Atlantic Coast Pipeline Sues Nelson after Floodplain Variance Denial

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Early tree cutting near the Wintergreen entrance. Photo: Mary Cunningham.

The news of the Atlantic Coast Pipeline (ACP) plan to cross Nelson County has been discussed in many forums for the past several years. However the month of December brought many important decisions in close succession.

On December 3, the Nelson County Board of Zoning Appeals (BZA) held a public hearing to consider the application of the Atlantic Coast Pipeline, LLC, for floodplain variances to allow construction of the 42-inch natural gas pipeline across 4.5 miles of floodplain in Nelson County.  Thirty-five people attended the hearing, with twenty people speaking on record. 

The board voted to deny (3-2) the specific variance requests for the pipeline to cross designated floodplains due to insufficient information. The denial included Muddy Creek, UNT of Rockfish River, Falls Run and Dutch Creek.

The Nelson County zoning ordinance specifically includes “Structures or facilities that produce, use, store, or transport highly volatile, flammable, explosive, toxic, and/or water-reactive materials” in the list of “critical facilities [that] are prohibited from being constructed or operated within a SFHA [Special Floodplain Hazard Area] unless a Variance is granted.” (Article 10.15F on p. 87)

On December 6, ACP filed suit claiming the Natural Gas Act “pre-empts” the requirements of Nelson County’s floodplain ordinance.  The next day, Dominion Energy notified FERC it was stopping all work on the ACP while addressing numerous issues with the project’s various permits. 

ACP sign near Wintergreen Road. Photo: Mary Cunningham.

Virginia’s Attorney General, Mark Herring, decided to act on the same day and filed suit against Mountain Valley Pipeline (MVP) over repeated environmental violations. The nearby MVP is the shorter of the two pipelines proposed to cross Virginia and has been watched closely and compared to the terrain of ACP.  David Sligh, Conservation Director at Wild Virginia, pointed out that, “The State Water Control Board began proceedings to withdraw water quality certification from the MVP for violations that are predicted to occur in the same manner in the Atlantic Coast Pipeline.”  

Then on December 13, the Fourth Circuit Court of Appeals ruled that the U.S. Forest Service cannot permit the Atlantic Coast Pipeline (ACP) to cross two national forests, including the George Washington National Forest and the Appalachian Trail. In a quote from Dr. Seuss, the ruling chided the Forest Service for lack of authority to rule as it had. “We trust the United States Forest Service to “speak for the trees for they have no tongues.”

This case against the Forest Service was brought by the Southern Environmental Law Center, a founding member of the Allegheny-Blue Ridge Alliance, for the following Virginia neighbors: Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Association, Shenandoah Valley Network, The Sierra Club, The Virginia Wilderness Committee and Wild Virginia.

On December 14, the Southern Environmental Law Center, Appalachian Mountain Advocates, and Chesapeake Bay Foundation provided notification to the Federal Energy Regulatory Commission (FERC) of the Fourth Circuit Court decision with a request for revocation of certification and issuance of a stop work order for the ACP project.  Additional cases are still pending against the FERC, the U.S. Forest Service, the U.S Fish & Wildlife Service, the National Park Service and the Virginia Department of Environmental Quality. 

Drone photograph of the ACP pipeline under construction in West Virginia. Photo: Blue Ridge Geographics LLC.

On December 19 the State Air Pollution Control Board met and again delayed the decision on a permit for the gas compressor station in nearby Buckingham County. More than 100 people were in attendance, many from neighboring Union Hill. The front row seats were filled with Dominion executives. The project has caused divisions in the community and the approval process has drawn controversy over the timing of Governor Northam’s removal of two board members with expired terms. The board was supposed to vote in November but delayed to examine questions about community impact, and meanwhile the two were removed from the board. To address the political concerns over tampering with the approval process, the two new appointees are not to take part in the vote, leaving just four members to resolve the issue. The December meeting resulted in a 3-1 vote to delay action so the public can submit written comments on two competing demographic reports. Regarding the delay, Wild Virginia’s Sligh said, “It is disgraceful to provide the public such a short time to submit comments when people’s ability to be involved is limited over a holiday.” 

On December 27 a Legal Defense Fund was established for Nelson County by the Interfaith Alliance for Climate Justice. 

In recent years, new alliances to combat the strength of commercial interests have formed. Friends of Nelson, Friends of Wintergreen, Friends of Augusta, Friends of Buckingham are non-profit community member organizations formed to work in opposition to commercial pipeline development on private property. 

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