20140957 Ver 2_2017_08_18_Comments on Section 401 Certification Application for ACP_20170818

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
August 18, 2017
VIA E-MAIL AND U.S. MAIL
Jennifer A. Burdette
NC Department of Environmental Quality
401 Permitting
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
RE: Comments on Section 401 Certification Application for Construction of the
Atlantic Coast Pipeline
Dear Ms. Burdette:
The Southern Environmental Law Center and Sierra Club offer the following comments
on the application from Atlantic Coast Pipeline, LLC ("Atlantic") for a water quality certification
under section 401 of the Clean Water Act ("CWA") for construction of the Atlantic Coast
Pipeline and its facilities ("the ACP"). These comments include, and incorporate, the attached
comments prepared by Carpenter Environmental Associates ("CEA"), identifying additional
errors with the application.' These comments are submitted on behalf of the Southern
Environmental Law Center, Sierra Club, the North Carolina Conservation Network, Clean Water
for North Carolina, the Natural Resources Defense Council, Sound Rivers, the Concerned
Citizens of Tillery, and Winyah Rivers.
Atlantic's application for a 401 Certification suffers numerous flaws that stem from one
root failure the failure to include enough information to analyze the effects of the ACP, to
demonstrate that state laws will be complied with, and to ensure that the company is held to its
currently unenforceable promises during and after construction. North Carolina's 401
certification rules require much more. It is not enough to generically hope and conclude that
existing uses will be protected, that water quality standards will be met, that wetland hydrology
will be maintained, and that groundwater will be protected. Before the Division of Water
Resources can issue a permit, Atlantic must show that the rules requiring those protections are
met, and DWR must agree. Atlantic has made no such showing, and DWR must therefore deny
the application. Among other issues, there are practical alternatives to the ACP that cause
substantially less harm; the application fails to provide adequate information to ensure
minimization of adverse impacts to wetlands and waters of the state; and the application fails to
make even a prima facie case for compliance with water quality standards.
I Carpenter Environmental Associates, Report on the Revised Individual 401 Water Quality Certification and
Riparian Buffer Authorization Application Submitted by Atlantic Coast Pipeline, LLC (August 2017), included as
Attachment 1 ("CEA Report").
Charlottesville m Chapel Hill v Atlanta o Asheville a Birmingham e Charleston m Nashville a Richmond ® Washington, DC
100% recycled paper

It has never been clearer that a robust analysis of the ACP is necessary to protect the
health of our communities as well as our waters and wetlands. Just in the past month, two major
pipeline projects in Pennsylvania, West Virginia, and Ohio (the Sunoco Mariner East 2 Pipeline
Project, and the Rover Pipeline Project) have been halted by state environmental agencies due to
hundreds of construction, maintenance, and operation violations that resulted in significant
avoidable sedimentation and erosion,2 and the release of millions of gallons of drilling fluids.' In
Ohio, several million gallons of bentonite slurry, used for drilling, were spilled into the state's
wetlands.4 The company then began transporting the fluid to a nearby quarry before the Ohio
Environmental Protection Agency discovered that it contained diesel, and could contaminate
nearby drinking water.5 Pipeline companies, such as Atlantic, are incentivized to reduce
construction time and cost—at the expense of the public's health and safety, and our natural
environments, and must be held to the highest standards. The pending application simply does
not meet those standards.
Atlantic has submitted an application that fails to provide site-specific information or
analysis for hundreds of crossings. The company essentially argues that because its project will
have such widespread effects, it should somehow be exempted from the 401 certification
requirements that apply to smaller project. That is not so. Even if Atlantic only failed at 10
percent of its crossings, the company would destroy more than half a mile of stream and nearly
50 acres of wetlands. As recent history in other states demonstrates, the likelihood of failure in
the absence of reasonable agency oversight threatens to do much more damage. The foundation
of that oversight is site-specific information in the application in order to adequately determine
and minimize the comprehensive wetland and waterbody impacts of the Pipeline and its
facilities. As evidenced by the recent incidents in West Virginia, Pennsylvania, and Ohio, if the
agency ultimately proceeds with a 401 certification, DWR must also request, monitor, and
enforce proper construction procedures and restoration measures, in order to minimize adverse
water impacts.
2 WV Dep't of Envtl Protection, Order Issued Under The Water Pollution Control Act, West Virginia Code, Chapter
22, Article 11 ("Rover Pipeline LLC shall immediately cease & desist any further land development activity until
such time when compliance with the terms and condition of its permit and all pertinent laws and rules is achieved"),
available at http://wvrivers.org/wp-content/uploads/2017/05/Rover-Pipeline-8749-Unilateral-Order.pdf, included as
Attachment 2.
3 Order of the Commonwealth of PA, Envtl Hearing Board, Docket No. 2017-009-L, available at
http://ehb.courtapps.com/efile/documentViewer.php?documentlD=38322, included as Attachment 3; PA Dep't of
Envtl Quality: Spreadsheet detailing the "inadvertent returns and the status of the incident for construction related to
the Mariner East 2 pipeline (to be updated weekly), available at
http://files.dep. state.pa.us/Programintegration/PA%20Pipeline%2OPortal/MarinerEastIl/Sunoco_Mariner_East_II-
Pipeline_Construction_Inadvertent_Returns-Waters_of_the_Commonwealth_Revised.pdf (last visited August 9,
2017), included as Attachment 4.
4 As discussed in Ohio Environmental Protection Agency's order, the company also committed numerous water
quality and stormwater violations. Order of the Ohio Environmental Protection Agency (July 7, 2017), included as
Attachment 5.
5 Shane Hoover, Diesel fuel found in mud from pipeline project, The Columbus Dispatch, June 2, 2017, available at
http://www.dispatch.com/news/20170602/diesel-fuel-found-in-mud-from-pipeline-project; Phil McKenna, Rover
Gas Pipeline Builder Faces Investigation by Federal Regulators, Inside Climate News, July 19, 2017, available at
https:Hinsideclimatenews. org/news/ 19072017/rover-gas-pipeline-ferc-investigation-historic-home-demolished-ohio-
farm-fields-wetlands.
2

I. Atlantic Has Not Demonstrated That the ACP Is Needed for Reliability; There Are
Practical Alternatives to the Proiect
The most powerful tool DWR has to protect waters and wetlands is the requirement that
if there is a practical alternative to a project, then no certification can be issued. 6 The ACP has
alternatives: existing pipeline capacity and the growth of alternative forms of energy. Each of
these is an alternative that will "avoid or result in less adverse impact to surface waters or
wetlands," and still achieve the basic project purpose of serving energy needs within the region.7
First, the energy landscape that prompted Dominion Energy and Duke Energy to propose
the Atlantic Coast Pipeline in 2014 has changed dramatically in the last three years, undermining
market demand for the Atlantic Coast Pipeline. Electricity load forecasts for North Carolina have
declined since 2014,8 resulting in Duke Energy utilities revising their demand forecasts
downward.9 Demand for natural gas for power generation in the region that includes Virginia
and North Carolina is not expected to increase through 2030.10 Studies show that the capacity of
existing natural gas pipeline and storage infrastructure, with planned modifications, is more than
sufficient to meet demand for natural gas." Finally, it is worth noting that there is no true
"market" demand. Atlantic is owned by a conglomeration of energy companies, including Duke
Energy. Affiliates of those same energy companies have contracts to purchase nearly all of the
gas from the ACP, which they will then use to generate electricity for a monopolized market. 12
Requiring a meaningful practical alternatives analysis is particularly crucial here, where the
market cannot possibly force a better alternative.
6 15A N.C. Admin. Code 02H .00502(b)(1), (c)(1), (f).
7 15A N.C. Admin. Code 02H .00502(b)(1), (c)(1), (f).
8 James F. Wilson, Wilson Energy Economics, Evaluating Market Need for the Atlantic Coast Pipeline 5 (2017) (If
these utilities "were to re-evaluate [their] commitment to ACP, [they] would likely find that the commitment is not
needed at this time, it is unclear when such capacity might be needed, and it is also unclear when such capacity
might be needed, and it is also unknown whether better options might be available at such time as incremental
pipeline capacity does become needed."), included as Attachment 6.
9 Duke Energy Carolinas, Integrated Resource Plan (Annual Report) 13-14, NCUC Docket E-100,
Sub 141 (Sept. 1, 2014), available at http://www.energy.sc.gov/files/view/2014DukeEnCarlRP.pdf, James F.
Wilson, Wilson Energy Economics, Evaluating Market Need for the Atlantic Coast Pipeline (2017).
10 U.S. Energy Info. Admin., Annual Energy Outlook 2017 5 (2017), https://www.eia.gov/
outlooks/aeo/pdf/0383%282017%29.pdf, See U.S. Energy Info. Admin., Annual Energy Outlook 2017, Table:
Energy Consumption by Sector and Source, https://www.eia.gov/outlooks/aeo/data/browser/#/?id=2-
A-E02017&cases=ref20l7&sourcekey=0 (last visited August 9, 2017).
" Rachel Wilson et al., Synapse Energy Economics, Are the Atlantic Coast Pipeline and the Mountain Valley
Pipeline Necessary? An Examination of the Need for Additional Pipeline Capacity into Virginia and the Carolinas 1
(2016), included as Attachment 7.
12 N. Jonathan Peress, Environmental Defense Fund, Hearing to Examine Oil and Gas Pipeline Infrastructure and
the Economic, Safety, Environmental, Permitting, Construction, and Maintenance Considerations Associated with
that Infrastructure: Hearing Before the S. Comm. on Energy & Nat. Res., 114th Cong. (June 14, 2016) ("[W]e are
seeing a disturbing trend of utilities pursuing a capacity expansion strategy by imposing transportation contract costs
on state -regulated retail utility ratepayers so that affiliates of those same utilities can earn shareholder returns as
pipeline developers.... Thus ratepayer costs which may not be justified by ratepayer demand are being converted
into shareholder return."), included as Attachment 8; Wilson, supra note 8, at 3 (Because "the future need for
incremental gas supply for new gas-fired generation is highly uncertain," precedent agreements between affiliates
involving captive ratepayers "may not be a reliable indicator of the market need" for new natural gas pipelines.").

Additionally, renewable alternatives—solar, wind, and battery storage—are gaining
market share as their costs continue to drop.13 In its 401 application, Atlantic briefly discusses
alternative energy sources, including wind and solar, but it does not claim that these sources are
unavailable as practical alternatives. It only manages to assert that these alternatives would also
"require new infrastructure." 14 It is possible that the new infrastructure required by alternative
energy sources would avoid any wetland and water impacts; Atlantic has not analyzed this, and
therefore has not demonstrated that these credible alternatives are not practical. Since it has not
been established that there are no practical alternatives, and that the ACP is necessary at this
time, the application must be denied.
II. The ACP Would Cause Disproportionate Harm to Underrepresented Communities
in North Carolina
The ACP will not only damage the natural environment, it also threatens low-income
communities, racial and ethnic minorities, and state -recognized Indian tribes. Consistent with its
obligations under Title VI of the Civil Rights Act of 1964, DWR must ensure that the ACP
would not have an unjustified disproportionate impact on the water quality of environmental
justice communities.
DEQ's compliance with its Title VI obligations has recently been called into question by
the External Civil Rights Compliance Office of the EPA. In January of this year, the External
Civil Rights Compliance Office sent a letter to DEQ in response to a pending Title VI
complaint15 filed by the North Carolina Environmental Justice Network and the Rural
Empowerment Association for Community Help regarding the disparate impact of permitted
industrial swine operations.16 Importantly, the Civil Rights Compliance Office found that when
the complaint was filed in 2014, DEQ was not in compliance with the implementing regulations
of Title VI. These regulations "form the foundational elements of the recipient's program to
implement the federal non-discrimination statutes."17 As of January, the Civil Rights Compliance
Office was unsure whether DEQ had finished putting in place these essential elements of a state
agency's nondiscrimination program. DWR should not issue a 401 Certification for a project of
this magnitude before it has fulfilled its obligations to establish a properly functioning
nondiscrimination program to meet its obligations under Title VI.
In addition to its Title VI obligations, DWR must comply with DEQ's longstanding
Environmental Equity policy by performing analysis of demographic information to identify
communities that may be disproportionately impacted by the ACP. DWR should then use that
more refined demographic analysis to determine whether the ACP would bring heightened
13 See Matt Cox, The Greenlink Group, Clean Energy Has Arrived: Tapping Regional Resources to Avoid Locking
in Higher Cost Natural Gas Alternatives in the Southeast 3 (2017), included as Attachment 9.
14 Atlantic Coast Pipeline, 401 Water Quality Permit Application: Supplemental Information 28 [hereinafter
Supplemental Information] (May 2017).
15 N.C. Environmental Justice Network, et al. Title VI Complaint to EPA, EPA File No 11 -R -14-R4 (Sep. 3. 2014).
16 External Civil Rights Compliance Office of the EPA, Letter of Concern to William G. Ross, Jr., Acting Secretary
of NC DEQ, EPA File No. I IR -14-R4, (Jan. 12, 2017).
17 Id. (citing 40 CFR Part 7, Subpart D).
2

environmental health risks to vulnerable communities or further threaten waters relied on by
these communities for drinking water, fishing, recreation, or other uses.18
DWR cannot rely on the scant environmental justice analysis prepared by the Federal
Energy Regulatory Commission (FERC) in the ACP's Final Environmental Impact Statement
(FEIS), but must instead perform its own review. The FERC used overly broad data, made
invalid, overly narrow comparisons, and improperly aggregated all minority population data
when evaluating whether there were any potential environmental justice concerns along the path
of the pipeline.19
By aggregating demographic data, the FERC lumped all "minorities" together when
determining whether any environmental justice concerns were present in a given census tract.
This approach masked the impacts the ACP 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 EIS. But 17 percent of the population of that tract is Latino, approximately
double the county's (and the state's) Latino population generally. Similarly, the FERC concluded
that there were no environmental justice concerns regarding impacts on "minorities" in census
tracts 113 or 114 of Nash County even though the Latino population in each of those tracts (23.6
and 24.6 percent, respectively) is about three times the statewide percentage and four times the
county percentage.
Finally, the FERC disregarded even those census tracts where it acknowledged potential
environmental justice concerns by concluding that this massive, new industrial project carries no
real risks to the human environment. For example, the FERC flagged every identified census
tract in the following counties as containing percentages that exceed thresholds for being
designated as "an environmental justice population": Johnston, Halifax, and Robeson counties in
North Carolina. 20 In addition, there are a large number of census tracts along the ACP route with
disproportionately high percentages of African Americans, particularly in Northampton, Halifax,
and Nash counties .21 Nevertheless, the FERC concluded that "environmental justice populations
would not be disproportionately affected" by the ACP.22 This conclusion ignored the higher risk
of hazard exposure from catastrophic events to minority populations in addition to the threats
posed by pipeline construction to the waters relied on by these communities.
DWR can only adequately address the effect of the ACP on underrepresented populations
by correctly identifying areas where they would be affected and soliciting input in those areas. If
DEQ were to do so, it would find that a variety of negative effects from the ACP exist. For many
18 NC DENR Environmental Equity Initiative, (October 19, 2000).
19 DEIS comments, at 259-65.
20 DEIS at U-1.
21 In particular, there will be disproportionate impacts from Compressor Station Three in Northampton County to
African American communities. The Northampton County compressor station would be placed in census block
group 6 (of census tract 9203), which is approximately 79.2 percent African American—also far higher than the
population in the state, which is about 22 percent .21 Proximity to compressor stations can cause serious health
problems, including respiratory ailments and cardiovascular disease from ozone exposure, as well as
gastrointestinal, neurological, and psychological effects from toxic volatile organic compounds, particulate matter,
and other dangerous substances associated with natural gas infrastructure. DEIS comments, at 273-274, 271-302.
22 Final EIS at ES -16.
5

of these communities, impacts to multiple upstream water bodies and wetlands may threaten
subsistence fishing or recreation.
DWR should engage in direct, government to government consultation with the state
recognized Indian tribes that are affected by this large, industrial project .23 As we stated in our
comments on FERC's Draft Environmental Impact Statement, over half of the census tracts
impacted by the pipeline in Robeson County, North Carolina have populations over 50 percent
Native American; some are over 80 percent Native American—a much higher percentage than
their total population in the state as a whole, which is 1.2 percent. 24 In Halifax County, one of the
census tracts that intersects with the ACP is nearly 30 percent Native American. The pipeline
will affect other tribes as well, including the Coharie and Haliwa-Saponi tribes. 25 For
generations, enrolled tribal members have used many of the waterbodies that will be crossed and
re -crossed by the ACP including the Roanoke River, the Little Quankey and Quankey Creeks,
Fishing Creek, Swift Creek, and the Little Sapony and Sapony Creeks, as well as their many
tributaries.
The effects of the ACP on these communities are significant and must be addressed prior
to DWR taking any action on the 401 certification. Because DWR has not done such an analysis,
the certification should be denied.
III. The ACP Would Cause Significant, Long-term Damage to the Environment in
Eastern North Carolina
The ACP will tear through nearly 200 miles of North Carolina, cutting straight across the
entire eastern part of the state. 26 Construction of the ACP will harm nearly 37,000 feet of 326
waterbodies,27 and at least 467.7 acres of valuable wetlands28—more than North Carolina has
approved in 9 of the last 10 years. 29 As with streams and wetlands, it will bisect communities,
farms, and forests throughout the coastal plain. This pipeline is a colossal undertaking, and it is
essential that DWR has all the information necessary to determine the true impacts that this
23 In addition to the environmental justice concerns noted above, state -recognized Indian Tribes have governing
authority in their territories that should be respected by DWR. For example, state law recognizes the Haliwa-Saponi
Indian Tribe's governing body, which exercises "substantial governmental duties and powers similar to the State."
N.C. Gen. Stat. § 71A-5
24 DEIS comments, at 273.
25 DEIS comments, at 273.
26 Supplemental Information, at 11.
27 Supplemental Information, at 31-32, Table 4.
28 Fed. Energy Regulatory Comm'n, Atlantic Coast Pipeline and Supply Header Project: Final Environmental
Impact Statement [hereinafter FEIS] 4-135 (2017).
29 See Attachment 10 (chart listing wetland impacts approved in North Carolina between 2007 and 2012). The ACP
is the second largest project during this time period, with one extraordinarily large project in 2008. Excluding that
project, from 2007 through 2016, North Carolina approved impacts to 1,734 acres of wetlands, an average of 173
acres per year. NC's approved wetland impacts were less than 156 acres in 4 of the 10 years; see also Comments to
FERC on the Draft Environmental Impact Statement for the Proposed Atlantic Coast Pipeline and Supply Header
Project, submitted by SELC on behalf of Conservation Groups, Apr. 6, 2017, at 163, included as Attachment 11
("DEIS Comments").
M

endeavor will have on the state's waters, wetlands, and neighboring communities before
certifying that the project will comply with state standards. °
A. The ACP Would Result in Extensive Destruction of Streams and Wetlands in
North Carolina
Construction and operation of the ACP will cause extensive and long-lasting impacts to
North Carolina's waterbodies and wetlands. During construction, a total loss of stream, wetland,
and riparian habitat will occur within a construction right-of-way that can be up to 75 feet
wide. 1 Vegetation and mature trees will be mowed down within the 75 -foot corridor to make
way for heavy construction equipment that will plow through delicate wetland soils and
protective stream banks. For virtually all 468 acres of impacted wetlands, the blasting and the
digging of trenches will occur directly in saturated waters,32 causing excessive sedimentation and
destroying fragile layers of hydric soil that rely on stable, low -oxygen conditions to perform
unique wetland functions.33
Sedimentation and turbidity from construction in 326 waterbodies and 468 acres of
wetlands can seriously impair aquatic life and habitats. As stated in the FERC's Final
Environmental Impact Statement (FEIS) for the ACP, sedimentation can cause "permanent
alterations in invertebrate community structures, including diversity, density, biomass, growth,
rates or reproduction, and mortality. ,34 Additionally, sedimentation and turbidity "reduc[e] light
available for photosynthesis," and reduce visibility, harming organisms' ability to find food or
avoid prey.35 Sedimentation can also clog the gills of fish and harm their respiratory functions, as
well as "smother spawning beds," fish eggs, and benthic biota, including many endangered
freshwater mussel species, which have evolved in "low levels of suspended sediment and may
not be able to compensate" for increased levels. 36 Furthermore, changes to habitat caused by
sedimentation can "reduce juvenile fish survival, spawning habitat, and benthic community
diversity and health. ,37 The FEIS reveals that the construction of the pipeline could cause up to
800 percent more erosion than usual '38 and that "[w]ater resource impacts from sedimentation
are largely uncertain."39 This is especially concerning because the pipeline will run through
several spawning and nursery areas, essential to endangered species such as the Atlantic sturgeon
and the Shortnose sturgeon, as well as North Carolina's important commercial striped bass
fishery and the headwaters of creeks and rivers with river herring habitat. Impacts to wetlands
30 As the 2nd Circuit has recently stated in upholding the New York State Department of Environmental
Conservation, or NYSDEC, decision to deny 401 certification for the Constitution pipeline, "an agency's decision
may be found `arbitrary and capricious' for `issuing a permit with insufficient information'." Constitution Pipeline
v. NYSDEC, et al. No. 16-1568, slip op. (2nd Cir. Aug. 18, 2017), included as Attachment 18.
31 Supplemental Information, at 14.
32 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C 1.
33 US Forest Service, Forested Wetlands: Functions, Benefits and the Use of Best Management Practices, at 20-22,
available at https://goo.gl/J6FFJv, included as Attachment 12 ("USFS Wetlands Report").
34 FEIS, at 4-228-229.
" FEIS, at 4-228-229.
36 FEIS, at 4-228-229.
37 FEIS, at 4-228-229.
38 FEIS, at 4-128.
39 FEIS, at 4-129 (emphasis added).
7

and waterbodies "have the potential to drastically change the species diversity of a system [...],
opening the door for less desirable species representative of a degraded habitat."40
Even after construction is completed, there will be permanent damage caused by the
destruction of wetland soils and mature canopies. The ACP will leave a permanent gaping strip
above the right-of-way in forested wetlands and forested riparian areas, where trees will not be
permitted to regrow. Mature canopies outside of the right-of-way in forested wetlands can take
over a century to recover—if they ever achieve recovery.41 Furthermore, sedimentation and
erosion can be expected to continue long after construction from disturbed stream beds and
unanticipated flooding and storm events—resulting in the chronic degradation of water quality
and habitats .41
B. The Effects of the Project Would Be Permanent Under Any Reasonable
Interpretation and Should Be Analyzed as Such
The ACP will cause extensive permanent impacts to wetlands and waterbodies—all of
which have been grossly understated by Atlantic. Atlantic claims that there will only be 0.8 acres
of wetlands lost in North Carolina ,43 when over 390 acres of forested wetlands will be
deforested, or take over a century to recover—if recovery ever occurs.44 Atlantic claims that
there will less than a mile of permanent impacts to stream banks, when over seven miles of
stream banks will be severely damaged and cleared of protective trees, and will likely suffer
permanently increased erosion and sedimentation.45 Atlantic falsely summarizes these impacts as
"no more than minimal. 46
1. Nearly 85% of the wetlands impacted in North Carolina are forested
wetlands that will be permanently impacted from construction of the
pipeline
Initially, forested wetlands will be cleared of trees within a 75 -foot construction right-of-
way above the pipeline.47 After construction is finished, Atlantic will continue to prevent any
regrowth of trees within a 30 -foot area of the entire length of the pipeline, 48 permanently
degrading the functions performed by a forested wetland, fragmenting and disrupting the
breeding territories of existing populations such as the federally endangered Cerulean Warbler,
and paving the way for the intrusion of invasive species. 49 Outside of this 30 -foot area, forested
40 CEA Report, at 14.
" FEIS, at ES -10.
42 Samantha Brett, Environmental Considerations of Pipeline Installation Methods through Watercourses, Royal
Roads University 10 (2016) (emphasis added), available at
https://viurrspace.ca/bitstream/handle/10170/950/brett—samantha.pdf?sequence=l&isAllowed=y, included as
Attachment 13 ("Brett Study").
43 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C2.
44 FEIS, at 4-135, Table 4.3.3-2; FEIS, at ES -10.
45 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C2.
46 Supplemental Information, at 86.
47 FEIS, at 4-135, Table 4.3.3-2; Supplemental Information, at 14.
48 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix J, at 29.
49 CEA Report, at 13-14. Avian species that will be affected include the Scarlet Tanager, the Wood Thrush, and the
Worm Eating Thrush. These species are "very sensitive to nest predation and to parasitic nesters." Id.
N.

wetlands take a century or more to recover—if they do at all .50 Not only has Atlantic severely
distorted impacts to wetlands by labeling permanently cleared forested wetlands as mere
"conversions,"51 and by labeling impacts lasting a century or more as merely "temporary,"Sz
Atlantic also has failed to show that forested wetlands will ever recover from this project.
The loss of those wetlands is important; forested wetlands perform distinct ecological and
hydrological functions. For instance, forested wetlands are "unusually efficient in
nutrient/pollutant removal associated with runoff from upland systems and, as such, are usually
very productive systems that provide excellent water quality protection for their associated water
bodies."53 The loss of forested wetlands can also dramatically reduce the particular wetland's
ability to store storm and floodwaters, which is essential given that North Carolina will likely
experience future extreme storm events like Hurricane Matthew. 54 A 1981 study in Mississippi
found that the loss of forested wetlands and confinement by levees reduced floodwater storage
capacity by 80 percent.55 The U.S. Forest Service concluded that the Great Flood of 1993 of the
Upper Mississippi River Basin "proved this protection to be true and resulted in immeasurable
damage," and that proper management of a forested wetland can not only improve wildlife
habitat, but also "produce revenue to offset the cost [... ] for flood control. ,56 Furthermore,
forested wetlands provide habitats unique from those provided from other kinds of wetlands, and
are preferred by wildlife such as muskrats, beavers, black bears, red -shouldered hawks, herons,
and wood ducks.57 Finally, forested wetlands "are a major source of groundwater recharge."58
The U.S. Supreme Court has interpreted the purpose of the Clean Water Act as preserving "the
natural structure and function of ecosystems."59 When it comes to forested wetlands, "the
removal of all of the vegetation would destroy the vital ecological function of the wetlands."60
In addition to the widespread loss of forested wetlands within the pipeline's right-of-way,
there will be long-lasting, potentially permanent impacts to forested wetlands outside of the
right-of-way. Although Atlantic describes these impacts as "temporary, ,61 the closed canopy of a
mature wetland forest could take "up to a century or more" to recover, and it is indisputable that
50 FEIS, at ES -10 (emphasis added).
51 Atlantic claims that impacts to 155 acres of North Carolina wetlands are "conversions," and that there will only be
0.8 acres of lost wetlands. Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C2.
52 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C2; FEIS, at ES -10.
53 CEA Report, at 4.
54 "Wetland use" under 15A N.C. Admin. Code 2B. 0231(a)(1); see also Pamela C. Dodds, Assessment of the
Adverse Hydrogeological Impacts Resulting from Construction of the Proposed Atlantic Coast Pipeline in West
Virginia, Virginia, and North Carolina [hereinafter Dodds Study] (2017), Section 1.3 ("[D]eforestation removes the
protective tree canopy, causing increased stormwater discharge and decreased groundwater recharge."), included as
Attachment 14 ("Dodds Study"); see also CEA Report, at 4 ("They are often critical flood water storage and
groundwater recharge areas.").
55 USFS Wetlands Report, at 18.
56 USFS Wetlands Report, at 18; The Great Flood of 1993, U.S. Geological Survey Website, available at
https://mo.water.usgs.gov/Reports/1993-Flood/ (last visited August 17, 2017).
57 USFS Wetlands Report, at 32-35; see also CEA Report, at 4.
58 CEA Report, at 11.
59 U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132, (1985) (emphasis added).
60 Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir. 1983).
61 Temporary impacts appear to include impacts that could take a century or more to recover from, and even include
"permanent" and "extra temporary" workspace. Atlantic Coast Pipeline, 401 Water Quality Permit Application,
Appendix C2; FEIS, at ES -10.
X

these effects will be significant and long-lasting.62 As stated in the FEIS, "[i]mpacts on forested
wetlands would be much longer, and may include changes in the density, type, and biodiversity
of vegetation. [... ] Impacts on habitat may occur due to fragmentation, loss of riparian
vegetation, and microclimate changes associated with gaps in forest canopy."63 Atlantic failed to
include information about the extensive time required for forested wetland recovery in its 401
application—despite the fact that nearly 85% of North Carolina's impacted wetlands are forested
wetlands.64
Not only will Atlantic destroy hundreds of acres of forested wetlands, it also has provided
no assurances that they will ever return to their current state. Notably, Atlantic has failed to show
that it will minimize adverse impacts to wetlands, or that it will adequately restore them. It only
plans to segregate the topsoil of wetlands if they are not inundated at the time of construction;65
restoration is considered "successful" if the vegetation simply appears similar to a wetland that
has been newly disturbed in the same region.66 The massive disruption of wetland soil layers and
the compaction caused by heavy construction equipment, coupled with Atlantic's dismal
restoration plan, will inhibit regeneration of vegetation and permanently harm the hydrologic
patterns of wetlands. It is likely that hundreds of acres forested wetlands will never recover from
this massive and destructive project. Therefore, these impacts must be analyzed as permanent
impacts, which the current application fails to do.
2. Extensive permanent impacts will also be caused to waterbodies by
damaging riparian buffers and stream bank integriby, as well as
displacing and killing sensitive aquatic or a nisms
Significant impacts to waterbodies will be caused by clearing out vital riparian buffers in
the right-of-way. For 319 trenched crossings through waterbodies, riparian areas will be cleared
of trees and brush within a 110 -foot construction corridor, and then kept free of trees within a 10-
foot area of the length of the pipeline.67 Riparian vegetation provides numerous key functions for
waterbodies, including protecting waters from pesticides, sediment, and other pollutants,
stabilizing stream banks, and regulating water temperatures. 68 Additionally, construction of the
pipeline will cause significant loss of endangered mussel species, and the permanent destruction
of stream bottom habitats .69 As one extensive hydrological study states, "[i]t can only be
concluded that there will be significant, permanent damage to streams receiving stormwater
62 FEIS, at ES -10; see also CEA Report, at 13-14 (Significant impacts associated with the clearing of trees in
forested wetlands "include species differentiation due to light penetration, habitat intrusion by predator species,
habitat loss due to the edge effect, the disruption of reproductive populations and the introduction of invasive
species." "Other permanent impacts associated with the edge effect and habitat fragmentation include changes in site
hydrology associated with earth compaction during construction, changes in plant diversity and [] the introduction of
diseases.").
63 FEIS, at 4-137.
64 FEIS, at 4-137.
65 Supplemental Information, at 26.
66 Supplemental Information, at 77. Vegetation only needs to be "consistent with the early successional wetland
plant communities in the affected ecoregion."
67 Supplemental Information, at 13; FEIS, at 4-114. The number of affected crossings is calculated by subtracting
the seven HDD crossings from the total of 326 waterbody crossings.
68 NC DEQ Website, Riparian Buffers, available at https://deq.nc.gov/riparian-buffers-frequently-asked-questions.
69 Dodds Study, Figure 4.0-1.
10

discharge from the proposed ACP construction areas and to streams crossed by the proposed
ACP route."70
By maintaining a right-of-way through riparian buffers, the ACP will create perpetual
gaps in the forest canopy, and cause permanent increases in water temperatures from the loss of
shade .71 The elimination of shade will further harm already -threatened heat -sensitive organisms,
such as the Neuse River waterdog72 and the Carolina madtom. 73 The FEIS acknowledges that
there will be increases in water temperature from the loss of shade.74 Not only will Atlantic cause
permanent damage to riparian buffers in the right-of-way, it also fails to guarantee that it will
replant the trees and shrubs that have been torn down within the 110 -foot construction corridor.
Its application only states that revegetation "may include supplemental plantings of tree seedlings
and shrubs."75
Permanent impacts will further be caused by destroying the integrity of stream banks and
adjacent slopes, putting streams and rivers at risk of receiving continued, long-lasting
sedimentation from the erosion of disturbed land. As the FEIS states, "increased erosion and
sedimentation from the construction right-of-way and access road use, and removal of riparian
vegetation" are long-term impacts. 76 "Ongoing impacts" include "increased surface runoff and
erosion/sedimentation from cleared areas, disturbed steep slopes, surface compaction, access
roads, and the proximity of the right-of-way and other features to streams."77 Disturbed stream
banks and hill slopes are at higher risk of future instability, even if work is conducted under dry
conditions. 78 As stated in a study on various pipeline installation methods, bank restoration after
wet or dry installation
"must take place immediately, be done accurately, quickly, and with the
appropriate design and materials [... ] Even the most experienced practitioners
have stability failures in their restoration work [... ] Over time, river bank
restorations lose their initial structure, typically due to natural processes such as
unpredictable weather, freezing and thawing soils, flooding, [and] seasonal
watercourse fluctuations."79
70 Dodds Study, Executive Summary.
71 FEIS, at 4-137, 4-110.
72 "Neuse River waterdo s tend to become inactive when water temperatures are greater than 18 °C but
remain active at temperatures as low as 0 °C." AmphibiaWeb, University of California (2017), available at
http://amphibiaweb.org/cgi/amphib_query?where-genus=Necturus&where-species=lewisi (last visited July 31,
2017).
73 "Human -caused increases in river water temperatures have been identified as a factor in the decline of the
madtom." Carolina madtom, USFWS (2017), available at https://www.fws.gov/southeast/wildlife/fishes/carolina-
madtom/ (last visited July 31, 2017).
74 FEIS, at 4-110. ("Permanent right-of-way maintenance may lead to a minor and localized increase in stream
temperature, but this increase is expected to be minimal.")
75 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix J, 25-26 (emphasis added).
76 FEIS, at 4-129.
77 FEIS, at 4-130.
78 CEA Report, at 8 ("[D]ry crossing methods have historically experienced significant problems leading to
difficulties in meeting turbidity standards across the nation.").
79 Brett Study, at 10.
11

Once Atlantic has disturbed stream banks with heavy construction equipment and construction of
trenches, the stream is at high risk of increased future erosion, and Atlantic's restoration plans
and erosion control measures cannot prevent it with any certainty. Atlantic's plans for erosion
control during construction, as well as restoration after construction, are vague and discretionary.
For instance, Atlantic only plans to restore stream banks to preconstruction contours "as near as
practicable."80 Furthermore, one hydrological study on Atlantic's proposed construction
measures determined that, even with the implementation of Atlantic's selected Best Management
Practices, "there will always be a certain percentage of sediment in the stormwater discharge
from a construction site that will discharge to receiving streams."81 The ACP will cause
"[p]ermanent increased stormwater discharge to streams due to deforestation and soil
compaction," as well as "[c]ontinual downstream stream bank erosion and stream bed. ,82
Additionally, there will likely be permanent harm to aquatic habitats. Erosion from the
construction will cause sand and silt to fill in the spaces between the pebbles and cobbles of
stream beds, known as embeddedness.83 These spaces, which serve as aquatic habitats and
protection for insect larvae, juvenile fish, and minnows, "are necessary for the food chain within
the river continuum.9984 Construction of the ACP will result in the "continual release of sediment
to streams, causing continual turbidity and permanent embeddedness."85 The ACP will forever
destroy these valuable aquatic habitats, as "they cannot be restored. ,86
Sedimentation from construction of the pipeline will permanently harm and jeopardize
the future of endangered mussel populations in North Carolina. According to the FEIS,
freshwater mussel species are located in at least seventeen of the proposed waterbody
crossings. 87 State -listed mussel species that would be impacted include: the Atlantic pigtoe
(currently under review by the U.S. Fish and Wildlife Service for Endangered Species Act
listing), the triangle floater, the Roanoke slabshell, the yellow lampmussel, the eastern
lampmussel, the creeper, and the Carolina fatmucket.88 Atlantic claims that it will "remove
individuals from workspaces." However, the U.S. Fish and Wildlife Service has rightly voiced
skepticism about the effectiveness of this measure: "[D]ue to the difficulty of locating mussels
buried under the surface, this may provide minimal benefit and it does not address the long term
impacts from the change in streamside buffer condition, nor does it address the instability of the
stream banks. Relocation is not considered an avoidance measure."89 Studies show that
80 Supplemental Information, at 19 (emphasis added).
81 Dodds Study, Section 8.0 (emphasis added). The study also found that Atlantic has provided insufficient
information to determine the effectiveness of its construction practices. For instance, it has not provided (1) any
drainage areas or peak discharge calculations for diversion berms and sediment trap outlets; (2) construction plan
sheets to reference proper placement of silt fencing; (3) drainage delineations, construction plan sheets, or
calculations determining runoff velocities for compost filter socks and pumped water filter bags; and (4) stormwater
discharge calculations for sizing sediment basins. Id. at Section 8.1-8.5.
82 Dodds Study, Section 10.0.
83 Dodds Study, Section 4.2; see also CEA Report, at 15.
84 Dodds Study, Section 4.2, citing Vannote, et al., The River Continuum Concept, Canadian Journal of Fisheries
and Aquatic Species 37 (1980).
85 Dodds Study, Section 10.0.
86 Dodds Study, Section 4.2, Figure 4.0-1.
87 FEIS, at 4-224.
88 FEIS, at 4-224.
89 Letter from John E. Schmidt (USFWS) to Kimberly Bose (FERC), June 2, 2016, included as Attachment 22.
12

freshwater mussels are incredibly susceptible to suffocation from sediment loading.90 Excess
sedimentation can cause dense, or "hardpan" layers in stream beds and reduce interstitial flow
rates; silt and clay particles can clog the gills of mussels, interfere with filter feeding, or reduce
the light available for photosynthesis and the production of food items. 91 Because endangered
mussel species within the waters impacted by the ACP, such as the James Spinymussel, occupy a
very limited geographic area, they are particularly susceptible to water quality impacts. 92 Atlantic
has not taken the measures to minimize adverse impacts to populations of small, isolated, highly
fragmented, and severely threatened freshwater mussel populations.
IV. The Application Materials Cannot Demonstrate Compliance with State Regulations
for Ensuring Maintenance of Existing Uses or Compliance with Water Quality
Standards
The ACP will impact over 7 miles of 326 waterbodies ,93 and at least 467.7 acres of
valuable wetlands.94 Despite the massive scale of this project, Atlantic gives no attention in its
401 application to the vast majority of wetlands and waterbodies—in order to save its own time
and resources. Instead of providing site-specific information and tailoring its decisions to the
nature of each crossing, Atlantic keeps its construction procedures95 vague and its protective
actions discretionary; it provides stock images of "typical" wetland and waterbody crossings,
instead of detailed site-specific drawings; it groups all wetlands together regardless of ecological
value and size, and assigns the entire 467.7 acre category open -cut construction 96—the most
harmful of all pipeline construction methods. 97 Moreover, Atlantic makes no plans to measure or
monitor water quality standards for any waters within North Carolina, despite DWR's
requirement to guarantee that water quality standards will not be violated on either a short- or
long-term basis.
In order to carry out its legal mandate to prevent degradation of the State's waters, DWR
must not follow Atlantic's lead and give North Carolina's individual waters less care and
consideration, simply because the scope of this project is exceptionally large. Instead, DWR
must reject the glaring inadequacies of Atlantic's application, deny the application as submitted,
and request all information necessary for it to ensure protection of the State's waters.
90 Box, J.B., Mossa, J. Sediment, land use, and freshwater mussels: prospects and problems. J. N. Am. Benthol. Soc.
at 100, 18(1):99-117 (1999).
91 Gordon, N. D., T. A. McMahon, and B. L. Finlay -Son. 1992. Stream hydrology: an introduction for ecologists.
John Wiley and Sons, New York; Ellis, M. M. Erosion silt as a factor in aquatic environments. Ecology, 17:29-42
(1936); Aldridge, D. W. et al. The effects of intermittent exposure to suspended solids and turbulence on three
species of fresh -water mussels. Environmental Pollution, 45:17-28 (1987); Davies -Colley, R. J., C. W. Hickey, J. M.
Quinn, and P. A. Ryan. Effects of clay discharges on streams: 1. Optical properties and epilithon. Hydrobiologia,
248:215-234 (1992).
92 U.S. FWS, James Spinymussel (Pleurobema collina) Recovery Plan at 3 (Sept. 24, 1990), available at
https:Hefotg.sc.egov.usda.gov/references/public/W V/James—Spinymussel—Recov_Plan.pdf
93 Supplemental Information, at 31-32, Table 4.
94 FEIS, at 4-135, Table 4.3.3-2.
95 Erosion and sedimentation control plans that are outside the 401 application, and have not been available for
public review and comment are just one example of the inadequate information provided by Atlantic.
96 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix Cl.
97 CEA Report, at 13.
13

A. Before Issuing the ACP 401 Certification, Regulations Require That DWR
Determine That Existing- Uses of Waters Will Not Be Degraded, and to Request
Any Necessary Additional Information in Order to Make That Determination
Under the Clean Water Act, the U.S. Army Corps of Engineers ("the Corps") may not
issue a section 404 permit for the construction or operation of a facility that will result in
"discharges of dredged or fill material" into waters of the United States unless DWR first grants
the project a 401 certification. 98 Therefore, DWR's state -level review of the Atlantic Coast
Pipeline is essential to the Clean Water Act's primary objective of "restor[ing] and maintain[ing]
the chemical, physical, and biological integrity of the Nation's waters."99 DWR has decided to
require an individual 401 certification for the ACP, which is issued on a "case-by-case basis,"loo
and can only be given if DWR has determined "that existing uses are not removed or degraded"
by the discharge to surface waters and wetlands.101 North Carolina regulations require 401
applicants to provide detailed information on discharges and the specific receiving waters of
those discharges. For instance, applicants must specify: "the location of the discharge [... ], the
name of the receiving waters; and the location of the point of discharge with regard to the
receiving waters," as well as "a description of the receiving waters, including type (creek, river,
swamp, canal, lake, pond or estuary) if applicable; nature (fresh, brackish or salt); and wetland
classification. ,102
Additionally, applicants must include: maps or sketches "of sufficient detail to accurately
delineate the boundaries of the lands [... ] utilized by [Atlantic] in carrying out its activity; the
location, dimensions and type of any structures erected or to be erected on said lands for use in
connection with the activity; and the location and extent of the receiving waters including
wetlands within the boundaries of said lands."' 03
These are the minimal requirements for 401 applications, so that DWR can determine
whether waters of North Carolina will be degraded by a project. DWR always has the power to
request additional information "necessary for the proper consideration of the application."' 04 The
need for additional information can be expected for a project of this magnitude, for which DWR
must consider impacts to each waterbody and wetland on a "case-by-case basis."105
For each of the receiving waters, 401 regulations require DWR to ensure that "existing
uses are not removed or degraded by a discharge" to classified surface waters or class WL
wetlands for an activity which:
(1) "has no practical alternative," "by demonstrating that, considering the
potential for a reduction in size, configuration or density of the proposed
activity and all alternative designs the basic project purpose cannot be
"33 U.S.C. § 1341(a)(1); 33 CFR Part 323.
99 33 U.S.C. § 1251(a).
100 15A N.C. Admin. Code 02H .0501(c)(1).
10' 15A N.C. Admin. Code 02H.0506.
102 15A N.C. Admin. Code 02H .0502(a)(6)—(7).
103 15A N.C. Admin. Code 02H .0502(b).
104 15A N.C. Admin. Code 02H .0502(c).
105 15A N.C. Admin. Code 02H .0501(c)(1).
14

practically accomplished in a manner which would avoid or result in less
adverse impact to surface waters or wetlands' ;106
(2) "will minimize adverse impacts" to surface waters or wetlands, by
showing that surface waters or wetlands "are able to support the existing
uses after project completion"; 107
(3) "does not result in the degradation of groundwaters or surface waters"; 108
(4) "does not result in cumulative impacts, based upon past or reasonably
anticipated future impacts, that cause or will cause a violation of
downstream water quality standards"; 109
(5) "provides for protection of downstream water quality standards";' 10 and
(6) "provides for replacement of existing uses through mitigation."111
Extensive information is generally necessary for an application to meet these
requirements, especially for larger projects. For instance, in order to ensure that water quality
standards are not violated, DWR must consider existing water quality classifications for
classified surface waters, and their applicable standards. Class C surface waters and Water
Supply waters have water quality standards for dissolved oxygen, temperature, turbidity, and
dissolved oxygen—none of which can be violated by a proposed project.' 12 Additionally, DWR
must ensure that waterbodies are not degraded on either a short-term or long-term basis, and
remain "suitable for aquatic life propagation and maintenance of biological integrity, wildlife,
secondary recreation, and agriculture."' 13 For the protection of wetland water quality standards,
DWR must ensure protection of "hydrological conditions necessary to support the biological and
physical characteristics naturally present in wetlands."' 14 Therefore, there may not be adverse
impacts on: (1) currents, erosion, or sedimentation patterns; (2) natural temperature variations;
(3) chemical, nutrient, and dissolved oxygen regimes; (4) movement of aquatic fauna; (5) pH;
and (6) water levels or elevations—such that the impacted wetland can no longer support its
previous hydrological functions. 115 Finally, the biological integrity of both waterbodies and
wetlands must be protected so that waters can continue "to support and maintain a balanced and
indigenous community of organisms" which have "species composition, diversity, population
densities and functional organization similar" to conditions prior to the project! 16
106 15A N.C. Admin. Code 02H .0506(b)(1), (c)(1), (fl (emphasis added).
10' 15A N.C. Admin. Code 02H .0506(b)(2), (c)(2), (g) (emphasis added).
los 15A N.C. Admin. Code 02H .0506(b)(3), (c)(3) (emphasis added).
109 15A N.C. Admin. Code 02H .0506(b)(4), (c)(4) (emphasis added).
no 15A N.C. Admin. Code 02H .0506(b)(5), (c)(5) (emphasis added).
111 15A N.C. Admin. Code 02H .0506(b)(6), (c)(6) (emphasis added).
112 15A N.C. Admin. Code 02B .0211(6), (14), (18), (21); 15A N.C. Admin. Code 2B. 0215(g); 15A N.C. Admin.
Code 2B. 0216(g); 15A N.C. Admin. Code 2B. 0218(g).
113 15A N.C. Admin. Code 02B .0211(2).
114 15A N.C. Admin. Code 02B .0231(b)(5).
115 15A N.C. Admin. Code 02B .0231(b)(5).
116 15A N.C. Admin. Code 2B. 0202(11); 15A N.C. Admin. Code 02B.0211(2); 15A N.C. Admin. Code 02B
.0231(b)(6).
15

If DWR cannot ensure that an application guarantees compliance with each applicable
standard for every impacted waterbody and wetland, it must request additional information in
order to "proper[ly] consider[]" the application."" Here, Atlantic's incomplete application
precludes a determination that applicable standards will not be violated. Moreover, the
information provided indicates that the project will not comply with standards. Without
information demonstrating compliance, the application must be denied.
B. Atlantic's Incomplete Application for the ACP Fails to Show That the Existing
Uses of Waterbodies and Wetlands Will Not Be Removed or Degraded
Atlantic's current application wholly fails to meet the requirements for 401 certification.
With the information it has been given, DWR cannot ensure that existing uses of North
Carolina's wetlands and waterbodies will not be degraded or removed by construction of the
ACP through the entire eastern section of the state. Consequently, the application must be
denied.
Atlantic failed to demonstrate that the selected construction method for
each crossing has no practical alternative, or that the selected
construction procedures will minimize adverse impacts
Atlantic must provide adequate information to show that the construction methods and
procedures it has chosen for each crossing "has no practical alternative," "considering the
potential for [... ] all alternative designs."' 18 As discussed below, Atlantic's application does not
meet that requirement.
As FERC recognized in its FEIS, Atlantic has not justified its decision to construct
trenches for the pipeline through many water crossings.' 19 Although there are existing trenchless
construction technologies, including the conventional bore or the horizontal directional drill
method ("HDD"), 120 that allow Atlantic to dig under waterbodies and wetlands, potentially
avoiding impacts on surface waters and wetlands altogether, Atlantic has chosen to blast, carve,
and dig through all but seven of its North Carolina crossings—"commonly turn[ing] to the
method with the least cost and most potential for severe impacts."121
It is undisputed that the trenchless construction methods have less impact on waterbodies
and wetlands than traditional methods that use trenches within waters, known as trenched
construction. With HDD, a drilling rig is set up on one side of the waterbody or wetland and a
tunnel is drilled into the ground beneath the waters. 122 Then, pipeline sections are welded
117 15A N.C. Admin. Code 02H .0506(c).
11a 15A N.G. Admin. Code 02H .0506(b)(1), (c)(1), (f) (emphasis added).
119 FEIS, at 4-113 ("[W]e have recommended that Atlantic complete hydrofracture potential analyses at two
waterbodies (Neuse River and Nottoway River [AP -1 MP 260.7]), and if the hydrofracture potential is low, Atlantic
should use the HDD crossing method.").
120 This does not mean that HDD has no risk. Even with HDD, DWR must demand site-specific information before
making a certification decision.
121 CEA Report, at 13.
122 Brett Study, at 10-11.
16

together before being pulled into the hole, known as the "entry point.""' The "exit point" is
where the drill then leaves the ground. 124 As one study states, "[t]he area of disturbance is far
less than that of the open -cut method because the entry and exit points are set back from the
watercourse which eliminates trenching through the riparian zone."125 Other proposed crossing
methods have more severe impacts, including habitat loss, changes in species diversity, the loss
of aquatic organisms, sedimentation and turbidity, and the likelihood of introduced pollution and
invasive species. 126
The conventional bore method, another trenchless construction method, involves the
digging of pits on both sides of the waterbody or wetland. 127 A boring machine with a drill is
then used to tunnel under the resource before the pipeline is installed through the tunnel. 128 As
discussed in the report by CEA, the conventional bore method is most commonly used for
wetlands and other sensitive resources, and would substantially reduce impacts on habitat loss
and sedimentation. 129 As the CEA report found, the conventional bore method "would seem a
viable option" for several of the crossings CEA analyzed. 130 However, Atlantic only proposed
the conventional bore method for one crossing. 131
Both dry and wet construction methods proposed by Atlantic are unable to allow waters
"to maintain [... ] natural flow pattern[s] without the risk of construction -related bank erosion
and instability."' 32 The wet open -cut crossing method requires digging of a trench using a track
hoe, bulldozers, or draglines, within a flowing waterbody or saturated wetland. 133 It does not use
any methods to control or divert the flow of water, results in the heaviest increase of
sedimentation and turbidity impacts, and lacks the potential for species protection provided by
other methods. 134 At least one study cited in the FEIS found that open -cut construction results in
"longer term alterations to channel morphology at crossing locations, including increases in
channel width, reduced water depth, and meanders 2 to 4 years after construction." 135 Dry
construction methods, such as the dam -and -pump, or flume methods, also cause increased
sedimentation and turbidity. 136
Atlantic arbitrarily eliminated all of the hundreds of wetlands and small stream crossings
from consideration for trenchless construction. 137 In addition, Atlantic entirely fails to discuss its
decision to trench through large streams, such as Cypress Creek 138 and even the Neuse River—a
major waterbody that is likely home to many threatened and endangered species, including the
123 Brett Study, at 11.
124 Id.
125 Id.
126 CEA Report, at 11.
121 CEA Report, at 10.
128 Id.
129 CEA Report, at 10-11.
'3o Id. at 11.
13' Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C1.
132 Brett Study, at 11.
"' CEA Report, at 8.
134 CEA Report, at 7-8, 13.
'35 FEIS, at 4-229.
136 CEA Report, at 7.
137 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix Cl.
138 Supplemental Information, at 18.
17

Neuse River waterdog, the Atlantic Sturgeon, the Shortnose Sturgeon, the Carolina madtom, and
several listed freshwater mussels.' 39 Trenched construction of larger streams and rivers which are
"too wide to excavate the trench from banks" will likely require operation of construction
equipment "within the waterbody."140 Large streams and rivers—including the Neuse River,
Rocky Swamp, and Cypress Creek—are expected to suffer from severe sedimentation and
erosion from heavy "large construction equipment," necessary for the construction of a 36 -inch
pipeline. 141 Hydraulic excavators and pipelayers, each weighing up to 100 tons, will devastate
streambeds within flowing waters, and motor graders, weighing anywhere from 20 tons to over
50 tons, will plow through trees and vegetation on easily degraded stream banks. 142
As stated in the FEIS, open -cut trenched construction, which is intended for all wetlands
and these large rivers, could decrease dissolved oxygen, "potentially suffocating the eggs and
larvae of fish and invertebrates," "decrease[e] prey availability for fish," and "degrade the
quality of the habitat, making it unsuitable for spawning and rearing activities. 043 Many parts of
the Neuse River are already heavily impaired,144 and multiple open -trenched crossings in the
Neuse River and its tributaries by the ACP will further devastate its populations of sensitive
species—such as the Neuse River waterdog, which is endemic to the Neuse and Tar River
basins, "needs clean, flowing water with high dissolved oxygen concentrations," and "is
extremely susceptible to the effects of siltation, or the deposit of sediments in freshwater." 145 As
discussed in the study conducted by CEA, the "[d]isplacement and loss of aquatic organisms and
habitat will occur with all trench methods," but such impacts could be eliminated using
trenchless construction. 146
Rather than providing site-specific analysis regarding feasibility, Atlantic has instead
provided numerous generic excuses for failing to even consider trenchless construction for
hundreds of crossings.147 It has not analyzed the feasibility of trenchless construction,
demonstrated that the selected construction method for each crossing has no practical alternative,
or demonstrated that the selected construction procedures will minimize adverse impacts or will
ensure that state water quality standards are not violated. It has given no site-specific justification
for its sweeping decision to use higher -impact trenches. For instance, Atlantic has arbitrarily
determined that all small stream crossings "are not suitable for HDD" because there is not
"sufficient space to place the pullback and work area for drilling equipment."148 But Atlantic has
not provided any site-specific analysis on the workspace required, or the workspace available,
139 FEIS, at 4-221-23.
140 Supplemental Information, at 18.
141 Supplemental Information, at 16.
142 Pipeline Machines and Specifications, available at http://www.pattencat.com/industry/pipeline.
143 FEIS, at 4-229.
144 Draft 2016 Category 5 Assessments EPA Submittal 303(d) List, available at
https://ncdenr.s3.amazonaws.com/s3 fs-
public/W ater%20Quality/Planning/TMDL/303 d/2016/NC_2016_Category_5_20160606.pdf.
145 "The major threats to this species arise from water development projects such as the construction of
impoundments and stream channelization." Neuse River waterdog, U.S. Fish and Wildlife Service, available at
https://www. fws.gov/southeast/wildlife/amphibians/neuse-river-waterdog/.
146 CEA Report, at 7.
147 Supplemental Information, at 15, 81.
148 Supplemental Information, at 15, 81.

for a single crossing to establish that this claim is valid. Because Atlantic has not complied with
the regulations, DWR must deny the certification.
Additionally, Atlantic states that the conventional bore method—a trenchless
construction method—cannot be used to cross waterbodies with "unconsolidated soils in the
substrate because it is not possible to maintain the integrity of the borehole in this condition." 149
Atlantic states that "[w]here waterbodies are entrenched or adjacent slopes are steep, excavation
to sufficient depths can require excessively large pits [... ] which creates the potential to sink the
stream or flood the bore pits."150 However, there is no site-specific information on whether
unconsolidated soils are present, whether waterbodies are entrenched, or whether adjacent slopes
are steep at the relevant crossings.
Finally, Atlantic states that HDD feasibility is affected by "poor rock quality, excessive
rock strength and hardness, solution cavities in bedrock, and artesian groundwater pressure."' 51 It
makes a general, unsubstantiated conclusion that, because traditional crossing methods take less
time than HDD, traditional methods "can often reduce the environmental impact."152 However,
the application fails to provide even a single site-specific assessment of the rock quality,
strength, or hardness at specific crossings, and fails to provide information on "solution cavities"
and "artesian groundwater pressure." Geotechnical analyses have only been provided for six of
the seven total waterbodies proposed for HDD construction. 153 Additionally, Atlantic has not
analyzed the additional environmental impacts that might occur from the potential increased
construction time of using HDD at any particular site. Furthermore, as part of its meager HDD
feasibility discussion, Atlantic explicitly considers non-technical factors, including time and cost.
Atlantic complains that the possibility that "worn bits and reamers" might need to be replaced
more often, which "can result in extended construction durations and corresponding increases in
construction cost." 154 Atlantic gives no indication that the additional cost of trenchless
construction would make construction of the pipeline infeasible; it only states that the HDD
method "can result in" increased costs.' 55
2. Atlantic failed to provide site-specific data on numerous other
construction decisions—all essential for DWR to determine whether or not
adverse impacts have been minimized
In addition, Atlantic must provide adequate information to show that the construction
methods and procedures it has chosen for each crossing "will minimize adverse impacts" to each
waterbody and wetlands. 156 Regulations require 401 applications to include, at a minimum, maps
"of sufficient detail" of the "location and extent of receiving waters including wetlands."157
Applications must also include additional information "necessary for the proper consideration"
149 Supplemental Information, at 21.
150 Supplemental Information, at 21.
15' Atlantic Coast Pipeline, at 401 Water Quality Permit Application, Appendix P, at 4-5.
152 Supplemental Information, at 81.
153 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix P. One of the seven proposed for HDD
construction did not have a geotechnical analysis because Atlantic concluded that it was not necessary.
154 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix P, at 5.
155 Id.
156 15A N.C. Admin. Code 02H .0506(b)(2), (c)(2), (g).
151 15A N.C. Admin. Code 02H .0502(b).
19

of impacts to specific wetlands and waterbodies. 158 Instead, in Appendix E of its application,
Atlantic provides extremely generic drawings of "typical" wetland and waterbody crossings.' 59
These drawings do not depict real wetlands or waterbodies, and provide no information about the
nature of specific crossings. Therefore, they are thoroughly unable to inform DWR about
potential impacts to specific wetlands or waterbodies. To be deemed complete, the application
must include site-specific information about construction plans and decisions at particular
crossings. Atlantic's application does not comply with regulations, and should be denied.
Atlantic's application is further filled with indeterminate and discretionary measures for
its construction procedures, for instance:
• "sediment barriers may be installed" 160
• "drivable berms may be installed"161
• "equipment may operate from within the waterbody"162
• stabilization measures will be conducted "as appropriate" 163
• banks will be restored "as near as practicable" 164
• construction mats will be used "when necessary"165
• existing access roads will be used "where feasible" 166
At no point does Atlantic define what is "appropriate," "practical," "necessary," or "feasible."
Furthermore, Atlantic maintains that site-specific modifications can occur at any time, at
any of the crossings. 167 Not only does this give Atlantic an impermissible amount of discretion to
weaken water quality protection methods during construction of the pipeline, the generic
drawings and vague statements throughout the application completely preclude DWR's ability to
accurately analyze wetland and waterbody impacts. With any pipeline construction method,
significant site-specific detail and planning is required, and the lack of planning can result in
violations of water quality standards.' 68 The work of actually building the ACP will undoubtedly
be contracted and subcontracted to workers who will have differing understandings and
interpretations of "as near as practicable" and other vague language used by Atlantic. Even with
the best intentions, failure under such amorphous standards is near certain. As further
demonstrated by FERC's request in its FEIS for Atlantic to submit site-specific crossing plans on
"the location of temporary bridges and bridge type, appropriate cofferdam locations, water
"' 15A N.C. Admin. Code 02H .0501(c)(1); 15A NCAC 02H.0502.
159 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix E.
160 Supplemental Information, at 17 (emphasis added).
161 Supplemental Information, at 18 (emphasis added).
162 Supplemental Information, at 18 (emphasis added).
163 Supplemental Information, at 18 (emphasis added).
164 Supplemental Information, at 19 (emphasis added).
165 Supplemental Information, at 76 (emphasis added).
166 Supplemental Information, at 82 (emphasis added).
167 Site-specific modifications would have to be approved by FERC. Supplemental Information, at 17.
161 CEA Report, at 8-10; see also Brett Study, at 10.
20

discharge structure locations, [and] pump locations," information on construction procedures at
particular sites is essential to understanding the actual impacts of the pipeline.' 69
Atlantic's application should include site-specific data on particular crossings, including
but not limited to: site-specific information on the depth of pipeline burial, site-specific
information on engineering plans, site-specific information on the specific location of access
roads and temporary bridges, site-specific information on details of proposed blasting, site-
specific information on stormwater and erosion and sediment control plans, and site-specific
information on discharge locations for all wastewaters. It is clear that Atlantic can perform site-
specific analyses—it has done so at limited locations identified by the U.S. Fish and Wildlife
Service. The company must do so at each of its crossings.
Without this information, DWR does not have sufficient information to analyze potential
impacts to specific wetlands or waterbodies.
Atlantic's failure to provide information on the depth of pipeline burial, in particular,
demonstrates the carelessness with which it has prepared this application. If a pipeline is not
buried deeply enough, flooding and heavy storm events can re -expose the pipeline, riskin
damage to the pipeline and requiring remedial actions that would further impact waters. 179 The
ACP would cross over 41 miles of land within Special Flood Hazard Areas, and over 5 miles of
land within minimal flood hazard areas. 171 The people of eastern North Carolina are still
recovering from the devastating floods caused by Hurricane Matthew in 2016. The severe
flooding of last year could easily occur again, and Atlantic has provided no information to show
that the pipeline will not be re -exposed by extreme storm events. Not only would this further
harm wetlands and waterbodies, but it also jeopardizes the health and safety of hundreds of
thousands of people.
Additionally, Atlantic argues that it has chosen to cross several intermittent and
ephemeral streams using the harmful open -cut method because these particular waterbodies "can
be crossed more quickly and with less spatial impact via open -cut than they can with a dry
crossing method. ,172 But Atlantic provides no data on the different construction time needed for
the two methods at any of the crossings, or data on the water quality impacts of the two
methods. 173 As it has done with its discussion on HDD feasibility, Atlantic has only provided
conclusory statements that its chosen method will simply take less time and cause fewer impacts,
giving DWR no information to analyze actual impacts to wetlands and waterbodies.
169 FEIS, at 4-102. Although FERC only requires this information for all major waterbodies, Atlantic should do this
for all waterbodies and wetlands. There is nothing in the 401 certification regulations that says DEQ only has to
consider impacts to large or major waterbodies and wetlands.
170 Timothy Morse, et al., The Dangers of Flood Scouring on Buried Pipeline River Crossings, Exponent, available
at http://www.exponent.com/—/media/newsletters/oil-gas-2017-v6/the-dangers-of-flood-scouring-on-buried-
pipeline-river-crossings.pdf, included as Attachment 15.
171 FEIS, at 4-105.
172 Atlantic's Response to NC DEQ; Request for Additional Information for 401 Water Quality- Request for
Information No. 11, at 9.
173 See CEA Report, at 8 ("No comparative assessments of other methods of crossing are presented by ACP to
support the necessity of using this method or to support the statement that dry crossing[s] are infeasible.").
21

Furthermore, Atlantic's failure to provide site-specific information on the discharge
locations of wastewater means that DWR cannot ensure that adverse impacts are minimized, in
violation of state regulations. As stated in the FEIS, "[t]he discharge of stormwater, trench water,
or hydrostatic test water could increase the potential for sediment -laden water to enter wetlands
and cover native soils and vegetation." 174
Atlantic also fails to propose adequate time -of -year restrictions for construction that will
minimize adverse impacts. Impacts can be substantially reduced by limiting construction to low -
flow conditions.' 75 For instance, sedimentation and turbidity impacts in intermediate systems,
which are flowing only part of the year, and ephemeral systems, which only contain water during
or after rain events, can be avoided if crossings are performed outside of wet seasons or rain
events. 176 Yet Atlantic has only proposed time -of -year restrictions for eight out of hundreds of
crossings.177 Moreover, the Roanoke River, Neuse River, and Cape Fear River are Primary
Nursery Areas. 178 If any construction is approved—it should not be—construction activities
within these waterbodies must be limited to February 15 to September 30, as recommended by
FERC. 171
3. Atlantic's proposed restoration does not ensure that the project will
minimize adverse impacts to disturbed wetlands and waterbodies
Atlantic makes many vague promises of restoration and rehabilitation. 180 However, a
close reading of these plans reveals that Atlantic fails to assure that adverse impacts of the
project will be minimized to the fullest extent possible. Atlantic has made no plans to record or
report site-specific preconstruction data on: (1) contours, (2) vegetation, or (3) soil. Therefore,
there is no way for DWR to know if Atlantic plans to restore contours and vegetation using
detailed surveys of preconstruction contours, vegetation, and soil profiles; preconstruction
photos; or mere guesswork. Additionally, Atlantic only proposes to monitor impacted sites once
a year for two years—far too infrequently, and for too short a time, given the sites' susceptibility
to future storm and flood events. 181 As stated in the CEA report, Atlantic should monitor
wetlands for five to ten years, and streams for five to seven years after construction.' 12 Atlantic's
perfunctory post -construction restoration plans reflect the neglectful approach it has taken to
minimizing impacts to the State's waters.
First, Atlantic will only restore preconstruction contours in waterbodies and wetlands "as
near as practicable."' 83 Notably, it fails to define "practicable," leaving open the possibility that
174 FEIS, at 4-137.
175 FEIS, at 4-230; CEA, at 6.
176 CEA Report, at 6.
177 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C1.
178 FEIS, at 4-221.
179 FEIS, at 4-221.
180 With regards to waterbody restoration, the terms of success are impermissibly vague: "when construction debris
is removed, similar vegetative cover or bedrock has been restored, the original surface elevations are restored as
closely as practicable to preconstruction contours, the surface condition is similar to adjacent non -disturbed areas,
and proper drainage is restored." Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix J, at 29.
181 CEA Report, at 17.
182 CEA Report, at 17.
183 Supplemental Information, at 19, 22, 78.
22

attempts to restore contours might be abandoned due to additional time or cost. In order to
minimize adverse impacts, waterbodies and wetlands must be restored as closely as possible to
their "near -natural morphology," as Atlantic has promised to do for stream channels in National
Forest lands! 84 Similarly, for stream channels, the width, depth and gradient associations for
streambeds, streambanks, floodplains, and terraces must be restored."' Notably, Atlantic has
proposed these measures for National Forests in other states, but not for North Carolina waters.
The proposed trenching of all impacted wetlands and soil compaction "can cause significant
alterations in the water regime of wetlands, [which] can significantly change the viability and
functions of the system by redistributing water [or] eliminate the available waters to other
areas."186 As the CEA report states, "Wetlands are extremely sensitive to alterations in water
regimes," and even "minor changes" can redistribute the flow of water and harm species survival
and diversity.' 87 Atlantic must conduct an initial analysis of groundwater flows, and install
piezometers, throughout impacted wetlands in order to inform DWR of potential hydrological
impacts. 188 DWR is required to protect the existing hydrological conditions of wetlands. 189
Atlantic has not ensured such protection, and the application must be denied.
Atlantic's promises with regards to vegetation restoration are similarly anemic. Not only
will Atlantic permanently damage riparian buffers above the right-of-way, it fails to guarantee
that it will make efforts to replant the trees and shrubs that have been torn down within the 110 -
foot construction corridor. Atlantic's application only states that revegetation "may include
supplemental plantings of tree seedlings and shrubs."190 Likewise, wetland restoration is
considered "successful" if vegetation is "consistent with the early successional wetland plant
communities in the affected ecoregion."191 This means that a wetland can be considered
"restored" if it looks similar to a wetland that has been newly disturbed in the same region.
Atlantic states that it will only "replant[]" the construction right-of-way "in non -inundated
deciduous hardwood wetlands [... ] with saplings,"192 and neglects to discuss any replanting of
trees in other types of forested wetlands. Atlantic boldly claims that "[s]eeding of wetlands is not
anticipated as wetlands are expected to naturally revegetate,"193 even though, if a wetland
happens to be saturated at the time of construction, Atlantic will not make any attempts to
preserve its topsoil.194 Topsoil contains the "highest concentration of organic matter," the "bulk
of necessary nutrients to vegetation," and the "highest concentration of plant roots and seeds."195
As analyzed in the CEA report, restoration of wetland vegetation must be far more stringent in
order to give the impacted wetland a mere chance of recovery. The report states, "[flaking into
consideration how fragile wetland systems are, monitoring and replanting should be required and
undertaken by the applicant to attain initial planting density no matter how long is required for
184 FEIS, Appendix G, at G-138.
115 FEIS, Appendix G, at G-138.
186 CEA Report, at 12, 15.
187 CEA Report, at 15.
188 CEA Report, at 11-12.
189 15A N.C. Admin. Code 2B .0231(b)(5).
190 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix J, 25-26 (emphasis added).
191 Supplemental Information, at 77-8.
192 Supplemental Information, at 77-8.
193 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix J, at 27.
194 Supplemental Information, at 26.
195 FEIS, at 4-58.
23

recovery. Failure to meet target densities will result in an invasion or change in habitat.""' The
report then recommends that wetlands be monitored for a minimum of five to ten years after
construction is completed. 197 Atlantic makes no assurances that it will even attempt to return to
restore vegetation of wetlands and forested riparian buffers.
Atlantic has also failed to ensure that it will minimize adverse impacts with regards to
wetland soils, which are essential to the reestablishment of wetland vegetation and hydrology. As
stated in a Forest Service document on wetlands and their unique functions, one of the
identifying characteristics of wetlands is the presence of hydric soils, which have at least three
layers—all of which have developed slowly under distinctive environmental conditions. 198
These include "saturation, reduction, and redoximorphic features."199 Saturation requires water
to be present to "limit the diffusion of air into the soil"; a layer of decomposing organic matter
accumulates if saturation occurs for "extended periods of time .,,200 This organic layer, which can
grow up to many feet over time, will even form its own layers over time—each with distinct
features .201 Reduction occurs only if the soil is "virtually free" of oxygen, so that soil microbes
either "substitute oxygen -containing iron compounds in their respiratory process or cease their
decomposition of organic matter. 99202 Finally, the gray or blue -gray soils of the redoximorphic
layer occur when "iron compounds are reduced by soil microbes in anaerobic soils."203 Most
scientists agree that soils take at least a century for one inch of soil to form. 204
Construction of the pipeline will inevitably devastate the layers of wetland soil that have
developed over time. As stated in the application, construction of a 36 -inch diameter pipeline
requires the use of "large construction equipment."205 These might include hydraulic excavators
and pipelayers, each weighing up to 100 tons, and motor graders, weighing anywhere from 20 to
over 50 tons. 206 The equipment would tear through fragile layers of nutrient -heavy wetland soils,
and compaction and rutting caused by heavy machinery could "alter natural hydrologic patterns
of the wetlands and potentially inhibit seed germination and regeneration of vegetation. ,207
Furthermore, without providing any explanation, Atlantic plans to segregate wetland topsoil only
if the wetlands are not saturated at the time of construction.208 As discussed, topsoil has the
"highest concentration of organic materials," containing the "bulk of necessary nutrients," and
"greater biological productivity than subsurface soils."209 The FEIS states that "[d]uring
196 CEA Report, at 17.
197 CEA Report, at 17.
198 USFS Wetlands Report, at 20-22.
199 Id. at 20.
200 Id.
201 Id. at 21.
202 Id.
201 Id. at 21.
204 Soil Formation, U.S. Dep't of Agriculture: Natural Resources Conservation Service, available at
https://www.nres.usda.gov/wps/portal/nres/detail/wa/soils/?cid=nresl44p2_036333 ("An often asked question is,
"How long does it take to form an inch of topsoil?" This question has many different answers but most soil scientists
agree that it takes at least 100 years and it varies depending on climate, vegetation, and other factors.").
205 Supplemental Information, at 16.
206 Pipeline Machines and Specifications, available at http://www.pattencat.com/industry/pipeline.
207 FEIS, at 4-137.
208 Supplemental Information, at 26. Also, compaction and rutting of soils [...] could "alter natural hydrologic
patterns of the wetlands and potentially inhibit seed germination and regeneration of vegetation." FEIS, at 4-137.
209 FEIS, at 4-58.
24

construction, failure to segregate topsoil could result in the mixing of topsoil with the subsoil,
which could result in reduced biological productivity or modification of chemical conditions in
wetland soils," and could "affect the reestablishment and natural recruitment of native wetland
vegetation. "2 10 Atlantic has made plans to segregate "[a]t least 12 inches" of topsoil in Virginia's
National Forest lands, yet provides no such protection for North Carolina's wetlands."'
Construction of the pipeline will devastate the layers of wetland soil that have formed over
centuries, and Atlantic has made no plans to adequately minimize these impacts, or to analyze
wetland soil profiles at any point in time.
Given that Atlantic has admitted that the project will disrupt wetland and waterbody
contours, vegetation, and soil, and yet has failed to provide any meaningful restoration plans, the
company has not ensured that adverse impacts have been minimized. Therefore, the application
in its current form must be denied.
4. Atlantic failed to demonstrate that the proiect will not violate water
quality standards or result in the degradation of North Carolina's waters
Before issuing an individual 401 certification, DWR is required to guarantee that the
project will not "result in the degradation of groundwaters or surface waters ,,,211 and that it
"provides for protection of downstream water quality standards."213 Yet Atlantic has stated no
plans to record any data on water quality criteria at specific sites—before or after construction—
even though Atlantic admits there will be impacts on temperature, dissolved oxygen, and
turbidity.214 Notably, the FEIS states that significant increases in erosion are expected during
construction, and that "[w]ater resource impacts from sedimentation are largely uncertain."215
Annual soil loss from construction the pipeline can range anywhere from 2.19 to 8.00 tons per
acre—up to 800 percent more erosion compared to undisturbed conditions, and erosion can
remain higher than normal for up to five years.216 As stated in a hydrological study on the ACP,
"selected Best Management Practices will not prevent sediment from accumulating in
streams."217 Erosion and sedimentation can then cause reduced levels of dissolved oxygen.218
The threat of poor sediment control is greater here, where the public and decision makers have
not had the opportunity to review or comment on site-specific plans for each crossing.
Additionally, permanent increases in temperature are expected from the clearing of riparian
vegetation.219
Finally, Atlantic plans to withdraw nearly 20 million gallons of North Carolina water for
hydrostatic testing, 220 which can further cause increased water temperature, reduced dissolved
210 FEIS, at 4-137.
21' FEIS, at 4-62.
212 15A N.C. Admin. Code 02H .00502(b)(3), (c)(3).
213 15A N.C. Admin. Code 02H .00502(b)(5), (c)(5).
214 FEIS, at 4-110,4-113.
215 FEIS, at 4-129.
216 FEIS, at 4-128.
217 Dodds Study, Executive Summary.
2" FEIS, at 4-113.
2'9 FEIS, at 4-110.
220 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix O.
25

oxygen levels, and entrainment of species .221 Atlantic also plans to withdraw several million
gallons of water for dust control, but has not provided any information on where this water will
be taken from, or how much will be taken from each source. 222 In order to ensure that the ACP
will not cause degradation of existing uses of waters, or the violation of water quality standards,
DWR needs detailed data on the speed, location, amount, and time of water withdrawals and an
analysis of the potential effects, including on aquatic species, as well as data on water quality
criteria before, during, and after construction. Without this information, the application fails to
meet state regulatory standards.
At the very least, the ACP will cross through waterbodies classified as Class C surface
waters, Class ("Water Supply") WS -III, WS -IV, and WS -V waters, as well as Nutrient Sensitive
Waters. 223 Further GIS studies reveal that the ACP will also cross several WS -I and WS -II
waters ,224 which are both considered High Quality Waters by supplemental classification.225
Atlantic completely failed to mention this fact in its 401 application, and then continued to deny
this fact in later communications with DWR .226 This misinformation from Atlantic on what types
of surface waters will be impacted is only one of the many examples demonstrating the
carelessness with which Atlantic has prepared this application.
Class C waters have water quality standards for dissolved oxygen, temperature, and
turbidity—all of which will be impacted by construction and operation of the pipeline: 227
Minimum dissolved oxygen levels for Class C waters cannot be less than a daily
average of 5.0 mg/L, with a minimum instantaneous value of not less than 4.0
mg/L.228
Turbidity in Class C waters may not exceed 50 Nephelometric Turbidity Units
(NTU) in streams not designated as trout waters.22
Temperature in Class C waters cannot increase 2.8 degrees C (5.04 degrees F)
above the natural water temperature, and in no case can it exceed 32 degrees C
(89.6 degrees F) for lower piedmont and coastal plain Waters. 230
Additionally, WS -I, WS -II, WS -III, WS -IV, and WS -V waters have water quality standards
listed for dissolved solids, which will likely be violated by sedimentation and erosion caused by
the project .231 Total dissolved solids in Water Supply WS -III, WS -IV, and WS -V waters cannot
be greater than 500 mg/L.232 DWR must ensure that the project does not violate any of these
221 FEIS, 4-121.
222 FEIS, 4-124.
223 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C1.
224 Diagram of WS -1 and WS -11 Waters Crossed by ACP, included as Attachment 16.
225 15A N.C. Admin. Code 02B .0301(c).
226 Atlantic's Response to NC DEQ; Request for Additional Information for 401 Water Quality- Request for
Information No. 9, at 8.
221 15A N.C. Admin. Code 02B .0211(6), (14), (18), (21).
221 15A N.C. Admin. Code 02B. 0211(6). ("[S]wamp waters, lake coves, or backwaters, and lake bottom waters may
have lower values if caused by natural conditions.")
229 15A N.C. Admin. Code 02B. 0211(21).
230 15A N.C. Admin. Code 02B. 0211(18).
231 15A N.C. Admin. Code 2B. 0215(g); 15A N.C. Admin. Code 2B. 0216(g); 15A N.C. Admin. Code 2B. 0218(g).
232 15A N.C. Admin. Code 2B. 0215(g); 15A N.C. Admin. Code 2B. 0216(g); 15A N.C. Admin. Code 2B. 0218(g).
26

listed water quality standards on either a short-term or long-term basis.233 Further, as DWR
stated in its request for additional information to Atlantic, "[s]ediment and erosion control
designs for project areas within waters or watersheds designated as [...] WS -I, WS -II, HQW
must comply with the requirements" found in 15A N.C. Administrative Code 0413 .0124.234
These regulations require more stringent erosion control measures; for instance, those that
"provide protection from the runoff of the 25 year storm which produces the maximum peak rate
of runoff."235 Atlantic does not appear to have addressed that requirement at all.
DWR must also ensure that the project does not violate wetland water quality standards,
including "hydrological conditions necessary to support the biological and physical
characteristics naturally present in wetlands."236 Therefore, hydrological conditions must be
protected to prevent adverse impacts on: (1) water currents, erosion, or sedimentation patterns;
(2) natural water temperature variations; (3) the chemical, nutrient, and dissolved oxygen regime
of the wetland; (4) the movement of aquatic fauna; (5) the pH of the wetland; and (6) water
levels or elevations—such that the impacted wetland can no longer support its previous
hydrological functions.237
Atlantic's failure to measure water quality or include monitoring for water quality
standard violations is an indefensible omission of its incomplete application. Notably, Atlantic
plans to conduct turbidity monitoring in National Forests, as stated in the FEIS, recognizing the
threat that the ACP poses.238 Acknowledging the adverse effects of excess turbidity on "reduced
light" and "smothering" from reduced dissolved oxygen, Atlantic makes plans to monitor
turbidity in the National Forests at least four times per day during construction .239 It plans to
make these measurements both upstream and downstream of construction, and to continue
monitoring activities at least once a day, after construction and restoration is complete .240 If
turbidity standards are exceeded, Atlantic plans to conduct remediation until the source of
turbidity is identified and addressed, and until turbidity readings are within standards .24' Atlantic
does not explain why it fails to take a similar monitoring approach for all regulated water quality
standards for each waterbody and wetland in North Carolina. The fact that these measures are
proposed elsewhere indicates that they are feasible in North Carolina waters, yet Atlantic has
chosen not to propose or implement them here, leaving DWR and the downstream public in the
dark.
As stated in the FEIS, "[t]he impacts of ACP [... ] should be evaluated based on a
comparison of the proposed project to preconstruction conditions."242 Pre -construction
233 15A N.C. Admin. Code 02B .0211 (2)
234 Atlantic's Response to NC DEQ; Request for Additional Information for 401 Water Quality- Request for
Information No. 9, at 8.
235 15A N.C. Admin. Code 02B .0124(b) (emphasis added).
23615A N.C. Admin. Code 02B .0231(b)(5).
237 15A N.C. Admin. Code 02B .0231(b)(5).
238 FEIS, Appendix G, at G-203. Monitoring alone, however, cannot ensure compliance with water quality
standards.
239 FEIS, Appendix G, at G-203. Although these conditions are an improvement over the company's proposal in
North Carolina, that does not mean they are necessarily sufficient.
240 FEIS, Appendix G, at G-203.
24' FEIS, Appendix G, at G-203.
242 FEIS, at 4-129. Although this is for National Forest Service land, the discussion is applicable to the entire project.
27

measurements of water quality standards must be conducted at each site. If Atlantic provides that
information, DWR must then require Atlantic to demonstrate how it will maintain water quality
at each crossing and downstream, and then monitor those standards during and after
construction, with clear plans to respond to any violations. If Atlantic provides the necessary
baseline information and information sufficient to conclude that water quality standards will be
protected, it must monitor and restore (at the very least) dissolved oxygen, temperature, and
turbidity to preconstruction levels if the ACP results in water quality standard violations.243
For wetlands, Atlantic must measure and evaluate: currents, erosion and sedimentation
patterns; temperature; chemical, nutrient, and dissolved oxygen regimes; the movement of
aquatic fauna; pH; and water levels or elevations. 244 This information and evaluation must take
place before a 401 certification can be issued.
Atlantic states that it will test groundwater for several water quality standards before
construction '245 yet maintains that it will only conduct post -construction groundwater quality
tests "[i]f a damage claim is filed. ,246 This places an inappropriate and undue burden on local
residents and communities to monitor their own water sources, without any plan in place for
them to do so. To ensure that groundwater is not degraded, Atlantic must evaluate existing
groundwater and assess the threats the ACP poses to groundwater supplies. If that information is
provided, Atlantic should be required to conduct post -construction water monitoring whether or
not a damage claim is filed, as recommended by the FEIS.247
Only if DWR requires all of these measures—that is, information and analyses prior to
issuing any certification, and rigorous monitoring if a certification is issued—can it potentially
ensure that water quality standards for wetlands, surface water, and groundwater will not be
violated. As discussed in the report by CEA, stream crossings should be monitored for five to
seven years to "assure re-establishment of the native community."248 Additionally, the
"sensitivity of and possible significance of impacts" within wetlands "warrant monitoring and
guaranteed survival for a much longer [] period considering some of the areas will take up to 100
years" to recover. 249 Therefore, five to ten years of post -construction monitoring is recommended
for wetlands. 250
To find that the ACP will comply with water quality standards, DWR must not only
require wetland and water body contours and vegetation to be restored, it must also require
Atlantic to return to crossing sites after storm events to monitor erosion control measures. As
stated in the report by CEA, "[r]estoration sites are very susceptible to upsets associated with
243 15A N.C. Admin. Code 02B .0211 (6), (14), (18), (21); 15A N.C. Admin. Code 2B .0215(g); 15A N.C. Admin.
Code 2B .0216(g); 15A N.C. Admin. Code 2B .0218(g).
244 15A N.C. Admin. Code 02B .0231(b)(5); 15A N.C. Admin. Code 02B .0231(b)(l)—(4) requires further measures
in the event that harmful substances are released, such as those that are toxic, or those that might cause adverse
impacts on existing wetland uses.
245 FEIS, at 4-94.
246 FEIS, at 4-94.
247 FEIS, at 4-95.
241 CEA Report, at 17.
249 CEA Report, at 17.
250 CEA Report, at 17.
W.

natural occurrences such as flood or drought events ."251 Additionally, as stated in the FEIS,
storm events can cause "extreme and unpredictable impacts," including "slope instability" and
"mass sediment/debris loading" which can have "significant short term and long-term impacts on
water resources," and "substantial water quality impairments related to water chemistry and
stream channel geomorphology. Impacts could drastically alter water temperature, turbidity,
dissolved oxygen, and other water quality criteria, as well as benthic-macroinvertebrate
bioassessments."252 As FERC concludes, erosion control measures must be "maintained and
monitored diligently" after storm events in order to function as intended .253 The land that the
ACP would traverse is freshly recovering from Hurricane Matthew, and will surely experience
future extreme storm events. Atlantic only proposes to monitor impacted sites annually for two
years—far too short a period to assure restoration, especially when these sites could easily be
torn up by new storm and flooding events past the two year mark .254 Therefore, Atlantic has not
shown that it would maintain effectiveness of its erosion control measures, which are currently
impermissibly vague and unenforceable.
S. Atlantic has conducted a faulty and deceptive cumulative impacts analysis,
such that DWR cannot ensure cumulative impacts will not cause violations
of water quality standards
Before issuing a 401 certification, DWR must ensure that the project "does not result in
cumulative impacts, based on past or reasonably anticipated future impacts, that cause or will
cause a violation of downstream water quality standards."255 Atlantic's cumulative impacts
assessment on past, present, and reasonably foreseeable impacts is wholly inadequate and fails to
provide DWR enough information to ensure that water quality standards will not be violated due
to cumulative impacts.
Appendix L of Atlantic's 401 Application lists 56 past, present, and reasonably
foreseeable projects with impacts that would combine to have cumulative impacts with the ACP
in North Carolina.256 Nearly all of these are already in progress, completed, or expected to be
completed within the next year. 257 Yet Atlantic has failed to provide any information on water
quality impacts from any of these projects. Instead, its "cumulative impacts assessment" simply
repeats the water impacts caused by the ACP and Supply Header Project alone, and provides a
series of excuses for why it eliminated these other projects from its cumulative impacts
analysis.258
Atlantic states that "[s]ome" of the 56 projects listed in North Carolina that are within the
scope of the cumulative impacts analysis "will be located within the same watersheds crossed by
the ACP .,,259 However, Atlantic fails to state which projects will be located within the same
251 CEA Report, at 17.
252 FEIS, at 4-128.
253 FEIS, at 4-115.
254 CEA Report, at 17.
255 15A N.C. Admin. Code 02H .0506(b)(4); 15A N.C. Admin. Code 02H .0506(c)(4).
256 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix L, at 10-A-6-10.
257 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix L, at 10-A-6-10.
258 Supplemental Information, at 86-91.
259 Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix L, at 10-8, 10-10.
29

watersheds, or the extent of cumulative impacts on any watershed. Atlantic simply asserts that
"only a small number" of the 56 projects "will likely involve direct in -stream impacts ,,and
and
that "only a small number [... ] will likely involve direct impacts to the same wetland
features. ,261 With regard to impacts on waterbodies, Atlantic states that "the construction of
some of the otherprojects [... ] could coincide with" ACP's schedule and cause "increased
sediment loading."262 Similarly, with regard to impacts on wetlands, Atlantic states that the
construction of other projects in the same area as the ACP "could result in the conversion or
reduction in the amount of existing wetlands in the vicinity. ,263 Yet Atlantic makes no attempt to
analyze which projects would coincide with the ACP schedule, and therefore would exacerbate
ACP's impacts to wetlands and waterbodies in North Carolina. Atlantic states that it "expect[s]"
that these impacts will be "appropriately mitigate[d]," but offers no information on proposed
wetland mitigation plans for any of the projects.zba Furthermore, Atlantic claims that it does not
know "at this time" if any of the 56 projects in North Carolina "will use water from the same
surface sources within the same timeframe," yet makes no plans to determine whether that
information is available.261
These glaring omissions throughout Atlantic's "cumulative impacts assessment" are
inexcusable, and fatal to its application. Nearly all 56 projects are in progress, completed, or
expected to be completed within the next year. 266 Their locations have already been determined,
and many construction decisions have already been made. Completed projects have already
executed the bulk of their impacts on waterbodies and wetlands. Yet Atlantic clearly does not
intend to gather data on the specific locations of these projects, or their construction schedules or
procedures—so that it may properly analyze the cumulative impacts of these projects with the
ACP.
Atlantic has further eliminated projects from consideration merely because the project
might require separate permitting actions, such as with Piedmont Natural Gas 6projects, including
a 26 -mile long, 20 -inch diameter pipeline proposed to connect with the ACP. 2 7 The purpose of
a cumulative impacts analysis, however, is to consider the cumulative effects of separately
permitted projects. If each project requiring a separate permit was analyzed separately, there
would never be an analysis of cumulative impacts. Atlantic has also eliminated projects simply if
the project is not "under the purview of the Atlantic or the FERC review of the ACP ."268 On
multiple occasions, Atlantic seems to claim that, because FERC or USACE are supposed to
consider cumulative impacts, DWR is not required to.269 However, FERC's flawed analysis only
analyzed the cumulative watershed and wetland impacts of FERC -regulated projects—none of
261 Id. at 1 0-8.
261 Id. at 10-10.
262 Id. at 10-8 (emphasis added).
261 Id. at 10-10 (emphasis added).
264 Id. at 10-10.
261 Id. at 10-9.
266 Id. at 10-A-6-10.
267 Supplemental Information, at 90-91.
268 Supplemental Information, at 90-91.
269 Supplemental Information, at 89.
30

which are in North Carolina.270 Moreover, neither of these federal agencies has looked at
whether the cumulative impacts of these other projects will violate North Carolina water quality
standards; that is the role of DWR.
Finally, Atlantic's discussion of past and reasonably foreseeable impacts on waters does
not provide any information on the extent of past and future impacts within North Carolina. The
application simply states that past impacts have been "those of typical rural development with
road and various utility line crossings of streams and wetlands in support of agriculture and
dispersed human development," and that reasonably foreseeable impacts "would include
continued slow additional growth in the small human communities with associated road and
utility lien crossings of waters of the U.S."271 The FEIS provides that North Carolina has lost
nearly half its wetlands since pre -colonial times, and that it has lost four percent of the total
inland freshwater wetlands and 1.5 percent of coastal wetlands since the 1970s.272 This
information on historical wetland impacts, and far more analysis on reasonably foreseeable
impacts, should have been discussed in the application so that DWR could make a proper
assessment of past, present, and reasonably foreseeable future impacts
Atlantic has not even given data on the cumulative impacts of the ACP alone on
particular streams, wetlands, subwatersheds, and watersheds. As discussed in the report prepared
by CEA, several of the sites analyzed by CEA involved crossings of multiple tributaries—all of
which are proposed to be crossed using the open -cut method.273 The study found that there will
be "increased impacts associated with multiple disruptions."274 As further shown in attachment
21, the length of the ACP will cross and re -cross several streams and their tributaries in North
Carolina, and wetland systems, many times.275 DWR is required to consider the cumulative
impacts of these multiple crossings on affected waters. Therefore, Atlantic must give data on
how many times each stream, river, wetland, subwatershed, and watershed is crossed by both the
Atlantic Coast Pipeline and any of the other 56 North Carolina projects in Appendix L of the
application.
As one study states, the cumulative impacts of the ACP can be assessed by measurements
and calculations, but Atlantic has not done the analysis to determine any of these cumulative
impacts.276 Cumulative impacts can be measured for:
• Deforestation and soil compaction,
• Increased stormwater discharge using "standard engineering equations,"
• Increased sediment discharge using the Revised Universal Soil Loss Equation,
• Increased stream bank erosion from "bankfull discharge curves," and
• Groundwater impacts using stream baseflow calculations.277
270 FEIS, 4-606-7 ("Other FERC -regulated projects [... ] would permanently affect an estimated total of about 102
acres of wetlands [... ] [W]e assume some level of impacts would occur [from non -FERC regulated projects.]");
FEIS, Appendix W.
271 Supplemental Information, at 88.
272 FEIS, at 4-596.
273 CEA, at 10-11.
274 CEA, at 10-11.
275 Screenshots of Multiple Crossings through Streams and Tributaries, included as Attachment 21.
276 Dodds Study, Section 9.0.
31

As such, Atlantic has not provided any information on the actual water impacts of related
past, present, and reasonably foreseeable projects. Atlantic has made no effort to analyze the
cumulative impacts of this enormous project that promises to impact every major watershed in
eastern North Carolina.
6. Atlantic's proposed mitigation is inadequate for the vast, permanent
degradation of forested wetlands
The state's 401 certification rules lay out specific requirements for wetland mitigation for
"unavoidable losses of existing uses .,,278 As described above, nothing in the application ensures
that forested wetland uses will be protected. Moreover, Atlantic has not appropriately
categorized its impacts or sufficiently described its mitigation proposals.
First, forested wetland impacts will be permanent and must be mitigated as such. As
described above, the FEIS acknowledges that impacts to forested wetlands may take more than
100 years to recover if hydrology is maintained. There is little in the application materials to
provide any assurance that Atlantic will maintain wetland hydrology during or after construction.
Second, Atlantic appears to have made no attempt to categorize wetlands as required
under 401 certification rules. Mitigation requirements vary due to proximity to the nearest
intermittent or perennial water body,279 as well as proximity to water supply watershed waters.280
Atlantic has not evaluated these elements.
Third, the mitigation plans proposed are woefully inadequate. Not only is the proposed
mitigation simply not enough, the plans lack important detail. Notably, each plan includes a
significant sentence: "Detailed wetland delineation has not been performed. ,211 Without
delineations, the plans cannot provide a reasonable basis for evaluating the mitigation proposal
or potential to offset the loss of existing uses that would result from the ACP. The plans, which
were submitted well into the comment period, provide little detail about existing characteristics
of the sites or the restoration that is proposed.
As with the rest of Atlantic's application, the failure to provide adequate information
regarding the proposed mitigation requires denial of the certification.
V. Other States Have Required Far More Detailed Information Than Provided
by Atlantic
States have denied requests for section 401 water quality certification for gas pipelines
where the applicants failed to provide sufficient information to demonstrate compliance with
state water quality standards. The following sections outline the severe impacts and
informational deficiencies that caused New York to deny section 401 certification for the
Constitution and Northern Access pipelines, and New Jersey to decline to issue a freshwater
277 Dodds Study, Section 9.0 .
271 15A N.C. Admin. Code 02H.0506(h).
279 15A N.C. Admin. Code 02H.0506(h)(7).
280 15A N.C. Admin. Code 02H.0506(h)(8).
28' See at Letter from R. Gangle, Dominion Energy, to S. Dailey, USACE, at 4, 7, 11, 14, 18, 22, 25, (Aug. 4, 2017).
32

wetlands individual permit for the PennEast pipeline. Atlantic's application suffers from many of
the same deficiencies as these denied applications, including a lack of adequate site-specific
information, and is even less adequate in many respects.
A. NYSDEC Denied the Constitution Pipeline 401 Certification due to the Lack of
Adequate Information
On April 22, 2016, the New York State Department of Environmental Conservation
("NYSDEC") sent a letter to Constitution Pipeline Company, LLC regarding its joint application
to obtain a section 401 water quality certification (along with Protection of Waters and
Freshwater Wetlands permits). That project included a new 124.14 -mile pipeline originating in
Pennsylvania and terminating in New York, including new right-of-way construction of
approximately 99 miles of new 30 -inch diameter pipeline, temporary and permanent access
roads, and additional ancillary facilities. The letter notified Constitution that "[b]ased on a
thorough evaluation of the Application as well as supplemental submissions, [... ] the
Application fails in a meaningful way to address the significant water resource impacts that
could occur from this Project and has failed to provide sufficient information to demonstrate
compliance with [state] water quality standards."282 Furthermore, the pipeline company's
"failure to adequately address these concerns limited the Department's ability to assess the
impacts and conclude that the Project will comply [with] water quality standards."283
Accordingly, NYSDEC denied the request for a water quality certification.
NYSDEC's denial of 401 certification was recently upheld by the Second Circuit. 284 As
the court stated,
[A]n agency's decision may be found `arbitrary and capricious' for `issuing a
permit with insufficient information' [... ] NYSDEC is responsible for evaluating
the environmental impacts of a proposed pipeline on New York waterbodies in
light of the State's water quality standards [... ] [T]he denial of the § 401
certification after Constitution refused to provide relevant information, despite
repeated NYSDEC requests, was not arbitrary or capricious. 285
In its denial letter, NYSDEC noted that Constitution project construction would impact
251 streams (87 of which support trout or trout spawning); include disturbance to 3,161 linear
feet of streams resulting in 5.09 acres of stream disturbance impacts; and cumulatively impact
85.5 acres of freshwater wetlands and result in impacts to regulated wetland adjacent areas
totaling 4,768 feet for crossings, 9.70 acres for construction, and 4.08 acres for project
operation .286 "Cumulatively, within such areas, as well as the right-of-way generally, impacts to
both small and large streams from the construction and operation of the Project can be profound
and could include loss of available water body habitat, changes in thermal conditions, increased
282 NYSDEC Constitution Letter at 1 (emphasis added), included as Attachment 17.
283 Id.
284 Constitution Pipeline v. NYSDEC, et al. No. 16-1568, slip op. (2nd Cir. Aug. 18, 2017), included as Attachment
18.
285 Id. at 25-26.
286 NYSDEC Constitution Letter, at 3.
33

erosion, and creation of stream instability and turbidity."287 Moreover, "[i]mpacts to these
streams are exacerbated as the cumulative negative effects of multiple crossings are added. 99288
NYSDEC's letter noted that initially, 100% loss of stream and riparian habitat would
occur within the right-of-way as it is cleared and the pipeline trenched across streams, which
would "destroy all in -stream habitat in the shorter term and in some cases could destroy and
degrade specific habitat areas for years following active construction. ,289 In addition, changes to
the stream channel would persist beyond the active construction period thereby "creating
physical and behavioral barriers to aquatic organism passage," and "[floss of riparian vegetation
that shades streams from the warming effects of the sun will likely increase water temperatures,
further limiting habitat suitability for cold -water aquatic species .,,290 NYSDEC noted that
trenching of streams can also destabilize the stream bed and cause an exceedance of water
quality standards, while turbidity and sediment transport from construction can negatively impact
aquatic organisms and downstream habitat .291 Disturbed stream channels are "at much greater
risk of future instability, even if the actual work is conducted under dry conditions; long ranging
stream erosion may occur up and downstream of disturbed stream crossings well beyond the time
of active construction."292
"[D]estabilization of steep hillslopes and stream banks will likely occur and may result in
erosion and failure of banks, causing turbid inputs to waterbodies" that negatively affect water
quality and habitat quality.293 Moreover, "chronic erosion from disturbed stream banks and hill
slopes" can cause "consistent degradation of water quality."294
Like Constitution, Atlantic Coast Pipeline has failed to provide sufficient information in
its application to demonstrate compliance with state water quality standards. Thus DWR cannot
be assured that these "adverse impacts to water quality and associated resources will be avoided
or adequately minimized and mitigated so as not to materially interfere with or jeopardize the
best usages of affected water bodies. ,295
NYSDEC found substantial impacts to stream crossings and required site-
specific information
NYSDEC required site-specific information for each of the 251 streams impacted by the
Constitution Pipeline project.296 NYSDEC also informed Constitution that all 251 stream
crossings "must be evaluated for environmental impacts and that trenchless technology was the
287 Id.
288 Id.
289 Id. at 4.
290 Id.
291 Id.
292 Id. 4-5.
293 Id.
294 Id.
295 Id. at 8.
296 Id.
34

preferred method for stream crossing. ,297 Constitution failed to supply the necessary information
for decision making.
a. NYSDEC found deficient information on trenchless stream
crossings and details on specific stream crossin ss
Because open trenching is a highly impactful construction technique and alternative
trenchless techniques exist, NYSDEC directed Constitution to determine whether a trenchless
technology was constructible for each stream crossing.298 (where other methods are proposed,
"Constitution should explain why trenchless crossing technology will not work or is not practical
for that specific crossing"). Although NYSDEC identified the need to provide information so
that it could evaluate trenchless stream installation methods, Constitution failed to provide
sufficient information to enable the agency to determine if the application demonstrated
compliance with state water quality standards, including standards for turbidity, thermal impacts,
and best usages. Specifically, NYSDEC noted that Constitution's November 2013 Trenchless
Feasibility Study "provided insufficient justification" and "all streams less than 30' wide were
arbitrarily eliminated from any consideration for trenchless crossing method. ,299 On appeal, the
Second Circuit rejected Constitution's attempt to justify its refusal to provide sufficient
information on the basis that using trenchless methods for streams less than 30 feet wide is not
an "industry recognized standard. ,300 The court wrote that "in order to show than an agency's
decision [... ] is arbitrary and capricious, `it is not enough that the regulated industry as eschewed
a given [technology] "' because "[i]ndustry preferences do not circumscribe environmental
relevance .,,301 Furthermore, the study evaluated only 87 of the 251 streams, and ultimately
concluded that only 11 stream crossings "displayed preliminary evidence in support of a
potentially successful trenchless design. ,302
In January 2015, NYSDEC again "indicated that the justification for stream crossing
methods was insufficient and that appropriate site specific information must be provided. ,30' The
following month, Constitution provided "an updated example of a trenchless feasibility study"
that "continued to exclude streams up to 30 feet wide from analysis and did not provide detailed
information of the majority of streams."304 After continued back -and -forth in 2015, Constitution
297 Id.
298 Id. at 8-9.
299 Id. at 10. Constitution maintained that it excluded streams less than 30' wide because trenchless crossing at such
locations could require greater workspace than a conventional dry crossing, but the company did not actually assess
the workspace needs of the streams eliminated from consideration. Atlantic has made similar claims here. FERC
guidelines indicate that HDD is an appropriate method for crossing waterbodies less than 30' wide. See FERC,
Office of Energy Projects, Wetland and Waterbody
Construction and Mitigation Procedures at 8-9 (May 2013), available at
https://www.ferc.gov/industries/gas/enviro/procedures.pdf.
300 Constitution Pipeline v. NYSDEC, et al. No. 16-1568, slip op., at 25 (2nd Cir. Aug. 18, 2017).
301 Id. citing Motor Vehicle Manufacturers Ass'n of the United States, Inc. v. State Farm Mutual Automobile
Insurance Co., 463 U.S. 29, 49 (1983).
302 Id. at 11. Constitution also improperly eliminated streams from consideration by evaluating non -environmental
factors such as construction timelines, cost, estimated workspace requirements, and regulatory agency reviews.
NYSDEC informed Constitution that the feasibility determination must be based solely on technical characteristics.
DWR should require the same of Atlantic.
303 Id. at 10.
304 Id.
35

had still not provided sufficient information. NYSDEC therefore did "not have adequate
information to assure that sufficient impact avoidance, minimization or mitigation measures were
considered as to each of the more than 200 streams proposed for trenched crossings." 3os
Similarly, DWR currently lacks adequate information with regard to the ACP stream crossings.
NYSDEC concluded that "[d]ue to the lack of detailed project plans, including
geotechnical borings, the Department has determined to deny Constitution's WQC Application
because the supporting materials supplied by Constitution do not provide sufficient information
for each stream crossing to demonstrate compliance with applicable narrative water quality
standards for turbidity and preservation of best usages of affected water bodies." 306 Furthermore,
Constitution failed to provide "sufficient detailed information including site specific project
plans regarding stream crossings (e.g., geotechnical borings)," and its application lacked
"required site-specific information for each of the 251 stream crossings," including, but not
limited to:
- the specific location of access roads
- definite location of temporary stream crossing bridges
- details for temporary bridges, including depth of abutments in stream banks
- details of proposed blasting
- the location of temporary coffer dams for stream crossings 307
As is the case here, the missing information meant that the state agency could not "determine
whether additional water quality impact avoidance, minimization, or mitigation measures must
be taken to ensure compliance with water quality standards in water bodies associated with this
infrastructure."3os
b. NYSDEC found insuf1cient site-speci ac information on depth of
p pe
Historically, NYSDEC staff had "observed numerous and extensive vertical movements
of streams" that had "led to pipe exposure and subsequent remedial projects to rebury the pipe
and armor the stream channel" (corrective actions which themselves caused severe negative
impacts on water quality, as well as the stability and ecology of the stream).309 Accordingly,
agency staff requested that Constitution "provide a comprehensive and site-specific analysis of
depth for pipeline burial." 310 Constitution failed to provide sufficient information and analysis.
NYSDEC noted that "[w]ithout a site-specific analysis of the potential for vertical movement of
each stream crossing to justify a burial depth, NYSDEC is unable to determine whether the depth
of the pipe is protective" of state water quality standards. 311 NYSDEC also noted that "future
high flow events could expose the pipeline," which would "require more extensive stabilization
30s Id. at 11.
306 Id. at 12.
307 Id.
308 Id.
309 ,Td. at 13.
310 Id.
311 Id
36

measures and in stream disturbances resulting in addition[al] degradation to environmental
quality. 99312
C. NYSDEC found deficient blasting information
Constitution's Blasting Plan failed to "provide site-specific information where blasting
will occur," instead providing "a list of potential blasting locations based on the presence of
shallow bedrock. ,313 Shallow bedrock occurred along 44% of the route in New York, involving
84 wetlands crossings and 27 waterbody crossings. The pipeline company indicated that "a final
determination on the need for blasting will be made at the time of construction in waterbodies
and wetlands."314 NYSDEC concluded that "[d]ue to the lack of specific blasting information
needed for review with respect to associated water bodies, NYSDEC is unable to determine
whether this Plan is protective" of state water quality standards.311
2. NYSDEC found that Constitution also did not provide adequate
information on wetland impacts
Constitution's application failed to "demonstrate that wetland crossings will be
performed in a manner that will avoid or minimize discharges to navigable waters that would
violate water quality standards, including turbidity."316 NYSDEC concluded that "[a]bsent
detailed information for each wetland crossing that demonstrates Constitution properly avoided,
minimized and mitigated impacts to wetland and adjacent areas, the Application does not supply
the Department with adequate information to assure that streams and water bodies will not be
subject to discharges that do not comply with applicable water quality standards." 317
Like Constitution, Atlantic has failed to provide sufficient information to demonstrate
compliance with state water quality standards.
B. NYSDEC Denied the Northern Access Pipeline 401 Certification due to the Lack
of Adequate Information
On April 7, 2017, NYSDEC sent a letter to National Fuel Gas Supply Corporation and
Empire Pipeline, Inc. (collectively, "NFG") regarding their application to obtain a section 401
water quality certification for the Northern Access Pipeline (as well as Protection of Waters and
Freshwater Wetlands permits). That project included a new 97 -mile long, 24 -inch diameter gas
pipeline that would cross 192 State -regulated streams and impact a total of 73.4 acres of
wetlands. NYSDEC noted that the project "would necessarily impact these waterbodies and
jeopardize their best usages that New York's water quality standards were enacted to protect."318
312 Id.
313 Id.
314 Id
315 Id
316 Id
317 Id. at 13-14 (emphasis added).
3'8 NYSDEC Northern Access Letter at 2, included as Attachment 19.
37

NYSDEC denied the request for water quality certification because the application failed
to demonstrate compliance with state water quality standards. Specifically, NYSDEC "reviewed
the impacts directly associated with the Project proposal in terms of water body water quality,
stream bed and bank disturbances, and wetlands and wetland adjacent area disturbances," noting
that because of the identified impacts from Project construction and operation (including
cumulative effects 319), the application failed to demonstrate compliance with state water quality
standards .320
During its review of the application, NYSDEC directed NFG to demonstrate compliance
with state water quality standards "by providing site-specific information for each of the streams
impacted by the Project .,,321 Due to "the potential for significant habitat damage, destruction and
permanent loss from pipeline construction," NYSDEC required a trenchless feasibility analysis
of streams crossed by the pipeline. 322 The applicant concluded that trenchless crossing methods
were not feasible with respect to 184 of the stream crossings. NYSDEC noted that "impacts and
damage to water resources will necessarily occur where trenchless crossing methods are not
employed. 5,323
Specifically, NYSDEC requested a feasibility analysis "aimed to assess the possibility of
installing the Project pipeline using trenchless technology at 55 selected crossings," focusing on
more environmentally sensitive or significant waterbodies.324 Even after NYSDEC further
narrowed the scope of review for trenchless feasibility analysis to 13 priority streams, NFG
"concluded it would utilize trenchless methods at only five of the 13 priority streams."325 NFG's
analysis comprised sequential reviews encompassing 1) physical/technical parameters, 2)
environmental constraints, and 3) technical design parameters. 326 Notably, NFG's rejected
analysis was far more explanatory than Atlantic's.
NFG intended that the remaining 184 streams (including eight of the 13 priority streams)
be crossed using dry crossings, permanent culverts, or temporary bridges. NYSDEC noted that
the dry crossings "will permanently impair aquatic habitat and generate turbidity that will impair
the best usages of these waterbodies," and that the dry crossing of streams designated as Trout or
Trout Spawning will "negatively affect riparian and in -stream conditions necessary to provide
habitat to support trout presence and preserve water quality."327 NYSDEC noted the loss of and
conversion of riparian cover types would increase the input of turbid water; construction in the
right-of-way would destabilize stream banks and increase risks for further erosion and bank
instability (which would compromise water quality); and excavation across stream beds would
remove in -stream habitat forms that create pools and pockets as habitat for trout and other
aquatic organisms, as well as destabilize stream beds and make them more susceptible to erosion
319 See id. at 4 ("Crossing multiple streams and freshwater wetlands within a watershed or basin, including
degrading riparian buffers, causes a negative cumulative effect on water quality to that watershed or basin.")
320 Id. at 3.
321 Id. at 5 ("NYSDEC informed NFG that all stream crossings must be evaluated for environmental impacts...."
(emphasis added)).
322 Id. at 5.
323 Id. at 5.
324 Id. at 5-6.
325_1d. at 6.
326 Id.
321 Id. at 6-7.
W.

(affecting both immediate habit in the right-of-way and downstream water quality and
habitat)."'
NYSDEC also stated that in its "recent experiences with constructing large scale natural
gas pipelines across New York State, involving multiple water body crossings in multiple
watersheds or basins, [... ] even with stringent water quality protection conditions, violations of
water quality standards at this scale occur causing significant degradation of water quality in
stream after stream along a constructed ROW," or right-of-way.329
NYSDEC noted that, more broadly, "riparian habitat surrounding streams within the
Project right-of-way will be permanently impacted by construction activities involving
excavation and burial of the pipeline and any needed grading of local topography by heavy
construction equipment. ,330 When crossing streams, "construction in the wet" would lead to
adverse water quality impacts, while construction in dewatered conditions would "not only
physically disturb stream beds via excavation..., but also dry and desiccate any stream habitat
between the excavated centerline and the perimeter of the dewatered right-of-way. ,331 NYSDEC
concluded that these construction techniques would cause "significant damage or destruction to
both riparian and in -stream habitat," both during and after construction. 332
NYSDEC identified significant impacts to riparian and stream habitat during construction
(with resulting adverse impacts to water quality):
- The loss of riparian habitat for open -dry trench stream crossings "is a negative impact
to water quality and stream habitat to the extent that the riparian area contributes
unfiltered, sediment laden, turbid water to the water body through bank erosion. ,333
NYSDEC performed a evaluated all open -dry trench stream crossings that aggregate
the area of impacts within the riparian habitat zone. The agency noted that "fully in-
kind vegetation, including mature trees, will not be replanted nor ever be allowed to
fully regrow to pre -construction conditions," such that riparian habitat values will
"not return to previous capacity to protect each water body from erosion and resulting
sedimentation and turbidity."334
- NYSDEC noted that "[u]pon preparing a stream for dewatering, various construction
steps, such as the excavation of intake pits and the placement of barriers, will be
conducted within flowing water that will cause a significant visible contrast and
328 Id. at 7.
329 Id
330 Id.
331 Id
332 See also id at 7-8 ("The narrative standard for turbidity will be violated when in -water construction occurs and at
certain times during the post -construction phase. These water quality impacts and changes in riparian and stream
habitat will degrade the affected waters which will then be unable to support best usages. This is particularly the
case with a trout standard or rare species designation where the water body impact degrades the water body's
capacity to guarantee the survival and propagation of balanced, indigenous populations of shellfish, fish and wildlife
that rely upon those waters." (footnote omitted)).
333 Id. at 8 (emphasis added).
334 Id.
39

exceedance of the turbidity water quality standard. ,335 Moreover, at the completion of
construction, work would again occur within flowing water, and installation and
removal of temporary bridges and stream bank stabilization efforts would also cause
violations of the turbidity water quality standard. 336
For streams with flowing water at the time of construction of open -dry trench stream
crossings, because of dewatering and subsequent drying, "any aquatic organisms
within this [disturbed] area will be lost" and, consequently, "the disturbed stream bed
is considered a 100% loss of stream habitat. ,337 Moreover, "[d]ue to the increased
turbidity caused during construction, the best usages of these waters for aquatic
species and maintenance of these species' habitat will be lost until the affected water
bodies recover and stabilize."338
NYSDEC also identified post -construction impacts to streams:
- The permanent loss of native, established riparian vegetation "will have a negative
effect on water quality and stream ecological health for the full service life of the
pipeline. ,339
- The degraded vegetative buffer (including the removal of established treed areas)
"will cause bank erosion, resulting in sedimentation and turbidity in the water body,"
which in turn will "degrade the best uses of the water body for aquatic organisms. ,340
- Although disturbed in -stream areas will be rewatered and stabilized following
construction, "the hydrogeomorphology of these streams is extremely complicated
and disturbance to the bed and banks of the streams will result in instability and lead
to future vertical or lateral erosion, which will result in additional turbidity and
impairment of water quality."341
NYSDEC also addressed impacts to wetlands, noting that they "preserv[e] water quality
through their hydrologic absorption and storage capacity, ... protect subsurface water resources,
recharge groundwater, and cleanse surface runoff to water bodies."342 The agency concluded that
disturbances to wetlands "due to construction and right-of-way maintenance will have permanent
and temporary impacts on New York's surface and subsurface water quality by decreasing
wetland functions and benefits directly associated with protecting and preserving the integrity of
water chemistry and biology."343 For example, the pipeline companies' "activities — particularly
removing and changing vegetation — will alter the wetlands abilities to hold and release flood
335 Id
336 Id
337 Id. at 9.
338 Id.
339 Id
340 Id.
341 Id. at 10.
342 Id.
343 Id. at 11.
EEO

waters, and will change the ability of those disturbed areas to provide pollution treatment and
water quality benefits."344
In concluding that NFG failed to demonstrate that the Project disturbances would
adequately avoid or minimize effects on wetlands benefits as they relate to state water quality
standards, NYSDEC noted the following:
NFG failed to demonstrate "that there are no practicable alternatives to avoid all
disturbance to wetlands impacts due to construction of the Project, and post -
construction right-of-way maintenance."345
- NFG failed to demonstrate "that it will adequately minimize disturbances to wetlands
so as to assure that there will be no adverse impacts to wetlands themselves or to
State water quality."346 NYSEC emphasized that NFG "is not proposing to replace
woody plants located in and near forested and shrub wetlands that its Project will
impact."),347
- By failing to minimize wetland impacts, NFG failed to "assure that water quality
standards will be met in water bodies associated with these impacted wetlands."348
Finally, NYSDEC found that mitigation of impacts to regulated wetlands did not
meet state regulatory provisions because "[t]he area proposed by NFG to mitigate
these collective impacts is not in the same basin as that containing the majority of
these impacts, much less in the same subwatershed where most of the impacts
occur."349
NYSDEC concluded that the Project's impacts "will cause turbidity in such a manner to
that [sic] impedes the best usages of many waterbodies, particularly those with a trout standard
or rare species, by degrading the survival and propagation of balanced, indigenous populations of
shellfish, fish and wildlife that rely upon these waters."350
C. The New Jersey Department of Environmental Protection Denied the PennEast
Pipeline 401 Certification due to the Lack of Adequate Information
The PennEast Pipeline Project would include 116 miles of new, 36 inch -diameter
greenfield pipeline (37.7 miles in New Jersey and 78.3 miles in Pennsylvania). In the New
Jersey Department of Environmental Protection's (NJDEP) amended deficiency letter, dated
April 28, 2017, the agency identified information missing from PennEast Pipeline Company's
application for a freshwater wetlands individual permit. The absence of the following
information rendered the permit application deficient:
344 Id. (emphasis added).
341 Id. at 12.
346 Id
347 Id. (emphasis added).
348 Id.
349 Id
310 _[d. at 13.
41

Verification of "the accuracy of the wetlands delineation, transition areas, threatened
and endangered species habitat, archaeological resources, and best practices to cross
particular streams".351
For the length of the proposed pipeline alignment: a proposed delineation of all
freshwater wetlands, transition areas, and State open waters on the site, or portion
thereof, that is the subject of the application;352 soil borings and/or other physical
indicators of the presence or absence of freshwater wetlands, transition areas, and/or
State open waters; 353 delineating report information, including data sheets and/or
other materials explaining and supporting the delineation for all wetlands within the
right-of-way and 150 feet from each side of the right-of-way;354 the total area of
wetlands and State open waters on the site before and after the regulated activity is
performed ;355 and copies of a site plan or subdivision map showing a complete
delineation of the wetlands boundary; and 356
- An amended archaeological survey report investigating the entire proposed alignment
for the portion of the pipeline located in New Jersey.35'
On June 28, 2017, NJDEP denied PennEast's request for additional time and deemed the
application administratively closed.
VL DWR Must, at a Minimum, Require Site -Specific Information from Atlantic
DWR cannot lawfully issue a 401 certification based on the existing application
materials. The history of this type of project makes clear that the existing uses of the streams and
wetlands the ACP would cross are in danger and water quality standards are likely to be violated.
Therefore, the application should be denied.
If DWR does not deny the permit outright, it must demand additional information. To
demonstrate that the selected construction method for each crossing has no practical alternative,
or that the selected construction methods and procedures will minimize adverse impacts, DWR
must, at a minimum, require site-specific information on the following issues before
considering certification:
• Whether soil is unconsolidated to justify decision not to use the conventional bore
method;
• The steepness of adjacent soils to justify decision not to use the conventional bore
method;
• Whether waterbody is entrenched to justify decision not to use the conventional
bore method;
351 PennEast Letter, at ¶ 1, included as Attachment 20.
352 Id. at ¶ 4.i.
353 Id. at ¶ 4.ii.
354 Id. at ¶ 4.111.
355 Id. at ¶ 4.iv.
356 Id. at ¶ 4.v.
357 Id. at ¶ 6.
42

• Rock and soil quality to justify decision not to use HDD;
• Rock strength and hardness to justify decision not to use HDD;
• Any solution cavities in the bedrock to justify decision not to use HDD;
• Artesian groundwater pressure to justify decision not to use HDD;
• Anticipated impacts of HDD versus a "traditional crossing method," based on
differing construction times, to justify decision not to use HDD;
• The workspace required, and the space available, for drilling equipment to justify
decision not to use HDD;
• The specific location of access roads;
• The details, and definite locations of temporary bridges, including depth of
abutments in stream banks;
• The details of proposed blasting;
• Pump locations, where the dam -and -pump method will be used;
• The location of temporary cofferdams for stream crossings;
• The depth for pipeline burial, including analysis of the potential for vertical
movement of each stream crossing to justify burial depth; and
• The discharge locations of wastewater;
• Preconstruction recording of contours; restoration of wetland and waterbody
contours to their pre -construction state as close as technically feasible,
considering the width, depth and gradient associations for streambeds,
streambanks, floodplains, and terrace, and monitoring of wetland sites for 5 to 10
years, and monitoring of waterbody sites for 5 to 7 years;
• Preconstruction recording of vegetation; restoration of wetland and waterbody
vegetation to pre -construction state as close as technically feasible, so that
previous species composition, diversity, and density can still be supported.
• Replacement of woody plants located in and near impacted forested and shrub
wetlands; the reestablishment of fully functional wetland habitats and riparian
areas adjacent wetlands and streams; monitoring of wetland sites for 5 to 10
years; and monitoring of waterbody sites for 5 to 7 years;
• Preconstruction recording of soils, particularly conducting soil profiles for
wetlands; segregation of at least 12 inches of topsoil in all wetlands, regardless of
saturation; restoration of wetland soils and waterbodies so that biological
productivity and chemical conditions remain the same; monitoring of wetland
sites for 5 to 10 years; and monitoring of waterbody sites for 5 to 7 years.
To demonstrate that the project will not result in the degradation of the State's waters,
and that the project will provide for the protection of water quality standards, DWR must, at a
minimum, require:
Delineations of wetlands outside the construction boundary;
Site-specific recording of water quality parameters for waterbodies prior to
construction, including: temperature, dissolved solids, dissolved oxygen, and
turbidity;
Site-specific recording of water quality standards for wetlands prior to
construction, including: measurements of temperature, current, sedimentation and
43

require:
erosion patterns, pH, water levels and elevations, and the chemical, nutrient,
movement of aquatic fauna, and dissolved oxygen regimes;
• Monitoring of water quality criteria for wetlands during and 5 to 10 years after
construction, including stringent parameters on the frequency and duration of
inspection;
• Monitoring of water quality criteria for waterbodies during and 5 to 7 years after
construction, including stringent parameters on the frequency and duration of
inspection;
• Enforceable restoration measures to meet water quality standards if violations
occur during or after construction;
• Maintenance and monitoring of erosion control measures after storm events (for 5
to 10 years after construction in a wetland, and for 5 to 7 years after construction
in a waterbody);
• Post -construction groundwater tests, and groundwater remediation if tests reveal
that groundwater is in violation of groundwater standards; and
• Data on water withdrawals for both hydrostatic testing and dust control, including
data on the specific location, time, speed, and amount of withdrawals, impacts on
aquatic species, and plans to impound and prevent discharge of wastewater and
runoff after use.
To adequately analyze the cumulative impacts of the project, DWR must, at a minimum,
• An analysis of waterbody and wetland impacts from completed and in -progress
North Carolina projects listed in Appendix L of the application;
• A prediction of reasonably foreseeable waterbody and wetland impacts from in -
progress, anticipated, and planned North Carolina projects listed in Appendix L of
the application;
• A determination of how many times each stream and its tributaries, wetland,
subwatershed, and watershed is crossed by both the Atlantic Coast Pipeline and
any of the other 56 North Carolina projects in Appendix L of the application; and
• Information on which of the North Carolina projects in Appendix L of the
application will draw water from the same sources the ACP will use for
hydrostatic testing or dust control, and how much water the projects will use.
All of this information is necessary to DWR's analysis and must be submitted before a
401 certification can be issued. The agency must also require detailed wetland delineations, site-
specific drawings for each crossing, and additional information about Atlantic's erosion and
sedimentation control plans.
VII. Conclusion
The ACP is a massive project that would leave a permanent scar on the coastal plain of
North Carolina. It is imperative that a project of this scale, with impacts across the entire coastal
plain, be fully analyzed. Such a project cannot be approved or undertaken based on the
information available. DWR cannot lawfully issue a 401 certification because Atlantic has not

met its burden of demonstrating compliance with state water quality rules. Therefore, we
respectfully request that DWR deny the proposed 401 certification for failing to include the
information described above. Should Atlantic provide the required additional information, our
organizations request that DWR provide opportunities for public comment on the new
information
Thank you for considering these comments. Please contact us at [e-mail],
[e-mail], or 919-967-1450 if you have any questions regarding this letter.
Sincerely,
0at:z' 6'—�
Geoffrey R. Gisler
Senior Attorney
Jean Zhuang
Associate Attorney
Z4 A07��
Elly Benson
Staff Attorney
Sierra Club
Attachments provided on compact disc (via U.S. Mail)
Ki