Only Way Around Law for Atlantic Coast Pipeline Is to Trample Over It

By Beth Little

The Atlantic Coast Pipeline could not be built through the Monongahela National Forest without violating the law, so the law has been suspended. I will explain.

I say “suspended” because the amendments to the forest’s Land and Resource Management Plan included in the permit issued by the Forest Service are “project-specific plan amendments.” They apply only to construction of the Atlantic Coast Pipeline.

The Land and Resource Management Plan is law. It is the regulations for how the forest is to be managed. It was developed by the staff of the Forest Service, including scientists and technicians, who are charged with protecting the forest from the ravages of the late 1800s and early 1900s, when a frenzy of logging resulted in massive flooding, huge fires, loss of life, destruction of local economies, and disappearance of wildlife. Unregulated practices left a wasteland that took more than a century to recover significant productivity.

The Monongahela National Forest includes the highest mountains in West Virginia and the origin of major rivers in the East. These rivers have been cutting their channels for millennia, resulting in ravines with startlingly steep slopes. To truly appreciate how steep they are, you have to stand at the top and look down what appears to be a straight drop of hundreds of feet to rushing water. It is hard to believe trees can grow on slopes so steep, but then it’s the trees that maintain the slopes by holding the soil on them.

The forest also gets some of the highest rainfall in the continental US. So, if the trees (and all other vegetation) are removed, and a heavy rainfall comes, the soil is washed away, making the rivers run with sediment.

There are four standards in the forest’s management plan to be modified for the pipeline construction. The shortest example:

“Standard SW06: Severe rutting resulting from management activities shall be confined to less than 5 percent of an activity area.”

This language is specific and easy to enforce.

The modified standard reads:

“Standard SW06: Severe rutting resulting from management activities shall be confined to less than 5 percent of an activity area with the exception of the construction of Atlantic Coast Pipeline, where the applicable mitigation measures identified in the COM (Construction Operations & Maintenance) Plan and SUP (Special Use Permit) must be implemented.”

The next standard, SW07, involves limitation of the use of wheeled and/or tracked motorized equipment on steep and very steep slopes with soil types prone to slips and landslides. Again, the standard is replaced with the Construction Operations & Maintenance Plan.

The Construction Operations & Maintenance Plan, developed by Dominion, has reassuring sounding language, but it is general and almost impossible to enforce:

“Atlantic recognizes the increased risk of instability associated with pipeline construction while traversing steep slopes. As a baseline, Atlantic developed a program for use on projects within steep terrain.” (A long list of engineering measures follows)

“Selection of the most appropriate engineered prevention measure or combination is dependent on the individual site conditions and constraints during the time of construction.”

The Construction Operations & Maintenance Plan wasn’t available for comment when the draft environmental impact statement was issued. When the final statement was issued on July 21, 2017, it was labeled a draft with critical sections missing.

It wasn’t until October 27, 2017, three months later, that a final version was identified in the Forest Service Record of Decision.

How could Federal Energy Regulation Commission properly evaluate the environmental consequences of the pipeline, when they didn’t have all the pertinent information? This has been the basis of media reports that several agencies have issued postponements after requesting more information. Why didn’t the commission postpone the environmental impact statement until they had a completed COM Plan?

The Land Management Plan for the Monongahela National Forest took several years and thousands of hours of Forest Service personnel to develop at taxpayer expense. You might question whether it is appropriate that a private, for-profit company can arrange for a federal law to be brushed aside because they can’t abide by it. Dominion will tell you that their substitution is better; but, if so, why do they have to suspend the existing regulations? And why wasn’t the Construction Operations & Maintenance Plan available for public comment?


Note: This article previously appeared in The Charleston Gazette.