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Home My WebLink About20140957 Ver 1_SELC_20170508UTHERN ENVIRONMENTAL Telephone 919-967-1450 Iiia U.S. and electronic mail 601 WEST ROSEMARY STREET, SUITE 220 CHAPEL HILL, NC 27516-2356 May 2, 2017 Jay Zimmerman, Director Division of Water Resources North Carolina Department of Environmental Quality Archdale Building 512 N. Salisbury Street Raleigh, NC 27604 j ay. zimmeranan(rc,ncdenr.gov Re: 401 Certification Process for Proposed Atlantic Coast Pipeline Dear Mr. Zimmerman: E Facsimile 919-929-9421 Please accept these comments by the Southern Environmental Law Center ("SELC") related to the Division of Water Resources' analysis of the proposed Atlantic Coast Pipeline. SELL previously submitted comments on the Draft Environmental Impact Statement ("DEIS") for the Division's consideration, and we incorporate those comments by reference. t As described below, the Division must require an individual water quality certification under Section 401 of the Clean Water Act ("401 certification") for the proposed wetland and stream impacts from the pipeline. In addition, in evaluating this and any other permit applications related to the pipeline, the Division must require a meaningful environmental justice analysis in order to comply with the Department of Environmental Quality's longstanding practice and renewed commitment to environmental justice.3 The pipeline threatens to have widespread, long-term impacts to North Carolina's natural environment and, therefore, deserves close scrutiny. The proposed impacts to wetlands exceed the amount of impacts approved by DEQ in each of the last 10 years.3 The draft EIS reports that the proposed pipeline would affect 451..E acres of wetlands in the state, including 156.1 acres permanently. The draft EIS concedes that most of the wetlands destroyed are forested wetlands and that even "temporary" wetland impacts would last more than 30 years. North Carolina's streams fare no better—the draft EIS lists hundreds of stream crossings, yet fails to conduct any meaningful analysis of compliance with water quality standards. r The comments are posted on DEQ's Atlantic Coast Pipeline website, http://deq.nc.gov/about/divisions/energy- m i neral -1 and -resource s/acp. ' NC DENIM Environmental Equity Initiative (October 19, 2000). 3 See SELL: DEIS Comments, Attachment 26 (chart listing wetland impacts approved in North Carolina between 2007 and 2012). For purposes of this statement, one extraordinarily large project approved in 2008 is excluded from calculation. From 2007 through 2016,.?Borth Carolina approved impacts to 1,734 acres of wetlands, an average of 173 a year. NC's approved wetland impacts were less than 156 acres in 4 of the 10 years. 4 See DEIS at 4-120. Charlottesville Chapel Hill • Atlanta > Asheville • Birmingham * Charleston , Nashville • Richmond , Washington, DC 100% recycled paper Jay Zimmerman Mage 2 of 3 As explained in our comments on the draft EIS, these impacts to North Carolina waters and wetlands require an individual permit from the U.S. Army Corps of Engineers and are not eligible for Nationwide Permit 12 ("NWP 12").' They are likewise ineligible for the Water Quality General Certification No. 4086 for NWP 12 -eligible projects. The conditions in the general certification emphasize its inapplicability here. Activities that include any permanent modification of wetlands or waters require written approval. Vere, the draft EIS estimates that the pipeline would require permanent modification of more than 156 acres of wetlands. The general certification limits construction corridors to 50 feet; the draft ITIS proposes to use a 75 - foot right of way through wetlands .6 The general certification requires a "specific plan for restoring wetland contours;" the draft EIS does not include such a plan. in conjunction with its evaluation of the pipeline's water quality impacts, DEQ must also consider the project's impacts to minority and low-income communities. Construction and operation of the pipeline will bring disproportionate environmental harm and risks to low-income communities, communities of color, and state -recognized Native American tribes. The frequency of "environmental justice populations" along the pipeline route is a result of the company's decision to traverse regions of Eastern North Carolina that are arnong the most ethnically and racially diverse and poorest in the state. In the draft EIS, however, FERC inexplicably concluded that there would be no disproportionate impacts from the pipeline on environmental justice communities. The demographic analysis FERC conducted to reach this conclusion was deeply flawed. FERC compared the demographics of census tracts along the project route to the counties where those tracts are located, rather than to the state or region as a whale. For example, as a result of FERC's decision to only compare census tracts to their respective county, FERC concluded that there are no potential environmental justice concerns in census tract 111.01 in Nash County, North Carolina. However, 43.7 percent of that affected tract is African American, more than double the statewide percentage. In addition, FERC lumped all `'minorities" together when detennining whether environmental justice concerns are present in a given census tract. This approach masks the impacts the pipeline will have on particular racial or ethnic groups. For example, in one of the impacted census tracts in Wilson County (CT 15), the total "minority" population is under the county average and thus, raised no potential environmental justice concerns in the draft EIS. But 17 percent of the population of that tract is Latino, approximately double the state's Latino population generally. Because the pipeline route cuts through many racially diverse and impoverished counties, and because FERC's environmental justice review was fundamentally incomplete and flawed, DEQ and its divisions should not rely on that analysis when considering permit applications for the pipeline. DEQ should instead conduct its own, more thorough environmental justice review in conjunction with the 401 certification and any other permit applications for the pipeline. 5 sEL.0 DEIS Comments at 163-173 (Apr. 6, 2017). 6 DEI:s at 2-41. Jay Zimmerman Page 3 of 3 These are just a few ways in which the lack of information in the draft EIS precludes DEQ from finding that the project would comply with water quality standards through the use of Water Quality General Certification No. 4086. The inadequacy of information in the DIMS is further discussed in our comments on the DEIS. That deficit of information has led Virginia's Department of Environmental Quality to conclude that the project requires an individual water quality certification.7 Moreover, a similar deficit of information led the New York Department of Environmental Conservation to deny 401 certifications to the Constitution Pipeline Company in 20168 and the National Fuel Gas Supply Corporation and. Empire Pipeline in 2017.9 l-ike Virginia's and New York's environmental agencies, DEQ cannot ensure compliance with water quality standards based on the information provided in the DEIS. in light of the significant impacts of the proposed Atlantic Coast Pipeline would have on North Carolina waters and the communities that depend on them, we urge the Division to require an individual water duality certification for the pipeline. Sincerely, Geoffrey . Gisler Gly Glrgd See The Roanoke Times, "DEQ to require pipeline projects to secure state water- quality certification," (Apr. 6, 2017). 8 See Letter from J. Ferguson, ls1YDEC, to D. Schubri.ng, Constitution Pipeline Company (Apr. 22, 2016), htip://www. dec. ny. gov/docs/admin istration_pdf/constitutiotiwc42016.pdf. See Letter from J. Ferguson, NYDEC, to R. Kraemer, National Fuel Gas Supply Corporation and Empire Pipeline (Apr. 7, 2017), l,ttp:llwww.dec.ny-gov/docs(perrrtits`ej operations pdf/northaccesspipe42017.pdf.