The West Virginia Highlands Conservancy (WVHC) provided a grant in the summer of 2018 to support the work of the Allegheny-Blue Ridge Alliance (ABRA) and West Virginia Rivers Coalition (WVRC) of which WVHC and WVRC are members, in overseeing construction activity of the Atlantic Coast Pipeline (ACP) to assure compliance with applicable permit and regulatory requirements of the project. This construction oversight activity is the Construction Surveillance Initiative (CSI),a program created in early 2018 by ABRA. The core of the CSI program is a network of volunteers from communities affected by the ACP in West Virginia and Virginia. The program also involves technical and regulatory monitoring dimensions to help identify and analyze possible construction violations and report them to appropriate regulatory authorities.
Status of the Atlantic Coast Pipeline and Recent ABRA Activities
Construction work on the Atlantic Coast Pipeline (ACP) ceased in December 2019 as the result of the project’s permit from the U.S. Fish and Wildlife Service (the Biological Opinion and Incidental Take Statement, in accordance with requirements of the Endangered Species Act) being vacated by the Fourth Circuit Court of Appeals. The agency is working on developing a new permit proposal. But, according to the latest available information, a new Biological Opinion and Incidental Take Statement is still several weeks – and perhaps months – away from being released. Atlantic Coast Pipeline, LLC has said it will not seek to resume construction on the project until a FWS permit has been restored.
The Fish and Wildlife Service permit is one of 8 permits that the ACP does not currently have and legally needs to proceed with construction:
1. Nationwide Permit 12 Verification, Pittsburgh District, U.S. Army Corps of Engineers: suspended by Pittsburgh District, Nov. 20, 2018.
2. Nationwide Permit 12 Verification, Norfolk District, U.S. Army Corps of Engineers: suspended by Norfolk District, Nov. 20, 2018.
3. Nationwide Permit 12 Verification, Wilmington District, U.S. Army Corps of Engineers: suspended by Wilmington District, Nov. 20, 2018.
4. Special Use Permit and Record of Decision, U.S. Forest Service: vacated by Fourth Circuit, Dec. 13, 2018 Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150 (4th Cir. 2018).
5. Right-of-Way and Construction Permits, National Park Service: remanded by Fourth Circuit, Jan. 23, 2019, to be vacated by Park Service. Order (Dkt. 51), Sierra Club v. U.S. Dep’t of the Interior, No. 18-2095 (4th Cir. Jan. 23, 2019).
6. Nationwide Permit 12 Verification, Huntington District, U.S. Army Corps of Engineers: vacated by Fourth Circuit, Jan. 25, 2019. Order (Dkt. 67), Sierra Club v. U.S. Army Corps of Eng’rs, No. 18-1743 (4th Cir. Jan. 25, 2019).
7. Biological Opinion and Incidental Take Statement, U.S. Fish and Wildlife Service: vacated by Fourth Circuit, July 26, 2019. Defenders of Wildlife v. U.S. Dep’t of the Interior, 931 F.3d 339 (4th Cir. 2019).
8. Article 6 Permit, Virginia State Air Pollution Control Board (implementing federal Clean Air Act requirements): vacated by Fourth Circuit, January 7, 2020. Friends of Buckingham, 2019 WL 63295 (4th Cir. Jan. 7, 2020).
The most recent permit lost by the ACP was the air permit (#8 on the above list) for the proposed compressor station in Buckingham County, VA. The Fourth Circuit vacated the permit that had been issued by the Virginia Air Pollution Control Board on two grounds: 1) the Board had failed to consider as an alternative to the proposed gas-fueled station one that would be powered by electricity and therefore not produce emissions; and 2) the Board inadequately considered the impact the project would have on the predominate minority community of Union Hill that is adjacent to the station’s proposed site. Work on the compressor station cannot proceed without an air permit and the Air Board is not scheduled to meet again until a date to be determined in the Spring.
Another consequential case on the above list (#4) concerns the ACP’s crossing of the Appalachian National Scenic Trail: Cowpasture River Preservation Association, et. al. v. U.S. Forest Service. The Fourth Circuit vacated the Forest Service permit on several grounds, including a determination that the Forest Service did not have the power to grant permission for the ACP to cross the Appalachian Trail, given that the Trail was on land controlled by the U.S. Park Service and federal law currently prohibits pipelines from crossing Park Service land. The Fourth Circuit decision regarding the Trail crossing has been appealed by the Forest Service and ACP, LLC and is scheduled to be argued before the U.S. Supreme Court on February 24.
Among the respondent parties being represented in the case by the Southern Environmental Law Center is Highlanders for Responsible Development, a Highland County, VA based citizens conservation group that includes on its Board representatives from Pendleton and Pocahontas Counties, WV. It is also worth noting that the Fourth Circuit decision vacated the Forest Service permit on three additional grounds that have not been appealed to the Supreme Court, including inadequate evidence that the ACP could cross the steep slopes and ridges that are on Forest Service land without creating serious environmental harm.
Recent CSI Activities: October – December 2019
ABRA conducted for the Board a briefing and tour of ACP construction sites in conjunction with the October 19 WVHC Fall Review meeting. The briefing and tour were organized by ABRA staff and volunteers who are part of the CSI program. Since that tour, there have been no major changes in the physical configuration of the ACP. ACP construction has only occurred in the first 40+ miles of the route in West Virginia and a few miles in North Carolina. Other than some tree clearing, no construction has yet occurred in Virginia.
Notwithstanding the absence of construction activity (except for stabilization work), ABRA’s CSI program has continued to monitor the route for evidence of any improper activities or environmental violations resulting from the work that has already been conducted (e.g. landslides, sediment runoff, etc.).
Whenever construction activity on the ACP might resume, it is quite possible that it will first do so in the non-mountainous portions of the route, beyond Buckingham County, VA south and southeast, to the North Carolina border and to the Norfolk area, where an ACP spur is planned to be built. In anticipation of that possibility, ABRA has begun to concentrate its CSI organizational efforts on and extend its CSI mapping system for that portion of the route where there are few existing citizen groups involved in the ACP fight.
Plans for 2020
In addition to extending the CSI program into southeast Virginia (as discussed above), ABRA’s CSI program is also providing technical support to allied groups in North Carolina that are fighting the ACP. We are also “evangelizing” the CSI program to others in the country. In October, ABRA staff who are involved in the CSI – Dan Shaffer and Ben Cunningham – made a presentation about the program to the Appalachian Environmental Law Conference in Knoxville, TN. They will make a similar presentation about CSI in March to the national Environmental Law Conference in Eugene, Oregon.
ABRA is also working with a prominent photo-journalist on possible articles for national publications about the ACP as well as the CSI program in particular.
Another project underway is a paper analyzing the risks associated with potential landslides along the ACP route through steep slopes in West Virginia and Virginia. The paper, which should be available for distribution by early February, points out that the Central Appalachian Highlands region is the most landslide-prone area of the United States, due to the combination of topography, soil characteristics, and rainfall patterns.
Finally, the CSI program was developed to address the need to monitor construction activity of the ACP. As the program has evolved, it has become clear that the approach to environmental analysis utilized by the CSI is applicable in addressing other environmental issues. At its December meeting, the ABRA Board approved the development of a Conservation Mapping System.
The West Virginia Rivers Coalition partnered with WVHC and ABRA to provide support services for West Virginia pipeline compliance field coordination under the grant. Activities included:
Pipeline Incident Reports
The WV Field Coordinator submitted 35 incident reports to WVDEP during this period.
- Unknown Gathering Line – 1
- December 17: Wetzel County – Use of unapproved erosion control device.
- Stonewall Gathering Line – 2
- December 16-17: Lewis County – failure to operate and maintain erosion control devices, sediment laden water entering stream, conditions not allowable in waters of the state.
- Atlantic Coast Pipeline – 2
- December 16-17: Lewis County – Failure to operate and maintain erosion control devices.
- Mountain Valley Pipeline – 30
- September 23: Braxton County – sediment laden water entering streams, sediment deposits in stream, conditions not allowable in waters of the state. Follow-up from WVDEP inspector – No Notice of Violation issued.
- December 16-17: Wetzel, Harrison, Lewis, Braxton, Webster, Greenbrier, Monroe Counties – failure to operate and maintain erosion control devices, failure to modify SWPP when it proved inadequate, failure to stabilize slips, failure to prevent sediment and sediment laden water from leaving the site and entering streams, conditions not allowable in waters of the state.
WVHC Atlantic Coast Pipeline Tour
In partnership with Allegheny-Blue Ridge Alliance, West Virginia Rivers Coalition hosted a Pipeline Tour of ACP with WVHC Fall Review attendees. Approximately 30 people attended the tour.
Organized Violation Blitz
In December 2019, the WV Field Coordinator provided support for a coordinated monitoring effort (“Vio-Blitz”) in 7 counties. The WV Field Coordinator organized volunteers, provided technical assistance, and reviewed volunteer reports. Ultimately, the effort resulted in submission of 33 incident reports to DEP on 4 pipelines. WV Field Coordinator acted as the DEP liaison for follow-up interactions with inspectors. WV Field Coordinator will continue tracking DEP inspection reports and violations as they are posted to the public database.
The WV Field Coordinator provided technical assistance to 1 WVU Student and 1 impacted landowner, including:
- Impacted Landowner – provided stormwater permit modification for Greene Interconnect on MVP.
- Student – provided information on pipeline construction and citizen monitoring efforts for class project.
The WV Field Coordinator led the analysis and development of technical comments sent to WVDEP on permit for a proposed gathering line that would connect to the ACP, the Pennypacker 401 Water Quality Certification Application. Five other organizations signed on to the comments.
Outreach and Education
The WV Field Coordinator provided information for a citizen action alert this reporting period on the Pennypacker 401 Permit. WV Field Coordinator determined that this pipeline construction could impact the Clubshell Mussel, an endangered species. An action alert was issued regarding this concern, resulting in 146 individual comments on the Pennypacker’s 401 Water Quality Certification.
WV Field Coordinator co-authored an online story map describing the work and findings of the “Violation Blitz” conducted in August 2019. This online resource was created in partnership with Trout Unlimited. The report can be accessed at https://trout.maps.arcgis.com/apps/Cascade/index.html?appid=0459f936e2364667b551ec8daba08504
The WV Field Coordinator worked with three media representatives during the reporting period:
- Carolyn Nicholas, WVU Journalism student, on pipeline development in WV, permitting issues and citizen monitoring efforts.
- Lyndsey Gilpin, published in bioGraphic and Grist, on the Atlantic Coast Pipeline. Interviewed with Lyndsey and introduced her to other contacts and took photographer, Steve Johnson, on a pipeline tour to capture photos for the article.
- Michael Sainato, The Guardian, on stream crossing permit status and citizen monitoring efforts.
Meetings and Teleconferences
The WV Field Coordinator participated in 11 coordination/coalition calls with various partners, 1 webinar, and 3 in-person meetings.
- Mountain Valley Watch hosted by VA Sierra Club: 3
- Pipeline Coordination hosted by Appalachian Voices: 3
- Pipeline CSI hosted by ABRA: 2
- ABRA Steering Committee: 2
- Choose Clean Water Coalition Shale Workgroup: 1
- December 11: Visual Assessment Refresher Training. The webinar served to review visual assessment procedures and provide additional assistance to volunteers preparing for field work. Nine volunteers participated in the training.
- September 25: CSI Meeting to plan WVHC ACP tour
- October 2: CSI Meeting to visit ACP sites for WVHC tour
- October 9: CSI Meeting to prepare WVHC presentation for ACP tour
- Following up on WVDEP inspections and violations from December’s Vio-blitz.
- Developing a report that highlights water quality impacts from pipeline construction.
- Generating support on legislation to increase fines for water quality violations.
- Preparing for Army Corps of Engineers re-issuance of the Nationwide Permit for state certification.
- Preparing for review/comment of WVDEP’s reissuance of the stormwater general permit related to oil and gas construction.
- Ongoing support of WV volunteer monitors.
West Virginia Highlands Conservancy is very proud to have provided the grants to help support this invaluable work monitoring the construction activities of the proposed ACP.