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.