Category Archives: Natural Resources

FERC Responds to 4th Circuit Court Ruling

Late on Wednesday May 16, 2018, the Federal Energy Regulatory Commission responded to the May 15 decision by the U.S. Court of Appeals Fourth Circuit to halt construction on the Atlantic Coast Pipeline (see story below). FERC wrote to Dominion indicating it would agree to the company’s commitment not to proceed with construction on the ACP in any areas where listed protected species may be present:

Atlantic Coast Pipeline, LLC (Atlantic) has informed Commission staff that it will not proceed with construction in any areas where such activities may affect listed species covered by the FWS’ Incidental Take Statement for the project. Atlantic should, within 5 days, file documentation that specifically identifies by milepost/stationing the habitat areas that will be avoided with respect to each of the listed species, and confirms the company’s commitment to avoid construction in these areas.

​The full text of the FERC letter is here.

According to a May 16 article in the Richmond Times-Dispatch (Did court ruling stop Atlantic Coast Pipeline construction? Depends on whom you ask), “The Southern Environmental Law Center, which argued the case on behalf of the Sierra Club, Defenders of Wildlife and the Virginia Wilderness Committee, says the court’s action undermines every other federal approval the project has received, from the FERC authorization to approvals by the U.S. Army Corps of Engineers and the U.S. Forest Service. ‘You can proceed only if you have a valid incidental take permit,’ said D.J. Gerken, an attorney with the law center. ‘You’re missing a fundamental building-block authorization on which all the others are based. …. According to the Federal Energy Regulatory Commission’s own certificate, FERC’s previous notices issued to Atlantic Coast Pipeline developers to proceed are no longer valid,’ Gerken said. ‘If what FERC is now saying is that developers can now proceed to construction without the Fish and Wildlife Service’s valid permit, it is undermining its own requirements.'”


Appeals Court Orders Halt to ACP Construction

Late in the day on 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.”

The court’s order states, “Petitioners seek review of the U.S. Fish and Wildlife Service’s Incidental Take Statement, which authorized the Atlantic Coast Pipeline project to take certain threatened or endangered species. As to five of the affected species, Petitioners argue that the agency failed to set clear limits on take as required by the Endangered Species Act. Exercising jurisdiction pursuant to 15 U.S.C. § 717r(d)(1), we conclude, for reasons to be more fully explained in a forthcoming opinion, that the limits set by the agency are so indeterminate that they undermine the Incidental Take Statement’s enforcement and monitoring function under the Endangered Species Act. Accordingly, we VACATE the Fish and Wildlife Service’s Incidental Take Statement.  See 5 U.S.C. § 706(2). We reserve judgment on the parties’ remaining disputes until our forthcoming opinion.”

D.J. Gerten, the Southern Environmental Law Center attorney who argued the case for the Sierra Club, the Defenders of Wildlife, and the Virginia Wilderness Committee, said, “This puts a stop to any work that could threaten rare and endangered species and that’s much of the pipeline route.”

In the Washington Post report, Dominion talks about continuing construction [italics added].  “‘We remain confident in the project approvals and the ACP will continue to move forward with construction as scheduled,’ spokeswoman Jen Kostyniuk said via email. ‘We will fully comply as required while we continue to construct the project. Although we disagree with the outcome of the court’s decision, and are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.'”

In a statement to the press, Friends of Nelson said, “We are of course pleased with this decision from the 4th Circuit regarding the US Fish and Wildlife review of the ACP. Residents and groups fighting on behalf of impacted communities have long held that thousands of pages of documents do not necessarily end in a thorough review. Errors and omissions have been rife among agencies in charge, and political pressures have been glaringly obvious. We will wait for details of the court’s full opinion, but are most grateful for the Southern Environmental Law Center’s steadfast dedication to the communities all along the route of the Atlantic Coast Pipeline. It is indeed a pleasure to hear a court confirm the deficiencies in at least part of the review of this project. Given the opportunity for all of the many challenges to be heard by the courts before this pipe is laid, we are confident that this project will not be built.”

Stay Requested for Virginia 401 Certification

From ABRA Update #180:

A coalition of 14 conservation organizations, 12 of them members of ABRA, have requested that the Virginia State Water Control Board stay the effective date of the Section 401 Water Quality Certification for the Atlantic Coast Pipeline (ACP), approved on December 12 by the Board. The Certification will not be effective until the Department of Environmental Quality (DEQ) has approved erosion and sediment control plans, as well as other required plans. The DEQ’s review is still ongoing. Furthermore, according to the Certification document that was published on December 20, the Board may consider further action once DEQ’s plan review is completed.

The May 8, 2018, letter from the conservation groups sets forth three principal justifications for its request for a stay:

  • The State Water Control Board’s recent opening of a new 30-day comment period on the adequacy of the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP 12) “raises significant uncertainty for the prior certification determination that there was ‘reasonable assurance’ that the pipeline will comply with Virginia water quality standards.”
  • The Board’s concern over whether the NWP 12 will protect water quality is well-founded for the ACP given the many smaller-scale watersheds that would be crossed by the pipeline and the failure of the NWP 12 to provide an assessment of the combined effect of those crossings.
  • New information also justifies a stay of the Certification, such as the recent listing by the U.S. Fish and Wildlife Service of the yellow lance mussel as a threatened species. The yellow lance is found in several rivers that would be crossed by the ACP.

The letter concludes by asking that the Board delay the effective date of the Certification until it completes its evaluation of the adequacy of the NWP 12 for the ACP and litigation challenging the Certification is resolved.

“Typical Millennial” Writes Open Letter to Northam

In An Open Letter to Gov. Northam on the Mountain Valley Pipeline, published in RVA Magazine in May 7, 2018, Margeau Graybill, who lives near Bent Mountain, writes, “I guess you could say that I am a fairly typical 27-year-old millennial.”

Graybill writes of getting her degree from VCU, working hard, and trying to save to buy a place of her own in the area she loves, “to marry and have children, a house, and a dog on a quiet, pristine piece of land in my own corner of Virginia.” But what she wants is threatened by the MVP, and she asks, “Why would I want to even stay in Virginia and settle down if this is the reality of how the Commonwealth protects its natural environment?” She says, “I can’t imagine that you would want young families moving out of the Commonwealth, but a lot of my friends have already done so because of these kinds of policies.”

And she says, “Many people my age voted against you in the primary because we know building these pipelines are not the way forward. Fracked gas pipelines are not the future of energy and will do nothing but make a few people rich, destroy waterways, leak into our precious ground, and make Virginia look like it doesn’t care about the future of the planet or our children. How can you have a platform that wants to preserve the Chesapeake Bay from off-shore drilling, but not our streams and waterways from fracked gas? I could provide you some studies of what a project like this does to land and water, but this letter is more from the soul. The soul of a heart-broken voter who believed when you said all environmental laws would be followed and all studies would be done before beginning these project. As I’m sure you know, nothing like this pipeline has ever even been attempted before in Virginia. Why risk this now? Who does it benefit, really?”

Read her full letter here.

Nelson Service Authority Considers Contract for ACP Construction Water

On May 7, 2018, the Lynchburg News & Advance reported, “As the Atlantic Coast Pipeline moves closer to construction, the Nelson County Service Authority is hammering out details on a contract that would provide water for ACP to use during construction. A contract has not been approved, however, and awaits a vote from the board. The board should vote to approve or deny the agreement at its next meeting May 17, members say. …. Details about the contract and water usage were not immediately available. How much water will be used by ACP or exactly how it will be used were not made clear during the May 3 meeting.”

The contract being discussed is for construction near Wintergreen (supposedly beginning in summer 2018), including the extremely large quantity of water needed for the horizontal directional drilling that would bore under the Blue Ridge Parkway and into Augusta County to insert the 42-inch diameter pipe. The ACP would have to truck the water daily from a distance if the contract with the Service Authority is not approved, meaning many, many tanker trucks over the distance along Nelson roads.

The Service Authority is concerned about several things in the preliminary contract, including the “guarantee” of a daily supply of water – something the Authority cannot “guarantee” to any other customers. Also in question, according to Nelson County Service Authority Executive Director George Miller, is a portion of the preliminary contract that says ACP has the right of water “on demand,” along with the phrase that says ACP “shall have no duty to pay for water not used.” Miller notes that all current customers must pay a monthly minimum, and ACP should have to do the same.

Native Plant Rescue for Nelson Landowners on ACP Route

Native Plant Rescues for Landowners on the Proposed Atlantic Coast Pipeline Route in Nelson County, June 2-3, 2018

Blackberry Botanicals (BB) in conjunction with United Plant Savers is in the process of coordinating several plant rescue operations due to the destruction imminent in the path of several fracked gas pipelines that are slated to come through West Virginia and Virginia. On June 2-3, 2018, they will meet with interested landowners to walk the proposed pipeline route located on their property to identify and mark native medicinal plants.

Once the plants have been identified and marked, we will organize several scheduled volunteer rescue days over the course of the summer. During these digs, native medicinal plants will be carefully and sustainably harvested from their current location and either planted on the landowners property (outside of the proposed pipeline route) or will be safely transplanted to another local plant sanctuary or to the United Plant Savers Sanctuary in Ohio.

A training session in Nelson County was recorded and is available on YouTube:  Part 1 and Part 2.

If you are a landowner and would like to participate in having plants saved or if you would like to be a volunteer please contact Sara Agelasto at

For more info on Blackberry Botanicals send email