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Wild Virginia has learned, through a March 24, 2018 email from Forest Supervisor Joby Timm of the George Washington and Jefferson National Forests, that the U.S. Forest Service issued two revised Emergency Closure Orders for areas of the Jefferson National Forest, covering two roads and the proposed path of the Mountain Valley Pipeline (MVP). New versions of the original Order from March 7, 2018 were issued on March 10 and March 19, 2018. The Forest Service did not issue news releases to alert the public to these revised Orders and has not yet posted alerts about the revisions on its web site.
The latest version of the Order (Order Number 08-08-11-18-03, Revised Mountain Valley Pipeline Project Emergency Closure) prohibits public access to specified roads and portions of the Jefferson National Forest for more than one year, until March 31, 2019. This reverses a part of the original Order that banned the presence of motor vehicles on road sections “where construction associated with pipeline activity is occurring and when closed by a sign, gate, or barricade.”
The March 7 Order was unclear as to the time period for closure of lands in and adjacent to the pipeline right-of-way. The current version defines an exclusion zone stretching 200 feet on either side of the center line for the pipeline in areas where tree cutting has not yet occurred. In areas where a “disturbance corridor” has already been cut through the Forest, the public may not approach within 100 feet on either side of the approved right-of-way, which itself will be 125 feet wide in most areas.
The stated purpose of the Order is to ensure public safety during construction activities related to the MVP but this prohibition on the use of roads and substantial areas on the Forest for more than a year, even during periods when no work is occurring, is not justified by safety concerns. As stated in a March 12 letter in which Wild Virginia sought clarification of the original Closure Order, “it is vital that the public retain the right to visit and use all portions of our public lands to the greatest extent possible, consistent with safety concerns.”
David Sligh, Wild Virginia’s Conservation Director stated: “the Forest Service has allowed a new assault on the public’s rights and interests in our precious lands and waters. First, the agency conceded to industry pressure and granted the pipeline builders the right to destroy public resources for profit. Now it bans us from using sections of the forests and streams it is supposed to hold in trust for us, attempting to justify the act with invalid claims about safety.”
In addition, Sligh said, “the Forest Service revised the Closure Order, not once but twice in a short period, but made no attempt to let the public know that new rules applied and what they were. We have to ask why such an important decision that affects all who wish to use the Jefferson National Forest was made in secret. Anyone who was not scouring Forest Service documents would have had no notice that they were violating the law during the last week.”
Wild Virginia wrote Jobi Timm, Forest Supervisor for the George Washington and Jefferson National Forests today, calling on him to clarify provisions in an Emergency Closure Order for the Mountain Valley Pipeline (MVP). Wild Virginia seeks assurances that any restrictions on the people’s use of our public lands will be strictly limited and clearly defined.
The letter states: “We fully understand the need to enforce some requirements to protect the public and workers, if work on the Mountain Valley Pipeline (MVP) continues, but we also feel it is vital that the public retain the right to visit and use all portions of our public lands to the greatest extent possible, consistent with safety
concerns.” Supervisor Timm’s Closure Order, signed March 7, 2018, prohibits public entry or use in two areas of the Jefferson National Forest: 1) on two sections of road in the Forest and 2) within a zone stretching 200 feet from the center line of the right-of- way for the MVP. David Sligh, Wild Virginia’s Conservation Director stated in the letter, “[o]ur primary concern about the Closure Order is with the time periods described.”
The Closure Order prohibits the presence of motor vehicles “where construction associated with pipeline activity is occurring and when closed by a sign, gate, or barricade,” apparently excluding the public only while active construction is taking place and warnings or barriers are in place. On the other hand, the Order fails to explicitly limit the period of closure on and adjacent to the pipeline right-of- way and does not call for signs or barricades around the affected areas. Further, while the Order uses the word “construction,” the Forest Service failed to define that term in relation to the Closure rules. Sligh said, “other state and federal agencies have created a false distinction, claiming the tree cutting now damaging our forests is not ‘construction.’ We need to know whether that bogus use of the term is to apply to the Forest Service’s Order or not.
Wild Virginia notes in its letter: “As you know, we have grave concerns about the damages pipeline-related activities will cause on our Forest lands and we intend to document any such impacts. Proper access, without unnecessary and unwarranted
limitations, will allow the public to play its proper role as safeguards of the public interest.” Wild Virginia calls on Supervisor Timm to answer our letter as soon as possible but, more importantly, to give the public clear and explicit answers to the questions we and many others have regarding our use of these treasured areas, which the Forest Service is charged with managing for the wider public benefit.
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By David Sligh, Conservation Director, Wild Virginia
Let Your Voice Be Heard!
Our new Governor has the authority and duty to protect our waters and communities from the Mountain Valley 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.
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
Send an email to his Chief of Staff firstname.lastname@example.org
Many members of the public are rightly concerned that pipeline companies will start tree removal and/or excavation any day on either the Mountain Valley Pipeline (MVP) or Atlantic Coast Pipeline (ACP). Currently, MVP has asked the Federal Energy Regulatory Committee (FERC) for permission to proceed with construction, while ACP has requested a partial approval to proceed, which would allow a certain amount of tree clearing.
There are still actors and actions that can prevent clearing and construction.
Wild Virginia and our partner organizations have filed two federal suits against FERC and against the State of Virginia. We’ve asked for injunctions to prevent work on the pipeline until legal questions can be resolved by the courts. Likewise, parties have filed objections with FERC to oppose Atlantic Coast Pipeline’s request to proceed with tree cutting.
DEQ can prohibit construction and clearing
The State of Virginia through the Department of Environmental Quality (DEQ) could to exert its rightful authorities under the Clean Water Act and prevent tree clearing and construction on either pipeline. So far, the DEQ has been unwilling to acknowledge or use those authorities and we are strongly urging Governor Northam to change that.
DEQ has claimed it can’t prohibit all tree cutting on either project, despite the fact that neither has yet complied with all of the conditions in water quality certifications approved by the State Water Control Board. Without complete compliance with those conditions, which include submission and approval of erosion and sediment control, stormwater management, and other plans, construction cannot proceed.
However, DEQ has drawn an arbitrary and improper distinction between certain types of tree clearing and “land disturbance” and claimed it has no authority to limit or prevent the first class of activities.
DEQ is wrong. States have all the authority they need to prevent any construction-related actions that could affect water quality until all conditions in their Clean Water Act section 401 certifications are met. Destruction of forest stands in preparation for cutting trenches and laying pipe is construction and no false distinction drawn by DEQ can hide that fact. These actions will affect water quality, changing water flows and produce pollutant discharges, no matter how the trees are cut.
Clear direction from our new Governor
Governor Northam must insist that his top environmental officials prohibit any and all activities related to construction of the pipelines that might affect water quality unless and until all
requirements of the Water Quality Certifications are met.
DEQ must perform individual reviews of waterbody crossings
Another issue we are asking Governor Northam to address is the need for Virginia to review individual stream and wetland crossing plans. The Northam administration’s top environmental officials must use their authority to review and approve or disapprove waterbody crossings covered by the Corps of Engineers’ general permit.
The State Water Control Board ensured, through language added to the water quality certifications issued in December, that the State retained the authority to perform individual reviews of proposed waterbody crossings by the pipelines. Despite the Board’s action, DEQ shows no intention of actually exercising that authority, although the Corps of Engineers’ Nationwide Permit 12 (NWP 12) fails to uphold Virginia’s water quality standards.
On December 22, 2017, the Corps notified MVP that its crossings would be covered under Corps of Engineers’ Nationwide Permit 12. It is now time for the Northam administration to exercise the authority it and the State Water Control Board expressly reserved, to review these actions in a way that upholds Virginia’s standards. Otherwise, the Board’s efforts to preserve that authority will have been meaningless and the State will have ceded its rightful powers to a federal agency that has no commitment to protect our state waters and our communities.
Ensure a transparent process for public input
Finally, there must be an open and transparent process through which the State Water Control Board, with public input, decides whether the ACP water quality certification becomes effective.
The Board rejected DEQ’s recommendation that they give final and irrevocable approval to ACP at the Board’s December meeting. Instead, the Board specified that the certification would not become effective until all required plans and analyses had been submitted and both DEQ and the Board had deemed them approvable.
The Board described certain procedural steps that should be taken by DEQ and the Board. In apparent disregard of the Board’s wishes, DEQ posted information on its web site, apparently the day before the new Governor took office, that would exclude the public from any useful role in ensuring the plans are acceptable and that would override the Board’s wish to “have an opportunity to take one more swing at [the pipeline reviews],” an expectation one Board member expressed.
Governor Northam must require that before the ACP certification is deemed effective:
- Remaining plans submitted by the company are made available to the public for review and comment and that DEQ considers and addresses those comments,
- DEQ makes a final recommendation to the State Water Control Board, based on its review of the final plans and of public submissions, and
- DEQ requests formal Board action on its recommendation.
We are calling on the Governor
If you want fair processes and full protection against damages from these pipelines let the Governor know that you support our requests for action.
by David Sligh for Wild Virginia and the Dominion Pipeline Monitoring Coalition
After the Virginia State Water Control Board (Board) decisions about the Mountain Valley Pipeline (MVP) and the Atlantic Coast Pipeline (ACP) uncertainties and confusion remain. We thought we’d give you our best explanation as to what happened and what might come next. Before getting into the details of each case, we’ll give you what we believe to be the important headlines from the Board meetings:
⇒ The State Water Control Board recognized what citizens have said for months – that it did not have all of the information to support final approvals and felt it necessary to reserve authority for future actions.
⇒ However, the Board acted illegally by issuing certifications without all of the information needed to ensure water quality protections. We will continue, without any letup, to challenge those actions and push for rejection of both pipelines.
⇒ We must all recognize and take pride in the fact that the members of the Board acknowledged that the DEQ’s story was not correct or complete and that we made that happen!
Mountain Valley Pipeline
The Water Control Board addressed the MVP on December 7. The Board issued a water quality certification for the MVP, with 5 members in support and 2 members opposing the action. The Board heard much testimony describing the large body of information and analyses that was missing. That should have prevented the Board members from making the required finding – that if the project goes forward there is a reasonable assurance that Virginia’s water quality standards won’t be violated.
This missing information includes details about impacts at stream and wetland crossing points, which the DEQ had excluded from this process and claims will be adequately regulated under Nationwide Permit 12 (NWP 12) from the Army Corps of Engineers. Also missing are the final erosion and sediment control plans, stormwater management plans, and plans to protect wells and springs in karst areas.
What is the role of the Army Corps of Engineers?
The Corps of Engineers has not yet decided whether either pipeline can be covered under its NWP 12. Some members of the Board expressed concerns about whether that permit and a blanket certification Virginia issued for it earlier in 2017 could adequately protect our waters from these huge projects. Based on those concerns, the Board revised language in the certification with the intent to allow them to revisit the issue of waterbody crossings if or when that NWP 12 coverage is granted.
⇒ Less than 24 hours after the Board approved the certification for MVP, Wild Virginia, along with Appalachian Voices, Chesapeake Climate Action Network, and Sierra Club filed suit in the U.S. Court of Appeals for the 4th Circuit, challenging the legality of the action.
The plaintiffs are represented in the case by Appalachian Mountain Advocates. While this lawsuit moves through the court, we will be watching to see if the Army Corps of Engineers decides MVP can be covered under its NWP 12. If so, we will insist that Virginia exercise the authority it has reserved and look at individual waterbody crossings under a separate certification review.
⇒ Even though the majority of the Board approved the certification, members were clearly concerned that the review DEQ has done was not as complete and comprehensive as it should have been.
In voting for the revised version, even those Board members willing to approve recognized that they might need to and want to look at waterbody crossings in more detail even if the Corps uses its Nationwide Permit in this case.
Atlantic Coast Pipeline
The Water Control Board addressed the ACP on December 11 and 12. While we know the Board approved a certification by a 4 to 3 vote and we were able to read versions of the language in that document on screen at the meeting, we still (as of 9 a.m. on December 19th) have no official version of the certification. Therefore, it is risky to make definitive statements about the exact wording in the certification.
⇒ The Water Control Board members recognized that the deficiencies in the evidence DEQ relied on in recommending approval were indeed even greater than they had acknowledged in deliberations over MVP.
Three Board members wanted to reject the certification outright, citing the lack of adequate information and studies. The final version of the certification that was approved delays the effective date until an unspecified time in the future, after a number of additional studies and plans are submitted and approval is given (if it is given).
In the end, ACP walked away from the Board meeting on the 12th with a certification but one that does not allow it to begin construction by the end of the year, as they had planned. Projected dates for completion of the necessary studies is March or April, 2018. Dominion has asked FERC for permission to begin limited tree cutting and DEQ has given an opinion that some cutting may be allowed where the activities do not qualify as “land disturbance” under Virginia regulations. We believe DEQ does have the authority to prohibit any tree cutting that is related to the project and will advocate that view.
In the meantime, we will be pushing hard to ensure that DEQ’s reviews are adequate, that the public has a fair and open comment period, and that the Board knows of and acts on any deficiencies that remain. We will also continue to consider all legal options available to us.
Wild Virginia’s Role / What You Can Do
Wild Virginia led the effort to push the State of Virginia to do its duty under the Clean Water Act to protect our waters from these two destructive proposals. As bad as the process followed by DEQ has been, it could have been even worse.
⇒ It was our influence both behind the scenes and in public forums, combined with your voices and your support, that forced some improvements.
At the ACP hearings one Board member cited the testimony of our Conservation Director, David Sligh, as one of the deciding factors that changed his “yes” vote on MVP into a “no” vote on ACP.
We will not stop our efforts to stop these destructive projects. As we end the year, we ask that you consider giving us your support to help us be as effective as possible. Whether a new donor or a reliable supporter who sees fit to increase your contribution, we greatly appreciate any and all donations.
Making Comments at the Virginia State Water Control Board Meetings
The Virginia State Water Control Board, a citizen board that has authority over certain permits affecting Virginia’s waterways, will hold meetings this month on permit applications for the proposed Mountain Valley and Atlantic Coast fracked-gas pipelines. Citizens who previously submitted comments to the State Water Control Board—by signing an organization’s petition, or by writing their own comments, or by speaking at the August public hearings—will be given the opportunity to testify and comment one final time at these meetings. Comments must focus on the VA Department of Environmental Quality’s summary of comments citizens made during the public comment period in July and August.
Public comments will only be received on the FIRST DAY of these two-day meetings. DEQ will present on the second day, after which the Board will consider the permits.
Here are some important things to keep in mind:
1. Can I comment at the upcoming water board meetings?
Only those persons who commented during DEQ’s official water quality certification public comment period (July 3, 2017 – August 22, 2017) may speak. These persons may speak for up to 3 minutes to respond to the summary of the prior proceedings, including DEQ’s summary of comments received during the public comment period.
If you did any of the following, you CAN give a comment at the upcoming water board meetings:
• provided spoken comment at the recent DEQ public hearings back in August,
• sent in a written comment during the public comment period,
• and/or signed an organization’s petition to the DEQ during the comment period.
2. How long do I have to comment?
3 minutes to comment! If you would like to volunteer to pool your comment time with another speaker. See Question 3 below.
3. Can I give my time someone else (like a directly impacted landowner or water expert)?
Yes you can! You MUST attend the state water control board meetings in person and note that you are giving your time to someone else when you sign in.
4. Can I share materials when I am giving my comment?
Yes you may! If you have material that you want to share with the Board, the DEQ staff will distribute to them, but you will need to bring at least 12 copies. Also, remember that comments at the Board meeting are limited to responding to the summary of the July 3, 2017 – August 22, 2017 public comment period that has been provided by the Department to the Board.
Developing Your Comments:
As we mentioned before, it is very important that you review the VA DEQ’s summary of the prior proceedings including DEQ’s summary of comments received during the public comment period and respond to them in your comments. You can also check out the documents attached for important tips and talking points to prepare for the meetings.
Section 401 Certification
Under the Clean Water Act, Virginia has the power to grant or deny water quality certification for the pipelines. The pipelines would cross streams and wetlands all along their routes, potentially impacting all of the above ground and below ground waters in Virginia that are located along the pipeline routes.
The Virginia Department of Environmental Quality (DEQ) makes recommendations to the State Water Control Board (SWCB) and then the State Water Control Board decides whether or not to grant certification. The SWCB is expected to vote at the December 2017 meetings (details below) to approve, deny, or delay the 401 water quality certification for both proposed pipelines.
Guest Post by our partners at the Allegheny-Blue Ridge Alliance (ABRA)
A response to objections raised to the U.S. Forest Service’s (USFS) Draft Record of Decision (ROD) about whether the proposed amendments to the Forest Plans of the Monongahela and George Washington National Forests to accommodate the Atlantic Coast Pipeline (ACP) has been issued by the agency. In an October 27 letter to 69 objectors who took issue with the proposed amending of the Forest Plan, Glenn Casamassa, Associate Deputy Chief of the USFS, concluded that the ROD met statutory requirements and rejected all filed objections. Among highlights in the letter are:
“The Forest Service, as a cooperating agency, must make a decision whether to issue a Special Use Permit and amend the Forest Plans for the project. The Forest Service may, and has, adopted the FERC’s EIS as the environmental analysis to make our decision.”
“. . . the Forest Service is not responsible for determining the entire pipeline’s overall purpose and need, nor the appropriate range of alternatives for its route. The Forest Service’s consideration of effects must be adequate for deciding whether to authorize the pipeline across NFS lands; not the effects of the entire pipeline.”
“The Forest Service accepts the overall purpose and need stated in the EIS. . . the Forest Service gave ‘due deference’ to the FERC’s finding of the purpose and need for the pipeline.”
The USFS must still issue a Special Use Permit for the ACP to be built through Forest lands, but the Casamassa letter clears the way for that action. A similar letter of rejection to objections to the proposed crossing of the Jefferson National Forest by the Mountain Valley Pipeline was issued by the USFS last month.
The House yesterday passed The “Resilient Federal Forests Act,” H.R. 2936 encouraging and allowing more logging on national forests framed as a way to curtail wildfires. The vote was 232-188. The Virginia delegation voted in a straight party line with all Republicans (Whitman, Taylor, Garrett, Goodlatte, Griffith, Brat and Comstock) voting in favor of the bill and all Democrats (Scott, McEachin, Beyer and Connolly) voting against.
This bill would be a disaster for Virginia’s National Forests.
At this point there is not a companion bill in the senate but it is likely that the substance of HR 2936 could be included in a larger bill like the 2018 Farm Bill. Keeping this out of the Farm Bill will be extremely important. Please contact your congressperson and either thank or voice your displeasure with their vote on HR 2936 and encourage them to keep the language of this awful bill out of other legislation.