Last week’s “Friday the 13th Massacre” decisions by the Federal Energy Regulatory Commission to approve the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MCP) have spawned a flurry of analysis and speculation about next steps. Both projects must still receive approvals from other government agencies, particularly water quality certifications under Section 401 of the federal Clean Water Act from the environmental authorities in the states through which the projects traverse: West Virginia, Virginia and, in the case of the ACP, also North Carolina. There will be a more in-depth discussion of the 401 reviews in next week’s ABRA Update.
In addition to other government agencies approvals being granted, each project is subject to satisfying specified environmental conditions set forth in their respective decision order that require the applicant to file additional information prior to construction or during operations. In the case of the MVP, there are 40 cited conditions (see Appendix C, p. 124, of the decision Order). For the ACP, there are 73 environmental conditions (Appendix A, p. 132).
Here are some highlights from the ACP listed conditions:
- Atlantic shall follow the construction procedures and mitigation measures described in their applications and supplements (including responses to staff data requests) and as identified in the EIS, unless modified by the Order.
- Atlantic’s exercise of eminent domain authority granted under the Natural Gas Act (NGA) section 7(h) in any condemnation proceedings related to the Order must be consistent with these authorized facilities and locations. Atlantic’s rights of eminent domain granted under NGA section 7(h) do not authorize them to increase the size of their natural gas facilities to accommodate future needs or to acquire a right-of-way for a pipeline to transport a commodity other than natural gas.
- At least 45 days prior to construction, Atlantic and DETI shall file their respective Implementation Plans with the Secretary, for review and written approval by the Director of OEP. Atlantic and DETI must file revisions to their plans as schedules change.
- Atlantic and DETI must receive written authorization from the Director of OEP before commencing construction of any project facilities. To obtain such authorization, Atlantic and DETI must file with the Secretary documentation that it has received all applicable authorizations required under federal law (or evidence of waiver thereof). The Director of OEP will not issue a notice to proceed with construction of the Atlantic or DETI project facilities independently.
- Atlantic shall not exercise eminent domain authority granted under section 7(h) of the NGA to acquire a permanent pipeline right-of-way exceeding 50 feet in width. In addition, where Atlantic has obtained a larger permanent right-of-way width through landowner negotiations, routine vegetation mowing and clearing over the permanent right-of-way shall not exceed 50 feet in width.
- As part of their Implementation Plans, Atlantic and DETI shall file with the Secretary, for review and written approval by the Director of OEP, a final Timber Removal Plan that:
- incorporates the recommendations included in the Virginia Department of Environmental Quality’s (VDEQ) letter dated April 6, 2017
- updates the construction schedule discussion; and
- updates all time of year restrictions (TOYR) related to migratory birds and special status species for tree clearing.
- As part of their Implementation Plans, Atlantic and DETI shall file with the Secretary, for review and written approval by the Director of OEP, finalized site-specific Timber Extraction Plans.
- As part of its Implementation Plan, Atlantic shall file with the Secretary, for review and written approval by the Director of OEP, a revised Karst Terrain Assessment Construction, Monitoring, and Mitigation Plan that includes monitoring of all potential karst areas for subsidence and collapse using LiDAR monitoring methods during years 1, 2, and 5 following construction.
- As part of its Implementation Plan, Atlantic shall file with the Secretary, for review and written approval by the Director of OEP, updated site-specific crossing plans for major waterbody crossings. The plans shall include, as necessary, the location of temporary bridges and bridge type, appropriate cofferdam locations, water discharge structure locations, pump locations, and agency-imposed TOYR and construction and restoration requirements.
- As part of its Implementation Plan, Atlantic shall file a final copy of its Haul Plan, which will address transportation of equipment, materials, and personnel along narrow public roads in steep terrain.
- Atlantic shall offer to conduct, with the landowner’s permission, postconstruction water quality tests, using the same parameters used in the preconstruction tests, for all water supply wells and springs within 150 feet of the construction workspace and within 500 feet of the construction workspace in karst terrain.