Category Archives: Nelson County Board of Supervisors

Update on Status of Floodplain Suit

An update on the status of Dominion’s suit against the Nelson County Board of Supervisors over the refusal of the Nelson County Board of Zoning Appeals to grant a variance for the Atlantic Coast Pipeline to cross flood plains in the County.  Documents below include Judge Moon’s Memorandum Opinion of June 21, 2019, in which he denied the County’s motion to dismiss Dominion’s lawsuit, a subsequent pleading by Dominion in which it reiterates its claim that the County’s floodplain management ordinance is invalid, the pleading in which the County defends its ordinance, and rebuttal brief by Dominion stating again why they think the suit should be dismissed.

A hearing is expected shortly, but no date has been published.  If Judge Moon rules against the County, the next step would be an appeal to the Fourth Circuit Court. That would, however, require the Board of Supervisors to spend the time, energy, and additional money to carry the suit forward.

Dominion vs Nelson County in Federal Court: April 8


Dominion’s suit against Nelson County over the refusal of the Nelson Board of Zoning Appeals to grant a variance for the ACP to cross flood plains in the County will be heard on April 8, 2019, at 11:30 a.m. in the Federal Court in Charlottesville, 255 West Main Street. Respectful attendance at the hearing is encouraged – no signs, no t-shirts, no protesting.

Why is Dominion suing Nelson County? On December 3, 2018, on a 3-2 vote, the Nelson County Board of Zoning Appeals denied four of Dominion’s applications for the variances to the County’s flood plain ordinance needed to construct the Atlantic Coast Pipeline across flood plains in Nelson. (The other seven of the original eleven applications were dismissed in January 2018, meaning ACP will have to submit new applications for them.) The Nelson County Zoning Ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)

Three days after the Nelson BZA denial of variances, on December 6, 2018, Atlantic Coast Pipeline filed a lawsuit against the Nelson County Board of Supervisors in the Western District of Virginia’s federal court, and it is this suit that will be heard on April 8. The suit asks the Court to:

  • enter judgement declaring that Nelson’s zoning ordinance and floodplain regulations are preempted by federal regulations and therefore null and void as applied to the ACP
  • enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction

The ACP has no federal permit to cross any waterbodies, including wetlands and floodplains.

For further information on the four variances denied by the Nelson Board of Zoning Appeals see our story from 2018.

Sidenote: The Virginia Department of Conservation and Recreation has designated March 10-16, 2019, as Virginia Flood Awareness Week. You can read about the function and value of floodplains on their floodplain Web page.

Nelson Supervisors to Support Staunton in SELC Challenge to FERC

The Nelson County Times reported on December 27, 2018, that “The Nelson County Board of Supervisors has agreed to sign an engagement letter to support the city of Staunton in backing the Southern Environmental Law Center’s challenge to a Federal Energy Regulatory Commission’s 2017 decision to issue a Certificate of Convenience and Necessity to permit the construction of the Atlantic Coast Pipeline to proceed. SELC is representing a number of groups in a lawsuit against FERC that challenges its decision to issue the certificate. SELC hopes to stop the construction of Dominion Energy’s Atlantic Coast Pipeline (ACP) project. In signing the engagement letter Nelson County agrees to help bring relevant matters to the attention of the D.C. Circuit Court where the case will be heard in the near future; it does not become part of the lawsuit. …. Supervisors voted 3-2 in favor of putting together a brief, and not spending more than $1,000 on the effort. Reed, Harvey, and Rutherford voted in favor of the resolution. Thomas Bruguiere Jr., chairman of the board, and Larry Saunders, vice chairman of the board, voted against the resolution.”

ACP Files Suit Against Nelson County

On December 6, 2018, Atlantic Coast Pipeline filed a lawsuit against the Nelson County Board of Supervisors in the Western District of Virginia’s federal court. On December 3, 2018, the Nelson County Board of Zoning Appeals denied Dominion’s request for variances to the County’s floodplain ordinance which would have allowed ACP construction across four Nelson County wetlands. The ACP suit is in response to the Board of Zoning Appeal’s denial.

The suit asks the Court to:

  • enter judgement declaring that Nelson’s zoning ordinance and floodplain regulations are preempted by federal regulations and therefore null and void as applied to the ACP
  • enter an injunction enjoining Nelson County from enforcing any of its zoning ordinances and floodplain regulations that may affect ACP construction

The ACP has no federal permit to cross any waterbodies, including wetlands and floodplains, and the Fourth Circuit Court of Appeals has vacated three other critical federal permits. It is, therefore, questionable what standing ACP has to file suit.

Read the full ACP complaint here.

Read CBS19 news coverage here.

Fuller coverage in the Lynchburg News & Advance.

Augusta Supervisors Comment to DEQ

Nice work Augusta County! The Augusta County Board of Supervisors wrote a letter on May 24, 2018, to Virginia’s Department of Environmental Quality and to the State Water Control Board (and also submitted their letter to the FERC Docket for the ACP). While showing extreme concern for the crossing of the Calfpasture River, they take issue with the use of the Army Corps of Engineers’ Nationwide Permit 12 for a project of this magnitude. Nelson County Board of Supervisors, will you step up to protect Nelson waterways?

Ask Your Nelson County Supervisor to Adopt the Amended Floodplain Ordinance

Despite the Nelson County Planning Commission’s unanimous recommendation (in June of 2016) to the Nelson County’s Board of Supervisors that they amend Nelson County’s Floodplain Ordinance to adopt crucial Higher Standards as recommended by The Federal Emergency Management Agency/National Floodplain Insurance Program, there is a distinct lack of action from the Board.  Please call your Supervisor and urge them to take action! Click here for contact information for the Nelson County Board of Supervisors.  If you are a resident of Nelson County and haven’t already signed our petition urging the Board to act on the amended flood plain ordinance, please take the time to do so.

The proposed amendments to the floodplain ordinance would give Nelson County the opportunity to lower floodplain insurance for its homeowners and business owners and would prohibit critical facilities, hazardous materials, and non-native fill in special flood hazard areas.  Nelson County has six out of the eight “High Risk Flood Hazard Areas” defined by the American Society of Civil Engineers, including areas that are susceptible to flash flooding, mudslides, erosion, alluvial fans, ice jams, and high velocity flows, making it imperative that our Board of Supervisors take prudent action to protect Nelson County by adopting the amendments to our Floodplain Ordinance.  You can read the proposed amendments in their entirety by clicking here