Virginia Tech team studies stream impacts

From an Article by Laurence Hammack, Roanoke Times, March 27, 2020

A winter hiatus in construction of the Mountain Valley Pipeline will last well into the spring. The latest delay came this week, with word that two federal agencies will take another month to review one of several approvals — set aside by legal challenges from environmental groups — that must be restored before work can ramp up on the highly disputed natural gas pipeline.

Thursday, March 26th had been the deadline for the Federal Energy Regulatory Commission and the U.S. Fish and Wildlife Service to finish their reconsideration of the project’s impact on endangered or threatened species of fish and bats.

But in a letter Wednesday to FERC, the Fish and Wildlife Service said the agencies and Mountain Valley had agreed to take another 32 days, pushing the completion date to April 27. It was the third such delay since December, when the review was originally set to be completed.

Despite the slow process with that and two other sets of suspended permits, the joint venture of five energy companies says it still plans to finish the 303-mile pipeline by the end of this year.

“Mountain Valley will continue to work diligently to obtain all necessary permits to complete construction of this vital infrastructure,” company attorney Matthew Eggerding wrote this week in a letter to FERC.

Since work began two years ago on the $5.5 billion project, regulatory agencies in Virginia and West Virginia have cited Mountain Valley for repeatedly violating erosion and sediment control regulations along the pipeline’s 303-mile path.

Other environmental problems, raised in legal challenges by the Sierra Club and other groups, have led to the suspension of three sets of permits: for the buried pipe to pass through the Jefferson National Forest, under more than 1,000 streams and wetlands in the two Virginias, and into the habitat of endangered species without causing them undue harm.

Last October, FERC ordered that all active construction be halted pending a review of a biological opinion, issued by the Fish and Wildlife Service in 2017, that found the pipeline would not significantly jeopardize protected fish and bats.

Candy Darter — Photo of Blue Ridge Outdoor magazine

“The additional time is also needed to allow the Service and the applicant to ensure that any additional information needs have been addressed,” field supervisor Cindy Schulz wrote in the letter to FERC.

When construction was halted last year, Mountain Valley was allowed to stabilize some work sites and maintain erosion control over the pipeline’s entire length from northern West Virginia to Chatham, near the North Carolina line.

Attorneys for the Sierra Club, which challenged the biological opinion and a second permit that allowed limited harm to protected species, have argued that the company is continuing active construction in a “steamrolling” attempt to finish the project.

“The measures currently in place are failing to protect endangered species from severe habitat degradation,” attorney Elly Benson wrote in a Nov. 5 letter filed with the 4th U.S. Circuit Court of Appeals.

The appeals court has put on hold a lawsuit filed by the Sierra Club and other environmental groups until the review of the biological opinion is completed. Meanwhile, other agencies are continuing their court-ordered reconsideration of permits for the pipeline to cross the national forest and streams and rivers.

According to Height Capital Markets, an investment banking firm that has been following the project, delaying the endangered species case until April 27 is not expected to change Mountain Valley’s completion goal of late this year.

NO NEW PIPELINES — don’t damage public lands

From an Article by Gavin Bade, Utility Dive, August 6, 2018

>>> A federal appeals court on Monday threw out construction certificates for the Atlantic Coast Pipeline, likely halting work on the $6 billion project planned by major Southeastern utilities.

>>> The Federal Energy Regulatory Commission (FERC) approved the project last year, but the Fourth Circuit Court of Appeals ruled that certification was based on a faulty right-of-way permit awarded by the National Park Service for where the pipeline would cross the Blue Ridge Parkway, a road in Virginia that is part of the National Park system.

>>> Continued construction of the line would “violate FERC’s certificate of public convenience and necessity,” the court warned, and environmental groups pushed FERC to issue a stop-work order for the entire line, as it did last week for the Mountain Valley Pipeline. Developers said they would push NPS to “promptly reissue the permit” to cross the Parkway.

Utility Dive Insights:

Monday’s court ruling is a significant setback for developers of the 600-mile Atlantic Coast Pipeline, planned by Dominion Energy, Duke Energy and Southern Co.

Environmental advocates and local landowners argued that the NPS permit to build the pipeline ignored how tree clearing would impact the scenic and conservation goals of the Parkway, a nearly 500-mile road that runs through Virginia and North Carolina.

The court sided with complaints, ruling that NPS decision on Blue Ridge “is not accompanied by any explanation, let alone a satisfactory one.”

The ruling means there is “a hole in the 600-mile pipeline now that it has no right to cross,” said DJ Gerkin, attorney at the Southern Environmental Law Center, which argued the case. The project is planned to run from West Virginia to deliver gas to customers in Virginia and North Carolina.

In the same decision, the court also detailed its justification for a May ruling that invalidated permits issued by the Fish and Wildlife Service (FWS) for Atlantic Coast because they did not properly assess the impact of the project on five animal species covered by the Endangered Species Act.

Because FERC was not a party to the case, which pitted environmentalists versus NPS and FWS, the court could not order FERC directly to issue a stop-work order for Atlantic Coast (ACP). It did, however, issue a stern warning to the pipeline developers that they should stop building.

“FERC’s authorization for ACP to begin construction is conditioned on the existence of valid authorizations from both FWS and NPS,” Chief Judge Roger Gregory wrote for the three-judge panel that decided the case. “Absent such authorizations, ACP, should it continue to proceed with construction, would violate FERC’s certificate of public convenience and necessity.”

With the certificate vacated, “the pipeline cannot exist in its proposed form with its current authorizations,” and instead “would have to be re-authorized with a new permit or possibly a new route to proceed,” Gregory added in a footnote.

FERC declined to comment on whether it would issue a stop-work order for ACP to accompany the ruling, but pipeline lawyers say one is likely. Late last month, the Fourth Circuit vacated two federal permits for a separate project, the 300-mile Mountain Valley Pipeline, and that decision was followed by a stop-work order late last week.

“FERC issued a stop work order for the whole [Mountain Valley] line after its right-of-way was denied so I expect it could take the same approach here,” said Carolyn Elefant, an attorney who often represents landowners in pipeline cases. “The question now is if FERC is going to thumb its nose at the law or if it is going to stop construction of the pipeline.”

Dominion, lead developer on the project, said in a statement that it has avoided construction in areas affected by the FWS ruling, but a July FERC decision had allowed it to continue building on other sections.

The company said it would continue to avoid those section of the pipeline route, which it says amount to 20 miles, but did not respond to a request for comment on whether it will continue building on other parts now that its certificates have been thrown out.

“With respect to the National Park Service’s approval to cross the Blue Ridge Parkway, the court’s opinion confirms the agency’s authority to issue the permit but remands the permit to allow the agency to correct certain errors and omissions in the permit record,” a company spokesperson said in a statement. “We believe the extensive public record and mitigation requirements already in place provide ample support for the agency to promptly reissue the permit.”

If the pipeline developers must face a new decision at FERC, they could face a less sympathetic commission than the one that approved their project last October. Republican Commissioner Robert Powelson is set to step down this month, giving Democrats, who are more critical of pipeline applications, the ability to deadlock commission decisions.