20140957 Ver 2_SELC_20171128

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
VIA E-MAIL AND U.S. MAIL
601 WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NC 27516-2356
November 22, 2017
Jeff Poupart
N. C. Department of Environmental Quality
401 Permitting
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
[e-mail]
Facsimile 919-929-9421
fly
RE: Comments on Atlantic's responses to NCDWR Requests for Additional Information
for the Section 401 Certification Application for Construction of the Atlantic Coast
Pipeline
Dear Mr. Poupart:
The Southern Environmental Law Center and Sierra Club offer the following comments
on Atlantic Coast Pipeline, LLC's ("Atlantic") responses to DWR's "Request for Additional
Information" 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 Starr Silvis, identifying additional
errors with Atlantic's responses. I These comments are submitted on behalf of the Southern
Environmental Law Center and the Sierra Club.
DWR has acknowledged the insufficiency of Atlantic's 401 application by making
numerous requests for Additional Information ("request"), dated June 27, 2017, September 14,
2017, and October 26, 2016. Recognizing that past pipeline projects "all comply with the
requirement to complete stream crossings using a dry method," DWR rejected Atlantic's
numerous excuses for using the most harmful method of construction in hundreds of crossings.2
As we discuss in these comments, however, Atlantic has still failed to demonstrate that it will
comply with state laws.
First, DWR still has not requested enough information to ensure minimization of adverse
impacts to wetlands and waterbodies, or compliance with water quality standards. Second,
Atlantic's responses continue to fail to give DWR the information that it has requested. As we
stated in our August 18, 2017 comments on the company's original 401 application ("401
Comments"), the ACP will cause significant, long-term damage to the environment in eastern
' Starr Silvis, Comments on 401 Application for Atlantic Coast Pipeline, November 19, 2017, Starr Silvis, included
as Attachment 1 ("Silvis Comments").
2 NCDEQ request for Additional Information for 401 Certification of the Atlantic Coast Pipeline, Oct. 26, 2017, No.
1(a), at 1 ("DEQ Oct. 26 request").
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North Carolina. It will impact over 7 miles of 326 waterbodies, and at least 467.7 acres of
valuable wetlands—more than North Carolina has approved in 9 of the last 10 years.3 Because
Atlantic continues to avoid its burden of demonstrating compliance with state water quality rules,
DWR must deny the proposed 401 certification.
I. Atlantic has yet to justify its decision to use trenched construction for the vast majority of
crossings
Atlantic must provide adequate information to show that the construction methods and
procedures it has chosen for each crossing "ha[ve] no practical alternative," "considering the
potential for [... ] all alternative designs."4 It is undisputed that trenchless construction methods,
including horizontal directional drilling ("HDD") and conventional boring, have substantially
less impact on waterbodies and wetlands than traditional methods that use trenches.5 In its
September 14th request, DWR recognizes that fact by asking Atlantic to justify its decision to use
destructive trenches for all but seven crossings.6
DWR only required such justification for waterbodies over 30 feet wide, however,
unreasonably excluding hundreds of crossings from consideration. This limitation is arbitrary,
and does not provide protection for water quality standards. The New York State Department of
Environmental Conservation ("NYSDEC") similarly found that it was arbitrary for the
Constitution Pipeline Company, LLC ("Constitution") to eliminate all streams less than 30 feet
wide from consideration for trenchless construction.$ Constitution tried to claim that it did not
consider HDD for these streams "because `in general' the use of this method `causes greater net
environmental impacts,' which it asserted was an `industry recognized standard."' NYSDEC
responded that the agency "was not bound by `industry recognized standards"' and was well
within its authority to protect water quality when it asked for a site-specific evaluation of the
technical feasibility for trenchless crossing at all crossings. 10 On appeal, the Second Circuit
affirmed NYSDEC's decision, stating that "in order to show than an agency's decision [... ] is
arbitrary and capricious, `it is not enough that the regulated industry has eschewed a given
[technology] "' because "[i]ndustry preferences do not circumscribe environmental relevance."11
401 regulations apply to all waterbodies and wetlands. Nowhere do the regulations state that only
waterbodies over 30 feet wide should be protected for water quality. Additionally, there are
3 Comments to DWR on Section 401 Certification Application for Construction of the Atlantic Coast Pipeline,
submitted by SELC on behalf of Conservation Groups, August 18, 2017, at 6 ("401 Comments").
4 15A N.C. Admin. Code 02H .0506(b)(1), (c)(1), (f) (emphasis added).
5 401 Comments, at 16; see also Silvis Comments, at 5.
6 NCDEQ request for Additional Information for 401 Certification of the Atlantic Coast Pipeline, Sept. 14, 2017,
No. 1(a), at 1 ("DEQ Sept. 14 request").
DEQ Sept. 14 request, No. 1(a), at 1.
8 NYSDEC Notice of Denial of 401 Certification for the Constitution Pipeline 11, April 22, 2016 ("NYSDEC
Constitution Letter").
9 Reply Brief for NYSDEC Respondent, Constitution Pipeline v. NYSDEC, et al. No. 16-1568, slip op. 60-61 (2nd
Cir. Aug. 18, 2017).
io Id
" Constitution Pipeline v. NYSDEC, et al. No. 16-1568, slip op. (2nd Cir. Aug. 18, 2017), citing Motor Vehicle
Manufacturers Ass'n of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 49
(1983).

several 30 -foot waterbodies that will be crossed by the ACP. 12 It would be arbitrary and
capricious for DWR to require Atlantic to consider alternative methods for crossings that are 31
feet wide, but not those that are 30 feet wide.
In addition, DWR only asked Atlantic to justify its decision to use trenched crossings for
waterbodies, 13 completely ignoring the 467.7 acres of valuable wetlands that will be crossed by
the pipeline. Trenchless construction technologies, including HDD, have been successfully used
in the past for wetlands to dramatically reduce impacts of pipeline construction to wetland
hydrology and habitat. 14 Furthermore, it appears as though Atlantic is already proposing to use
HDD for a few of its crossings within wetlands, indicating that it is a technically feasible
option. 15 In order to ensure that each crossing "has no practical alternative," "considering the
potential for [... ] all alternative designs," "which would avoid or result in less adverse impact to
surface waters or wetlands," DWR must ask Atlantic evaluate trenchless methods for every
single wetland crossing, and provide site-specific reasons for any proposed use of trenches. 16
DWR's request was thus arbitrarily limited, in violation of 401 regulations. Moreover,
Atlantic failed to adequately respond to DWR's request. First, the company failed to look at all
the waterbodies DWR asked it to consider. DWR requested Atlantic to explain why it chose to
construct the pipeline using trenches "for each waterbody more than 30 feet in width." 17 Instead,
the company only looked at waterbodies "that have an ordinary high water mark width of greater
than 30 feet" based on its own "field studies." 18 Rather than using the measurements for the
"waterbody centerline crossing in feet" that were provided in Appendix C1 of its 401
application—which Atlantic already used as a measurement for width in its July 12, 2017
response to DWR's June 271h request for information'9--Atlanticused a new measurement based
on studies that have not been provided in any part of the application. Notably, its measurements
for the "ordinary high water mark width" of each waterbody are consistently smaller than the
"waterbody centerline crossing in feet." It appears that the company used this new and
unsubstantiated measurement to eliminate several crossings from consideration. DWR should
require Atlantic to (1) release the field studies that confirm the measurements of ordinary high
water mark width, (2) explain how it measured the "waterbody centerline crossing in feet" in
Appendix C 1 of its application, and (3) explain how the ordinary high water mark measurements
differ from the waterbody centerline crossing measurements.
12 UNT to Pig Basket Creek (Feature ID- snah 009), Sapony Creek (Feature ID- snah 024), and Little Buffalo Creek,
(Feature ID- sjob104) all have a waterbody centerline crossing of 30 feet. Atlantic Coast Pipeline, 401 Water
Quality Permit Application: Appendix C 1.
13 DEQ Sept. 14 request, No. 1(a), at 1.
14 See Silvis Comments, at 3. ("Wetland pipe installation can be accomplished in the dry using HDD, conventional
boring... These remain practical alternatives to open -cut wetland crossing.").
" HDD is proposed for wetland crossings with Feature IDs whlgOl If, wnap002f, wnapOOlf, wjoeOOlf, wjoe002f,
wjobI12f, and wjob112s.
16 15A N.C. Admin. Code 02H .0506(b)(1), (c)(1), (f).
17 DEQ Sept. 14 request; No. 1(a), at 1.
18 Atlantic's response to DEQ's request for Additional Information, Sept. 22, 2017, No. 1(a), at 1-3 ("Atlantic Sept.
22 response").
19 In Atlantic's July 12, 2017 response to DWR's last request for information, Atlantic evaluated waterbodies "less
than 20 feet in width," and used the "centerline crossing width" as the measurement for the width of each
waterbody. Atlantic's response to DEQ's request for Additional Information, July 12, 2017, No. 11, at 9-10
("Atlantic July 12 response").

By using the ordinary high water mark widths of waterbodies, Atlantic failed to consider
the following waterbodies with waterbody centerline crossing widths greater than 30 feet:
• Unnamed Pond (Feature ID osao002) is 102 feet
• Starlins Swamp (Feature ID ssao005) is 118 feet
• UNT to Flat Rock Branch (Feature ID snah 025) is 68 feet
• Burnt Swamp (Feature ID srop001) is 43 feet
• Cypress Creek (Feature ID snro003) is 33 feet
• Hair Canal (Feature ID scmo029) is 31 feet 20
Second, Atlantic did not give adequate justification for the two crossings it did list. DWR
asked for enough site-specific detail "necessary to ensure that downstream water quality is
protected" by the selected method, 21 yet Atlantic failed to do this in both its September 22nd
response, and its October 131h letter. In its initial response, sent on September 22, 2017, the
company provided vague statements about increased noise, traffic, and time to justify its decision
to cross Beaverdam Swamp and Raft Swamp with trenches. 22 Notably, Constitution tried to
make similar excuses with its 401 application before the NYSDEC, and failed. NYSDEC
rejected Constitution's excuses, stating that a feasibility determination must be based solely on
technical characteristics, and not concerns about time or cost. 23 Atlantic also claimed that the
"anticipated soil conditions could present a high hydraulic fracture risk" from using HDD at Raft
Swamp, but it provided no geotechnical analysis of actual hydraulic fracture risk .24 At no point
did Atlantic state that water quality impacts would be worse using HDD or conventional bore
methods, or actually show that those methods are technically infeasible.
On October 13, 2017, Atlantic expanded upon its response, yet it continued to focus on
the fact that trenchless methods could be noisy, time consuming, and disruptive to local
residences. 25 The company still failed to show that trenchless methods are infeasible, or that they
will be less protective of water quality. Atlantic added that the HDD method has the potential for
inadvertent drilling fluid returns, 26 though that has always been a potential risk of the HDD
method. To determine the potential risk, the com2pany needed to conduct a site-specific
geotechnical analysis, which it still has not done. Atlantic instead chooses to use the same
evasive language that it used in its original 401 application, where it gave numerous general
excuses for why HDD might be infeasible at any location, but failed to provide actual site-
specific analyses of feasibility. 28
20 Atlantic Coast Pipeline, 401 Water Quality Permit Application: Appendix C 1.
2' DEQ Sept. 14 request, No. 1(a), at 1.
22 Atlantic Sept. 22 response, No. 1(a), at 1-3.
23 Reply Brief for NYSDEC Respondents, Constitution Pipeline v. NYSDEC, et al. No. 16-1568, slip op. 61, 63 (2nd
Cir. Aug. 18, 2017).
24 Atlantic Sept. 22 response, No. 1(a), at 2.
2s Atlantic's response to DEQ's request for Additional Information, Oct. 13, 2017, at 1-3 ("Atlantic Oct. 13
response").
26 Atlantic Oct. 13 response, at 2.
27 See 401 Comments, at 18-19.
28 See 401 Comments, at 18-19.
4

Finally, Atlantic added that the conventional bore method at either the Beaverdam or Raft
Swamp locations would cause additional footprint within the wetlands. 29 However, this claim
relies on the assumption that the soils at these two crossings are too soft to hold line and grade.
30
The company stated that soft soils "would be expected," but provided no analysis of the soils at
these locations. 31 Therefore, Atlantic's conclusions regarding impacts to these wetlands cannot
be given any weight.
DWR must require Atlantic to show why all wetlands and waterbodies, including those
less than 30 feet wide, cannot be avoided using a trenchless method. Atlantic's explanations must
be based on substantiated claims of technical infeasibility or further harm to water quality. Other
excuses are irrelevant to whether or not the company is meeting the requirements of North
Carolina's 401 certification rules. 32
Il. It is not enough for DWR to request that Atlantic cross all streams using dry construction
methods; DWR must also require time -of -year restrictions and monitoring of water
Quality parameters
DWR has not yet done enough to ensure that each crossing has no practical alternative, or
that the construction procedures will minimize adverse impacts. First, DWR must require
Atlantic to proactively determine if any streams or wetlands will be low -in -water, or dry, at any
point during the year. Pipeline construction in low -flow conditions causes fewer impacts. 33
Therefore, DWR must require Atlantic to schedule its construction during dry seasons. As Silvis
stated in her expert report, this can "easily be accomplished" by looking at existing stream flow
records for the waterbody that will be crossed or for adjacent streams, or by looking at historical
rainfall data for the area. 34 DWR should also require Atlantic to examine forecasts prior to
construction, and work during periods when no precipitation is expected.
Additionally, DWR has thus far failed to recognize that water quality impacts will occur
even if a dry construction method is used in a flowing waterbody, 35 or if the open -cut
construction method. is used in a temporarily dry waterbody. Any construction of this magnitude,
involving equipment weighing up to 100 tons, will harm the integrity of stream channels and
banks. 36 As NYSDEC recognized, 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. "3 7 Not only will dry construction methods cause increased sedimentation and
z9 Atlantic Oct. 13 response, at 2-3.
30 id
31 Id.
32 See 401 Comments, at 14-16.
33 401 Comments, at 22.
34 Silvis Comments, at 7.
35 401 Comments, at 11, 17; Carpenter Environmental Associates, Report on the Revised Individual 401 Water
Quality Certification and Riparian Buffer Authorization Application Submitted by Atlantic Coast Pipeline, LLC 8
(August 2017) ("CEA Report") ("[D]ry crossing methods have historically experienced significant problems leading
to difficulties in meeting turbidity standards across the nation.").
36 401 Comments, at 18.
37 NYSDEC Constitution Letter, at 4-5; see also CEA Report, at 8.

turbidity, open -cut construction in temporarily dry waterbodies will cause additional harm when
intermittent and ephemeral waters flow again.
Accordingly, regardless of the construction method used, DWR must require Atlantic to
sample and monitor for water quality violations, and take measures to restore waterbodies that
exhibit any violations. 401 regulations require DWR to guarantee that the project will not "result
in the degradation of groundwaters or surface waters"38 on either a short-term or long-term
basis, 39 and that DWR "provides for protection of downstream water quality standards."40
Moreover, it is not enough for DWR to only require monitoring for turbidity and dissolved
solids, as it previously did in its September 14th request for Atlantic's open -cut construction
sites .41 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.42
These waters also have water quality standards for dissolved oxygen and temperature, which will
be impacted by construction and operation of the pipeline. 43 The Final Environmental Impact
Statement (FEIS) prepared by the Federal Energy Regulatory Commission (FERC)
acknowledged that there will be permanent increases in water temperature from the removal of
riparian vegetation, and the subsequent loss of shade. 44 Increased sedimentation and erosion can
reduce levels of dissolved oxygen. 45 DWR must require Atlantic to conduct site-specific
recording, monitoring, and restoration of all water quality parameters that will be impacted,
including temperature and dissolved oxygen.
DWR's requests have also thus far failed to ensure compliance with 401 regulations by
ignoring specific water quality standards for wetlands. 46 DWR must 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." 47 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 f inctions.4% Accordingly, DWR must require site-
specific recording, monitoring, and restoration of water quality standards for wetlands including:
measurements of temperature, current, sedimentation and erosion patterns, pH, water levels and
elevations, and the chemical, nutrient, movement of aquatic fauna, and dissolved oxygen
regimes.
" 15A N.C. Admin. Code 02H .00502(b)(3), (c)(3).
39 15A N.C. Admin. Code 02B .0211 (2)
40 15A N.C. Admin. Code 02H .00502(b)(5), (c)(5).
41 DWR Sept. 14 request, No. 1(b)(i), at 2.
42 401 Comments, at 26-27.
43 401 Comments, at 26-27; FEIS, at 4-110, 4-113.
44 FEIS, at 4-110.
4s FEIS, at 4-113.
46 See Silvis Comments, at 3.
47 15A N.C. Admin. Code 02B .0231(b)(5).
41 15A N.C. Admin. Code 02B .0231(b)(5).

Finally, DWR must require water quality monitoring of disrupted sites after storm and
flooding events. In its October 13th letter, Atlantic stated that it would conduct "foot patrol
inspections of stream crossings following major storm events" to look for instances of pipeline
exposure. 49 These measures are not sufficient to prevent degradation of the state's waters. As
stated in our initial comments and in the FEIS, restoration sites are extremely susceptible to
storm and flooding events. 50 The FEIS stated that storm events can cause "extreme and
unpredictable impacts," including "slope instability" and "mass sediment/debris loading." The
FEIS further states that these events can have "significant short term and long-term impacts on
water resources," and "substantial water quality impairments" related to water chemistry,
including "water temperature, turbidity, dissolved oxygen," "benthic-macroinvertebrate
bioassessments," and "stream channel geomorphology."51 The FEIS concluded that erosion
control measures must be "maintained and monitored diligently" after storm events in order to
function as intended.52 Therefore, it is not enough for Atlantic to send someone to take a brief
look at a crossing to ensure that storm events have not degraded the effectiveness of protective
measures, and that water quality standards are not being violated. As noted by Silvis in her
report, the company has also failed to define "major storm event," and must define it using
precipitation amounts and rainfall intensity thresholds.53 DWR must require Atlantic to return to
crossing sites after adequately -defined storm events to monitor erosion control measures using
water quality samples—for a minimum of five to ten years after construction in a wetland, and
five to seven years after construction in a waterbody.54 In addition to evaluating erosion and
sedimentation, sampling must include testing for parameters, such as petroleum products and
byproducts, which can inform DWR whether or not any leakage has occurred from the event.ss
III. DWR still has not requested enough information regarding construction plans and
procedures in order to determine whether adverse impacts to waters will be minimized
As we stated in our initial comments, 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. 56 As of now, DWR still lacks
essential site-specific information regarding construction of the pipeline that would be necessary
to make this determination.
49 Atlantic Oct. 13 response, at 5.
so 401 Comments at 28-29; see also Fed. Energy Regulatory Comm'n, Atlantic Coast Pipeline and Supply Header
Project: Final Environmental Impact Statement 4-115, 4-128 (2017) ("FEIS").
51 FEIS, at 4-128.
52 FEIS, at 4-115.
13 Silvis Comments, at 12.
54 401 Comments, at 22;.CEA Report, at 17. In its September 29th response, Atlantic proposed to sample water
quality in streams crossed using open -cut construction for four days after construction. Atlantic's response to DEQ's
request for Additional Information, Sept. 29, 2017, No. I(b)(i), at 2 ("Atlantic Sept. 29 response"). Although that is
insufficient, it is almost certain that Atlantic does not intend to conduct water quality monitoring for any streams,
now that Atlantic has committed to using dry construction methods for stream crossings. Atlantic Nov. 3 response,
No. 1(a), at 1.
" Silvis Comments, at 12.
56 401 Comments, at 19-22; 15A N.C. Admin. Code 02H .0506(b)(2), (c)(2), (g).

a. DWR does not have enough information regarding wastewater discharges
Atlantic plans to withdraw nearly 20 million gallons of North Carolina water for
hydrostatic testing. DWR has repeatedly asked Atlantic for more information regarding the
specific locations of wastewater discharge. 57 Despite DWR's numerous requests, the company
has only provided DWR with the milepost locations of discharges, 58 which DWR has had since
receiving Atlantic's original application.59 The exact locations of wastewater discharge for
hydrostatic testing ate essential for DWR to understand the water quality impacts of hydrostatic
testing. 60 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.i61 Accordingly, Atlantic should have provided enough detail on the
locations of discharge so that DWR could determine whether discharges would have impacts on
particular waterbodies and wetlands, and the extent of those impacts. In addition, DWR's request
for further information on the discharges of hydrostatic test water, while an important first step,
does not go far enough. Water withdrawals can further increase water temperature, reduce
dissolved oxygen levels, and cause entrainment of species. 62 In order to begin to understand the
impacts of these massive water withdrawals, DWR must also request information on the
proposed withdrawals. Furthermore, DWR must also request information on the timing of both
withdrawals and discharges—as well as data on the amount of water that will be withdrawn and
discharged at each location—so that it can properly understand the extent of impacts to existing
waters, and how those impacts will interact with other ongoing projects in the area. DWR can
compare withdrawal rates with historic low -flow stream data to help ensure that water quality
63
will not be degraded..
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. 64 In order to ensure that the ACP will not cause degradation of existing uses of
waters, or violation of water quality standards, DWR must request detailed data on the rate,
location, amount, and timing of water withdrawals and discharges from dust control as well.
Finally, DWR should require Atlantic to estimate the potential effects of both hydrostatic
testing and dust control withdrawals on aquatic species, and on water quality criteria before,
during, and after construction.
b. DWR lacks information regarding how deeplypipeline will be buried
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.65 If a pipeline is not buried deeply enough,
57 DEQ Sept. 14 request, No. 4, at 3; Atlantic Oct. 13 response, at 4.
58 Atlantic Sept. 22 response, No. 4, at 10-11.
59 Atlantic Coast Pipeline, 401 Water Quality Permit Application: Appendix O.
60 Silvis Comments, at 5. These locations should be specified on maps.
61 401 Comments, at 22; FEIS, at 4-137.
62 401 Comments at 25-26.
63 Silvis Comments, at 5.
64 401 Comments, at 26.
65 FEIS, at 4-105.
8

flooding and heavy storm events can re -expose the pipeline. 66 DWR expressed this concern when
it asked Atlantic how it would monitor for pipeline exposure during its September 29`h meeting
with the company. 67 However, it was not enough for DWR to simply request monitoring of
pipeline exposure. Not only does pipeline exposure risk damage to the pipeline, it also requires
remedial actions that further harms waters. 68 NYSDEC has previously observed numerous
instances of pipeline exposure from high flow events, which "require more extensive
stabilization measures and in stream disturbances resulting in addition[al] degradation to
environmental quality."69 Therefore, by the time the pipeline is exposed and remedial actions are
required, the additional harm to the waterbody is already guaranteed.
As NYSDEC requested of Constitution, DWR should request that Atlantic "provide a
comprehensive and site-specific analysis of depth for pipeline burial."70 Otherwise, DWR is
"unable to determine whether the depth of the pipe is protective" of state water quality
standards. 71 The severe flooding that occurred during Hurricane Matthew could easily happen
again, and Atlantic has provided no information to show that the pipeline will not be re -exposed
by extreme storm events.
c. DWR still does not have enough information about site-specific construction
plans
First, Atlantic has not provided information about its dry construction plans, which will
now be used to cross nearly every waterbody. Importantly, the company has not made any
attempt to inform DWR whether it will use the dam -and -pump method at a particular crossing, or
the flume method. This information is essential for DWR to determine what site-specific
construction plans and procedures are necessary at each site. Atlantic states that "[b]ecause
discharge rates cannot accurately be predicted at this time, the decision will be made at the time
of crossing." However, as Silvis states, it is possible to assess the "expected flow conditions at
each location" using historic flow data, average annual hydrographs, manual flow measurements,
as well as historic climate and historic rainfall data."72 The company can, and should, make this
determination before DWR makes a decision on the ACP's 401 certification. Moreover, as Silvis
explains extensively in her comments, DWR is still missing key details on Atlantic's dry
construction plans. 73 For instance, Atlantic must provide information on pump sizes, backfilling,
the construction and removal of dams, culverts, location and sizes of compost socks and coir
logs, and spoil piles. 74
66 401 Comments, at 19-21, 36.
67 Atlantic's October 13, 2017 letter states that, in their September 29th meeting, DEQ asked how Atlantic "intends
to monitor stream stability and potential for pipeline exposure at stream crossings in the long-term." Atlantic Oct. 13
response, at 5.
68 401 Comments, at 19-21, 36.
69 NYSDEC Constitution Letter, at 13.
70 Id
71 Id.
72 Silvis Comments, at 374.
73 Silvis Comments, at 4.
74 Silvis Comments, at 4.
0

Additionally, in DWR's September 14th request to Atlantic, DWR appeared to accept the
"typical diagrams for each stream crossing method" submitted by the company. 75 However,
DWR is missing extensive site-specific information on the construction procedures at particular
sites. Regulations require 401 applications to include, at a minimum, maps "of sufficient detail"
of the "location and extent of receiving waters including wetlands."76 Applications must also
include additional information "necessary for the proper consideration" of impacts to specific
wetlands and waterbodies. 77 Atlantic has only Provided DWR with extremely generic drawings
of "typical" wetland and waterbody crossings, Provided
in its October 13th letter, drawings of
"typical" open cut and dry crossings. 79 These drawings do not depict real wetlands or
waterbodies, and provide no information about the nature of specific crossings. Therefore, they
are insufficient to inform DWR about potential impacts to specific wetlands or waterbodies.
NYSDEC has similarly acknowledged the need for detailed site-specific project plans,
noting that Constitution lacked information on:
• 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, and
• the location of temporary coffer dams for stream crossings. 80
FERC has also requested Atlantic to submit site-specific crossing plans on "the location
of temporary bridges and bridge type, appropriate cofferdam locations, water discharge structure
locations, [and] pump locations." 1
Finally, DWR is still missing essential information on the company's plans for HDD
construction. Such details include, but are not limited to: specific entrance and exit locations for
all sites using HDD, disposal of bore mud, location for drill pads, the sealing of bore holes, and
the type of drilling mud to be used .82 The company must also include contingency plans for
inadvertent drilling mud returns.
Accordingly, DWR should require, at the very least: a pre -construction determination of
which dry construction method will be used at each site, site-specific data on HDD construction
and dry construction methods, the depth of pipeline burial, and temporary bridges.83 That
information must include the depth of abutments in stream banks, on the details and locations of
proposed blasting sites, on pump locations, where the dam and pump method will be used, and
on the location of temporary cofferdams.
75 DWR Sept. 14 request, No. I(b)(v), at 2.
76 15A N.C. Admin. Code 02H .0502(b); see also 401 Comments, at 19-21.
77 15A N.C. Admin. Code 02H .0501(c)(1); 15A NCAC 02H .0502; see also 401 Comments, at 19-21.
78 Atlantic Coast Pipeline, 401 Water Quality Permit Application: Appendix E.
79 Atlantic Oct. 13 response, Attachment B.
80 NYSDEC Constitution Letter, at 12-13.
" FEIS, at 4-102.
12 Silvis Comments, at 5.
13 See Silvis Comments, at 11 (providing more detail on information DWR is missing regarding temporary bridges).
10

IV. Atlantic's proposed restoration still does not ensure that the project will minimize adverse
impacts to disturbed wetlands and waterbodies
As discussed in our 401 comments, Atlantic's restoration plans for both wetlands and
waterbodies fail to ensure that adverse impacts will be minimized, as required by 401
regulations. 84 Yet, in its past three "Requests for Additional Information," DWR has not required
more detailed restoration plans.
a. Atlantic's restoration plan for waterbodies is still inadequate
As we discussed in our initial comments, it is essential for DWR to have site-specific data
regarding construction and restoration plans. 85 DWR should not have given Atlantic the option of
providing a "typical restoration plan for each different type of restoration," instead of requiring a
site-specific restoration plan for each crossing. 86 Yet, Atlantic failed to provide what little
information DWR did request. At the very least, DWR asked the company to give plans for
different types of restoration that apply to different scenarios. 87 With hundreds of crossings,
DWR clearly expected Atlantic to have certain restoration plans that might be more appropriate
for particular waterbodies, depending on their width, depth, and gradient associations. Instead,
the company provided DWR with one restoration plan, and one back-up plan that would apply
only if the first one failed.88 As Atlantic stated, Type 1 restoration is "anticipated... for all
waterbodies." Type 2 restoration "would only be used if stabilization of a waterbody was
unsuccessful. ,89 Thus, the company would only resort to the second restoration plan if it first
realized that substantial water quality damage had already occurred from its first failed attempt at
restoration. 90
In addition, Atlantic states that it "cannot quantify the exact conditions that will
necessitate the use of the Type 2 method."91 However, as Silvis stated in her report, "[t]here are
many ways to quantify the use of Type 2 materials" prior to construction. 92 For instance, the
company can evaluate: sheer stress calculations, flow rates, cross-sections, substrates, and other
site-specific information. 93
Atlantic's approach to stream restoration also violates 401 regulations, which state that
waterbodies cannot be degraded on either a short-term or long-term basis. 94 Additionally, DWR
84 401 Comments, at 22-29.
ss 401 Comments, at 19-23.
86 DEQ Sept. 14 request, No. 1(c), at 2.
87 DEQ Sept. 14 request, No. 1(c), at 2.
88 Atlantic Sept. 22 response, No. 1(c), at 6-7.
89 Atlantic Sept. 22 response, No. 1(c), at 6-7.
90 On November 3`d, Atlantic finally "assigned" which restoration will be used at each crossing, as DWR requested
on September 14"'. The company listed either "1" or "N/A" for the "Waterbody Restoration Type." The Type 2
restoration plan is listed nowhere in the entire table, showing that Atlantic has no concrete plans to ever use the more
protective Type 2 restoration plan.
91 Atlantic Nov. 3 response, No. 4(c), at 4.
92 Silvis Comments, at 8.
93 Silvis Comments, at 8.
94 15A N.C. Admin. Code 02B .0211(2).
11

is required to ensure that activities have "no practical altemative[s]," meaning that "the basic
project purpose cannot be practically accomplished in a manner which would avoid or result in
less adverse impact to surface waters or wetlands." 95 The regulations do not state that an
applicant shall apply practical alternatives only when the less protective alternative has already
failed.
Furthermore, it is not clear that Atlantic will ever know if the Type 1 restoration plan has
failed at a particular crossing. Atlantic states that it "may determine the method of restoration
should be changed ... immediately after revelation of a failure of restoration. 96 First, Atlantic has
not clearly defined "failure," so it is uncertain what would trigger further actions from the
company. 97 A violation in water quality standards should constitute a "failure" of protective
measures, 98 but Atlantic has not committed to any water quality monitoring.99 Similarly, it is
entirely unclear what would cause this sudden "revelation of a failure." Although Atlantic
promises that "monitoring of the Project would occur throughout its life and any failure in
stabilization would be repaired immediately," 100 nothing in the company's application ensures
this would happen. Instead of committing to water quality monitoring, Atlantic states that it will
conduct "foot patrols" along the pipeline after "major storm events." 01 First, foot patrols are
inadequate to determine water quality violations. Second, it is not enough for Atlantic to monitor
stabilization measures only after major storm events, such as a hurricane. Excessive
sedimentation and turbidity could occur for years from a failed Type 1 restoration, before the
company would have a "revelation" that its plan is harming a waterbody.
In addition, Atlantic claims that all crossings "would be restored to original contours." 102
However, nothing in the company's current application ensures this. As Silvis states, "[i]n order
to restore a streambank and streambed to original contours... there must be pre -construction
surveys of both [and] post -construction as -built drawings for each site to determine whether
restoration was adequate to restore pre -construction conditions." 103 At no point has Atlantic
committed to conducting pre- or post -construction surveys of either wetland or waterbody
contours. As a result, the company cannot claim that it will restore contours to preconstruction
conditions.
9s 15A N.C. Admin. Code 02H .0506(b)(1), (c)(1), (f) (emphasis added).
96 Atlantic Nov. 3 response, No. 4(a), at 3.
97 See Silvis Comments, at 8.
98 See 401 Comments, at 14-16.
99 In its September 29h response, Atlantic proposed to sample water quality in streams crossed using open -cut
construction for four days after construction. Atlantic's response to DEQ's request for Additional Information, Sept.
29, 2017, No. 1(b)(i), at 2 ("Atlantic Sept. 29 response"). Although that is insufficient, it is almost certain that water
quality monitoring will no longer be conducted for any streams, now that Atlantic has committed to using dry
construction methods for stream crossings. Atlantic Nov. 3 response, No. 1(a), at 1.
ioo Atlantic Nov. 3 response, No. 4(a), at 3.
101 Atlantic's October 13, 2017 letter states that, in their September 29th meeting, DEQ asked how Atlantic "intends
to monitor stream stability and potential for pipeline exposure at stream crossings in the long-term." Atlantic Oct. 13
response, at 5.
102 Atlantic Nov. 3 response, No 3(b), at 3. It is not clear if Atlantic is referring to just waterbodies, or to waterbodies
as well. As we discussed in our 401 comments, preconstruction contours of wetlands must be restored as well.
103 Silvis Comments, at 8.
12

Finally, Atlantic states that restoration can be determined "successful" after only 12
months. 104 This is far too short of a period for the company to know if a stabilization method will
result in future water quality impacts. Atlantic must be required to monitor impacted waterbody
sites for at least five to seven years. 105
Atlantic's restoration plan for waterbody vegetation is even more problematic. The
company stated,
Revegetation in non-agricultural areas shall be considered successful if upon
visual survey the density and cover of non -nuisance vegetation are similar in
density and cover to adjacent undisturbed lands. In agricultural areas, revegetation
shall be considered successful when upon visual survey, crop growth and vigor
are similar to adjacent undisturbed portions of the same field, unless the easement
agreement specifies otherwise. Continue revegetation efforts until revegetation is
successful. l 6
There are numerous issues with these criteria. First, Atlantic completely failed to define
what constitutes "similar," which gives Atlantic total discretion to determine when revegetation
is successful. For wetland restoration, at the very least, the company provided that vegetation
must be "80 percent" of the previous vegetative cover, or the cover in adjacent areas. 107 For
waterbody restoration, in contrast, Atlantic left the definition of "similar" completely open.
Second, for non-agricultural areas, Atlantic stated that the "density and cover" of "non -
nuisance vegetation" has to be "similar." 108 It did not define "non -nuisance vegetation." It only
considered the density and cover of vegetation. It did not even require that the types of vegetation
would have to be similar. Basically, Atlantic stated that, if the ground appears somewhat
covered, and there is not too much "non -nuisance vegetation" (however it chooses to define that
term), then it is good to go. Likewise, in agricultural areas, the company stated that the "crop
growth and vigor" must be "similar."109 It makes no reference to the density, type, or
composition of vegetation. Again, Atlantic uses vague, open-ended language that it can interpret
however it pleases.
Finally, Atlantic stated that it will determine success using a mere "visual survey."' 10
Clearly, the company has no plans to conduct detailed surveys of the density, type, or
composition of vegetation before construction, or to compare that data to surveys taken after
construction. It is not clear that Atlantic will even take photos of pre- or post -construction
vegetation. In fact, its current response implied that it could simply have someone walk to the
site, take a brief look, and judge that the ground is basically covered. At that point, Atlantic
could consider revegetation efforts "successful." As stated by Silvis, "[p]re-construction
vegetated surveys are needed to determine the metrics of species diversity, percent cover, species
104 Atlantic Nov. 3 response, No. 4(a), at 3.
los 401 Comments, at 22; CEA Report, at 17.
106 Atlantic Sept. 22 response, No. 1(d), at 8.
107 Atlantic Sept. 22 response, No. 1(d), at 7.
los Atlantic Sept. 22 response, No. 1(d), at 8.
1091d
110 Id.
13

distribution, and species identification" so that they can be used "as comparison to a post -
construction vegetated community as a success measure." III
As stated in our initial comments, the ACP will cause substantial damage to waterbodies
and protective riparian buffers. 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. 112 Riparian vegetation provides
numerous key functions for waterbodies, including protecting waters from pesticides, sediment,
and other pollutants, stabilizing stream banks, and regulating water temperatures. 113 Riparian
barriers are even more essential for agricultural areas, which are replete with toxic runoff from
pesticides and other chemicals—yet Atlantic appeared to treat agricultural areas even more
carelessly than non-agricultural areas in its waterbody restoration plan.
DWR cannot allow Atlantic to have complete discretion in determining when waterbody
restoration is successful—as evidenced by its September 22nd response. Instead, DWR must
require preconstruction recording of streambank and streambed contours, as well as vegetation,
and require restoration of waterbody contours and vegetation to pre -construction state as close as
technically feasible—so that previous species composition, diversity, and density can still be
supported. This should include the reestablishment of fully functional riparian areas adjacent to
streams. As stated by Silvis, both pre -construction and post -construction vegetated surveys are
necessary to establish success of restoration measures. 114 Finally, DWR must require monitoring
of vegetation for a minimum of five to seven years after construction, and impose enforceable
restoration measures if vegetation is not successfully restored. Monitoring must begin within 30
days after construction is finished.' 15
b. Atlantic's restoration plan for wetlands is still inadequate
DWR did not ask for enough from Atlantic regarding its wetland restoration plans in
order to comply with 401 regulations. In its September 14th request, DWR asked about Atlantic's
plans to restore wetland vegetation, but neglected to ask how it will restore wetland hydrology. 116
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. 117 It is not enough for the
vegetation to be restored in wetlands (although Atlantic's current application will not even
achieve that); the contours of the wetland must be restored and maintained to protect natural
wetland hydrological conditions—as required by 401 regulations. 118
DWR's request regarding wetland vegetation was also inadequate. DWR only asked
Atlantic for a plan to monitor wetland restoration "through two growing seasons once vegetation
11 Silvis Comments, at 10.
11z 401 Comments, at 10.
113 Id
114 Silvis Comments, at 10.
115 See Silvis Comments, at 9-10.
116 DEQ Sept. 14 request, No. 1(c), (d), at 2-3.
117 401 Comments, at 23.
118 401 Comments, at 15.
14

is established."' 19 Importantly, DWR failed to define how it will be determined whether
"vegetation is established," leaving too much discretion to the company. Unsurprisingly,
Atlantic's restoration plan for wetlands continues to be wholly inadequate, yet DWR did not
address this in its most recent October 26th request. 120
First, Atlantic stated that, if natural rather than active revegetation was used, wetland
restoration is considered "successful" if vegetation is "consistent with the early successional
wetland plant communities in the affected ecoregion." 12 1 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. As we discussed in our initial comments, this measure of success is not enough to ensure
that adverse impacts will be minimized. 122
Second, Atlantic stated that wetland restoration is considered "successful" if "vegetation
is at least 80 percent of either the cover documented for the wetland prior to construction, or [for]
adjacent wetland areas that were not disturbed by construction." 123 This restoration measure is
not protective enough of forested wetlands, as the remaining 20 percent of vegetative cover that
Atlantic is permitted to ignore could be the trees that do not grow back after construction. If the
company is allowed to use these criteria, then it could consider a previously -forested wetland
that no longer has any trees "successfully restored." The ACP will deforest over 390 acres of
forested wetlands that perform essential ecological functions in eastern North Carolina. 124 Even
if Atlantic is diligent in its restoration measures for forested wetlands, they could take a century
or more to recover. 125 However, Atlantic's current plans for restoration threaten to permanently
destroy the damaged areas.
DWR must request pre -construction recording of vegetation. DWR must also request the
restoration of wetland vegetation to pre -construction state as close as technically feasible—so
that previous species composition, diversity, and density can still be supported. As stated by
Silvis, both pre -construction and post -construction vegetated surveys are necessary to establish
success of restoration measures. l 6 The density of wetland vegetation is essential to its recovery,
and the failure to achieve the vegetation density that existed prior to construction "will result in
an invasion or a change in habitat." 127 In order to ensure the recovery of forested wetlands, in
particular, DWR should request the replacement of woody plants located in and near impacted
forested and shrub wetlands. 128 Furthermore, the monitoring of wetland sites must occur for a
minimum of five to ten years after construction is completed to ensure recovery. 129 Monitoring
19 DEQ Sept. 14 request, No. 1(d), at 3.
120 DEQ Oct. 26 request.
121 Atlantic Sept. 22 response, No. 1(d), at 7.
122 401 Comments, at 23-24.
123 Atlantic Sept. 22 response, No. 1(d), at 7.
124 401 Comments, at 8-9.
125 ICI.
126 Silvis Comments, at 10.
127 401 Comments, at 23-24.
128 id.
129 Id
15

must begin within 30 days after construction is finished. 130 DWR must also impose enforceable
restoration measures if wetland vegetation is not successfully restored.
Finally, both DWR and Atlantic failed to consider the restoration of wetland soils. 131 As
discussed in our comments, construction of the pipeline will inevitably devastate the layers of
wetland soil that have developed over time. 132 Equipment weighing up to 100 tons will tear
through fragile layers of nutrient -heavy wetland soils, permanently affecting the hydrologic
patterns and vegetative composition of the wetlands. 133 Even though the FEIS found that wetland
topsoil has the "highest concentration of organic materials," and contains the "bulk of necessary
nutrients," Atlantic only plans to segregate topsoil if the wetlands are not saturated at the time of
construction. 134 DWR should require pre -construction recording and restoration of wetland soil
profiles, and the segregation of at least 12 inches of topsoil in all wetlands—whether or not they
are saturated at the time of construction.
V. DWR has not ensured that groundwater standards will be complied with
In its 401 application, Atlantic stated that it will test groundwater for several water
quality standards before construction, yet maintained that it will only conduct post -construction
groundwater quality tests "[i]f a damage claim is filed." 135 This places an inappropriate and
undue burden on local residents and communities to monitor their own water sources.' 36 For the
company to take any action, local residents would first have to be on notice that their drinking
water might be polluted; they would have to monitor their own water for degradation; then they
would need to file a damage claim. Moreover, if a local resident's drinking water has been
affected, Atlantic has the option of just providing a temporary water source for the resident,
rather than installing a new water treatment system or well. 137 To ensure that groundwater is not
degraded, as required by 401 regulations, DWR must require Atlantic to evaluate groundwater
before and after construction. 138 Additionally, the company should be required to conduct
groundwater remediation, or provide a new water treatment system or well, if tests reveal that
groundwater is in violation of groundwater standards.
"0 See Silvis Comments, at 9-10.
131 See Silvis Comments, at 2-3. ("Soil structure and hydrology are permanently changed by adding pipelines to the
subsurface ... [The ACP will cause] permanent impact to the wetland by disturbing and permanently altering the
hydric soils.").
132 401 Comments, at 24.
133 Id
134 401 Comments, at 24; FEIS, at 4-58; Atlantic Coast Pipeline, 401 Water Quality Permit Application:
Supplemental Information 26 (May 2017) ("Supplemental Information").
135 401 Comments, at 28.
136 Id
137 FEIS, at 4-94.
138 401 Comments, at 15, 28. 15A N.C. Admin. Code 02H .0506(b)(3), (c)(3).
16

VI. Atlantic's cumulative impacts analysis remains inadequate such that DWR still cannot
ensure that secondary and cumulative impacts from the pipeline will not cause violation
of water quality standards
401 regulations require that DWR ensures 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." 139 DWR's September 14th and October 26th
requests did not ask for enough information from Atlantic in order for DWR to ensure
compliance with water quality standards.
DWR arbitrarily limited its requests for information regarding cumulative impacts. Most
importantly, DWR requested Atlantic to conduct a cumulative impact analysis, yet limited its
request to only three counties that have metering and regulating stations proposed, 140 even
though the ACP will cut across five other counties in eastern North Carolina. In addition, DWR
only requested information on "existing" transmission pipeline and their associated distribution
points, excluding those that are proposed and in -progress. 141 By arbitrarily limiting its
cumulative impacts requests, DWR failed to account for numerous other projects listed in
Atlantic's 401 application that would combine to have cumulative impacts with the ACP in
North Carolina.
DWR limited its request regarding cumulative impacts to three streams that are already
impaired. 143 The ACP alone will cross and re -cross multiple streams and tributaries. 144 These
multiple crossings will exacerbate the already -destructive impacts of the ACP. 145 DWR is
obligated to consider all waterbodies and wetlands, not just those that are already impaired.
Additionally, DWR gave Atlantic the option of simply using best management practices within
these impaired waters, rather than requiring a quantitative impacts analysis for the watersheds. 146
By doing so, DWR failed its 401 obligations.) 7 If best management practices were enough to
ensure that wetlands and waterbodies would not be degraded, then the 401 regulations could
have required only that. 148 Instead, the regulations set out a strict framework of requirements that
a project must meet in order be approved, 149 and DWR has bypassed all of them by merely
giving Atlantic the option of using best management practices. Moreover, as stated by Silvis,
these waterways are impaired for benthos and/or dissolved oxygen. 150 DWR must require, at the
very least, modeling of dissolved oxygen and a benthos study for these impaired sites.' 51
139 401 Comments, at 29; 15A N.C. Admin. Code 02H .0506(b)(4); 15A N.C. Admin. Code 02H .0506(c)(4).
140 DEQ Sept. 14 request, No. 6(c), at 3.
141 DEQ Sept. 14 request, No. 6(a), at 3.
142 Atlantic Coast Pipeline, 401 Water Quality Permit Application: Appendix L.
143 DEQ Sept. 14 request, No. 6(d), at 3.
144 401 Comments, at 31.
145 Id.
146 DEQ Sept. 14 request, No. 6(d), at 3.
147 15A N.C. Admin. Code 02H .0506(b)(4); 15A N.C. Admin. Code 02H .0506(c)(4).
148 See Silvis Comments, at 4-5, 9-11 (listing Best Management Practices that Atlantic has failed to propose).
149 401 Comments, at 14-16.
150 Silvis Comments, at 12.
151 Silvis Comments, at 12.
17

In addition, DWR asked Atlantic to simply "[a]dd a column to indicate which projects
have or [Atlantic] anticipate[s] to have impacts to surface waters." 152 First, DWR neglected to
require the company to specify which projects are anticipated to impact wetlands, as well as
waterbodies. Second, it is not enough for DWR to ask Atlantic to check off which projects might
have water quality impacts. As we discussed in our comments, DWR needs far more information
to understand the cumulative impacts of the ACP.153DWR must require an analysis of previous
waterbody and wetland impacts from completed and in -progress North Carolina projects, as well
as a prediction of reasonably foreseeable waterbody and wetland impacts from in -progress,
anticipated, and planned North Carolina projects listed in Appendix L of Atlantic's original
application. This analysis must include: a determination of how many times each stream and its
tributaries, wetland, subwatershed, and watershed is crossed by both the ACP and any of the 56
North Carolina projects in Appendix L;154 information on when these projects are predicted to
cause water quality impacts, and which of them will be constructed at the same time as the ACP;
as well as information on which of the listed projects will draw from or discharge water to the
same sources that the ACP will use, and the amount of water withdrawn or discharged.
There are also reasonably foreseeable projects that are missing from Appendix L of
Atlantic's application. For instance, a representative of Dominion has strongly indicated that the
ACP will extend into South Carolina, which would cause water quality impacts that have not
been accounted for in Atlantic's current 401 application. Dan Weekly, a vice president and
general manaer at Dominion, stated, "everyone knows [the ACP is] not going to end in
Lumberton."1 5 Discussing the "huge volume of gas" that the ACP would contain in Lumberton,
Weekly stated, "We could deliver it into South Carolina whichever way the pipeline turns—
because it will turn—that's one of the decisions we're going to have to make somewhere down
the road. We could bring in almost a billion cubic feet a day into South Carolina... You tell me
where the load is and I'll tell you which way we're turning... We'll turn one way or the other." 156
Based on these statements, the ACP's extension into South Carolina is a reasonably anticipated
future impact, and must be considered in Atlantic's cumulative impacts analysis. 157
Although DWR arbitrarily limited its request for Atlantic's cumulative impacts analysis
to three counties, and must broaden that request to ensure compliance with the 401 regulations,
Atlantic's initial response did not even provide DWR with the information that it has
requested. 158 Since then, the company has revised its cumulative impacts analysis for the three
counties, but it was a half-hearted attempt. First, Atlantic has not analyzed cumulative or
secondary impacts to water quality, as requested by DWR. 159 Instead Atlantic simply listed
112 DEQ Oct. 26 request, No. 7(c)(iii), at 4.
'Ss 401 Comments, at 29-32.
154 See Silvis Comments, at 12.
155 Sarah Rankin, APNewsBreak: Disputed East Coast Pipeline Likely to Expand, Associated Press, Sept. 29, 2017,
available at https:Hapnews.com/d9el2l6747d642abb025dedb0043462f.
156 Id
157 See Silvis Comments, at 12.
"' DEQ Oct. 26 request, No. 7, at 4.
159 DWR Oct. 26 request No. 7, at 4. DWR asked for an analysis which includes both potential secondary and
cumulative impacts. DWR defined "secondary impact" as "actions or actions directly linked to an activity, that may
affect classified surface waters or wetlands that would not occur but for the proposed activity. DWR defined
"cumulative impact" as "environmental impacts resulting from incremental effects of an activity when added to
18

whether or not projects are anticipated to impact waters with a "yes" or "no,"160 and concluded
that it "does not anticipate significant direct and indirect impacts to water quality."161 The
guidance document cited by DWR indicates that narrative descriptions of water quality impacts
should be far more detailed. For instance, examples of impacts to wetlands include "alteration of
surface water drainage patterns" or the "many small wetlands [that would be] eliminated during
development." 162 The company discusses four proposed projects associated with Piedmont
Natural Gas in more detail but does not analyze their water quality impacts. Atlantic simply
states that "[f]ederal and State regulatory review and approval" for these projects "would address
any impacts to water resources." 163 The company cannot avoid its obligations to analyze
cumulative impacts by claiming that another entity will consider the environmental impacts of
the project. 164 Without further information, DWR cannot 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," as required by 401 regulations. 165
Atlantic states that implementation of its Sedimentation and Erosion Control Plan would
minimize impacts to waterbodies and wetlands, including an impaired water in Johnston
County. 166 However, those plans were denied by the Division of Energy, Mineral and Land
Resources on November 6, 2017. Therefore, the company cannot rely on those plans to show that
impacts to waters will be minimized.
Finally, Atlantic states that FERC and USFWS both concluded that no aquatic species
within North Carolina would "`likely be adversely affected' based on communication between
the two agencies." This is not true. As we discussed extensively in our August 18, 2017
comments, construction of the ACP alone can seriously impair aquatic life and habitat. 167 The
Final Environmental Impact Statement prepared by FERC itself stated that sedimentation caused
by the pipeline can cause "permanent alterations in invertebrate community structures, including
diversity, density, biomass, growth, rates or reproduction, and mortality." 168 Additionally,
sedimentation and turbidity "reduc[e] light available for photosynthesis," and reduce visibility,
thereby harming organisms' ability to find food or avoid prey. 169 Sedimentation can also clog the
gills of fish and harm their respiratory functions, as well as "smother spawning beds," fish eggs,
other past present, and reasonable foreseeable future activities regardless of what entities undertake such actions."
(emphasis added).
160 Atlantic Nov. 3 response, Attachment 1. Atlantic also includes a table of waterbody and wetlands "affected by
the Atlantic Coast Pipeline by County" but these simply count the number of waters crossed by the ACP. It does not
include any other projects that are past, present, or reasonably foreseeable. Atlantic should have included those
projects as well. Atlantic Nov. 3 response, Attachment C, Table 5, at 8.
161 Atlantic Nov. 3 response, Attachment C, at 10.
162 Guidance on Indirect and Cumulative Impact Assessment, Volume Il: Practitioner's Handbook III -75 (2001)
("DWR Guidance on Qualitative Cumulative Impacts"), available at
https:Hconnect. ncdot. gov/resources/Environmental/Compliance%20Guides%20and%20Procedures/Volume%2002
%20Assessment%20Guidance%20Practitioners%20Handbook.pdf. The document DWR cited to in its October 26th
request cited to this handbook for conducting qualitative impacts analyses.
163 Atlantic Nov. 3 response, Attachment C, at 11.
164 401 comments, at 30-31.
161 15A N.C. Admin. Code 02H .0506(b)(4); 15A N.C. Admin. Code 02H .0506(c)(4).
166 Atlantic Nov. 3 response, Attachment C, at 9.
167 401 Comments, at 7-9, 11-13.
16' FEIS, at 4-228-229.
169 FEIS, at 4-228-229.
19

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. 170
Furthermore, changes to habitat caused by sedimentation can "reduce juvenile fish survival,
spawning habitat, and benthic community diversity and health." 171 Although Atlantic should
have discussed impacts to aquatic species from the construction of past, present, and reasonably
foreseeable projects, in conjunction with impacts caused by the ACP, the company did not even
bother analyzing impacts from construction of the pipeline alone.
As such, Atlantic has not provided any information on the actual water impacts of related
past, present and reasonably foreseeable projects. Atlantic has made little to no effort to analyze
the cumulative impacts of this enormous project that would impact every major watershed in
eastern North Carolina.
VII. Conclusion
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.
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.
170 FEIS, at 4-228-229.
"' FEIS, at 4-228-229.
Sincerely,
z)j
Geoffrey R. Gisler
Senior Attorney
Jean Zhuang
Associate Attorney
20

Attachment 1

affected bank length" for streams. Only five of these stream crossings are listed
as having any "permanent affected bank length" or "permanent waterbody
impact." For wetlands, the temporary impacts vary between 0 to 17.23 acres.
Only two of these wetland impacts have any permanent wetland loss indicated.
ii. Soil structure and hydrology are permanently changed by adding pipelines to the
subsurface.- They are also permanently, changed by construction activities in a
variety of ways, including compaction of soils, change of flow paths, siltation,
and dewatering. As discussed further below, the methods currently detailed for
construction and restoration do not adhere to Best Management Practices
("BMPs") that are considered adequate to show that no permanent impacts will
occur. The application has not provided adequate information to determine if the
over 800 proposed impacts to streams and wetlands would be temporary. For that
reason, all impacts must be considered permanent. Literature review indicates
that wetland and stream "temporary" impacts result in both episodic and chronic
(permanent) effects to drainage patterns, ecosystems, sediment transport, benthos
populations, benthos population interactions and riparian vegetation (Maywood,
1995; Tripp et -al, 1992; Levesque et al, 2007; Zwim,2002; Castro, 2014, Lawler,
2015). By attempting to classify over 800 impacts to streams and wetlands as
temporary, the applicant avoids expensive mitigation requirements.
There are multiple crossings indicated as permanent access roads without any
permanent impacts associated with them. There are also multiple crossings
indicated as temporary access roads with no permanent impacts associated with
them. Roadways are a significant source of sediment both during construction
and permanently after construction. Roadways (both temporary and permanent)
cause compaction of wetland soils changing the hydrology and drainage patterns.
Temporary crossings using timber mats can be a significant source of sediment,
Yet no measures are indicated to keep timber mats clear of sediment or to
maintain timber mats in a manner so as to not impact waterways with sediment.
b. Until Atlantic's November 3rd Additional Information response, Appendix C indicated
that many stream crossings would be crossed using open -cut construction. The November
3`d response from Atlantic states that they will seek provisions to use open -cut methods
"where conditions at the time of crossing are not feasible or necessary to implement a dry
crossing." This statement gives the applicant the ability to request using the open -cut
method at their discretion. This also allows them to make field calls to determine the use
of open -cut methods. This also allows them to not submit, and have approved, the precise
construction details that would be used for open -cut stream crossings. It is highly likely
that Atlantic will request open -cut method at locations where the crossing location has
already been necessitated by construction up to that point. The applicant does not propose
any specific metrics which would necessitate the use of open -cut stream crossing
methods. At a minimum, Atlantic must supply quantitative thresholds that would
necessitate. open -cut methods. Open -cut methods are high impact and must be avoided
unless there is no practical alternative. The applicant has not demonstrated what on-site
conditions would constitute no practical alternative.
The primary construction method proposed for wetlands is open -cut construction. The
open -cut construction method requires working in wet conditions. Working in wet
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b. Plans indicate that either a dam -and -pump or flume method will be used for nearly all
waterbody crossings. Details for dry construction methods and their locations are
lacking the following:
1. Pump size determination. The pump size should have 150% capacity
of anticipated flows. How will pump size be determined without
having site-specific average annual hydrograph information or other
site-specific flow data?
2. Back-up pumps and back-up power supplies
3. How will trench dewatering be accomplished so that sediment will
not be released into the waterway?
4. Details of how backfilling will be accomplished and compaction
specification for backfilling
5. How will dams be constructed to minimize sedimentation and ensure
impermeability?
6. How will dams be removed to reduce sediment discharge?
7. How will trench dewatering pumps be sized?
8. Contingency plan for problems encountered
9. Stream flow calculations for pump sizing
10. Culvert sizing calculations
11. Culverts must have flanges
12. Construction details and sizing for energy dissipation devices
13. Where are compost socks and coir logs to be located?
14. Sizing of coir logs and compost socks
15. Installation details for coir logs and compost socks
16. Calculations and locations of drainage areas and slopes for all
erosion and sedimentation devices
17: Setbacks for spoil piles
18. Stabilization methods for spoil piles
19. Details do not show pipe placement plan, depth, bedding material, or
depth of cover.
c. Best Management Practices for pipeline construction that are not included in the
current plan are as follows:
i. All fuel, fuel storage and refueling should be greater than 100 feet from top
of bank. Atlantic does not provide for all of these activities to be done
outside, of the 100 -foot mark from waterbodies and wetlands.
ii. Fuel cleanup materials must be on site prior to fuel coming onto the site.
iii. Site-specific spill prevention and secondary containment plans must be
developed. Specific locations for all fuel storage, and refueling activities
must be shown so that potential flow paths of contaminants can be
determined.
iv. All trench dewatering must go through a sedimentation control device or
disposed of upslope greater than 30 feet from the waterbody and draining
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i. Plans should include provisions for all graded areas near a waterbody to be graded so
that drainage from disturbed areas drains away from the waterbody.
3. This section contains a review of Appendix A Atlantic Coast Pipeline Aerial Sheet Map (p 1— 142)
and North Carolina Riparian Buffers (p 1- 44). There are discrepancies between the maps and the
impacts listed in Appendix A,. Table C -l. First, the application does not adequately locate or show
temporary and proposed access roads in Appendix A. In addition, there are permanent impacts
associated with permanent access road construction and operation. However, there are not any
permanent impacts listed as associated with the permanent access roads. Finally, there are no site-
specific plans, or even typical details, included on how access roads will be constructed to avoid
water quality impacts. There. is a statement in the Supplemental Information submitted with the PCN
on May 9, 2017 that states that "Atlantic has designed access roads to minimize impacts on
waterbody and wetland." No design information is provided to corroborate that statement. The
statement goes onto say that "primary conditions (for culvert placement) include: proper sizing of
culverts based on average historical low flow and spring flow." No flow data or culvert sizing
calculations are included. Construction details for how culverts will be placed are not included. Roads
can be on ongoing source of sediment to waterbodies and can significantly contribute to degradation
to water quality. Listed below are several other examples where the application provides inadequate
information.
a. Table 2 in the November 3rd Cumulative Impact Analysis lists total impacts from
construction (temporary and permanent) as 1519.0 acres and Permanent impacts of
Operations as 669.8 acres. There are very few permanent impacts listed in Appendix
C-1- Wetland and Waterbody Crossings for the Atlantic Coast Pipeline within the
U.S. Army Corps of Engineers — Wilmington District. A map of temporary versus
permanent impacts to show how they got these figures is necessary. (NOTE: Atlantic
only looked at three counties. The permanent, versus temporary, impacts for all of
North Carolina must be.clarified.)
b. Mile Post (MP) 0.3 has an access road as well as a wetland and stream. crossing.
Impacts are not listed for the access road crossing that is significantly downstream
from the pipeline construction. Is this an existing road that will be improved? What
measures will be taken to prevent sedimentation?
c. MP 8.3 notes a permanent access road in Appendix C. No access road is shown in
Appendix A. Where and how will this access road be constructed to protect
waterbodies from both direct and indirect impacts?
d. MP 18.2 —_18:5 has a contractor work yard specified. There are wetlands located
within the footprint of this yard. There is a note in stating "impacts on water at
contractor yards will be avoided." No specification has been included on how these
impacts will be avoided. How will waterbodies be protected from both direct and
indirect impacts?
e. MP 33.3 33.7 shows temporary Work Space (ATWS) foot prints are shown for
both wetlands and streams. However, this impact is only listed as at MP 33.3 in
Appendix C..
f. MP 52- A permanent access road is shown on the pians. However, no impacts, not
even temporary impacts, are shown in Appendix C.
g. MP 53.1 shows a permanent access road. However, no impacts, not even temporary
impacts, are shown in Appendix C.
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d. Installation of products must not include the use of metal u -stakes. Wooden stakes
placed according.to manufacturer specification are preferred.
5. This section addresses the review of Attachment B Revised Type 2 Streambank Restoration Typical
Drawing. Typical drawings -are inadequate to determine site-specific design and installation
parameters. In order to restore a streambank and streambed to original contours and original cross-
sections, there must be.pre-construction surveys of both. There then need to be post -construction as -
built drawings for each site to determine whether restoration was adequate to restore pre -construction
conditions, or whether additional mitigation would be necessary to meet the requirements of 15A
NCAC 2H0506 (h). These -field surveys of contours and cross-section are also necessary to conduct
required monitoring and inspections. A typic al. drawing does not provide adequate information to
restore a streambank or streambed. Specific flow velocities, expected highest flow velocities, flow
discharge rates, soil profiles; substrate material, side slopes, location of top of bank and toe of bank
are all required to restore streambanks to existing conditions and stable conditions. No site-specific
plans are provided, with the"exception of three major river crossings.
The applicant states in the November Yd response that Atlantic cannot quantify the conditions for the
use of the Type 2 method. There are many ways to quantify the use of Type 2 materials including
shear stress calculations, imeasurmg.flow rates, cross-sections, substrates and other site-specific
information that must be gathered prior to determining the use of Type 2 restoration.
The applicant states that Type 2 Restoration can be used in place of Type 1 Restoration if Type 1
Restoration is unsuccessful. What are the metrics and measurable criteria for "unsuccessful"? How
will "successful" stabilization' be determined and documented?
d. The first note states "rip -rap will not exceed and average of one cubic yard per running
foot below -the OHWM." Note 6 states "no rip -rap placed below plane of OHWM." These
statements contradict each other and make it impossible to determine actual installation
parameters.
e. The overall work corridor shows between 90/100 feet of placement of rip -rap.
Breakdown on -each side of the pipe shows 25/35 and 65/75 feet totaling 90/110 feet.
f. How will rip -rap be sized? Calculations are necessary to size the stone based on flow
rates, velocity, substrate, and shear stress for each site.
g. Construction details are not included for how rip -rap will be placed.
h. Note 5 states that geotextile fabric may be installed below the rip -rap. How will the use
of geotextile fabric be determined?Site-specific calculations of flow rates, velocity,
substrate, and shear stress are required to help insure that rip -rap and geotextile fabric
will be a stable fix for the stream bank.
i. Horizontal placement of riprap from OHWM is listed to be between 5' and 12'. How will
this be determined? Who. will make this determination? Calculations, and stream surveys
are required to optimize the placement of rip -rap.
j. The use of rip -rap can cause erosion and subsequent sedimentation of waterbodies
downstream of the installation of rip -rap. Calculations of flow rates, shear stress,
velocity, and using site-specific hydrologic and soils data, are necessary to determine if
rip -rap is necessary. The preferred method of stream bank stabilization is revegetation
with native species, including shrubs and trees.
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f. Riparian Restoration Plantings Section 5.9.1 Non -Forested Riparian Areas of
Appendix J -Restoration and Rehabilitation Plans states "Atlantic and DTI will
determine appropriate seeding prescriptions based upon the vegetated communities of
the disturbed areas." This approach requires a pre -construction vegetated survey, the
results of which were not presented.
g. . Riparian Restoration Plantings Section 5.9.2 Forested Riparian Areas of Appendix J -
Restoration And. Rehabilitation Plans states that the "permanent easement will be
retained in herbaceous state." This would be a permanent impact to riparian areas and
would not meet the requirement for 15A NCAC 2H5.0506 for restoration, creation
enhancement, or preservation.
h. Wetland Restoration Section 5.10 of Appendix J -Restoration and Rehabilitation
Plans states "seeding of wetlands is not anticipated" nor is a wetland planting mix
specified:' This section further states that "revegetation will be monitored annually
until successful iii -accordance with Procedures." Annual monitoring is not adequate.
Monitoring must be conducted within 30 days of disturbance to determine site
stability with regard to erosion and sediment control vegetation.
i. Wetland Restoration Section 5.10 of Appendix J -Restoration and Rehabilitation
Plans states that `°revegetation will be considered successful when vegetation
community characteristics are similar to the. vegetation in adjacent wetland areas that
were not disturbed." Pre -construction vegetated surveys are needed to determine the
metrics of species diversity, percent cover, species distribution, and species
identification that are present in adjacent wetland areas that are not to be disturbed
before they can be used as comparison to post -construction vegetated community as a
success measure. What, exactly, is meant by "similar" in this context? Needs to have
a metric.
j. Monitoring Section 5.10 of Appendix J -Restoration and Rehabilitation PIans state
that "restored wetland vegetation will include at least 80 percent of the species
targeted for restoration, and the density (i.e. percent cover) and distribution (e.g.
microsites and patches) of individual plants will be similar to areas not disturbed by
construction." Pre -construction vegetated surveys are needed to determine the
metrics of species targeted, percent cover, and species distribution that are present in
adjacent wetland areas that are not to be disturbed before they can be used as
comparison to post -construction vegetated community as a success measure. What,
exactly, is meant -by "similar" in this context? There needs to be a measurable metric
instead.
li Atlantic states that it will use 3 tons of mulch per acre. In another part of the
application, Atlantic states it will use 2 tons per acre, or 1 ton per acre for wood
chips. Clarification is needed to address the adequacy of the revegetation plan.
1. The-sheepfoot roller is listed as a way to scarify and prepare seed beds. These devices
are for compaction and are not appropriate for preparation of streambank and
wetland areas to be revegetated. The sheepfoot roller is especially not appropriate for
wetland areas where compaction of the soil results in loss of hydrology and
hydrologic .functions...
m. The mulch tackification method is not specified.
n. No soil testing is -recommended to determine lime and fertilizer rates. Over-
application of lime or fertilizer can cause excess nutrients to reach waterbodies.
Under -application can, inhibit vegetative growth.
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a. The Application shows a total of 67 sites with greater than 150 feet of bank impact,
and 88: sites with greater than 100 feet and less than -150 feet of bank impact. FERC' S
Protocols require site-specific plans for crossing of major waterways (defined as
greater than 100 feet). No site-specific plans were provided.
b. The plans have multiple crossings within the same watersheds, and often, multiple
crossings within the same waterbody or wetland. There is a cumulative impact of
multiple construction activities and linear roadways on the wetlands and waterbodies.
In order to adequately show no,reasonable impact water quality, modeling would
need to be. clone on each watershed, waterbody; and wetland that is planned to have
multiple crossings through it.
c. The project crosses four 303(d) -listed waterways or tributaries to waterways. These
waterways are impaired for benthos and or dissolved oxygen (DO). DO is negatively
affected by removal of vegetation and accompanying increase in solar radiation and
increase. in stream temperature. Benthos are negatively affected by sedimentation,
temperature increases, and vegetation removal. The direct and indirect impacts on
303(d) -listed streams and their watersheds are not adequately addressed in the
Application. Modeling of DO. and a benthos study; as well as increased requirements
for those sites, are necessary to protect downstream water quality.
d. What assurance. is there that the pipeline will not be continued past the current
termination point? Atlantic contends that there are "no reasonably foreseeable plans
to extend ACP beyondthe.current terminus" and therefore does not in that
possibility.in their cumulative impact analysis. DWR should include a condition
which precludes the extension. of the current terminus.
e. Table 2 in. the November 3rd Cumulative Impact Analysis lists total impacts from
construction"(temporary and permanent) as 1519.0 acres and Permanent impacts of
Operations as 669.8 acres. There are very few permanent impacts listed in Appendix
C-1- Wetland and Waterbody Crossings for the Atlantic Coast Pipeline within the
U.S. Army Corps of Engineers —_Wilmington District. A map of temporary, versus
permanent,impacts, to show how they got these figures is necessary. (NOTE: Atlantic
only considered three counties. The permanent, versus temporary, impacts for all of
North Carolina must be clarified.)
f. Review of data from the Pipeline and Hazardous Materials Safety Administration for
the past 20years shows. that there have been over 6,600 incidents with over 2 million
barrels spilled. The only monitoring proposed is annual "foot patrol", monthly aerial
inspections, and aerial inspection after "major" storm events. How will foot patrols
be conducted in wetland areas and areas without access roads? Are all areas
accessible for 100% coverage of length of the pipeline by foot? 'What water quality
data will be collected by inspections? Where will the data be collected? Data should
be collected upstream -and downstream of all crossings. Parameters should include
testing for petroleum products and by products, VOCs, TSS, Phenols, etc. What is a
"major" storm event? What constitutes a "major" storm event must include rainfall
amounts, as well as rainfall intensity thresholds above which inspections must be
completed.
g. Pipeline construction increases the number of wells drilled, increases natural gas
production, increases transport and burning impacts, including groundwater and
surface water impacts. Air pollution from natural gas burning includes increasing
NOx and smog. For every 10,000 U.S. homes that are powered with naturalgas, there
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well as scheduling for times with least probability of high flows is crucial to
minimizing impacts.
h. FERUS Protocols recommends dry ditch methods for crossings up to 30 feet and
HDD for crossings greater than 30 ft. DWR has asked for site-specific justification as
to why HDD is not being recommended for sites wider than 30 feet. No adequate
response has been received.
The current plans are inadequate to address water quality concerns. First, DWR still does not
have enough information to determine impacts to water quality, even after Atlantic's most recent
response, submitted on November 3, 2017. In addition, the applicant has not met the requirement for a no
practical alternatives determination, as required by 15A NCAC 2HO506 (b)(1), 15A NCAC 0213.0233 (8)
and .0259 (8). The project has not shown that it cannot be accomplished in a manner that would better
protect water quality and preserve aquatic life and habitat. The project could easily be configured and
redesigned to better minimize disturbance, preserve aquatic life and habitat'and protect water quality.
Furthermore, many Best Management Practices exist, but are not proposed, that would minimize
disturbance, preserve aquatic life and habitat, and protect water quality. The Division of Water Resources
must disapprove the application for Water Quality Certification / Buffer Authorization for the Atlantic
Coast Pipeline DWR Project #14-0957.
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