Virginia Approval of ACP Challenged in Federal Court

Story from ABRA Update #189 for July 18, 2018:

The Fourth Circuit U.S. Court of Appeals in Richmond has been asked to stay the pending finalization of Commonwealth of Virginia’s water quality certification for the Atlantic Coast Pipeline (ACP). The Motion for a Stay was filed on Monday, July 16, 2018, by the Southern Environmental Law Center, Appalachian Mountain Advocates and the Chesapeake Bay Foundation on behalf of sixteen petitioners, twelve of whom are ABRA members. The Virginia State Water Control Board, one of the respondents in the case, along with the Virginia Department of Environmental Quality (DEQ) and the Atlantic Coast Pipeline, LLC, approved in December 2017 a certification, as required by Section 401 the Federal Clean Water Act, that there was “reasonable assurance” that construction of the ACP would not violate Virginia water quality standards. The certification is not to go into effect until the DEQ completes a necessary review of the ACP’s plans for addressing stormwater runoff and erosion and sedimentation control measures. The completion of those reviews by the DEQ, which is necessary before ACP construction can commence in Virginia, has not yet been completed. The motion contends that:

  • The State Water Control Board’s (SWCB) approval decision was explicitly contingent on the adequacy of a U.S. Army Corp of Engineers permit relative to the more than 800 crossings the ACP would make in Virginia of streams and wetlands. Since its December vote, the SWCB decided in April to seek public comment on the sufficiency of the Army Corp’s permit. By initiating that review the SWCB has rendered its own December certification decision “arbitrary and capricious.”
  • The SWCB and the DEQ failed to consider the combined effects on water quality likely to result from multiple areas of pipeline construction occurring within individual, smaller scale watersheds. Noting that the Chesapeake Bay Watershed would be significantly impacted by the ACP project, the motion points to the failure of the agencies to “analyze the combined effects on the watershed and on the Chesapeake Bay Total Maximum Daily Load.
  • The state agencies did not conduct anti-degradation analysis, as required by the Clean Water Act. Their conclusion that “the construction of the ACP would not result in any lowering of water quality is contradicted by substantial record evidence.” Furthermore, “no amount of best management practices and sediment control measures can eliminate all sedimentation discharges from construction activities through steep, highly erodible terrain.”
  • Construction and operation of the ACP over some 70 miles of karst landscapes and underground water flow systems will impair water quality. The company’s assurances that water in these regions will be protected are meaningless because underground water resources in these regions are unmapped, and the boundaries of the drainage areas are unknown. Thus, the state agencies do not know what potential sources of contamination might impact a spring or surface water.

The respondents have until next week to respond to motion.