Category Archives: Tree cutting

FERC Approves Tree Cutting by ACP


North Carolina recently rejected the ACP’s sedimentation control plans and has not issued ACP approvals.  Virginia’s DEQ has issued a conditional permit – based on acceptance of  additional information submitted (or resubmitted) by the ACP.  But on January 19, 2018, the The Federal Energy Regulatory Commission issued an approval for the Atlantic Coast Pipeline, LLC to proceed with tree felling for its pipeline project. ACP had requested FERC’s permission to do so.

FERC’s January 19 letter states in part:

As described in your request, Atlantic’s and DETI’s activities approved include felling of trees in upland areas via non-mechanized methods. I clarify here that non-mechanized clearing is defined as the use of equipment that can be operated and carried by hand, by an individual; and that use of wheeled, tracked, or other similar types of ground-disturbing equipment is not authorized for clearing-related activity. Activities may only occur as described in Atlantic’s “NTP and Skip Tracking Table” in its January 18, 2018 supplement on lands where easements have been obtained, surveys have been completed, and where no additional state or local permits are required for the activity. As indicated in your request, contractors may only cross wetlands and waterbodies on foot. Trees and vegetation may be felled at or above ground level, and must use methods that will not rut soils or damage root systems, and be felled in a way that avoids obstruction of flow, rutting, and sedimentation of wetlands and waterbodies. Felled trees and woody and other vegetation debris shall be left in place until further authorization for any earth-disturbing activities is granted by the FERC.

This approval does not authorize tree-felling within waterbodies and wetlands. Atlantic and DETI shall maintain a 50-foot buffer between waterbody and wetland boundaries and the extent of upland tree-cutting activities. Improvement or modification of approved access roads is not authorized as part of this limited notice to proceed. This approval does not authorize use of U.S. Forest Service access roads until Atlantic obtains the applicable road use permit(s).

Action Alert: Stop Tree Clearing for Pipelines


Call the Governor Today! We can stop tree clearing for pipelines. Let Your Voice Be Heard!

Our new Governor has the authority and duty to protect our waters and our communities from the Mountain Valley Pipeline and Atlantic Coast Pipelines.

Governor Northam must uphold the principles he has supported for many months and we ask that you let him know that you will support him in doing the right thing. It is not too late for Virginia to meet its Clean Water Act duties. Learn More Here.

Contact the Governor today and urge him to:

  • See that his administration prohibits any construction, including clearing of trees, for either pipeline unless and until all conditions of water quality certifications are met,
  • Order the DEQ to conduct individual Clean Water Act section 401 reviews for stream and wetland crossings covered by the Corps of Engineers’ Nationwide 12 Permit,
  • Ensure that DEQ provides for public notice and comment on additional plans ACP is required to submit and that there is a clear procedure for the State Water Control Board to review and decide whether the certification will become effective.

Call the Governor:  
804-786- 2211

or
Email him through his Chief of Staff:
clark.mercer@governor.virginia.gov

FERC Denies Constitution Pipeline Petition

On January 11, 2018, the Federal Energy Regulatory Commission rejected Constitution Pipeline’s petition asking FERC to find that New York state wrongly denied the project a key permit.

In April 2016, the New York State Department of Environmental Conservation denied Constitution Pipeline a water quality permit, which is required for the project to progress. Constitution challenged the DEC denial and in August 2017, a U.S. Court of Appeals rejected the company’s argument that the DEC was “arbitrary and capricious” in denying a water quality permit. One of Constitution’s argument to FERC was that the NY DEC failed to give its decision within a reasonable amount of time, but FERC said New York had made its decision within a reasonable amount of time — within one year of the pipeline’s most recent appeal. Constitution Pipeline has 30 days from the January 11 FERC order to appeal and then FERC has 30 days from an appeal request to act.

Despite being repeatedly denied permits in New York, Constitution Pipeline has all its permits in Pennsylvania, and there, despite objections of property owners, trees have already been cleared in preparation for construction.  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 a few miles from the NY border were cut – and then the pipeline was blocked by neighboring New York. 

Read the news report from WAMC on the January 2018 decision.
Read the press release on the NY Attorney General’s filing in 2016.
Read about the August 2017 decision by the US Second Circuit U.S. Court of Appeals.

January 18, 2018 update from Kallanish Energy:  Constitution Pipeline files petition with U.S. Supreme Court. “Constitution Pipeline Co. is taking its fight with New York state to the U.S. Supreme Court, Kallanish Energy reports. The project sponsors, in a Tuesday statement, said, ‘We continue to believe that this federally-approved project has been unjustly prohibited from construction.’ The $1 billion, 121-mile natural gas pipeline is a joint project of Williams Cos., Cabot Oil and Gas, Piedmont Natural Gas and WGL Holdings. The company has petitioned the nation’s highest court to review the judgment of the U.S. Court of Appeals for the Second Circuit. Last Aug. 18, that court denied Constitution’s challenge after the New York State’s Department of Environmental Conservation denied the company’s application for water-quality certification. A rehearing request was denied by the appeals court on Oct. 19. On Jan. 11, the Federal Energy Regulatory Commission upheld the New York decision, even though FERC had approved the project.”

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.