The Norfolk District of the U.S. Army Corps of Engineers (Corps) has been told that it would violate legal requirements should it reinstate the suspended verification for the Atlantic Coast Pipeline (ACP) using the Corps’ Nationwide 12 Permit (NWP12). The argument was set forth in a February 11 letter from the Southern Environmental Law Center (SELC), Appalachian Mountain Advocates (Appalmad) and the Chesapeake Bay Foundation. Pipeline projects like the ACP that cross waterbodies under the jurisdiction of the Corps are required by the Clean Water Act to have a NWP12 permit. The Corps had suspended the NWP12 for the ACP in November 2018 in response to a legal challenge by Appalmad on behalf of its client group of ABRA members (Sierra Cub, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Appalachian Voices, and Chesapeake Climate Action Network). The February 11 letter said that the permit for the ACP cannot be reinstated because:
- General Condition 10 of Nationwide Permit 12 requires Atlantic to “comply with applicable FEMA-approved state or local floodplain management requirements.”
- Nelson County, Virginia’s floodplain ordinance adopts a FEMA recommendation that critical facilities not be located within floodplains by mandating that any such facility proposed to be located in a special flood hazard area receive a variance.
- Atlantic sued the County in federal court, claiming that the variance requirement is preempted as applied to the Atlantic Coast Pipeline.
- Atlantic will not satisfy General Condition 10 unless Atlantic complies with the variance requirement, regardless of the outcome of Atlantic’s separate lawsuit.
- The Corps cannot lawfully excuse Atlantic’s plan to violate General Condition 10.