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Stop work order issued for ACP

The Federal Energy Regulatory Commission (FERC), in a notification issued Friday, ordered a stop-work order for the Atlantic Coast Pipeline (ACP) due to not obtaining a right of way permit on lands across the Blue Ridge Parkway, and citing a May 15 ruling by the United States Court of Appeals for the Fourth Circuit regarding the U.S. Fish and Wildlife Service reported failing to set clear limits on threatened or endangered species for the ACP, potentially violating a requirement by the Endangered Species Act.

FERC also rejected petitions to rehear its decision to issue a permit for building the ACP made Oct. 13, 2017.

The notification, signed by FERC Director of the Office of Energy Projects Terry Turpin, cited that the United States Court of Appeals for the Fourth Circuit legally voided a right of way permit by the Department of the Interior’s National Park Service (NPS) that would have allowed the ACP to be constructed across the Blue Ridge parkway.

“Atlantic and Dominion Energy Transmission, Inc. (DETI) are hereby notified that construction activity along all portions of the ACP and Supply Header Project and in all work areas must cease immediately, with the exception of any measures deemed necessary by appropriate agencies such as NPS and the U.S. Forest Service, or by FERC staff to ensure the stabilization of the right of way and work areas,” the notification cited.

The notification requires that Atlantic and DETI to provide an interim right of way and work area stabilization plan within five days of the notification being released for Turpin to review and approve. Atlantic and DETI can also file supporting information within three days of the FERC notification if there are areas of the pipeline that are considered independent utilities, meaning they are independent of Blue Ridge Parkway Crossway or places where endangered species are located and can still provide services.

The notification also cited the May 15 ruling from the United States Court of Appeals for the Fourth Circuit, where petitioners from Defenders of Wildlife, Virginia Wilderness Committee and Sierra Club, argued by the Southern Environmental Law Center (SELC), asked the court to seek review of the U.S. Fish and Wildlife Service’s Incidental Take Statement, which authorized the ACP project to take certain threatened or endangered species.

To take, according to a definition by the U.S. Fish and Wildlife Service, means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in any such conduct.” For five of the endangered species included within this authorization, “the three judge panels found the United States Fish and Wildlife Service’s Biological Opinion required to certify the Atlantic Coast Pipeline did not meet minimum legal standards,” documentation from the May case cited.

“In light of this development, Atlantic Coast Pipeline, LLC (Atlantic) has not obtained the right of way and temporary use permits from the NPS needed for ACP to cross certain federally owned lands and lacks an Incidental Take Statement for the project,” the order from Turpin cited.

“There is no reason to believe that the NPS, as the land managing agency, will not be able to comply with the Court’s instructions and to ultimately issue a new right of way grant that satisfies the Court’s requirements, or that FWS will not be able to issue an Incidental Take Statement that does likewise,” the notification continued. “However, Commission staff cannot predict when NPS or FWS may act or whether NPS will ultimately approve the same route. Should NPS approve an alternative crossing location, Atlantic may need to revise substantial portions of the ACP route across non-federal or federal lands, possibly requiring further authorization and environmental review. Accordingly, allowing continued construction poses the risk of expending substantial resources and substantially disturbing the environment by constructing facilities that might ultimately have to be relocated or abandoned.”

Chad Oba

Orders by FERC to reject a rehearing for both ACP and Mountain Valley Pipeline was issued Friday on a 3-2 vote, with members Kevin J. McIntyre, Chairman; Neil Chatterjee and Robert F. Powelson voting in favor of the rejection and Cheryl A. LaFleur and Richard Glick voting in opposition. The order prevents a rehearing from multiple petitions, one being Friends of Buckingham, asking FERC to rehear its decision made Oct. 13, 2017, to approve the ACP’s construction.

Chad Oba and Kenda Hanuman with Friends of Buckingham said they were excited to hear about the stop work order for the pipeline.

“I think the stop work order was long overdue, when you see the damage that’s already being done,” Hanuman said. “It obviously is not something that is safe or good for the environment, or for any of the landowners, or for anybody that uses the environment nearby.”

Oba appreciated that the court considered the concerns of residents, and said the decision also came even with the pressure from national organizations that would receive financial compensations from the project.

“I’m just delighted that the … court said no, you can’t do that, you actually have to uphold the law and do the things that you’re mandated to do to protect the environment,” Oba said.

Hanuman and Oba appreciated LaFleur’s and Glick’s statements and concerns on the pipeline, but said more people from state and national officials should speak up.

Aaron Ruby

“We need more voices,” Hanuman said.

In response to Friday’s stop-order ruling, Dominion Energy spokesman Aaron Ruby said the organization is already working with key agencies to resolve the issues cited in FERC’s order.

“We are confident these issues can be resolved quickly without causing unnecessary delay to the project,” Ruby said in the statement.

“FERC has given us the opportunity to provide evidence of any portions of the project that serve an independent public need and are not impacted by the recent court rulings. We will respond with strong evidence demonstrating the independent public need to proceed with construction of the Supply Header project, as well as portions of the Atlantic Coast Pipeline in West Virginia, eastern Virginia and North Carolina,” Ruby said. “These portions of the project will serve home heating and manufacturing needs in eastern Virginia and North Carolina and are not affected by recent court rulings.”

Ruby said ACP is also working with NPS to correct errors and omissions identified by the court. “We believe the agency can promptly reissue the permit based on the extensive public record and mitigation measures already in place,” Ruby said.

He also said ACP has provided U.S. Fish & Wildlife Service with “all of the information necessary to issue a revised Incidental Take Statement. We anticipate the agency will do so shortly.”

“The Atlantic Coast Pipeline has been the most thoroughly reviewed infrastructure project in the history of our region,” Ruby said. “The recent action by the courts and FERC are further evidence of this unprecedented scrutiny and the high standard that is being applied to this project.”

Ruby cited that delays to the construction could potentially pose the risk of higher energy costs to consumers and businesses.

“It will slow down the transition to cleaner energy, and it will deprive public utilities of the reliable energy they need to heat the homes of a growing population and power local businesses,” Ruby said.