indigenous animal life. It will never be the same. Removal of trees without sufficient reforestation has resulted in habitat damage, biodiversity loss, and aridity. It has adverse impacts on the atmosphere.

In its infinite knowledge, the Federal Energy Regulatory Commission gave the energy giant permission to start felling some of the most pristine trees in the world before all necessary environmental safeguards have been put in place. The go-ahead signals a fait accompli that the proposed pipeline is a done deal, something already accomplished and presumably irreversible. We found it a little more than curious that FERC prescribed a deforestation method whereby trees will be cut to ground level. Root systems and their severed trunks wait in place until pipeline construction is authorized. No doubt the clear-cut method will lay out a scrumptious banquet for ravenous woodland beetles and bugs to begin their work of advancing a manmade process of natural woodland decay and decline.

There’s little wonder a company like Dominion Energy is eager to deforest thousands of acres. The return on investment for building a pipeline is so enticing — with federal approval comes a 15 percent guaranteed rate of return on the pipeline builder’s investment — that it quickly becomes evident why Dominion wants to build a lucrative pipeline project it could somehow justify.

The FERC tree cutting approval arrived shortly after Dominion admitted, for the first time, the real project goal all along has been to take the gas to South Carolina and farther south. The premise flies in the face of the case Dominion made to FERC during the licensing process, that the gas was intended for use in Virginia and North Carolina only. This is pure fraud and grounds for putting an end to the project.

The company’s first 42-inch diameter pipeline, the proposed ACP would feed the Southeast fossil fuel at the expense of permanently scarring our pristine Allegheny Highlands landscapes.

It’s a colossal experiment, a project on a scale matching few, if any of its kind. The work would include not only deforestation but mountaintop removal in West Virginia and Virginia. Dominion prefers the euphemism of “flattening.” Either way, some of our most visually appealing mountains would be forever scalped.

Forest fragmentation results from utility rights of way, and the ACP would be no exception. Utility rights of way span areas as large as 5 million acres in the United States. Some studies have shown that transmission rights of way harbor more plant species than adjoining forest areas, due to alterations in the microclimate in and around the corridor. Forest fragmentation is one of the greatest threats to biodiversity in forests. The problem of habitat destruction that caused the fragmentation in the first place is compounded by the inability of individual forest fragments to support viable populations, especially of large vertebrates. Local extinction of species occurs when there’s a lack of at least one fragment capable of supporting a viable population. The scar alters the conditions of the outer areas of the fragment, greatly reducing the amount of true forest interior habitat.

We think it’s a super sloppy job when Dominion leaves in place sites for construction lay-down yards following a major rerouting two years ago. Now on the table of the Highland County Planning Commission, Dominion land use applications infuriatingly remain in McDowell and Monterey, promising to completely tear up more than 10 miles of Highland’s arterial roadways, including U.S. 250 (where there’s a new bridge), Route 679 (Bullpasture River Road) and U.S. 220 (Jackson River Road).

We take comfort in efforts by citizen groups to police Dominion, which has long been cited for water quality safeguard violations in pipeline construction and coal ash pollution. As noted in a story in this week’s edition, the Allegheny Blue Ridge Alliance has launched a citizen initiative to monitor proposed pipeline construction activities. The alliance of more than 50 organizations in Virginia and West Virginia stated the Pipeline Compliance Surveillance Initiative intends to ensure strict application of environmental laws and regulations for the ACP.

We urge readers to let their feelings be known. The contact information for Bath, Highland, Augusta, Nelson, and Buckingham federal legislators is:

  • U.S. Rep. Bob Goodlatte (Bath, Highland, Augusta), 2309 Rayburn House Office Building, Washington, D.C. 20515, phone: (202) 225-5431, fax: (202) 225-9681, goodlatte.house.gov
  • U.S. Rep. Tom Garrett, Jr. (Nelson, Buckingham), 415 Cannon House Office Building, Washington, DC 20515, phone: (202) 225-4711, fax: (202) 225-5681
  • U.S. Sen. Tim Kaine, 231 Russell Senate Office Building, Washington, D.C. 20510, phone: (202) 224-4024, fax: (202) 228-6363, www.kaine.senate.gov
  • U.S. Sen. Mark Warner, 475 Russell Senate Office Building, Washington, D.C. 20510, phone: (202) 224-2023, www.warner.senate.gov/public.

Contact information for state elected officials:

  • In Bath, Del. Ben Cline, P.O. Box 1405, Amherst, Va. 24521, www.bencline.com.
  • In Highland, Augusta, and Nelson’s North District, Del. Richard “Dickie” Bell, P.O. Box 239, Staunton, Va. 24402, www.bellfordelegate.com.
  • In Nelson (except North District) and Buckingham, Del. Matt Fariss, (434) 821-5929, DelMFariss@house.virginia.gov
  • In Bath, Highland, Augusta, Nelson, Sen. Creigh Deeds, P.O. Box 5462, Charlottesville, Va. 22905- 5462, 434-296-5491, district25@senate.virginia.gov
  • In Buckingham, Sen. Mark Peake, 4925 Boonsboro Road, Box 172, Lynchburg, VA 24503, 434-455-3382, district22@senate.virginia.gov

Tree Cutting


Dominion wants to cut your trees. Dominion wants to cut your neighbor’s trees. Dominion wants to cut as many trees as possible on the pipeline path during the allowable time period (now through March, to protect nesting and migrating birds) – because their next opportunity would not be until November 2018. DEQ has said that under Virginia regulations some cutting may be allowed where the activities do not qualify as “land disturbance.” That means only hand-felling, no equipment or machinery – yet even hand-felling can cause significant disturbance.

BUT – Dominion does not have the required permits from North Carolina and has only a conditional one from Virginia. The projected date for completing the required studies for Virginia’s reconsideration of permits is March or April 2018, after the allowable tree felling period has ended.

Here’s a re-post of an article from September 2017 that spells out the mess early tree-cutting has caused for Pennsylvania landowners on the Constitution pipeline route. Half the sugar maple trees (550 of them!) on one family’s maple sugar farm were cut – and then the pipeline was blocked by neighboring New York. The pipeline company sued, and a federal court sided with New York. The landowner lost trees and half her livelihood for a pipeline that probably won’t be built – because the pipeline company charged ahead with having all the permits. A lawyer for the pipeline company said, “I think going forward, people will be very careful before they authorize either the taking of land or the clearing of right of way.” (Dominion, take note!)

On December 27, 2017, Friends of Wintergreen and Wintergreen Property Owners Association filed documents asking FERC to oppose Dominion’s request to cut down trees. For more details on the tree-cutting issue, including Dominion’s petition to FERC, statements from DEQ, and submissions to FERC by several other organizations, see our December 21, 2017, article, What’s Next?

What’s Next?


On December 12, 2017, the Virginia State Water Control Board, by 4-3 vote, conditionally approved ACP certification.  The conditional approval, issued formally by the Department of Environmental Quality on December 20, makes it clear that the effective date when ACP construction can start is delayed until several conditions are satisfied:

  • This certification shall be effective only following submission, review and final approval as required by law of the Karst Mitigation Plan, Annual Standards and Specifications, and Erosion and Sediment Control Plans and Stormwater Management Plans, and a report to the Board and the public by DEQ on the adequacy of these materials. The Board may consider further actions on the Certification following the review of the DEQ report.
  • Pursuant to 33 U. S.C. § 1341 (a)(3), the Board reserves the right to impose further conditions if any existing plans and/or mitigation measures are amended by the Owner and/or FERC that may materially reduce the water quality protection provided thereunder.

Dominion thus has a conditional certification, but one which does not allow them to begin construction as planned before the end of 2017. The projected date for completing the required studies is March or April 2018. However, Dominion, regardless of the fact that they do not have the required permits from North Carolina and have only a conditional one from Virginia, wants to start construction preparations immediately. The ACP has asked FERC for permission to begin limited tree cutting. DEQ has given an opinion that under Virginia regulations some cutting may be allowed where the activities do not qualify as “land disturbance.” Dominion Pipeline Monitoring Coalition (DPMC) believes DEQ does have the authority to prohibit any tree cutting that is related to the project and will advocate that view.

Both Friends of Nelson and a group of 13 organizations headed by Shenandoah Valley Network have submitted documents to FERC opposing the ACP’s petition.  They state that:

  • Multiple permits and approvals are outstanding or incomplete, including Clean Water Act Section 401 Certifications in Virginia and North Carolina, the National Historic Preservation Act Section 106 Programmatic Agreement, the Clean Water Act Section 404 permit, formal consultation under the Endangered Species Act, and state erosion and sediment control and stormwater management plans. The Commission also has not resolved numerous requests for rehearing and motions for stay.
  • In North Carolina, state law prohibits tree felling because the state has not fully approved Atlantic’s proposed Erosion and Sedimentation Control Plan. North Carolina has also not issued a Section 401 Certification for the project. And in West Virginia, the Department of Environmental Protection has not approved a required stormwater permit.
  • In Virginia, the State Water Control Board has not issued an effective Section 401 Certification for the project, and therefore, Atlantic does not have the required state approval for tree felling. The Board is not expected to make a final decision on whether to certify the project until March or April 2018 at the earliest.
  • Reviews could result in possible denial of the final permit, changes in the route, or further conditions placed on the Atlantic Coast Pipeline. In addition, the Section 106 permits are still outstanding, and while ACP intends to avoid these areas, adjacent properties could potentially be impacted and there is a possibility of minor or significant route changes.

A December 22, 2017 Richmond Times-Dispatch article, Atlantic Coast Pipeline wants to start cutting down trees, discusses Dominion’s petition to FERC to begin tree cutting, outlines the stated position of the North Carolina and Virginia DEQ, and describes the objections of pipeline opponents.  The article quotes from “the filing submitted by the Southern Environmental Law Center in Charlottesville on behalf of more than a dozen conservation groups. ‘At this point, it is unknown whether Atlantic will obtain all of the necessary approval and permits to move forward with its project,” the document says. “The commission must reject Atlantic’s attempts to cut corners and pre-empt state authority by denying the company’s premature request.’”

Although DEQ has said some cutting may be allowed where the activities do not qualify as “land disturbance,” the article also reports that SELC’s filing, “citing the DEQ’s own stormwater management handbook, notes that ‘interception,’ the amount of rainfall that fails to reach the ground because it gets caught in the tree canopy and evaporates, plays a crucial role in reducing runoff.  ‘Clearing removes the vegetation that intercepts, slows and returns rainfall to the air through evaporation,’ the handbook says, according to the filing. ‘As Virginia DEQ has acknowledged, “raindrops hit the exposed soil like tiny bombs,”’ the opponents argued, citing a DEQ document called Fundamentals of Erosion and Runoff.  Asked to respond to those contentions, Golden [DEQ’s director of operations] said he had no comment.”

Read DPMC’s post, What Did the Water Control Board Do?
The Virginia DEQ December 20, 2017, 401 Water Quality Certification (conditional) is here.
The ACP petition to FERC for permission to begin cutting trees is here.
Friends of Nelson letter to FERC opposing Dominion’s tree cutting is here.
The filing to FERC by Southern Environmental Law Center on behalf of Shenandoah Valley Network and others opposing tree cutting is here.
The Richmond Times-Dispatch article is here.