20140957 Ver 2_ACP_notes_5_20170922

Atlantic Coast Pipeline
North Carolina Department of Environmental Quality
Response to Information Request for 401 Water Quality Certification
Dated September 14, 2017 September 22, 2017
• ssao001—MP 116.9
iii. Your July 12, 2017 response to the Division also stated that utilizing
a dry method for several stream crossings would result in more
impact for a longer duration. Provide an explanation of the additional
impact and duration of the impact compared to using a dry method,
including specific plans showing the additional impact.
Atlantic's Response:
The waterbodies in the July 12, 2017 response where Atlantic noted that a dry
crossing would result in more impact for a longer duration are intermittent
streams that are 3 to 9 feet wide. In accordance with the FERC Procedures, in -
stream construction activities at each of these crossing will be limited to 24
hours. The equipment used to excavate the trench will be operated from one or
both banks of the waterbody and will not operate in the stream
itself. Temporary sidecast material excavated from the trench will be placed on
the bank above the high water mark (at least 10 feet from the edge of the
water). Use of a dry crossing method at these locations would require
2 l additional time and stream bed/bank impacts o accommodate the installation
and removal of the materials needed to isolate the flow of the stream (e.g.,
Vpvs flumes, sandbags). Due to the size of these crossings, it was determined that
the open -cut crossing method would have the least impact on the streams and
use of a dry crossing method would not reduce overall environmental impacts.
iv. Both dam and pump and flume method are listed for many stream
crossings. Provide the criteria for selecting one method over the
other, including who will make the decision and when the decision
will be made.
Atlantic's Response:
The crossing method is dependent on the stream conditions at the time of
crossing. The dam and pump method will be used at streams with a lower
flow rate at the time of crossing where pumps can be effectively used to
transfer the water around the workspace and provide uninterrupted flow.
The flume method will be used at streams with larger flow rates at the time
of crossing or where pumps cannot be staged on the banks. The
environmental inspectors working with the site construction supervisor will
make the determination on the appropriate method to employ. Because

Atlantic Coast Pipeline
North Carolina Department of Environmental Quality
Response to Information Request for 401 Water Quality Certification
Dated September 14, 2017 September 22, 2017
discharge rates cannot accurately be predicted at this time, the decision will
be made at the time of crossing.
v. The typical diagrams for each stream crossing method indicate that a
temporary bridge will be installed "if needed". Provide the criteria to
determine if a temporary bridge will be needed. If a temporary
bridge isn't needed, explain how equipment will operate without
crossing back and forth within the stream channel.
Atlantic's Response:
Temporary bridges are used at a majority of the stream crossings to allow
equipment and crews to move along the right of way in a logical manner.
Atlantic will install temporary bridges at all streams that can accommodate
a single span or simple in -stream support(s).
Stream crossings where the banks are deeply incised and narrow would be
an example where a temporary bridge would not be used. In this case the
excavation equipment would perform the workfrom the banks by reaching
into the waterbody.
vi. Provide construction drawings, including construction sequencing for
the Neuse River crossing.
Atlantic's Response:
Atlantic will utilize the HDD method to cross the Neuse River.
c. Provide a restoration plan for all stream crossings. This can be accomplished by
providing a site-specific plan for each crossing, or by providing a typical
restoration plan for each different type of restoration (e.g., restoration of
preconstruction contours, laying back banks on incised streams, or placement of
riprap to ensure streambank stability where the conditions at the crossing warrant
this protection) and assigning which restoration plan will be used at each stream
crossing.
Atlantic's Response:
Atlantic has provided typical details depicting standard waterbody crossing
restoration and restoration of waterbodies with riprap stabilization
(Appendix B). The type of restoration to be performed at each waterbody

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JOHN D. RUNKLE
ATTORNEY AT LAW
- --2321 DAMASC-TS--HURCH3tOAD - -- - _
CHAPEL HILL, N.C. 27816
919-942-o6o0 -
[e-mail]
VIA EMAIL
August 8, 2017
401 Permitting
1617 Mail Service Center
Raleigh, NC 27699-1617.
PublicComments(@ncdenr.gov
Re: Atlantic Coast Pipeline 401 Certification
Dear Sirs:
My client, NC WARN, was one of the 20 public interest groups sending joint comments
to FERC on the Draft EIS for the ACP. Our conclusion is that the DEIS and subsequent
FEIS are unacceptably inadequate and fail to meet the requirements of both FERC and
the National Environmental Policy Act. FERC in its EIS documents similarly failed to
respond to these concerns in any meaningful manner.
Similarly, the application for the 401 Certification is fundamentally flawed by ignoring a
broad range of relevant water quality impacts. It fails to meet the standards in 15A
NCAC 02H .0506(b) and (f). I am attaching the joint comments and urge you to include
them in your review of Dominion's application for the 401 Certification:
a. Sections I.A. and C. present the failure of Dominion to show the need for the
project, a required showing under the 401 rules when wetlands and streams are
potentially impacted. Sections 1.13. and F. show a failure to demonstrate practical
alternatives.
b. Section III provides several criticisms about the impacts of the proposed pipeline
on the environment, including water quality, including erosion and sedimentation,
groundwater and the mitigation of water quality impacts. The application's lack of
consideration of environmental justice concerns and cultural impacts is especially
troublesome.
c. Section V addresses reasonable direct and indirect impacts, and cumulative
impacts; several of which have direct impacts on water quality.

As an additional point, FERC has not approved the final route for the ACP and it
remains unclear where it will actually be located if approved. Since the DEIS was issued
Dominion supplement its FERC application with new information on 18 different
occasions, includingsignificantchanges on stream crossings and wetlands. Since the
FEIS was issued, Dominion has supplemented its application at least two additional
times. NC WARN, joined by many of the public interest groups, have formally requested
a supplemental DEIS as required by NEPA law.
I understand that many of the public interest groups are submitting much more specific
and technical comments on flaws in the application. NC WARN endorses those
comments and adopts them herein by reference.
Please notify me of any actions you make on this project.
FOR NC WARN
isi John D. Runkle
John D. Runkle
ATTACHMENT:
Joint Comments by Public Interest Groups on Draft Environmental Impact Statement,
submitted to FERC on April 5, 2017
2

proposed route. In such instances, there must be even greater scrutiny of project need
in the DEIS.
The procedures of the Natural Gas Act cannot replace the full and fair public
participation in the decision-making process that NEPA mandates. Due to FERC's
failure to determine the need for the project in the DEIS, commenters must assume that
FERC will rely on precedent agreements in order to assess the need for the ACP in its
proceedings under the Natural Gas Act. However, as detailed below, the precedent
agreements contracting for capacity on the ACP raise several concerns that call into
question the market need for the project. The DEIS should have considered these
issues and more fully addressed the "no action" alternative in the DEIS. These concerns
speak to the appropriate division of risk between ratepayers and shareholders and go to
the crux of the Commission's primary obligation under the Natural Gas Act to protect
consumers. For all of these reasons, the Commission should look behind the precedent
agreements supporting the ACP project and adjudicate whether the shipper
commitments represent genuine growth in market demand as to warrant the
construction of a $5.6 billion greenfield pipeline.
A. The DEIS does not sufficiently consider the need for the project and the no action
alternative.
The DEIS briefly discusses the purpose and need of the ACP project in Section
1.2, mentioning that ACP has entered into a series of precedent agreements and that
the project is fully subscribed. However, the DEIS omits several critical facts regarding
the timing, terms, and circumstances surrounding the precedent agreements
19

underpinning the ACP project. These concerns—further detailed below—call into
question whet r a bona fide ma ket need exists for the project.
The primary purpose of the NGA is to protect consumers of gas from excessive
costs.38 When gas consumers are captive ratepayers who provide essentially
guaranteed revenues for a project, risk is shifted from shareholders to ratepayers. Self-
dealing occurs when contracts with subsidiaries and other corporate entities are directly
linked to the parent companies. FERC has expressed concern over this type of risk-
shifting.39 In addition, establishing "need" is an essential requirement for FERC to
approve a permit for the ACP. certificate cannot be approved by FERC unless the
can demonstrate "need" in the marketplace for increased amounts of natural
gas. In this case, market need is established by shippers that are also owners, which
calls into question whether a bona fide market need exists.
A recent West Virginia court decision a ountain Valley Pipeline ("MVP")
found "no definitive evidence that any West Virginia consumers or non -MVP affiliated
natural gas producers would benefit from MVP's pipeline."40 Likewise, the present DEIS
provides no evidence that any consumers would benefit from the ACP.
38 http://naturalgas.org/regulation/history/
39 Comments on the Draft Environmental Impact Statement for the Proposed Mountain Valley Pipeline and
Equitrans Expansion Project, pp. 20-23: http //www appalmad.org/wp-content/ul2loads/2016/12/2016-12-
22-MVP-Comments-1. pdf
40 Mountain Valley Pipeline, LLC v. McCurdy, Case No. 15-0919 (W. Va. 2016), available at
http://www.courtswv.qov/supreme-courUdocs/fa112016/15-0919.pdf , p. 2.
20

1. Affiliate transactions require higher levels of scrutiny.
Both the Natural Gas Act and FERC precedent require heightened scrutiny of
affiliate agreements.53 In this case, 96% of the pipeline capacity will be sold to
owners/affiliates Duke Energy (now merged with Piedmont) and Dominion using 20 -year
contracts.54 These 20 -year contracts are known as "take -or -pay," which are usually
unlawful, except within the oil and gas industry.55 Under take -or -pay contracts, entities
that contract for gas delivery must either take delivery, or pay a penalty. According to a
June 23, 2016, filing with the Federal Trade Commission, Dominion ratepayers will likely
be paying far more per therm for gas delivered by the ACP than under previous
contracts.56 Much of this increase is likely due to take -or -pay contracts with high fixed
charges. These 20 -year "firm" contracts obligate ratepayers to pay for firm transportation
service every hour of every day for the next 20 years, regardless of whether the service
is actually used. Take -or -pay contracts also impose barriers for new entrants, such as
clean energy, and raise prices for consumers due to a lack of competition.
Affiliate agreements, such as the contracts Duke Energy and Dominion have with
their affiliate ACP, also imply self-dealing. Self-dealing is more likely when affiliates
depend on the expertise of regulated utility holding companies to help manage pipeline
investments, since utility holding companies have far more assets and are thus less risky
than pipeline companies.
ss See footnote 23.
54 Per the application, 1.44MMDth/d (96%) of the capacity for the ACP is under 20 year contracts with
Dominion (21%), Duke Energy (50%), Piedmont (11 %), Virginia Natural Gas NG (11%), and Unaffiliated
(7%).
55 https://www.ferc.gov/market-oversight/quide/enerqV-primer.pdf, p. 162.
51 http://wp.vasierraclub.org/LetterInFull.pdf
27

Therefore, from its inception, the market need for the ACP project has been
established by the very same corporate interests that also own the project. The fact that
the additional shippers of the project also took an ownership interest calls into question
whether a bona fide market need exists. The precedent agreements that followed after
the expiration of the open season appear to be indicative of utility holding companies
seeking to convert ratepayer transportation costs into shareholder return, as the basis
for their taking on affiliate equity interests as developers. Other motivations, including
the opportunity to recover a generous return on equity, should be considered by the
Commission as a critical driver for the project. As it has done in the past, the
Commission should view, with skepticism, precedent agreements that are not
connected to the open season process.57
2. Risk is shifted from shareholders to ratepayers when ratepayers provide
revenues.
When utility holding companies Duke Energy and Dominion invest in pipelines,
ratepayer transportation costs are converted into shareholder returns. Duke Energy and
Dominion are taking on affiliate equity interests as pipeline developers, with each utility's
holding company getting higher rates of return on pipeline projects (estimated 14%) than
allowed by state commissions (usually 10%). This provides excessive benefits to
shareholders at the expense of ratepayers. The stock market's projected rate of return
for the next five years is 4-7%. A recent FERC filing on the proposed Mountain Valley
57 Millennium Pipeline Co., L.P., 100 FERC ¶ 61,277 at p. 62,141 (2002) (citing Independence Pipeline
Co., 89 FERC % 61,283 at p. 61,840 (1999)) ("The proffered precedent agreement was not the result of,
or related to, Independence's open season. For this reason, we found that the DirectLink agreement did
not constitute reliable evidence of market need to support a finding that the proposal was required by the
public convenience and necessity.") DEIS p. ES -1, n.1.
28

construction workplace could be readily facilitated by GIS location of all residences
outside city limits or service areas of public water utilities.
The DEIS states that surface disturbances, clearing and trenching can impact
both surface water drainage and groundwater recharge patterns, with the most impact
to shallow surficial aquifers. FERC contends that most construction will be 10 feet or
less below the surface, and that the surface will be restored to its original contours. The
DEIS offers no protocols to prevent impacts including compaction affecting recharge of
shallow aquifers or infiltration of toxic or hazardous materials. The potential for toxic and
hazardous materials to be released in and near the construction workspace is
acknowledged, including: fuels, oils, lubricants, hydraulic fluids, and explosives for
blasting.
According to the DEIS,
Prior to construction and pending landowner authorizations, Atlantic and DTI
would test water supply wells and springs within 150 feet of the construction
workspace (within 500 feet of the construction workspace in karst terrain). In
addition to well yields, water quality parameters that would be tested include pH,
total suspended solids, total dissolved solids, conductivity, alkalinity, acidity,
sulfates, oil/grease, phenolic, iron, manganese, aluminum, copper, lead, nickel,
silver, thallium, zinc, chromium, arsenic, mercury, selenium, cyanide, calcium
magnesium, hardness, chlorides, antimony, cadmium, beryllium, and fecal
coliform. Sampling methods would comply with approved EPA and
state/commonwealth sampling.
The well testing must include all water supply wells within 500 feet of the construction
workspace and include ALL substances which could impact groundwater, including
components of natural gas liquids. Well owners must receive a copy of all testing
results, pre- and post -construction, and the opportunity to do independent testing by
certified laboratories.
77

Methods protective of well users in or near the workspace cannot be achieved
with a mere 'recommendation" that Dominion and its contractors complete a well survey
before construction begins.10 Dominion must prepare a list of all possible wells on land
parcels with potentially occupied buildings requiring a water source within 500 feet of
the construction workspace, and all methods must be assured to protect well water
sources for all such locations. The DEIS states that "Atlantic and DTI would conduct
post -construction water quality tests to ensure water supply wells and springs are not
adversely affected by construction activities. If damage claims occur, Atlantic and DTI
have committed to providing a temporary potable water source, and/or a new water
treatment system or well.""' The DEIS does not require that the well water testing
results would be reported to the well owner promptly, or that additional substances
possibly present near contaminated sites, used in construction activities, or resulting
from acknowledged potential leakage of natural gas liquids would be included in testing.
There is no information for landowners about the procedure initiate a claim if
there is evidence of well water quality or quantity impacts. Moreover, a single post -
construction well water test is inadequate to assure that there are no long term impacts
of construction or operation. Well testing must include fuels, lubricants, hydraulic fluids
and any explosives use, as well as the components of natural gas liquids and well flow
rate, The DEIS acknowledges that natural gas liquids represent the greatest ongoing
threat to groundwater during ACP operation.', Well testing for all of the standard
10 DEIS, p. 4-74.
"' DEIS, p. 4-82.

parameters, plus any hazardous or toxic materials used during construction, as well as
natural gas liquids, must continue annually during the operational life of the pipeline.112
All well tests must be by labs certified for analysis of all of the specified
contaminants and to detection levels below any North Carolina groundwater rules, 15A
NCAC 02L or interim maximum allowable concentration (I MAC) standards. All water
testing results must be reported to well owners with a comparison to those standards
within 20 days of testing. Dominion must state the procedure for a well owner to make a
claim of diminished flow rate or contamination their well for drinking water, and act
within 15 days of a substantiated claim to provide bottled water and within 60 days to
provide a permanent replacement safe water supply. �s
Relating to a Spill Prevention, Control, and Countermeasure ("SPCC') plan, the
DEIS notes that,
[Dominion has] prepared a SPCC Plan to avoid or minimize impacts of
hazardous material releases during construction and operation of ACP and
SHP. The SPCC Plan prescribes preventive measures such as regular
inspection of storage areas for leaks, replacement of deteriorating containers,
and construction of secondary containment systems around hazardous liquids
storage facilities. Moreover, the SPCC Plan provides explicit guidance on
handling hazardous materials during construction. Specifically, it would restrict
refueling or other liquid transfer areas within 100 feet of wetlands, waterbodies,
and springs, and within 300 feet of karst; prohibit refueling within 200 feet of
private water supply wells and within 400 feet of municipal water supply wells;
and require additional precautions (e.g., secondary containment) when specified
setbacks cannot be maintained.113
112 The need for water safety is compounded by the proximity of Superfund sites to the proposed route.
Possible contaminated sites that could be disturbed during construction include a Superfund site and 3
brownfield sites located in North Carolina close to the AP -2 section of the pipeline, as well as 9 leaking
underground storage tank sites near AP 2 in North Carolina.
113 DEIS p. 4-84
79

The above protections are inadequate to assure that water supply wells will be
protected, particularly in this area with vulnerable surficial aquifers. All pollution
prevention plans prepared by Dominion to avoid or minimize impacts during
construction and operation must be readily available to the public in plain language. The
training of employees, inspectors and enforcement of construction violations at all
stages must be transparent. Refueling or other handling of fuels and other toxic or
hazardous materials must be prevented within 500 feet of wetlands, private water
supplies or municipal water supply wells. Lesser setbacks in the DEIS, 100 - 400 feet,
provides an inadequate margin of protection.
The DEIS says that a variance procedure is in place for requests to allow
activities closer than specified setbacks. As is frequently the case, this mechanism can
be dangerous and allow for reduced oversight and riskier activities with little
documentation or recourse if contamination occurs. No variances must be permitted for
reducing setbacks of at least 500 feet from areas where any hazardous or toxic
materials will be handled.
The DEIS states in other sections that, in addition to Dominion -hired
Environmental Inspectors ("Els"), there would be third party inspectors accountable only
to FERC to review compliance and prevent accidents or failures. The independent
inspectors must report directly to the agency and inspection results must be available to
the public. The Els, who have the authority to stop work if violations have been detected
during inspections, must have specified protections from pressure and adverse
consequences from ACP or its construction contractors.
:01

The DEIS further states "[a]lthough the natural gas received by ACP and SHP
would be processed to remove natural gas liquids (NGL), small amounts of residual
NGLs may still be present in the gas. Standard operating procedures minimize the risk
of release of residual NGLs that may accumulate in the pipeline." Natural gas liquids
could be a substantial threat to groundwater quality, as the DEIS notes, and must
therefore be included in annual well water testing throughout the operational life of the
pipeline.
The Public Interest Groups strongly disagree that no long term impacts to
groundwater can be anticipated. The lack of key information for this assessment and
failure to include protocols to ensure that no impact will occur or will be quickly detected
are failures to meet NEPA requirements.
H. The DEIS does not address water quality impacts from the proposed ACP or provide
any information on mitigation.
The DEIS fails to meet basic informational requirements necessary to assess surface
water, wetland impacts, and key unique ecosystems. Supplemental information has not
been consolidated as part of the DEIS to fully disclose and enable assessment of the
potential impacts of the proposed ACP on surface water and wetland resources or
methods to mitigate those impacts. Here are several examples of deficiencies identified
that make credible assessment impossible:
a. Detailed site-specific crossing plans (e.g., locations of temporary bridges,
bridge types, cofferdam locations, water discharge structure locations, pump
locations) and mitigation measures (e.g., analysis of alternatives to reduce
m

impacts, restoration requirements, avoidance of cumulative impacts) are not
provided as part of the DEIS;
b. A detailed evaluation of flood zones and susceptibility of property through
which the pipeline is proposed to pass is necessary to fully define potential
water quality impacts of tropical storms and/or hurricanes. Information on
Special Flood Hazard Areas is inadequate and requires updating based on
recent historic flooding events in the watersheds in the route of the proposed
ACP.114
c. Pre- and post -construction water quality monitoring is not sufficiently defined
to ensure accurate assessment of water quality impacts resulting from
construction activities. A properly designed monitoring plan is required and
must be publicly available as part of the DEIS. Additional information needed
for a complete assessment includes sampling timelines, locations, replication,
and controls.
d. The assessment of impacts associated with wetlands crossings and disruption
is inadequate. This assessment should take into account wetland types and
significance, susceptibility to fragmentation and irreversible impacts, including
those associated with their ecological services such as water filtration, flood
control, and biotic community impacts, and proposed mitigation of these
potential impacts.
114 The Designated Flood Zones referenced in the DEIS are based on the existing 100 -year floodplain
maps. These designations must now be compared with flooding from Hurricanes Floyd and Matthew. The
DEIS also notes that "the Fayetteville and Pembroke M&R stations would be within Special Flood Hazard
Areas." It seems inappropriate to place crucial infrastructure, such as the metering and regulation
stations, in these areas.
82

e. There is insufficient detail regarding the sourcing of water for hydrostatic
testing, impacts on localized water quantity, and the disposition of
contaminated water following "pigging" of the pipeline.
f. As noted above, erosion, sedimentation, and turbidity are identified as
potential water quality impacts, but the DEIS lacks sufficient detail to evaluate
impacts from land cover changes resulting from construction and operation
activities, impacts on aquatic life (benthic and pelagic). Reliance on
recommended Best Management Practices (BMPs) as mitigation for these
identified issues cannot be assumed to be sufficient and inspection and
enforcement mechanisms are vague.
g. There is insufficient evaluation of cumulative impacts of construction and
operation activities on each of the large number of watersheds that will be
impacted. General assertions of minimal or no significant impact are
ompletely unsubstantiated in the DEIS.
h. The DEIS does not evaluate, account for, nor even acknowledge the potential
for impacts to headwater streams and wetlands of the Lumber River, a state
park, and a state -recognized Natural and Scenic River and a federally -
recognized Wild and Scenic River.
These deficiencies are representative of the information that is necessary, not only for
FERC to fully evaluate the environmental impacts of the proposed ACP, but to allow the
public to fully evaluate these impacts and to meaningfully participate in the NEPA
process.
M.

The DEIS contains other deficiencies relating to the impacts of the proposed
ACP on water quality -related issues. For wetland crossings in most areas, an attempt
would be made to dig up topsoil and keep it separate from subsoil so that it can be
replaced after the pipeline is filled. However, the DEIS acknowledges that "[t]opsoil
segregation generally would not be possible in saturated soils." It is likely that
substantial loss of ecological integrity would result from mixing topsoils and subsoils in
refilling trenches through wetlands. The DEIS's bald conclusion "we have determined
that ACP and SHP would not significantly impact wetlands" is simply not substantiated
by the information provided in the DEIS.
The DEIS section on North Carolina vegetation resources acknowledges that
North Carolina pocosins, Carolina Bays, canebrake communities, and bottomland
hardwood and pine forests that would be disturbed. The DEIS notes "[c]lay-based
Carolina Bay wetlands (herbaceous wetlands) would be crossed by ACP; these bays
are particularly abundant in Robeson, Hoke, and Scotland Counties." While the DEIS
further notes the importance of these unique areas are for birds and especially
amphibians, the list of federally endangered plants leaves out several key species,
including the American chaffseed (Schwalbea americana). The Carolina Bays are
extremely important ecological systems and are just briefly mentioned in the DEIS. Of
importance are facts not included in the DEIS; "an estimated 79 percent of the bays in
NC and SC have been cleared of native vegetation," and the "unaltered bays are wildlife
habitat for several endangered animals and rare plants and support a unique

community of species." Researcher Timothy Nifong counted 65 "special status" plant
species in these bays.15
The importance of isolated wetlands is ignored by the DEIS. Many of these
isolated wetlands are small, but the cumulative impact of disrupting or destroying so
many at the same time needs to be assessed. In addition to the larger forested
wetlands, the ACP threatens small wetlands, like the southern Carolina Bays,
headwater and isolated wetlands. These wetlands harbor at least 80 species of rare or
endangered plants. Statewide, about 70 percent of the rare and endangered plants and
animals depend on wetlands.
Similarly. the DEIS lists some of the natural areas, unique aquatic and terrestrial
communities that are listed as of state and global biological diversity significance,
including some that are seriously imperiled. The DEIS even acknowledges there would
be some permanent impacts, yet concludes that the impacts are not significant. A
credible and comprehensive assessment of these areas must be included to fulfill the
requirements of NEPA.
The DEIS fails to acknowledge the critical importance of NC coastal wetlands
and their key ecological and economic role to North Carolina. Because of the large size
of some eastern North Carolina wetlands and their proximity to coastal waters, these
wetlands are important regulators of freshwater, nutrient, and sediment inputs to North
Carolina estuaries. Almost one-half of North Carolina's wetlands are bottom -
land hardwood forests, which are valuable habitats for waterfowl breeding and
115 University of North Carolina, Department of Biology. See summary of Dr. Nifong's findings in
https://ncseagrant. ncsu.edu/coastwatch/previous-issues/2015-2/autum n-2015/ca rolina-bays-another-
mans-treasure/
85

overwintering and for anadromous fish spawning. Approximately 90 percent of the
State's commercial fish harvest is derived from estuary -dependent species. In 2014,
sales impacts for the North Carolina fisheries commercial fishing industry, which
includes nearly 20,000 jobs, totaled $1.5 billion with an additional $1 billion in value-
added impacts. The potential to permanently impact these wetlands given their value to
the Albemarle -Pamlico Estuary and its significance to commercial and recreational
fisheries is too high a risk both environmentally and economically.
The DEIS defines temporary impacts in a way that makes the entire corridor a
"temporary" impact; "[a]reas where no permanent structures, aboveground facilities, or
roads would occur are considered temporary impacts." The impacts of corridor
construction, and operation, will have a long-term and lasting impact on surface water,
wetland impacts, and key unique ecosystems. The DEIS section on general impacts
and mitigation of these impacts becomes completely inadequate, allowing Dominion to
merely restore topography and plant seeds to restore the vegetation. At the same time,
there are no detailed plans on how this would be accomplished, what the final result is
likely to be, and what the long-term water quality impacts will be.
IV. The DEIS fails to adequately assess greenhouse gas emissions and climate change
impacts.
The DEIS does not adequately evaluate the potential impacts of, alternatives to,
and mitigation measures for the proposed project on greenhouse gas (GHG) emissions,
public health, and the impacts of climate change.16 As discussed in detail below, the
116 www.psr.org/assets/pdfs/too-dirty-too-dangerous.pdf

CEQ's guidance on cumulative impacts recommends significantly expanding the
Lis
lative impacts analysis area beyond the "immediate area of the proposed action"
often used for the "project -specific analysis" related to direct and indirect effects:
For a project -specific analysis, it is often sufficient to analyze effects within the
immediate area of the proposed action. When analyzing the contribution of this
proposed action to cumulative effects, however, the geographic boundaries of
the analysis almost always should be expanded. These expanded boundaries
can be thought of as differences in hierarchy or scale. Project -specific analyses
are usually conducted on the scale of counties, forest management units, or
installation boundaries, whereas cumulative effects analysis should be conducted
on the scale of human communities, landscapes, watersheds, or airsheds.14
(emphasis added). CEQ further says that it may be necessary to look at cumulative
effects at the "ecosystem" level for vegetative resources and resident wildlife, the "total
range of affected population units" for migratory wildlife, and an entire "state" or "region"
for land use.
EPA guidance on cumulative impacts states that "[s]patial and temporal
boundaries should not be overly restrictive in cumulative impact analysis."15 EPA
ly cautions agencies to not "limit the scope of their analyses to those areas
over which they have direct authority or to the boundary of the relevant management
area or project area." Rather, agencies "should delineate appropriate geographic areas
including natural ecological boundaries" such as ecoregions or watersheds.
The analysis required in the cumulative impact sections should include effects of
shale gas development on vegetation and wildlife. FERC acknowledges that oil and gas
174 CEQ, Considering Cumulative Effects under the National Environmental Policy Act, 1997, p. 12.
(emphasis added)
175 EPA, Consideration of Cumulative Impacts in EPA Review of NEPA Documents, 1999, p. 8.
110

"The impact on the environment which results from the incremental impact of the
action when added to other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non -Federal) or person undertakes
such other actions. Cumulative impacts can result from individually minor but
collectively significant actions taking place over a period of time."
Cumulative impact analyses that contain "cursory statements" and "conclusory terms"
are insufficient. 13 FERC's cumulative impact analysis for the ACP is insufficient
because it is needlessly and impermissibly restrictive both in terms of time and
geography and relies on cursory statements and conclusory terms that seek to minimize
impacts to an array of environmental resources. As noted above, FERC has not done
an adequate job in assessing the direct and indirect impacts from the pipeline
construction. Conclusory statements are not analysis of the impacts.
FERC's cumulative impacts analysis is fatally flawed because it substantially
limited the analysis area to the vicinity of the ACP pipeline and associated facilities.
FERC should have broadened the scope to consider cumulative impacts on water
resources and wetlands. FERC also should have selected analysis areas for vegetation,
land use, and wildlife that were rationally connected to those particular resource areas.
Demographic data of the ACP route and alternative routes would have provided the
necessary information to make conclusions on the cumulative and disproportionate
impacts on sensitive populations.
173 Delaware Riverkeeper Network v. F.E.R.C., 753 F.3d 1304,1319-20 (D.C. Cir. 2014); see also Natural
Resources Defense Council v. Hodel, 865 F.2d 288, 298 (D.C. Cir. 1988) (although "FEIS contains
sections headed 'Cumulative Impacts,' in truth, nothing in the FEIS provides the requisite analysis,"
which, at best, contained only "conclusory remarks').
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