On February 11, 2020, the Southern Environmental Law Center sent two letters, one to the the Army Corps of Engineers and one to the Fish and Wildlife Service, to challenge potential actions by them regarding the Atlantic Coast Pipeline. Both letters have been filed with FERC.
To the Army Corp of Engineers, SELC writes, “This letter is a notice that the United States Army Corps of Engineers, Norfolk District, cannot lawfully reinstate its suspended verification that the proposed Atlantic Coast Pipeline is authorized to be constructed using Nationwide Permit 12. The pipeline developer, Atlantic Coast Pipeline, LLC (Atlantic), expressly plans to violate at least one of the permit’s general conditions and has taken steps to do so, despite making contrary representations to the Corps and other regulators.” The letter then explains in detail that:
- Atlantic must comply with FEMA-approved local floodplain management requirements to be eligible for Nationwide Permit 12.
- Atlantic does not intend to comply with an applicable FEMA-approved floodplain management requirement in Nelson County.
- The Corps cannot reinstate the Norfolk Verification unless Atlantic complies with Nelson County’s floodplain ordinance, regardless of Atlantic’s lawsuit.
- The Norfolk Verification must be revoked unless Atlantic obtains variances or reroutes the pipeline.
The SELC letter notes that, “Unless Atlantic obtains variances or reroutes its proposed pipeline to avoid SFHAs [special flood hazard areas] in Nelson County, the Corps must revoke the Norfolk Verification and instruct Atlantic to seek an individual permit.”
Read SELC’s full letter to the Army Corps here.
Despite ongoing requests by citizen groups for FERC to issue a stop-work order for the ACP because so many key permits have been rejected, on February 10 FERC staff asked the U.S. Fish and Wildlife Service to reinitiate formal consultation so the proposed Atlantic Coast Pipeline project can resume construction. FERC is asking the FWS to develop a new Biological Opinion and Incidental Take Statement on the company’s proposed pipeline. Two previous Opinions and Take Statements have been vacated by the Fourth Circuit Court.
To the Fish and Wildlife Service, SELC writes, “Yesterday’s request for reinitiation of consultation, and discussion at the October 22, 2019, meeting as documented in the meeting minutes, suggest FWS is once again preparing to commit legal errors in an effort to approve this pipeline along Atlantic Coast Pipeline, LLC’s (Atlantic’s) preferred route.” The potential legal errors to which SELC refers are:
- FWS Cannot Complete Consultation on the Atlantic Coast Pipeline Without a Final Route
- FWS Must Fully Assess Impacts to Candy Darter and Its Critical Habitat
- FWS May Not Authorize Further Impacts to the Clubshell
The letter concludes, “To be clear, FWS may not authorize further impacts to this population, which it has already put on the brink of extinction. ‘Congress foresaw that [consultation under the Endangered Species Act] would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.’ Tenn. Valley Auth. v. Hill, 437 U.S. 153, 186 (1978). This is one of those occasions.”
Read SELC’s full letter to the Fish and Wildlife Service here.
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