The Fourth Circuit Court of Appeals on January 14 denied an appeal for review of the water quality certificate issued for the Atlantic Coast Pipeline (ACP) by the Virginia State Water Pollution Control Board under Section 401 of the federal Clean Water Act.
The case was filed with the Court in January 2018 and argued on September 28. The petitioners, most of whom are ABRA members, were represented by the Southern Environmental Law Center, Appalachian Mountain Advocates and the Chesapeake Bay Foundation. The principal contentions in the case were that approval of the 401-certificate for the ACP was arbitrary and capricious ACP because the Board:
- Invalidated its own findings that the Army Corps of Engineers Nationwide Permit 12 was adequate when it reopened a comment period for the Corps permit;
- Failed to assess the combined impacts on water quality resulting from multiple areas of construction within individual watershed areas;
- Failed to conduct an adequate anti-degradation review; and
- Failed to ensure that the water quality in karst geology regions would be protected.
The Court’s opinion rejected all four of these arguments.
The Water Board at its December 13 meeting to initiate a formal hearing process to consider revoking the 401 Certification of the Mountain Valley Pipeline (MVP) due to the numerous problems and violations that have occurred with that project. While one of the Board members suggested a similar action be considered for the ACP, it was deemed to be premature since earth moving construction has not yet begun in Virginia.