Allegheny - Blue Ridge Alliance (ABRA) Protest

>>> From: Lewis Freeman, ABRA, September 29, 2018

Yesterday, September 28, a three-judge panel of the Fourth Circuit of the U.S. Court of Appeals in Richmond heard arguments on two important cases challenging permits granted to the Atlantic Coast Pipeline (ACP).

The first case challenged the December 13 decision by the Virginia State Water Control Board to grant a water quality certificate for the ACP (pursuant to requirements of Section 401 of the federal Clean Water Act).

The second case challenged the decisions of the U.S. Forest Service to amend the Forest Plans of the Monongahela National Forest and the George Washington National Forest and to accordingly issue a Special Use Permit for the ACP to cross the two forests.

The plaintiffs in both cases were a group of ABRA member organizations and others that were jointly represented by Appalachian Mountain Advocates (Appalmad) and the Southern Environmental Law Center (SELC). An article about the briefs filed in each case appeared in the September 21 ABRA Update:

https://www.abralliance.org/2018/09/21/court-to-hear-challenges-to-acp-forest-service-water-quality-permits/?highlight=court%20to%20hear%20challenges

I attended Friday’s arguments. The lawyers representing our interests – Ben Luckett of Appalmad in the 401 case; D.J. Gerkin of SELC in the Forest Service case – were most effective. More about the oral arguments will appear in next week’s ABRA Update.

For now, though, I want to highlight a particularly significant moment during the arguments presented in the Forest Service case. In the course of the argument presented by the U.S. Justice Department attorney representing the U.S. Forest Service, Chief Judge Roger Gregory, who was presiding over the panel, interrupted the attorney and noted that the U.S. Forest Service had been diligently asking Dominion Energy for more complete information on how the company would and could build the ACP through the steep forest lands in West Virginia and Virginia without causing environmental damage. The judge then observed that the Forest Service seemed to have suddenly changed its mind and proceeded to approve the requested Special Use Permit.

Judge Gregory inquired of the attorney what the circumstances were that caused the Forest Service to change course. The attorney responded evasively, prompting the judge to interrupt him again and ask: “When?” The attorney tried to continue with his non-responsive response, and Judge Gregory again interrupted with: “When?” The judge’s “When?” question was asked twice more, but never received a response, prompting Judge Gregory to thunder: “Who’s running the train?” It was a riveting moment and one that also caught the attention of Michael Martz of the Richmond Times Dispatch, whose article about yesterday’s arguments appears in this morning’s paper and is available here.

A recording of Friday’s oral arguments will be available on the Court’s website on Monday. The case numbers you will need to access the recordings are: 401 case – 18-1077; Forest Service case: 18-1144.

>>> Lewis Freeman, Executive Director, Allegheny-Blue Ridge Alliance, ABRA Web-site: https://www.abralliance.org/

MERRY CHRISTMAS from Pipe Creek Tree Farm

From an Article by Robert Zullo, Richmond Times-Dispatch, December 22, 2017

Though it still lacks several key approvals, the Dominion Energy-led Atlantic Coast Pipeline project has asked federal regulators to allow workers to begin cutting down trees along some portions of the 600-mile route in West Virginia, Virginia and North Carolina.

Dominion made the request with the Federal Energy Regulatory Commission last week.

Opponents are urging the commission to reject it, noting that permits for the project are missing or unfinished, as are effective water quality certifications from Virginia and North Carolina and stormwater plan approval from West Virginia.

Requests for reconsideration and stays by FERC are likewise still pending, among other objections raised in a filing submitted by the Southern Environmental Law Center in Charlottesville on behalf of more than a dozen conservation groups.

“At this point, it is unknown whether Atlantic will obtain all of the necessary approval and permits to move forward with its project,” the document says. “The commission must reject Atlantic’s attempts to cut corners and pre-empt state authority by denying the company’s premature request.”

Dominion says the workers will stay away from wetlands and waterways, will refrain from using heavy equipment, and will not remove stumps or roots that could lead to soil erosion. The cut timber will stay onsite until all other approvals have been obtained. And the chainsaw-wielding contractors will only cut trees on property that the company has secured access to via easement agreements with owners, said Dominion, which also has begun eminent domain proceedings against some landowners.

“We want to get as much of this work done as possible within the federal tree-felling window in order to protect migratory birds or bats or other sensitive species,” said Aaron Ruby, a Dominion spokesman. “FERC has a well-established process for authorizing this activity and we’re following the process.”

Before FERC can authorize the tree-cutting, however, Dominion must reach an executed agreement as required under the National Historic Preservation Act.

In October, the commission notified the Advisory Council on Historic Preservation, an independent federal agency, that the project would have an “adverse effect” on four historic structures or districts and 10 archaeological sites along the route.

And though the U.S. Fish and Wildlife Service has issued an opinion finding that the project won’t jeopardize threatened or endangered species, pipeline opponents note that the agency is still consulting with Dominion on a rare fish, the candy darter, that could be affected by the pipeline construction.

Tamara Young-Allen, a FERC spokeswoman, said the commission usually delegates the request to begin cutting trees to the manager of the agency’s Office of Energy Projects, who will weigh whether to allow it to proceed based on a variety of factors, including whether easements and necessary permits have been obtained.

“It’s taken into consideration,” she said.

***

Dominion’s request to FERC includes supporting emails from the U.S. Army Corps of Engineers and state environmental agencies affirming that they do not regulate “tree felling in upland areas.”

However, the company failed to include a letter from North Carolina’s environmental agency warning Dominion that “your intention to fell trees is a land-disturbing activity” covered under requirements to obtain sediment and erosion approvals.

North Carolina has repeatedly asked Dominion for more information as it processes permits related to air quality for a compressor station and for erosion and sediment control plans. Though the erosion and sediment plans have been approved for part of the route, the plans for five other counties have not. Nor has the state issued a water quality certification for the project.

“If any land-disturbing activity related to this project, including felling trees, begins prior to receiving an approval … it will be considered a violation,” wrote William E. Toby Vinson Jr., chief of program operations at the North Carolina Department of Environmental Quality.

What constitutes a land-disturbing activity can vary depending on which side of the state line the trees are cut.

James Golden, the Virginia Department of Environmental Quality’s director of operations, wrote that the “felling of trees with chainsaws does not constitute a ‘man-made change to the land surface’ and therefore does not meet the definition of ‘land disturbance’” under Virginia law.

The state erosion and sediment control law defines land-disturbing activity as “any man-made change to the land surface that may result in soil erosion.” The stormwater management law defines it as “a man-made change to the land surface that potentially changes its runoff characteristics.”

In an email, Golden said that the “DEQ does not believe that the hand-felling of trees results in soil erosion or changes to the land-surface runoff characteristic and is therefore not considered land disturbance.”

But opponents question how cutting down trees could fail to affect the ground underneath, arguing that falling trees can gouge the ground and roll down slopes into waterways or topple nearby trees.

The law center’s filing, citing the DEQ’s own stormwater management handbook, notes that “interception,” the amount of rainfall that fails to reach the ground because it gets caught in the tree canopy and evaporates, plays a crucial role in reducing runoff.

“Clearing removes the vegetation that intercepts, slows and returns rainfall to the air through evaporation,” the handbook says, according to the filing.

“As Virginia DEQ has acknowledged, ‘raindrops hit the exposed soil like tiny bombs,’ ” the opponents argued, citing a DEQ document called “Fundamentals of Erosion and Runoff.”

Asked to respond to those contentions, Golden said he had no comment.

From The Liberty Beacon (TLB)

From an Article of the Center for Biological Diversity, EcoWatch.com, July 6, 2017

Conservation groups Wednesday expanded a lawsuit challenging a U.S. Forest Service and Bureau of Land Management plan to permit fracking in Ohio’s only national forest.

The groups are challenging a new 1,147-acre March 2017 lease sale in Wayne National Forest and adding claims that the federal fracking plans violate the Endangered Species Act, threatening animals in the forest and downstream.

“Federal officials should not be putting corporate profits ahead of endangered species, safe drinking water and public health,” Taylor McKinnon with the Center for Biological Diversity, said. “The government is violating its own laws to pave the way for this dangerous fracking plan, and we can’t let that happen.”

In May four conservation groups sued the federal agencies in U.S. District Court in Columbus for their failure to analyze impacts to public health, water, endangered species and the climate before opening 40,000 acres of the Wayne National Forest to fracking in 2016, and prior to leasing 670 acres of those lands to the oil industry in December.

The expanded lawsuit shows that fracking will threaten endangered mussels downstream from lease parcels, as well as endangered Indiana bats and threatened northern long-eared bats. The bats are already imperiled by forest fragmentation, white-nose syndrome and climate change. Habitat destruction, deadly wastewater pits and water contamination from fracking activities compound these threats.

“The Wayne National Forest is home to many species who can’t afford to have their habitat damaged by oil and gas development,” said Nathan Johnson, public lands director with the Ohio Environmental Council. “We need to do all we can to protect wildlife that can’t protect themselves.”

Fracking will industrialize Ohio’s only national forest with roads, well pads and gas lines, the lawsuit asserts. In addition to destroying Indiana bat habitat, this infrastructure will pollute watersheds and water supplies that support millions of people, and endanger other federally protected species in the area.

“Fracking our national forest is the last spasm of crony capitalism on the eve of climate chaos,” Tabitha Tripp, spokesperson for Heartwood. “Our job is to shepherd some intact habitat through to the other side in the hopes that, while diminished, it will survive and be a refuge for as many resilient species as possible.”

In 2014 a well pad caught fire in Monroe County, resulting in the contamination of a creek near the national forest. Wastewater and fracking chemicals spilled into Opossum Creek—an Ohio River tributary—killing 70,000 fish over a five-mile stretch.

“Fracking in Wayne National Forest would be nothing short of disastrous for Ohio’s only national forest and the wildlife that depends on it,” said Sierra Club staff attorney Elly Benson. “The industrialization and destruction that fracking would bring is the type of activity the forest’s protections are meant to safeguard against. The Forest Service and Bureau of Land Management should do their job and protect this wild place, not green-light its destruction.”

The Bureau of Land Management intends to lease 40,000 acres of the Wayne National Forest’s Marietta Unit, setting up two-thirds of the unit to be auctioned off in upcoming quarterly Bureau of Land Management lease sales.