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Pipeline Spotlight: Talking ACP and MVP With David Sligh, Wild Virginia Conservation Director

by: Julia Travers, volunteer writer with Wild Virginia

 

If you need a refresher or are taking a first dive into learning about the proposed Atlantic Coast and Mountain Valley Pipelines, Wild Virginia Conservation Director David Sligh is here to help. He explains what’s going on with these projects and why they pose so many threats to Virginians and the Southeast. He also offers some ideas on how anyone who opposes the pipelines can make a difference (down at question four).

  1. Do We Need the Pipelines?

In short, no. We do not need the ACP, a 600-mile-long pipeline that would carry natural gas from West Virginia into Virginia and North Carolina, or the MVP, a pipeline that would source the same fracked gas and have the same destinations.

“If you look at the growth in overall energy demands in VA and NC in the last decade, there’s been a pretty small percentage of growth over the whole period,” David says. A 2016 study of this area’s energy demand for natural gas found existing pipelines can supply more than enough fuel through 2030.

And, while ACP originally claimed the pipeline gas was intended and needed primarily for VA and NC, it now states the gas may go to South Carolina and other areas. Similarly, after getting their original approval, MVP says it will build an addition spur into North-central NC.

Local energy needs can also increasingly be met with renewable sources — David says while pipeline companies like Dominion give “lip service” to these options, they simultaneously oppose the regulatory changes that would empower growth in the wind and solar sectors. He explains:

That’s because they can make such huge profits from fossil fuel projects — for example, the Federal Energy Regulatory Commission allows them to charge ratepayers additional amounts to provide them with up to 14 percent profit just on the cost of building these pipelines, and this profit is not dependent on showing a need for the gas.

Also, FERC has not carried out the legally required “valid needs analysis” relating to energy demand for the pipelines. Because of this, FERC Commissioners Cheryl Lafleur and Richard Glick supported a request for a FERC rehearing.

  1. Why Are the Pipelines a Bad Idea?

The pipelines directly threaten local drinking water, homes, endangered species’ habitats, parks, economies and other vital interconnected systems and attributes of the Southeast. They simply cannot be safely built. David says:

Building a 42-inch, high-pressure gas pipeline across the Allegheny Mountains, the Great Valley of VA and the Blue Ridge Mountains has never been done, for good reason … The companies would have to build on mountain slopes that in many cases are greater than 50 percent and where landslides are common. They would have to blast away mountain ridges and claim they would restore these areas to former contours, which is impossible. They would cut across large areas where limestone geology, termed karst, lies beneath the soil and forms caverns and conduits through which pollution from land disturbance can move to wells and springs quickly, without any filtering. ACP proposes to bore a hole over 4,500 feet through the Blue Ridge and push the huge pipe through the hole. Finally, together, the two projects would cross well more than 1,000 streams and wetlands, many of which have exceptional resource values and are also very sensitive to disturbance.

Map of portion of ACP: dpmc-gis.maps.arcgis.com/apps/MapSeries

Also, if the pipelines are built, the industry will use them to validate an avalanching investment in natural gas for decades to come.

  1. What Are the Current States of the Projects?

“FERC issued what are inappropriately termed Certificates of Public Convenience and Necessity for both MVP and ACP last October,” David says. At this point, the companies were empowered to take landowner’s property rights.

In December 2017, the Virginia State Water Control Board issued water quality certifications that require the companies to submit additional plans, some related to erosion and sediment control, before construction. David says the ACP’s certification will not be officially in effect until the plans are approved. The Board also said it might take other actions at that point as well.

Over the winter, both companies began permitted tree felling. In March 2018, the VA DEQ approved the MVP’s additional plans and construction has now begun.

Roanoke County, VA tree cutting for MVP, May 2018: wdbj7.com

David says “court challenges to actions taken by the Board, FERC, Forest Service and Bureau of Land Management are still in progress against both pipelines.” One suit already resulted in a court order stating an ACP permit from the U.S. Fish and Wildlife Service under the Endangered Species Act was wrongly issued and must be redone. This order led to an ongoing dispute between citizens and the ACP over whether it must stop construction overall or only in some areas.

Recently, the VA Board ordered the DEQ to hold a public comment period relating to waterbody crossings, which ended June 15 — over 13,000 opinions were submitted. The more than 1,000 planned water crossings “have so far been covered under a blanket permit issued by the Army Corps of Engineers [and] should receive additional scrutiny and regulation by VA,” David says.

“The public is now pleading with the Board to act quickly to head off further work on either project before any additional reviews can be finished,” he adds.

The push for an immediate and thorough review of the ACP’s potential effects in VA is very important because the MVP project has already broken the law, allowing large loads of mud to flow off construction sites into streams and onto private properties.

“While WVA officials have already issued four Notices of Violation, the VA DEQ has been largely unresponsive and has taken no effective action,” David says.

On June 21st, the federal Fourth Circuit Court of Appeals granted a stay of a Corps of Engineers permit, which prevents MVP from constructing through any streams or wetlands in West Virginia until court hearings scheduled for September.

  1. How Can People Help?

Here are three powerful steps David says you can take if you’d like to join the movement against ACP and MVP construction:

  1. Join in calling on the Water Control Board to conduct the additional reviews of waterbody crossings.
  2. Volunteer with the Pipeline Compliance Surveillance Initiative, or CSI, which looks for and responds to damages and non-compliance by ACP, and Mountain Valley Watch, which does the same with the MVP.
  3. Join Wild Virginia to help us continue to lead the efforts to stop and/or avoid damage from these pipelines and to oppose any destructive projects in our region, so we can preserve as much of Virginia’s wild and natural land and resources as possible.
David Sligh and other citizens deliver petitions and call on Governor Ralph Northam to take action on the proposed pipelines in March 2018: frackcheckwv.net

Who is David Sligh?
Wild Virginia Conservation Director David Sligh has 35 years of experience in environmental law. He has a bachelor’s degree in Environmental Science from the University of Virginia and a law degree from Vermont Law School. He is a member of the District of Columbia Bar. Dave has worked as a Senior Environmental Engineer for the Virginia Department of Environmental Quality; Founder and Director of Virginia PEER, the state branch of Public Employees for Environmental Responsibility; Southeast Regional Representative for American Rivers; Upper James Riverkeeper; Adjunct Instructor of Environmental Science at the University of Tennessee at Chattanooga; and as a consultant and adviser to citizen groups around the country.

Kaylor Knob Hike May 20th

by Morgan Kurst 

On Sunday, May 20th, Wild Virginia members went on a hike to Kaylor Knob in the George Washington National Forest right outside of Elkton, Virginia. The hike was very successful last year, and so co-leaders Dave and Joseph have decided to make it an annual trek.

A stream crossing during the Kaylor Knob hike.

After driving on dusty gravel roads for several miles, we reached the mouth of the trail. We immediately encountered a stream crossing. Armed with our hiking poles, we waded through the cold, refreshing streams and observed all of the rocks through the clear water. During the out-and-back hike, we crossed streams a total of ten times! Some of the streams were more formidable than others, and hikers enjoyed trying to cross the streams without falling over or getting their socks completely drenched.  We hiked a trail along Boone’s Run, which ascends about 2.5 miles to the top of Kaylor Knob. Lots of turkey beard, cinnamon fern and pink lady’s slipper orchids were along the trail. Additionally, hike co-leader Dave Carey found mysterious orange fungi in one of the still puddles of water.

Enjoying the cold water!

The weather on Sunday was gorgeous, with sun and a breeze blowing through the trees. The ground was surprisingly dry in most places, considering the amount of rain recently. Taking a chance on the weather was definitely the right call! Pink azaleas filled the air with a flowery, sweet scent that made the hike all the more pleasant.

One of the highlights of the hike was relaxing at the top of the knob. We encountered several  mountain bikers on the trail, and a man enjoying the day with his dog, Sarge. Sarge was very friendly and seemed to be enjoying the warm weather just as much as the rest of us. Apparently, people mistake Sarge for a bear sometimes out on the trail, but he would never hurt a fly.

Our new furry friend, Sarge!

After a long hike full of flowers, we waded back through all of the streams and found ourselves back at the head of the trail again. All of the members enjoyed themselves on the hike.

If you find yourself interested in going on hikes with Wild Virginia, check out our Outings and Education page to see what we are planning next! Our outings include hiking, overnight camping, and fun water activities like canoeing and kayaking.

Wild Virginia Objects to Forest Closure Order for MVP

Wild Virginia has sent the Forest Service a letter objecting to an outrageous order closing portions of the Jefferson National Forest for many months.

In the letter to Joby Timm, Forest Supervisor of the George Washington and Jefferson National Forest, Wild Virginia asserts the scope of the Emergency Closure order now in place far exceeds temporal limits that are necessary or proper to meet the stated purpose of avoiding “hazards associated with constructing the Mountain Valley Pipeline. . . .” and additional bases on which you have attempted to justify the scope of the closure order are not specified in the order, are invalid, and go beyond the scope of your authority. 

The Forest Service order prohibits the public from being present on large areas of the Forest through March 31, 2019 and presents the closure as a necessity to protect public safety when construction is occurring on the Mountain Valley Pipeline. However, the ban on use of our public lands far exceeds any appropriate boundaries and is not a rational or legally-supportable measure. The people must only be prohibited from entering and using our National Forest when and if a real threat exists.

Additional Forest Service statements reveal that the scope of the closure is in fact designed as much for the convenience of MVP and Forest Service officials as for the stated purpose. In an email, Supervisor Timm stated the “primary purpose of the closure order is to keep the public safe in the area surrounding the approved right-of-way when tree felling and construction that [sic] will occur.” (emphasis added). However, he then added a supposed justification for making the order effective for more than one year:

“Large infrastructure projects like the MVP Project often require construction schedules to shift (with appropriate authorization). Due to the uncertainty about schedule and the process involved in issuing multiple closure orders, I determined public safety would be best met through keeping the order in place continuously while Mountain Valley Pipeline, LLC has the potential to be conducting activities to develop the MVP Project.”


The convenience of a company to cause disruption and destruction on the Forest must not be used as an excuse for impairing the public’s valid use of areas normally available to it. 

Also, the Forest Service will bear no significant burden if required to issue new or revised orders to accommodate changing construction schedules. Timm has so far issued five successive versions of the order between March 7 and April 7, 2018, a period of just 31 days. Given this record, it is ludicrous to cite “the process involved in issuing multiple closure orders” as a justification for the excessive length of your order.

Wild Virginia insists that Supervisor Timm revoke the current order and that any future order specify that the public’s use of roads, trails, or any other areas on the Forest is prohibited only during active construction or authorized uses by MVP.

Make Your Comments to DEQ

Wild Virginia offers the following to help citizens begin to frame their comments in response to DEQ’s public notice.

We plan to provide additional help, including some examples of comments we develop for some specific stream crossing areas. We welcome any comments, questions, or examples of issues you plan to raise in comments but don’t see discussed here. You can contact
Dave Sligh: david@wildvirginia.org.

Any comments you submit will be enhanced by photos of existing good conditions or any other background documents that show a history of usage of waterbodies and the values they have held for people. We also welcome you to send us any copies of comments you send to DEQ so that we can keep track of the places addressed and the issues raised for both pipelines.

Deadline for comments: June 15, 2018 – 11:59pm

Include in your comments:
• The name(s), mailing address(es) and telephone number(s) of the person(s) commenting.

• Information about specific wetland or stream crossings. Comments should reference exact wetlands and streams crossings by the identifiers provided in documents supplied by DEQ.

Submit by email to:
For MVP: NWP12InfoOnMVP@deq.virginia.gov
For ACP: NWP12InfoOnACP@deq.virginia.gov

Submit by mail to:
DEQ, P.O. Box 1105, Richmond, VA 23218
deliver to – DEQ, 1111 East Main Street
Richmond, VA 23219

Substance of Comments:
DEQ’s public notice states:
The sole purpose of the written public comment period is for interested persons to submit technical comments and/or information for the MVP and ACP projects relevant to:

1) the sufficiency of the Corps NWP 12 permit’s general and regional conditions, as they relate to specific, wetland or stream crossing(s);

2) the sufficiency of the Corps NWP 12 permit authorization for each project, as relate to specific, wetland or stream crossing(s); and/or

3) the sufficiency of the Commonwealth’s § 401 water quality certification of NWP 12, as related to specific, wetland or stream crossing(s).

In simple language, we need to show that the requirements applicable to the Corps permit will not uphold our Water Quality Standards (WQS) in specific places. If they will not, then
Virginia’s Clean Water Act (CWA) section 401 Water Quality Certification (WQC) for any particular crossing is not legally valid. The State of Virginia must “ensure” that state Water
Quality Standards (WQS) will not be violated by the activities covered.

The parts of Virginia’s WQS that will likely be most pertinent are: 1) designated uses and 2) antidegradation requirements. In addressing each of these issues, there are technical analyses that require expertise in certain scientific and engineering fields. However, there are important facts that landowners or others can raise that are absolutely valid for you to address. Do not be deterred by the fact that DEQ’s notice specifies that the comments are to be “technical” in nature. Also, don’t think that the interests and threats you can address must be exactly at the crossing point. These activities will affect downstream areas and, though DEQ tries to deny or minimize
their importance, downstream water quality must also be protected. This is especially important where multiple crossings of tributaries or a single stream will have cumulative impacts on
downstream waters. In some cases, you may want to cite a group of crossings and discuss both the individual impacts and the combined impacts.

One particularly egregious deficiency in the Corps’ analysis it that it examines each crossing that it deems “separate and distant” (a term the Corps refuses to precisely define) as stand-alone
projects and ignores the overall impacts. This is especially important in some headwater drainages where as many as eight or more crossings are proposed.

What are “designated uses?”
All state waters have designated uses for aquatic life support, recreation, support wildlife, and production of edible or marketable resources such as fish and shellfish. Other designated uses
that apply only in specified waters include support of trout populations and public water supplies.

The WQS name swimming and boating as examples of recreationaluses but this category includes any recreational uses, including wading (where the stream is too small for swimming),
fishing, and simply aesthetic enjoyment. Also, note that many of these uses also qualify as“existing uses,” even if Virginia has failed to list them as designated uses (more discussion of this below under the antidegradation section). Note: the water quality impacts that are prohibited need not be of a type that are dangerous to health, they may simply make use of the area unpleasant or cause users to abandon these areas in favor of other more acceptable waters.

Examples of “recreational” uses you can demand that Virginia protect:
• You, your kids, or your dogs like to jump in the stream.

• You hike, camp, or picnic along a stream.

• The waterbody is an amenity for your local community, the people who visit and enjoy your
inn, bed and breakfast, etc.

• You use public recreational areas, including the National Forest, state or national parks, local
parks, etc. in and around the affected waterbody.

• You fish, take photos of natural environments, bird, hunt, etc. on any part of the waterbody
that may be affected

Examples of impacts that may affect your recreational uses:
• Sediments that will be released during crossing construction activities and after will affect the appearance and viability of using the stream. The Corps permit assumes that as long as the sediment in the waters only persists for a short time in the area directly in and around the construction site and that any discharges are minimized, this pollution need not be counted as an impairment of uses. Sediments in the water also interfere with fishing, because they lessen the ability of the fish to see lures and of the fisherman to fish by sight. This directly conflicts with WQS, which require that uses be protected at all times.

• Sediment deposition on the stream bottom that, in some cases, will stay in place for extended periods before they are swept away by high flow events. These occurrences will interfere
with the aesthetic value of the stream, with the habitat that supports fish and the insects, etc. that they feed on. Sediments may also flow into reservoirs or impounded sections of streams
and will not disperse. Sediment input to such waters are one of the major sources of impairments and may also carry other pollutants into the reservoirs, such as nutrients which contribute to algae blooms.

• Elimination of streamside trees, which will drastically change the appearance of the stream and its surroundings and allow more light to reach the stream when leaves are off and the temperatures are highest. This also eliminates habitat for wildlife that lives near but not in the waterbody.

• Changes to the banks and the bed of the stream will change the appearance of these waters and affect uses. Elimination of vegetation from banks will increase the likelihood of erosion
in those areas. Replacement of that vegetation by rip-rap, which the Corps discourages but will allow in some circumstances, eliminates the biological values provided by native plants, such as hiding places for fish and habitat that is necessary for other organisms.

• Changes to the physical structure of the stream bottom. The Corps requires that the ditch through the stream be filled after construction so that the “original contours” are restored.
However, if the ditch is refilled with loose materials, that soil and rock mixture may wash away in storms, resulting in a depression and even exposing the pipeline. Where construction requires ripping or blasting through solid rock stream bottoms, the materials put in to replace that bottom may be much less durable that the bedrock and may degrade. In some cases, the companies propose to fill bedrock cuts with concrete.

Reasons the Corps permit requirements will not prevent impairment of uses
• The Corps does not place adequate requirements on the physical changes to the stream and banks in light of recreational uses. In fact, the Corps has admitted that: “Activities authorized
by this NWP may change the recreational uses of the area. Certain recreational activities, such as bird watching, hunting, and fishing may no longer be available in the area. Some utility line activities may eliminate certain recreational uses of the area.”

• Some of the Corps’ requirements prohibit more than “minimal adverse impact” but the Corps admits that “[t]he term ‘minimal adverse effect’ cannot be defined because it is a subjective term, with ‘minimal’ and ‘adverse effect’ dependent on the perspective of the person conducting the evaluation or assessment.” The state has a duty to define the level of impact that is allowable under its WQS and that definition, when applied to recreational and aesthetic uses should reflect the users’ values, not that of the Corps or the pipeline company.

• In numerous cases, the Corps imposes requirements that are necessary to protect uses only “to the maximum extent practicable.” Violations of WQS may not be permitted by Virginia
just because the Corps or the company cannot identify a “practicable” alternative. If there is no method of building the pipeline through a waterbody to meet WQS, then that activity is
not allowed.

What is antidegradation?
Any activity that lowers water quality in state waters may violate antidegradation requirements in state law. The Corps has made no specific analyses that address antidegradation in covering
these projects under NWP 12. As explained above, in many cases the Corps expresses the vague requirement that water quality impacts be minimized, which cannot ensure that antidegradation
conditions are met. As with all other portions of the WQS, these requirements apply to water directly at the crossing points and in any other portions of the waterbody where effects may be
caused. For all state waters, the antidegradation policy requires that all “existing uses” be fully supported. Under both state and federal law, “existing uses” are “those uses actually attained in
the waterbody on or after November 28, 1975, whether or not they are included in the water quality standards.”

If you have made beneficial use of a waterbody addressed in your comments in the last four decades, that use is protected. This includes any of the uses listed above but may also include a
range of other uses. Examples could include use of the water for livestock watering, irrigation of gardens or crops, a commercial or industrial purpose – any use that is of value to you and does
not damage the waterbody. Antidegradation requirements contain even greater protections for high quality waters (Tier 2
waters), where conditions are better than the minimums otherwise provided in the WQS. In those cases, water quality may not be lessened unless “allowing lower water quality is necessary to
accommodate important economic or social development in the area in which the waters are located.”

Neither the Corps nor DEQ has conducted antidegradation analyses for any of the waterbodies that would be affected by these pipelines. Further, since the supposed economic or social benefits the projects would not occur “in the area[s] in which the waters are located,”
lowering of water quality could not be allowed in any case.
Finally, antidegradation requirements provide the highest level of protections for designated “exceptional state waters” (also known as Tier 3 waters). To gain this designation, citizens must
go through an extensive process and show that there are very high value resources.

Most new discharges are prohibited into these waters. Any lowering of water quality must be of very short duration and “after a minimal period of time the waters [must be] returned or restored to conditions equal to or better than those existing just prior to the temporary source of pollution.”

Forest Service Quietly Revises Closure Order: Further Restricts Public Access Around Work Areas for Proposed Mountain Valley Pipeline

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.”

Forest Service Must Clarify, Limit Scope of Closure for Pipeline

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.

Link to the letter

Governor Northam Must Act to Protect Virginian’s and Our Waters

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
804-786- 2211
or
Send an email to his Chief of Staff clark.mercer@governor.virginia.gov

Background

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. 

Legal challenges

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.

What Did the State Water Control Board Do?

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.

“Water is Life” rally in Richmond before the Water Board meetings

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.

David Sligh speaking at the recent Water Control Board meetings

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.

 – Click here to give today –

 

Forest Service Clears the Way for ACP

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.

Contact your representative about H.R. 2936

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.

Find your representative here and see how they voted here!

Check out our previous post about the Westerman bill and read the full text of the bill for more information.