20140957 Ver 2_ACP_notes_3_20171115

fjac.,
ROY COOPER
Gm,mo,
MICHAEL S. REGAN
secretary
WaterResources S. JAY ZIMMERMAN
ENVIRONMENTAL QUALITY
Diiecwr
PUBLIC NOTICE AND NOTICE OF PUBLIC HEARINGS
Atlantic Coast Pipeline -401 Water Quality Certification Application
PUBLIC HEARINGS:
July 18, 2017 (Tuesday)
Fayetteville Technical Community College
Cumberland Hall Auditorium
2201 Hull Rd., Fayetteville, NC
July 20, 2017 (Thursday)
Nash Community College
Brown Auditorium
522 N. Old Carriage Rd., Rocky Mount, NC
Speaker registration for both hearings will start at 5:00 p.m. Hearings will start at 6:00 p.m.
BACKGROUND:
Atlantic Coast Pipeline, LLC (ACP) has applied to the N.C. Division of Water Resources (DWR) for a 401
Water Quality Certification and Buffer Authorization (project "2014-0957 v2). ACP is proposing to
construct one compressor station and install approximately 186 miles of transmission pipeline and
accessories in Northampton, Halifax, Nash, Wilson, Johnston, Sampson, Cumberland and Robeson
counties. This proposed project will permanently impact 766 linear feet of jurisdictional streams and
0.80 acres of jurisdictional wetlands, and temporarily impact 35,951 linear feet of jurisdictional streams
and 454 acres of jurisdictional wetlands. DWR must take final action on the application prior to Sept.
18, 2017.
HOW TO SUBMIT COMMENTS:
The public is invited to comment in writing on the application described above, as well as speak at the
hearing. Written comments must be received by 5:00 p.m. Aug. 19, 2017 to be considered.
Mail written comments to: or Email writt omm t
401 Permitting Branch [e-mail]
1617 Mail Service Center (include "ACP, in the emal s su ject line)
Raleigh, NC, 27699-1617
FOR MORE INFORMATION:
The application is online at: http://edocs.deg.nc.gov/WaterResources/0/fol/261798/Rowl.asox.
Contact Beverly Strickland at 919-707-8789 for assistance with the website.
The application is also on file at the DWR Central Office at 512 N. Salisbury St., Raleigh, NC, 27604. For
questions or to schedule an appointment to review the documents, contact Jennifer Burdette at
[e-mail] or 919-807-6364.
StateofNortb Carolina I Environmental Quality I WaterResources
1617 Mail Service Center I Raleigh, North Carolina 27699-1617
9198076300

Waterdog (Nectitrus lewisi); all five of these species have suffered significant declines in their
range and the Service have been petitioned to consider them for federal listing as
endangered/threatened." The FWS has proposed listing the yellow lance for federal
endangered species act protection. Furthermore the letter continues to state, "Tar River
Spinymussel, Carolina Madtom, and Neuse River Waterdog are endemic to only the Neuse and
Tar -Pamlico drainages and occur nowhere else on the planet."
As noted in the Neuse River NC Basinwide Water Quality Plan,6 "Good water quality in the
Neuse River Basin is critical to the survival of a large number of rare freshwater mussels.
Eighteen species of rare freshwater mussels, plus one rare snail [panhandle pebblesnail
(Somatogyrus virginicus)] are known from the Neuse Basin, and two species, the dwarf
wedgemussel (Alasmidonta heterodon) and Tar River spinymussel (Elliptio steinstansana), are
federally -listed as Endangered. The majority of the Neuse Basin mollusks inhabit small
streams." In addition, the basinwide plan notes that the Little River, proposed to be crossed via
HDD, is "nationally significant' stream system that contains 15 different rare species. "including
several populations of the Federally Endangered dwarf wedgemussel and the only population
of the Tar River spinymussel in the Neuse basin."
The 401 WQC application is lacking sufficient information on the actual impacts to listed species
and proposed mitigation for any potential impact. Atlantic has failed to provide site specific
information for hundreds of stream crossings. Nor does the application provide sufficient
details and information to ensure that water quality standards will not be violated. While SRI
appreciates the efforts of Atlantic, in consultation with the NC Wildlife Resource Commission
and US Fish and Wildlife Service to work to minimize direct impacts, significant direct and
cumulative impacts remain that would be likely to result in water quality standard violations.
As noted in a June 2016 letter from the USFWS to FERC, proposed water withdrawals from
streams'and the return of that water may be harmful to aquatic wildlife, introduce pollutants to
the waterbody and negatively impact stream flows, especially during low water conditions. The
application is lacking in information on the source of that water and the method, location and
amount of return to area waterways.
While Atlantic has proposed to cross several sensitive stream channels in the Tar and Neuse
River basins using HDD, smaller tributaries that are part of the stream sub -watersheds will be
impacted directly by other methods, including dam and flume or open cut. Tributaries within
the Swift Creek, Fishing Creek and Little River watersheds are equally as important for
endangered aquatic species survival as the mainstems. While SRI understands the USFWS has
requested additional "measures" to protect water quality and habitat at those crossings, there
is no indication at this point if those recommendations will be required. In addition, the right-
of-way established at these crossings will allow for ORV access to sensitive stream channels,
resulting in damage and potential loss of endangered species and aquatic habitat.
6 Neuse River Basin Water Quality Plan. 2009. Chapter 20, page 400.

SRI remains opposed to the open cut method currently proposed for the Neuse River crossing.
Significant populations of Roanoke slabshell, a state endangered listed species, are found
upstream and downst-ream-0f-t-he-crossing-c-or-ridor. - -
Conclusion
North Carolina's Division of Water Resources has the authority and right to deny the 401 WQC
for the Atlantic Coast pipeline due to the fact the applicant has failed to provide sufficient site
specific information for the Division to confirm that water quality standards will not be violated.
In addition, the applicant could use reasonable alternatives to lessen the environmental impact
to our state's waterways. The State of New York recently denied a water quality certification for
the Constitution Pipeline Company, LLC for the very same reasons and shortcomings of the
application that is noted here. This decision was sustained by a court ruling this week.
Sincerely,
Heather Deck
Pamlico -Tar Riverkeeper
Deputy Director, Sound Rivers
Matthew Starr Katy Langley
Upper Neuse Riverkeeper Lower Neuse Riverkeeper
Sound Rivers Sound Rivers
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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,$ 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.11VFinally, it is worth noting that there is no true
"market" demand. Atlantic is owned by a c nglomeration 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 'l1
Requiring a meaningful practical alternatives analysis is particularly crucial here, where the
market cannot possibly force a better alternative.
a 15A N.C. Admin. Code 02H .00502(b)(1), (c)(1), (f).
15A N.C. Admin. Code 02H .00502(b)(1), (c)(1), (f).
$ 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.se.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-
AE02017&cases=ref2017&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 forAdditional 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
"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).
Is N.C. Environmental Justice Network, et al. Title VI Complaint to EPA, EPA File No 11 -R -14-R4 (Sep. 3. 2014).
le 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).

r
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, '52
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 [... I 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
so FEIS, at ES -10 (emphasis added).
s� 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.
sz Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix C2; FEIS, at ES -10.
ss 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.").
USFS Wetlands Report, at 18.
ss 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).
17 USFS Wetlands Report, at 32-35; see also CEA Report, at 4.
s CEA Report, at 11.
s9 U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132, (1985) (emphasis added).
bo 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.

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 on
plans to segregate the topsoil of wetlands if they are not inundated at the time of construction; 5
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 integrity, as well as
displacing and killing sensitive aquatic organisms
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. 7 Riparian vegetation provides numerous key functions for
waterbodies, including protecting waters from pesticides, sediment, and other pollutants,
stabilizing stream banks, and regulating water temperatures. 8 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.").
6s FEIS, at 4-137.
64 FEIS, at 4-137.
bs 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."
" 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:Hdeq.nc.gov/riparian-buffers-frequently-asked-questions.
69 Dodds Study, Figure 4.0-1.
lul

discharge from the proposed ACP construction areas and to streams crossed by the proposed
ACP route.i70
By maintaining a right-of-way through riparian buffers, the ACP will create perpetual 4)
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, Q
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 comdor.
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. 8 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.
71 "Neuse River waterdogs tend to become inactive [...] when water temperatures are greater than 18 °C [...], but
remain active at temperatures as low as 0 T." AmphibiaWeb, University of California (2017), available at
http://amphibiaweb.org/cgi/amphib_query?where-genus=Necturus&where-species=lewisi (last visited July 31,
2017).
" "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.
71 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.i80 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. 02
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."84 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 tern
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.s89 Studies show that
80 Supplemental Information, at 19 (emphasis added).
ai 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.
az Dodds Study, Section 10.0.
s3 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).
ss Dodds Study, Section 10.0.
86 Dodds Study, Section 4.2, Figure 4.0-1.
$� FEIS, at 4-224.
ss FEIS, at 4-224.
s9 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 Spiny mussel, 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 Ouality
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 w `�
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 �r
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 constructionn96—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.
"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://efotg.se.egov.usda.gov/references/public/V,TV/James Spinymussel Recov Plan.pdf.
93 Supplemental Information, at 31-32, Table 4.
9a FEIS, at 4-135, Table 4.3.3-2.
9s 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.
"Atlantic Coast Pipeline, 401 Water Quality Permit Application, Appendix Cl.
9' 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," 100
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."103
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." 104 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
9a 33 U.S.C. § 1341(a)(1); 33 CFR Part 323.
99 33 U.S.C. § 1251(a).
m0 15A N.C. Admin. Code 02H.0501 (c)(1).
101 15A N.C. Admin. Code 02H.0506.
102 15A N.C. Admin. Code 02H .0502(a)(6){7).
ws 15A N.C. Admin. Code 02H .0502(b).
"4 15A N.C. Admin. Code 02H .0502(c).
115 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"; 06
(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";' 09
(5) "provides for protection of downstream water quality standards";110 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."113 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." 114 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
116 15A N.C. Admin. Code 02H .0506(b)(1), (c)(1), (1) (emphasis added).
07 15A N.C. Admin. Code 02H .0506(b)(2), (e)(2), (g) (emphasis added).
08 15A N.C. Admin. Code 02H .0506(6)(3), (c)(3) (emphasis added).
109 15A N.C. Admin. Code 02H .0506(6)(4), (c)(4) (emphasis added).
°0 15A N.C. Admin. Code 02H .0506(b)(5), (c)(5) (emphasis added).
°1 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).
.is 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 213. 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. 117 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.
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. P 1
1.
each crossing has no practical alternative, or that the selected
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
°7 15A N.C. Admin. Code 02H .0506(c).
8 15A N.C. Admin. Code 02H .0506(b)(1), (c)(1), (0 (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 W 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