Atlantic Coast Pipeline wants to start cutting down trees

The Virginia State Water Control Board wrestled last week with a crucial water quality certification for the Atlantic Coast Pipeline.

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.

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Virginia’s State Water Control Board wrestled last week with the DEQ’s recommendation to approve a certification under the federal Clean Water Act that there is a “reasonable assurance” that the pipeline’s construction won’t degrade state waters.

Opponents contend the 42-inch-diameter pipe and the 125-foot construction right of way it will require in many areas, including in some of Virginia’s steepest terrain and across some of its most pristine waterways, cannot be built without dislodging sediment that will wind up in waterways.

And though the DEQ has claimed it is going to the limits of its authority in vetting the water quality effects of the project and the equally contentious Mountain Valley Pipeline planned for Southwest Virginia, it has come under fire for how it has handled the certification, including deferring to a less-rigorous federal permit for the spots where the pipelines will actually cross waterways.

It also chose to review and approve erosion, sediment and stormwater plans separately, after the board vote, which left several board members uneasy.

The board, in response to concerns from opponents and board members that it was acting without crucial information, ultimately voted 4-3 to issue the certification. However, it delayed the effective date until the DEQ has approved the outstanding plans and presents a report to the board, which may consider “further actions” on the certification at that point.

Greg Buppert, an attorney with the Southern Environmental Law Center, noted that Golden’s email in response to Dominion’s tree-cutting request didn’t mention the state’s authority under Section 401 of the Clean Water Act to protect state water quality from federally permitted projects.

“We’ve heard repeatedly from DEQ that they’re using the full scope of their authority to examine and regulate the impacts from this project. And I think this is another example where the agency is not doing that,” he said. “The certification is not complete. DEQ can use that authority to prohibit activity like tree felling that could affect water quality and we think it should do that.”

rzullo@timesdispatch.com

(804) 649-6453

Twitter: @rczullo

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