Late in the day on May 15, 2018, the Richmond Times-Dispatch reported that, "A federal appeals court has ordered a halt to construction of the 600-mile Dominion Energy-led Atlantic Coast Pipeline, following a legal challenge by environmental opponents who argued a review by the U.S. Fish and Wildlife Service was inadequate. A three-judge panel at the U.S. Court of Appeals for the Fourth Circuit agreed, striking down the review, known as an incidental take statement, which is meant to set limits on harm to threatened or endangered species during construction." |
| The court's order states, "Petitioners seek review of the U.S. Fish and Wildlife Service’s Incidental Take Statement, which authorized the Atlantic Coast Pipeline project to take certain threatened or endangered species. As to five of the affected species, Petitioners argue that the agency failed to set clear limits on take as required by the Endangered Species Act. Exercising jurisdiction pursuant to 15 U.S.C. § 717r(d)(1), we conclude, for reasons to be more fully explained in a forthcoming opinion, that the limits set by the agency are so indeterminate that they undermine the Incidental Take Statement’s enforcement and monitoring function under the Endangered Species Act. Accordingly, we VACATE the Fish and Wildlife Service’s Incidental Take Statement. See 5 U.S.C. § 706(2). We reserve judgment on the parties’ remaining disputes until our forthcoming opinion." |
| D.J. Gerten, the Southern Environmental Law Center attorney who argued the case for the Sierra Club, the Defenders of Wildlife, and the Virginia Wilderness Committee, said, "This puts a stop to any work that could threaten rare and endangered species and that’s much of the pipeline route." |
| In the Washington Post report, Dominion talks about continuing construction . "'We remain confident in the project approvals and the ACP will continue to move forward with construction as scheduled,' spokeswoman Jen Kostyniuk said via email. 'We will fully comply as required while we continue to construct the project. Although we disagree with the outcome of the court’s decision, and are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.'" |
| In a statement to the press, Friends of Nelson said, "We are of course pleased with this decision from the 4th Circuit regarding the US Fish and Wildlife review of the ACP. Residents and groups fighting on behalf of impacted communities have long held that thousands of pages of documents do not necessarily end in a thorough review. Errors and omissions have been rife among agencies in charge, and political pressures have been glaringly obvious. We will wait for details of the court's full opinion, but are most grateful for the Southern Environmental Law Center's steadfast dedication to the communities all along the route of the Atlantic Coast Pipeline. It is indeed a pleasure to hear a court confirm the deficiencies in at least part of the review of this project. Given the opportunity for all of the many challenges to be heard by the courts before this pipe is laid, we are confident that this project will not be built." |
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| Writing in Blue Virginia on May 13, 2018, Stacy Lovelace comments on the statement regarding the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP), released by the Governor’s office on May 8 and claiming that "…the Department of Environmental Quality is reviewing proposed land disturbance and construction activities along every foot of the pipeline routes, including each proposed wetland and stream crossing." |
| But, she says, "By claiming that the DEQ is reviewing each wetland and stream crossing, the Governor is either ill-informed — or he is lying." |
| She points out that, "Last year, the DEQ made the decision to waive its right to do site-specific waterbody analysis, and decided instead to utilize the blanket Army Corp of Engineers Nationwide Permit 12. DEQ Water Permitting Division Director, Melanie Davenport, admitted at the April 12 State Water Control Board meeting that the DEQ had not done a site-specific waterbody crossing analysis because the agency did not have the resources. At the same meeting, the State Water Control Board voted to open a comment period addressing the fact that site-specific waterbody analysis had not been done. And if that isn’t enough to prove the untruthful nature of the Governor’s statement, documents obtained via a Freedom of Information Act (FOIA) request provide tangible proof." |
| As an example, using emails and documents acquired via the FOIA request, she compiles a timeline of certain stormwater management plans for the MVP during the weeks in March leading up to their approval. |
| Prior to the timeline she constructs and thus not included in it, "a document between the DEQ and the contracted engineers acknowledges that some of the karst regions of the pipeline spreads had only received a 'desktop review.' In other words, MVP did not go to the areas of karst and perform field evaluations before submitting water quality protection plans for those same areas. |
| "The DEQ has clearly not performed complete reviews for every foot of the Mountain Valley Pipeline route, much less every waterbody crossing. The agency is using the same frightening methods with the Atlantic Coast Pipeline. In documents acquired via the same FOIA request, engineers’ comments indicate that (among other things), not all wetlands, stream crossings, surface waters, and karst features are included on plans. Again, these issues are occurring months after the DEQ advised to the State Water Control Board to grant the ACP’s 401 certification." |
| And send your comments on waterbody crossings and water quality standards to DEQ, urging them to require a stream-by-stream review - deadline is May 30, 2018. Instructions for commenting here. |
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