Category Archives: Steep Slopes

Report on Sept. 28 Arguments Before 4th Circuit Court

Thanks to Lew Freeman of Allegheny-Blue Ridge Alliance for this report on the arguments in the Fourth Circuit Court of Appeals in September 28, 2018:

Yesterday, September 28, a three-judge panel of the Fourth Circuit of the U.S. Court of Appeals in Richmond heard arguments on two important cases challenging permits granted to the Atlantic Coast Pipeline (ACP). The first case challenged the December 13 [2017] decision by the Virginia State Water Control Board to grant a water quality certificate for the ACP (pursuant to requirements of Section 401 of the federal Clean Water Act). The second case challenged the decisions of the U.S. Forest Service to amend the Forest Plans of the Monongahela National Forest and the George Washington National Forest and to accordingly issue a Special Use Permit for the ACP to cross the two forests. The plaintiffs in both cases were a group of ABRA member organizations and others that were jointly represented by Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC). An article about the briefs filed in each case appeared in the September 21 [2018] ABRA Update (see https://www.abralliance.org/2018/09/21/court-to-hear-challenges-to-acp-forest-service-water-quality-permits/?highlight=court%20to%20hear%20challenges).

I attended Friday’s arguments. The lawyers representing our interests – Ben Luckett of Appalmad in the 401 case; D.J. Gerkin of SELC in the Forest Service case – were most effective. More about the oral arguments will appear in next week’s ABRA Update. For now, though, I want to highlight a particularly significant moment during the arguments presented in the Forest Service case. In the course of the argument presented by the U.S. Justice Department attorney representing the U.S. Forest Service, Chief Judge Roger Gregory, who was presiding over the panel, interrupted the attorney and noted that the U.S. Forest Service had been diligently asking Dominion Energy for more complete information on how the company would and could build the ACP through the steep forest lands in West Virginia and Virginia without causing environmental damage. The judge then observed that the Forest Service seemed to have suddenly changed its mind and proceeded to approve the requested Special Use Permit. Judge Gregory inquired of the attorney what the circumstances were that caused the Forest Service to change course. The attorney responded evasively, prompting the judge to interrupt him again and ask: “When?” The attorney tried to continue with his non-responsive response, and Judge Gregory again interrupted with: “When?” The judge’s “When?” question was asked twice more, but never received a response, prompting Judge Gregory to thunder: “Who’s running the train?” It was a riveting moment and one that also caught the attention of Michael Martz of the Richmond Times Dispatch [Martz’s article appears in both the Daily Progress and the Times Dispatch].

A recording of Friday’s oral arguments will be available on the Court’s website on Monday [October 1, 2018] at https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.  The case numbers you will need to access the recordings are: 401 case – 18-1077; Forest Service case: 18-1144.


The Chesapeake Bay Foundation issued the following statement about the oral arguments challenging the ACP’s water quality certification:

“This year Virginians have seen firsthand the terrible damage that pipeline construction can do to communities and waterways. The Atlantic Coast Pipeline would cross Virginia waterways nearly 1,000 times from the mountains to the Chesapeake Bay, threatening them with erosion, mudslides, and polluted runoff. All of the evidence shows that the regulations in place cannot provide reasonable assurance that water quality will be protected from pipeline construction and operation. We are pleased that the federal appeals court is looking closely at this question.”

Troubling Questions Raised by Email Exchanges

An email exchange between Rick Webb of Dominion Pipeline Monitoring Coalition (DPMC) and the Virginia Department of Environmental Quality (DEQ), regarding DEQ’s handling of mail sent to the State Water Control Board, raises questions about why DEQ is apparently withholding information from State Water Control Board members prior to their meeting on August 21, 2018.

Further, DEQ will not finish its summary of comments submitted to the Board until the date of the meeting itself. But according to an August 17, 2018, Blue Virginia article about an email exchange between David Sligh of Wild Virginia, DEQ has not given to SWCB members the report by Wild Virginia and DPMC summarizing the 13,000+ comments made during the April-June comment period.

Is DEQ trying to limit what information SWCB members see?

Webb’s report documents DEQ’s failure to consider the impact that construction of Atlantic Coast and Mountain Valley Pipelines would have and already has had on Virginia’s water quality.  Regarding the email exchange, Webb writes, “The correspondence below concerns what amounts to a wholesale waiver of Virginia’s limits on the length of contiguous open trench during pipeline construction.

“If DEQ accepts Dominion’s waiver request (incorporated in the Erosion and Sediment Control Plans currently under review), open trenches (up to 12 ft deep and 30 ft wide at the top) will be allowed top-to-bottom on all the steep mountains crossed by the ACP in western Virginia. Note that DEQ and Dominion propose to limit the total open-trench length in any given construction spread to 16,000 ft. This is not protective in any meaningful sense because it will still allow open trenches on all mountainsides – from the top of the ridge to the stream below.

“FYI, we have conducted research related to DEQ’s waiver of the open-trench limitation (a minimum standard in the ESC regulations).  We examined DEQ records for 12 such open-trench variance requests made through 2015. We found that DEQ granted all such requests, with the longest being for a 15-mile open trench in southern Virginia. We concluded then. and It is still safe to say, that prior to review of the ACP and MVP, DEQ’s involvement with pipeline projects was limited to granting variances to critical regulatory requirements. There was essentially no review or oversight. This helps somewhat to explain DEQ’s present difficulties.”

On Friday August 10, Rick Webb wrote to DEQ:

RE: Comment concerning Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP) Projects
State Water Control Board Request for Technical Information on Specific Wetland and/or Stream Crossings

FR: Rick Webb on behalf of Dominion Pipeline Monitoring Coalition (DPMC)

This comment concerns the above-cited public notice posted on the Virginia Regulatory Town Hall on April 27, 2018, entitled Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP) Projects – State Water Control Board Request for Technical Information on Specific Wetland and/or Stream Crossings. Comments were previously submitted by me, Rick Webb, on behalf of the DPMC during the officially designated comment period. This comment concerns significant information that was not available during the officially designated comment period.

Newly obtained information indicates that Dominion Energy has proposed to the Virginia Department of Environmental Quality (DEQ) and may be granted a general variance to Virginia Erosion and Sediment Control Regulation Minimum Standard 16A (VAC 25-840-40.16A, which requires that no more than 500 linear feet of trench may be open at one time.

Deep open trenches extending down from the tops of mountains greatly increase the risk of uncontrolled runoff and sedimentation at stream crossings. The increased risk is due both to concentration of runoff in the trench and due to interference with installation of other erosion control measures (e.g., the proper installation of water interceptor diversions across the disturbed corridor area). The potential impact of waiving open-trench limits was not addressed in the Clean Water Act Section 404 permit review by the U.S. Army Corps of Engineers.

Concerns were raised about open-trench variances at the December 12, 2017 meeting of the State Water Control Board, where Melanie Davenport, Water Permitting Division Director for DEQ, answered a board member question concerning variance requests and factors considered. In response, Ms. Davenport indicated that open trench lengths would be limited depending on the percent slope. To the extent that this response provided assurance to the board, it was misleading.

Dominion now proposes that a three-tiered set of criteria be applied to determine allowable open-trench lengths, as follows:

  • Where slopes are <10%, the maximum allowable contiguous open-trench length would be 7,000 feet.
  • Where slopes are 10 to <33%, the maximum allowable contiguous open-trench length would be 5,000 feet.
  • Where slopes are >33%, the maximum allowable contiguous open-trench length would be 2,500 feet.

These criteria effectively waive open-trench limits. The ACP will cross many steep-sided mountains with the construction corridor running down to stream crossings. These criteria will allow uninterrupted open trenches on all of these mountains. In the event of significant rainfall and runoff, impacts at stream crossings will be unavoidable. This one among many reasons why the State Water Control Board cannot simply rely on the Section 404 general permit to prevent violation of water quality standards and protect water resource uses.

On behalf of the DPMC, I ask that the board give careful consideration to this significant problem.

Thank you,

Rick Webb

On Friday August 17 he received this response:

Thank you for your recent email to the State Water Control Board (Board).

In addition, if your email contained specific complaint information, the email has been forwarded to compliance staff to ensure they have the information.

Cindy M. Berndt
Director, Regulatory Affairs
Department of Environmental Quality
1111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, Virginia 23218
804.698.4378 [Call: 804.698.4378]

Webb replied, also on Friday August 17:

Ms. Berndt,

Thank for your message below acknowledging my recent comments to the State Water Control Board.

I request a copy of any submissions to the Board concerning my comments, including my comments (the email copied below) and any related summaries, advice, or other information provided to the Board by DEQ. Please also let me know which Board members received the material.

My comments addressed significant information that was not available during the officially designated comment period, and these new comments were submitted 10 days prior to the upcoming Board meeting. I seek to confirm and ensure that my comments concerning this information was provided to the Board to inform its deliberations on the sufficiency of the NWP12 for permitting waterbody crossings associated with the ACP and MVP pipeline proposals.

Thank you.

Rick Webb


From Rick Webb on Sunday afternoon August 19, 2018: Update: I did hear back from Cindy M. Berndt, Director, Regulatory Affairs, Department of Environmental Quality. She confirmed that my email concerning the open-trench waiver has been forwarded to each member of the State Water Control Board. Based on this and other well-documented deficiencies associated with regulatory review and oversight of stream crossings, there is no “reasonable assurance” that the ACP and MVP will or can be constructed without harm to Virginia’s water resources. The board should withdraw 401 certification for both projects.

Study Released About Best Practices for Steep Slope Pipeline Construction

From ABRA Update #190, July 27, 2018:

A new collaborative study intended to provide guidance “in setting the highest practicable standards” for constructing natural gas pipelines through steep slopes was released earlier this month. The study, Improving Steep-Slope Pipeline Construction to Reduce Impacts to Natural Resources, was facilitated by The Nature Conservancy and involved the participation of eight natural gas industry companies, including Dominion Energy and EQT Midstream Partners.

The stated intention of the project is “to provide guidance for the industry in setting the highest practicable standards” and “to serve as an industry-wide catalyst for reducing the risk of landslides, slips, and erosion that may occur during steep-slope pipeline construction, operation, and maintenance, as well as impacts from these events on habitat health and water quality.” The stated goals of the project are to:

  • Identify the most prevalent challenges involved with pipeline construction in areas with a high risk of landslide, slip, and erosion potential.
  • Identify and communicate best practices for addressing these challenges.
  • Identify and communicate the additional needs or opportunities for further research, technological advancement, and new or modified engineering specifications to advance the understanding and use of potential new best practices for pipeline construction in steep slope areas.

ABRA is currently conducting an evaluation of the study.

Landslide Caused June Pipeline Explosion in WV

The Pittsburgh Post-Gazette reported on July 11, 2018, that “Columbia Gas Transmission has told federal pipeline regulators that a landslide was the apparent cause of the rupture and explosion of a new natural gas pipeline in Marshall County, W.Va., last month. The site of the break was at the bottom of a steep hill on Nixon Ridge, just south of Moundsville. …. Lindsey Fought, a spokesperson with TransCanada, said the company is continuing to cooperate with federal authorities in the investigation. She confirmed that the federal pipeline agency and TransCanada’s ‘internal findings point to land subsidence as the cause of the rupture.”

According to the US Geological Survey Web page, “Land subsidence is a gradual settling or sudden sinking of the Earth’s surface owing to subsurface movement of earth materials.”

TransCanada, owner of Columbia Gas Transmission, touted the pipeline, which just started operation in January 2018, as “best-in-class,” exactly what Dominion says the ACP will be.

Writing in Blue Virginia on July 11, 2018, Jon Sokolow reminds us of the stories in late May and early June about Precision Pipeline (builder for the MVP), which had more than 50 post-completion landslides along a 55-mile non-mountainous pipeline route in Wisconsin. That’s approximately one landslide per mile.

The Sokolow article continues, “The landslide risks at issue in the Dominion/Precision Pipeline lawsuit are terrifying because the Mountain Valley and Atlantic Coast Pipelines are proposed to be built through some of the steepest terrain in Virginia, with slopes as steep as 78% in places. This mountainous terrain is particularly susceptible to landslides when fill material generated by construction is deposited on slopes after the pipelines are buried.”

How many miles of steep slopes are there on the Atlantic Coast Pipeline route? How many on the Mountain Valley Pipeline route? How many potential landslides?  How many potential explosions?

The Truth Is in the Proof



The Truth Is in the Proof
: excellent new video focusing on the Limpert property in Highland County.

What if anything can stop the construction of the Atlantic Coast and Mountain Valley Pipelines? The level of frustration is growing as more people wake up to the reality that the pipelines pose significant danger to fragile ecosystems along their paths. Concerned citizens, landowners, lawmakers, environmentalists and many government officials continue to protest.  Join them!