20140957 Ver 2_ Sierra Club - Letter to Corps_20171220

Cassie Gavin
Director of Government Relations
North Carolina Chapter
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Raleigh, NC 27601
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SIERRA CLUB
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SIERRA
CLUB
December 20, 2017
Via email and US. Mail
Steve Gibson
U.S. Army Corps of Engineers
Norfolk District — Regulatory Division
803 Front Street
Norfolk, VA 235 10
[e-mail]
Samantha Dailey
U.S. Army Corps of Engineers
Wilmington District — Regulatory Division
3331 Heritage Trade Drive, Suite 105
Wake Forest, NC 27587
[e-mail]
Josh Shaffer
U.S. Army Corps of Engineers
Pittsburgh District — Regulatory Division
2200 William S. Moorhead Federal Building
1000 Liberty Avenue
Pittsburgh, PA 15222-4186
[e-mail]
Adam Fannin
U.S. Army Corps of Engineers
Huntington District — Regulatory Division
502 Eighth Street
Huntington, WV 25701-2070
[e-mail]
Re: Comments on Atlantic Coast Pipeline, LLC's Request to U.S. Army Corps of
Engineers for Verification under Nationwide Permit 12
To Whom It May Concern:
The Sierra Club submits this letter to urge the U.S. Army Corps of Engineers ("Corps-)
to initiate an individual Clean Water Act ("CWA") section 404 permit process for Atlantic Coast
Pipeline, LLC's ("Atlantic") proposed Atlantic Coast Pipeline ("ACP" or "the Project") pursuant
to 33 U.S.C. § 1344(a). The purpose of Nationwide Permit 12 ("NWP 12") is to streamline the
permitting process for utility line crossings of streams and wetlands that will have no more than
46minimal" impacts. 1 Verification of the ACP under NWP 12 is inappropriate bec ause, inter alia,
adverse environmental effects would be more than minimal. The proposed project is a massive
2
604.6 -mile -long gas pipeline that would entail more than 1,500 waterbody crossings.
According to the Final Environmental Impact Statement ("Final EIS"), construction and
1 Issuance and Reissuance of Nationwide Permits, Final Rule, 82 Fed. Reg. 1860, 1884 (Jan. 6,
2017).
2 Federal Energy Regulatory Commission, Atlantic Coast Pipeline and Supply Header Prqiect
Final Environmental Impact Statement, Volume 1, at 4-100 (July 2017) ("Final EIS").

operation would temporarily and permanently impact 795.4 acres and 243 acres of wetland,
respectively. 3 Approximately 14 percent of the ACP's overall pipeline length — i.e.,
approximately 84.6 miles — is located within Waters of the United States. 4 Accordingly, the
Corps must not verify this interstate gas pipeline under NWP 12, which is meant to be used only
for "minor activities" that would have no more than minimal individual and cumulative adverse
impacts on the aquatic environment. 5 The widespread public concern regarding this massive
project's impacts on water resources further demonstrates that verification of the ACP under
NWP 12 is inappropriate. 6
Background
Clean Water Act and Nationwide Permit 12
Section 404 of the CWA prohibits the discharge of dredged or fill material into navigable
waters unless authorized by the Corps. 33 U.S.C. § 1344. Before issuing a section 404 permit,
the Corps must comply with guidelines promulgated by the U.S. Environmental Protection
Agency, which are incorporated into the Corps' own regulations. Id. § 1344(b)(1); 33 C.F.R. §§
320.4(b)(4), 325.2(a)(6). The Corps must ensure, inter alia, that there are no practicable
alternatives to the proposed discharge of fill, that all appropriate steps have been taken to
minimize potential adverse impacts, and that destruction of wetlands has been avoided to the
extent practicable. 40 C.F.R. § 230.10. The Corps may not issue a permit where the activity
WOUld result in significant degradation of the Nation's waters. Id.
As an alternative to the individual permit process, the CWA at section 404(e) provides
that the Corps may, "after notice and opportunity for public hearing, issue general permits on a
State, regional, or nationwide basis for any category of activities involving discharges of dredged
or fi I I material if the Secretary determines that the activities in such category are similar in
nature, will cause only minimal adverse environmental effects when performed separately, and
will have only minimal cumulative adverse effect on the environment." 33 U.S.C. § 1344(e)(1).
3 Final EIS at 4-138.
4 Nationwide Permit 12 Pre -Construction Notification, Pittsburgh District, Supplemental
Information (Aug. 18, 2017) ("Pittsburgh PCN") at 4.
5 82 Fed. Reg. at 1865.
6 See, e g., Mallory Noe -Payne, "Atlantic Coast Pipeline Faces Last Hurdle in Virginia," WVTF
(Dec. 1], 2017) (Virginia regulators received more than 15,000 comments regarding water
quality certification for the project); Elizabeth Ourts, "Critics highlight Atlantic Coast Pipeline's
env ironmental justice impact," Southeast Energy News (Dec. 1, 2017) (noting that the North
Carolina Department of Environmental Quality's requests for input on the ACP have generated
nearly 24,000 comments). In sharp contrast, NWPs were designed for "minor activities" for
which "it is unlikely that there would be any meaningful public comment submitted to Corps
districts." 82 Fed. Reg. at 1865. See also id at 1862 (discretionary authority may be exercised
in cases where the district engineer has sufficient concerns for any of the Corps public interest
review factors).
2

On January 6, 2017, the Corps re -issued Nationwide Permit 12, which permits tile
construction of pipelines and other utility lines in U.S. waters "provided the activity does not
result in the loss of greater than 1/2 -acre of waters of the United States for each single and
complete project. ,7 The Corps defines a "single and complete linear project" as "that portion of
the total linear project ... that includes all crossings of a single water of the United States (i.e., a
single waterbody) at a specific location."8 The effect of that definition has been to allow project
proponents to artificially segment massive interstate pipelines into thousands of "single and
complete projects" so as to avoid the transparent and comprehensive review that section 404(a)
requires. Under this improper approach, there is apparently no limit to the number of tirnes a
single pipeline can use NWP 12, nor is there a maximum number of acres of wetlands it call
destroy or impact while still being eligible for authorization under the streamlined NWP 12
process. 9
The Corps justifies the open-ended nature of NWP 12 by requiring district engineers to
evaluate environmental impacts to ensure they do not exceed section 404(e)(1)'s "minimal
effects" threshold. Upon receipt of a Pre -Construction Notification ("PCN"), Corps district
engineers must assess individual and cumulative effects and ensure that they Would be no more
than minimal, as well as ensure compliance with all general and regional conditions for use of
NWP 12. If the district engineers determine that impacts would be more than minimal or that the
project does not comply with all of the pertinent conditions, they must require tile applicant to
submit an application for an individual permit under section 404(a). 10
Pipeline Impacts
Major pipeline projects have significant environmental impacts, including but not limited
to the impacts of ruptures, the conversion of forested wetlands to scrub -shrub wetlands necessary
to construct and maintain the pipeline rights-of-way ("ROW"), and Cumulative impacts
associated with forest fragmentation, habitat loss, sedimentation, and water quality degradation.
Pipeline stream crossings can alter stream channels, introduce large volumes of sediment into
streams (both during construction and over the long term if strearnbed and bank scour increases
as the channels readjust), impact water quality, impede movernent of aquatic species, degrade
habitat, and affect other important ecological functions.' Research on effects of pipeline
crossings shows that these crossings can impact aquatic species and habitat by producing high
7 82 Fed. Reg. 1985. The reissued version of NWP 12 went into effect oil March 19, 2017 and
expires on March 18, 2022.
8 Id. at 2007 (emphasis added).
9 See Comments on the U.S. Army Corps of Engineers' Proposal to Reissue and Modify
Nationwide Permit 12, Docket No. COE-2015-0017 (Aug. 1, 2016) ("NWP 12 Cornment").
incorporated herein by reference, attached hereto as Exhibit A.
10 See, e.g., 82 Fed. Reg. at 1885 ("If the district engineer determines after reviewing the PCN
that the cumulative adverse environmental effects are more than minimal ... he or she will
exercise discretionary authority and require an individual permit.").
11 This summary of impacts comes from
http://www.nature.org/ourinitiatives/regions/northai-nerica/areas/centralappalacliiaiis/recoiiimeiid
ed-shale-practices-stream-crossings.pdf.

levels of erosion and sedimentation during and shortly after construction, altering channels
thrOLigil excavation and backfilling, and damaging riparian vegetation. The removal of stream -
side vegetation for the development of pipeline and road corridors can increase erosion and raise
water temperatures. Effects of sedimentation include changes to physical stream characteristics;
water quality; and the behavior, physiology, abundance, diversity, and community structure of
aquatic and serni-aquatic species. In addition, inadvertent returns of drilling muds, which can
occur during directional drilling operations, can cause a release of water -bentonite slurry into
waterways and adversely affect aquatic organisms.
There are numerous interstate gas pipeline projects proposed in the mid-Atlantic region,
including the Atlantic Coast Pipeline and Mountain Valley Pipeline. When NWP 12 was
initially promulgated, no such massive gas pipelines had been proposed for construction through
the rnid-Atlantic mountain region. In northwestern Virginia, the Atlantic Coast Pipeline and
Mountain Valley Pipeline are proposed to be constructed in steep terrain. The severity of the
slopes and the fragile geology throughout the region make pipeline construction even riskier.
Contributing to this risk is the lack of proven efficacy of mitigation measures. Recent experience
with pipeline construction through similar or less challenging terrain demonstrates that even
"best in class" pollution control measures are insufficient to prevent significant damage to water
resources from pipeline construction. Grading practices, vegetation removal, and other
construction and development activities can induce erosion rates up to 40,000 times pre -
disturbance rates. 12 Water resources and the extraordinary biodiversity still present in the mid-
Atlantic mountain region are thus threatened by pipeline construction. Furthermore, there are
likely to be significant adverse impacts that last beyond the construction phase. Pipeline
construction corridors are notoriously difficult to revegetate. In addition to the continuous threat
of erosion and stream sedimentation, the permanent right-of-way clearings increase runoff
velocity and volume, as well as the potential for temperature increases in streams that support
cool water mountain fisheries. Erosion causes grave problems such as water pollution, increased
flood hazard, loss of fish populations, degradation of habitat, and the general impainrient of
stream ecosystems. Eroded material accumulates in streams where it buries spawning areas,
makes water unsuitable for human use, and reduces channel capacity.
It is reasonably foreseeable that erosion, slides, and sedimentation will occur based on
gas pipeline projects already constructed in the mid-Atlantic region. In addition to steep slopes
and unstable soils, the mid-Atlantic mountain region hosts karst geology. Ernst H. Richard
Kastning, Ph.D., P.G., the preeminent scholar on karst geology, prepared a report documenting
the presence of significant karst terrain over which a 42 -inch gas pipeline is proposed to be
constructed. He concluded that the impacts from the construction of this unprecedented pipeline
proposal are un-rnitigatable. 13 Moreover, pipeline trenches can act as drainage channels. This
phenomenon is a concern not only in karst terrain — because water and sediment can
unpredictably end up anywhere — but also in attempts to mitigate wetland impacts.
12 Harbor, J., 1999. Engineering geomorphology at the cutting edge of land disturbance: erosion
and sediment control. Geomorphology 31, 247-263.
13 Ernst H. Kastning, Ph.D., P.G., An Expert Report On Geologic Hazards in the Karst Regions
of Virginia and West Virginia.- Investigations and Analysis Concerning the Proposed Mountain
ValleY Gas Pipeline (July 2016), available at http://wp.vasierraclub.org/KastningReport.pdf.
4

The Atlantic Coast Pipeline
The proposed Atlantic Coast Pipeline is a massive 604.6 -mile -long gas pipeline that
would transport up to 1.5 billion cubic feet per day of gas from West Virginia to Virginia and
North Carolina. The project would include, but is not limited to, the construction and operation
of 333.4 miles of 42 -inch -diameter mainline pipeline ("AP- I mainline"); 186.3 miles of 36 -inch -
diameter mainline pipeline ("AP -2 mainfine"); 83.4 miles of 20 -inch -diameter lateral pipel ine
("AP -3 lateral"); three new compressor stations; and access roads. Pipeline construction Would
include construction and permanent rights-of-way as follows: 14
TABLE 2 2 1-1,
Typical Construction and Operational Right -of -Way Configurations for the Atlantic Coast Pipeline
Total Construction Spoil Side%%%dth
'Alorking &de Width
Operaton Wiwi
Pipeline Facility Width (feet) (feet)
(feet)
Oeeti
APA Mainline
Non-Agricuitural Areas 125 40
85
5G
Agricultural Areas 150 40
110
5G
AP -2 Mainline
Non -Agricultural Areas Ila 35
75
50
Agricultural Areas 135 35
100
5c,
AP -3, APA and AP -5 -Laterals
Non -Agricultural Areas 75 25
50
5ri
Agricultural Areas 100 25
75
50
a Theconstruction right-of-way would be reducedto 75 feet wde in wetland areas except �vheie in odflicat ions aye
requested and deemed acceptable (see lable 2 3.1-3)
Approximately 14 percent of the ACP's overall pipeline length (i.e., approximately 84.6
miles) is located within Waters of the U.S. 15 Construction of the ACP would involve 1,53 )6
waterbody crossings, including 18 major waterbody crossings (those greater than 100 feet
wide). 16 The pipeline would cross 514 perennial waterbodies. 17 Access roads for ACP would
cross 274 waterbodies. 18 According to the Final EIS, there are ten 303(d) impaired waterbody
crossings proposed by Atlantic in West Virginia, 18 in Virginia, and one in North Carolina. 19
2
Atlantic would cross major waterbodies using HDD or cofferdam methods, 0 and would use the
dry crossing method at 940 of the 1,242 pipeline crossing locations .2 1 The open -cut method
22
would be used at 91 waterbody crossings.
" Final EIS at 2-19.
15 Pittsburgh PCN at 4.
Final EIS at ES -9, 4-100. Some waterbodies would be crossed more than once.
Id. at 4-606.
18 Id. at 4-104. Some waterbodies would be crossed more than once.
19 Id. at 4-109. Some waterbodies would be crossed more than once.
20 id.
21 id.
22 id.

According to the Final EIS, construction of the ACP would temporarily affect 795.4 acres
of wetland (including more than 600 acres of palustrine forested wetlands), and operation would
23
affect 243 acres of wetland (including more than 225 acres of palustrine forested wetlands).
Atlantic would maintain a 30 -foot -wide corridor over the pipeline with selective removal of trees
within forested and scrub -shrub wetlands. 24 According to the Final EIS, Atlantic would maintain
a I 0 -foot -wide corridor centered over the pipeline within wetlands in an herbaceous state, and
most of the permanent impacts on wetland vegetation would be in forested wetlands where trees
within 15 feet of the pipeline centerline would be selectively cut and removed once every 3
years. 25 The Final EIS also states that 6.9 acres of wetlands would be "permanently affected" by
construction of new aboveground facilities and new or permanently maintained access roads. 26
The project would "cross several sensitive wetland types, including the protection buffer
around the Spruce Creek Tributary Conservation Site in Virginia, the Meherrin River and
Fountains Creek wetlands, the Chesapeake wetland mitigation bank, and cypress gum swamps of
Virginia and North Carolina."27 It would also cross wetlands in the Great Dismal Swamp
Complex that are in close proximity and hydrologically connected to those in the Great Dismal
Swamp National Wildlife Refuge. 28 District engineers "will ... exercise discretionary authority
to require an individual permit if high value wetlands will be affected by the activity and the
activity will result in more than minimal adverse environmental effects."29
Huntington and Pittsburgh District Pre -Construction Notifications 30
On August 18, 2017, Atlantic submitted updated PCN materials to the Pittsburgh District.
According to the PCN, in the Pittsburgh District, construction of 61.3 miles of 42 -inch diameter
pipeline Would include 187 crossings of Waters of the U.S.3 1 This would involve crossing 117
waterbodies, including the West Fork River, a section 10 navigable water that ACP proposes to
cross using a cofferdam. 32 Stream banks would be restored "as near as practicable" to
21 Id at ES- 10, 4-13 8.
14 Id. at 5-11.
25 Id
21 Id. at ES- 10.
21 Id. at 5-10 to 5-11.
28 See Evan Hansen, The use offationwide Permit 12for the Atlantic Coast Pipeline: Norfolk
Disirict (December 2017), at 18 ("Norfolk Report"), attached hereto as Exhibit B; see also Final
EIS at 4-481 ("ACP would be within 0.25 mile of the Great Dismal Swamp NWR between AP -3
MPs 7 1.8 and 76.0.... The Great Dismal Swamp NWR, established in 1974, is the largest intact
remnant of seasonally flooded wetland forest that once covered a large part of southeastern
Virginia and northeastern North Carolina (FWS, 20161).").
29 United States Army Corps of Engineers, Decision Document: Nationwide Permit 12 (Dec. 21,
2016) ("Decision Document") at 58 (emphasis added).
30 See Evan Hansen, The use offationwide Permit 12for the Atlantic Coast Pipeline: Pittsburgh
Disirict (December 2017) ("Pittsburgh Report"), attached hereto as Exhibit C.
31 Pittsburgh PCN at 7.
12 Jd. at 18, 22.

preconstruction conditions. 33 The company also proposes to construct one compressor station.
one pig launcher/receiver site, two metering and regulation stations, several permanent and
temporary access roads, and five valve sites within the Pittsburgh Distri Ct. 34 According to the
35
PCN, 2.5 acres of wetlands would be temporarily impacted by construction. Most wetlands
would be crossed via the open cut method .36 Atlantic proposed to lirnit the construction ROW
width to 75 -feet through wetlands (unless alternative site-specific measures are requested and
approved by the applicable agencies) .37 According to the PCN, Atlantic has 3 a "conceptual
compensatory mitigation plan" for wetlands impacts that cannot be avoided. 8 The cover letter
accompanying the PCN stated that Atlantic was still "finalizing details of the conceptual wetland
and stream mitigation plan."
Approximately 37.4 miles of the ACP are located within the Huntington Distri et.39 The
ACP would cross a total of 98 waterbodies within the Huntington District, with a total of 153
"single and complete" pro ects. The AP -1 pipeline route would cross the Monongahela National
Forest within this district.io
The West Virginia Department of Environmental Protection has waived the section 401
individual certification for the ACP projeCt.41
33 Id at 13. Cf. Nationwide Permit 12 ("There must be no change in pre -construction contours of
waters of the United States.").
34 Pittsburgh PCN at 7. See also id. at 19 ("Impacts on individual waterbodies ternporarily
crossed by the proposed ACP facilities could occur as a result of construction activities in strearn
channels and on adjacent banks.").
" 1d. at 23.
36 id.
37 Id.
" Id. at 25.
39 See Nationwide Permit 12 Pre -Construction Notification, U.S. Army Corps of Engineers —
Huntington District, Supplemental Information (Aug. 18, 2017) ("Huntington PCN").
40 See Forest Service Comments on Draft EIS for the Proposed ACP (April 6, 2017) (FERC
Accession No. 20170406-5532) at 3 (noting that, with regard to the statement in the Draft EIS
that vegetation types such as grassland/herbaceous, barren, and emergent wetlands would reftit-11
to preconstruction conditions during operation of ACP facilities, "without assistance, it is highly
unlikely that soil quality, native plant communities, hydrological conditions, etc, would return to
preconstruction conditions equivalent in ecological function and value to what was disturbed");
id. at 28 (Draft EIS lacks "scientific evidence ... to support the claim that wetlands Would revert
back to pre -construction hydrology, native species, etc. in one to two years. Recovery is likely to
take far longer, on the order of decades, particularly in forested wetlands."); id. at 46 (with
regard to surface waters, "[t]his section contains statements that are based on incomplete
analyses (soils, erosion/sediment, and cumulative effects), that are contradic,tory, and erroneous
in concluding that 'the cumulative effect on surface wolerbody resources would be feniporai-v
and minor"' (italics in original)).
4 1 The use of a nationwide pen -nit does not mean that an activity will comply with state water
quality standards. See, e.g., 82 Fed. Reg. at 1949 ("States can deny water quality certification for
any NWP activity that might result in a discharge that is not in cornpl iance with applicable water

Norfolk District Pre -Construction Notification 42
In July 2017, Atlantic submitted PCN materials to the Norfolk District. 43 According to
the PCN, in the Norfolk District, approximately 307.1 miles of proposed pipeline, as well as
associated abovegrOUnd facilities and access roads, would result in 958 single and complete
crossings of Waters of the U.S.44 These 958 crossings would include the "crossing of 668
wetland segments and 855 perennial, intermittent, ephemeral, and other waterbodies (e.g., ponds,
ditches, reservoirs) segments in Virginia."45 Three tidal waterbodies would be crossed by the
46
ACP, and approximately 15 tidal wetlands would crossed by the mainline pipeline project. The
company also proposes to construct one compressor station, four M&R. stations, 20 valve sites,
and seven pig launchers and receivers sites in Virginia. 47
Accord ing to the Norfolk PCN, "[c] learing and grading of stream banks, blasting (if
required), in-strearn trenching, trench dewatering, and backfilling could each result in temporary,
local modifications of aquatic habitat involving sedimentation, increased turbidity, and decreased
dissolved oxygen concentrations." 48 The PCN acknowledges that "[v]egetative clearing, grading
for construction, and soil compaction by heavy equipment near stream banks could promote
erosion of the banks and the transport of sediments into waterbodies by stormwater runoff. 09
According to the PCN, the width of the construction right-of-way would be 75 feet in
wetlands. and following construction, a 50 -foot -wide permanent easement would be maintained
for operation of the AP- I pipeline and AP -3, AP -4, and AP -5 laterals. 50 In addition to the
construction rights-of-way, additional temporary workspace (ATWS) would be needed to stage
construction activities and store equipment, materials, and excavated soil at wetland, waterbody,
and road crossings. 51 Clearing adjacent to waterbodies would involve removal of trees and brush
from both the construction ROW and ATWS areas. 52 Stream banks would be restored "as near
as practicable" to preconstruction conditions. 53 According to the PCN, the mainline pipeline
quality standards."). See also West Virginia Rivers Comments to WVDEP re ACP 401
Application (WQC- 15-0010) (Aug. 4, 2017), attached hereto as Exhibit D.
42 See Ex. B (Norfolk Report).
43 Joint Permit Application: United States Army Corps of Engineers —Norfolk District, Virginia
Department of Environmental Quality, and Virginia Marine Resources Commission:
Supplemental Information (July 2017) ("Norfolk PCN").
Id at 7.
Id at 8.
41 Id. at 9.
41 Id. at 12.
41 Id. at 87.
49 Id. See also id (sedimentation and increased turbidity can result from in -stream construction,
trench dewatering, or stormwater runoff from construction areas; suspended sediments may alter
the characteristics of the water column).
Id at 18, 19.
Id. at 20.
12 Id. at 3 0.
" Id. at 3 1.
8

would result in permanent conversion of 74.1 acres of PFO (palustrine systern forested) wetlands
to PSS (palustrine system scrub -shrub) or PEM (palustrine system emergent) wetlands; 292.12
acres of temporary impacts; and 1.04 acres of permanent wetland losses as a result of
54
construction of a permanent facility and access roads .
The South Branch Elizabeth River M&R facility would require loss of wetlands." The
Southern Branch Elizabeth River crossing also contains essential fish habitat for multiple
species. 56 According to the PCN, impacts on essential fish habitat (EFH) "could result from an
inadvertent return of drilling fluid, inadvertent hazardous material spills, run-off of sediment
from construction areas into the waterbody, or water withdrawals for hydrostatic testing and
drilling mud."57 But the PCN minimizes these concerns by stating, without explanation, that if
drilling fluid is released into the river during an inadvertent release, "the volume is expected to
be relatively minimal .,,58 The PCN further minimizes these concerns by alleging that "due to the
river current, high waterway traffic, high turbidity, and presence of existing pollutants, an
inadvertent release will not likely be visible or result in significant impact on EFFi. , 5 9 The
PCN's conclusion that the "ACP will have no adverse effect on EFH or managed species in the
Southern Branch Elizabeth River or the Nansemond River and associated tidal wetlands because
60
the pipeline will be installed by HDD," is thus not adequately supported.
On December 12, the State Water Control Board approved the section 401 water quality
certification for project with an amendment that delays the effective date of the certification
unless and until the state approves a series of plans and mitigation measures, including a karst
mitigation plan, annual standards and specifications, erosion and sediment control plans, and
stormwater management plans. 61,62 The amendment provides that the Board may consider
further actions on the section 401 certification following review of a Department of
Environmental Quality report on the adequacy of these plans,
14 Id. at 84.
Id. at 70.
Id. at 77.
17 Id. at 78.
58 id.
59 id.
60 id.
61 See Robert Zullo, "State board approves water certification for Dominion's pipeline, but with a
caveat opponents say will buy more time," Richmond Times -Dispatch (Dec. 12, 2017).
62 See Appalachian Mountain Advocates, Comments on Draft Clean Water Act Section 401
Water Quality Certification No. 17-002 for the Atlantic Coast Pipeline (Aug. 22, 2017), attached
hereto as Exhibit E ; Letter to Members of the State Water Control Board (Oct. 25, 2017),
attached hereto as Exhibit F. See also Virginia Chapter of the Sierra Club - Comments on the
Atlantic Coast Pipeline, LLC and Dominion Transmission, Inc. Erosion and Sediment Control
Plans (Oct. 13, 2017), attached hereto as Exhibit G.

Wilmington Pre -Construction Notification 63
Approximately 186 miles of the AP -2 mainline and 12.2 miles of the AP -3 lateral would
occur within the Wilaiington District. 64 One compressor station, three M&R stations, I I valve
sites, and four sets of I)ig launchers and receivers are also planned within the Wilmington
District. 65 There would be 563 "single and complete projects" across waters of the U.S. in North
Carolina. 66 According to Atlantic, this Would include temporary impacts to 453.49 acres of
wetlands, conversion impacts to 154.84 acres, and permanent loss of 0.80 acres. 67 For virtually
all of the impacted wetlands, the blasting and the digging of trenches would occur directly in
68
saturated waters, causing excessive sedimentation and destroying fragile layers of hydric soil
that rely on stable, low -oxygen conditions to perform unique wetland functions. 69
In wetlands, the width of the construction ROW would be 75 feet, and following
construction, a 50 -foot -wide permanent easement would be maintained .70 NWP 12 Regional
Condition 4.1.3 states that justification for work corridors exceeding 40 feet in width is
required .7 J Atlantic provides only a few sentences attempting to explain why it requires a
72
corridor that is almost double that width. Atlantic also seeks a waiver of General Water
Quahty Certification Specific Condition 5, which states that construction corridors in wetlands
and across strearn channels shall not exceed 50 feet wide for gas utility lines. 73 Atlantic's
requests to exceed these limitations further demonstrate that this pipeline is not a "minor
activity" with "minimal impacts" for which NWP 12 verification might be appropriate, but rather
a major project for which an individual permit must be sought.
In the Wilmington PCN, Atlantic also notes that it is requesting a waiver of General
Water Quality Certification Condition 11, which states that all work in or adjacent to stream
waters shall be conducted so that the following stream does not come in contact with the
63 See Carpenter Environmental Associates, Inc., Report on the Revised Individual 401 Water
Quality Certification and Riparian Bifffer Authorization Application, Submitted by Atlantic
Coast Pipeline, LLC, for the Proposed Atlantic Coast Pipeline Project, Submitted to the North
Carolina Department of Environmental Quality on May 8, 2017 (August 2017) ("Wilmington
Report"), attached hereto as Exhibit H.
64 Nationwide Permit 12 Pre -Construction Notification — Joint Permit Application, U.S. Army
Corps of Engineers — Wilmington District, North Carolina Department of Environmental
Quality, Division of Water Resources: Supplemental Information (May 2012) ("Wilmington
PCN-) at 11.
15 161.
66 Id at 29.
" Id. at 3 0.
68 Id. at Appendix C 1.
69 See U.S. Forest Service, Forested Wetlands: Functions, Benefits and the Use of Best
Management Practices, at 20-22, available at https:Hgoo.gi/J6FFJv.
70 Wilmington PCN at 13.
71 Id. at 14.
72 m.
71 Id. at 16.
H

disturbed area. 74 Atlantic states that it is requesting a waiver "due to the fact that several stream
crossings are too large to feasibly work in the dry, but are not suitable for HDD.',75 Atlantic
states that for certain wetland-waterbody complexes occurring in North Carolina, "crossing
cannot be accomplished 'in the dry' due to the difficulty in removing water from within the
wetland," and thus the "channel crossing in these complexes would be similar to the open cut
method described in this section and the wetlands crossing would be accomplished using tile
,,76
push-pull wetlands crossing method. Atlantic further notes that the "volume of water at the
larger stream crossings is too great to safely and temporarily divert the flow around the worl<
area" and that "Rocky Swamp and Cypress Creek are proposed to be open cut (i.e., wet
crossings) .,,77 This general condition regarding "work in the dry" is designed to minimize
impacts. The crossings proposed by Atlantic will cause more than minimal impacts, and
Atlantic's request for a waiver further demonstrates that NWP 12 verification is inappropriate for
this major pipeline project.
For waterbody crossings, the PCN states that "[w]oody vegetation within tile construction
right-of-way will be cleared to the edge of each waterbody," and that "[s]ediment barriers nut * v be
installed at the top of the bank if no herbaceous strip exists."78 The open -cut or wet trench
crossing method would involve trenching through the waterbody while water continues to flow
through the trenching area. 79 For some waterbodies crossed using this method, equipment may
operate from within the waterbody. 80 Atlantic states that the "duration of in -stream construction
activities (excluding blasting, if required) will be limited to 24 hours across minor waterbodies
(those 10 feet in width or less) and 48 hours across intermediate waterbodies (those between 10
and 100 feet in width) .,,8 1 Atlantic acknowledges that clearing and grading of stream ban](s, in -
stream trenching, trench dewatering, and backfilling could result in sedimentation, increased
turbidity, and decreased dissolved oxygen concentrations. 82 Atlantic also states that
"[v]egatative clearing, grading for construction, and soi I compaction by heavy equipment near
stream banks could promote erosion of the banks and the transport of sediment into waterbodies
by stormwater runoff. ,83 The pipeline would run through several spawning and nursery areas,
essential to endangered species such as the Atlantic sturgeon and the Shortnose sturgeon, as well
as North Carolina's important commercial striped bass fishery and the headwaters of creel�s and
rivers with river herring habitat.
For wetlands, Atlantic states that the "method of pipeline construction used in wetlands
will depend on site-specific weather conditions, soil saturation, and soil stability at the time of
71 Id. at 15.
75 id.
76 id.
77 id.
78 Id. at 17-18 (emphasis added).
" Id. at 18.
80 id.
81 Id. at 19 (emphasis added).
" Id. at 78.
83 Id. See also id. (stream banks would be "restored as near aspracticable to pre-existing
al
conditions and stabilized") (emphasis added).
I I

construction." 84 If wetland soils "are not excessively saturated at the time of construction and
can support construction e%liprnent on equipment mats, they will be crossed using conventional
open -trench construction. ' 5 Atlantic acknowledges that maintenance of the right-of-way for the
life of the project would "result in a permanent impact to wetland function and value." 86
The North Carolina Department of Environmental Quality has issued four letters to
Atlantic requesting additional information for its application for a state 401 water quality
certification. 873 88
The Atlantic Coast Pipeline cannot be authorized under NWP 12 because it would have
more than "minimal" environmental impacts
Section 404(e) of the Clean Water Act provides for the issuance of nationwide permits
for activities that are "similar in nature, will cause only minimal adverse environmental effects
when performed separately, and will have only minimal cumulative adverse effect on the
environment." 89 Courts recognize that "the environmental impact of the activities authorized by
a general permit depends on factors that, as a practical matter, are outside the Corps' ability to
predict with certainty ex ante."90 As such, the Corps has consistently maintained that the
limitations contained in Section 404(e) do more than guide the issuance of a nationwide permit;
14 Id. at 26.
85 id
81 M. at 88.
87 S�,e SELC and Sierra Club Comments on Section 401 Certification Application for
Construction of the Atlantic Coast Pipeline (Aug. 18, 2017), attached hereto as Exhibit 1;
Comments on Atlantic's responses to NCDWR Requests for Additional Information for the
Section 401 Certification Application for Construction of the Atlantic Coast Pipeline (Nov. 22,
2017), attached hereto as Exhibit J.
88 See also Haliwa-Saponi Indian Tribe Comments on Section 401 Certification Application for
Construction of the Atlantic Coast Pipeline (Aug. 18, 2017), attached hereto as Exhibit K. The
Tribal Council of the Haliwa-Saponi Tribe also addressed impacts to waterways in comments on
the Draft EIS. See Comments on the Atlantic Coast Pipeline and Supply Header Project DEIS
(April 4, 2017), attached hereto as Exhibit L, at 5-6. See also The National Congress of
Arnerican Indians Resolution #MOH -1 7-054 (supporting "the Haliwa-Saponi Indian Tribe's
efforts to engage the Federal Energy Regulatory Commission, and other federal agencies in
meaningful government -to -government consultation to ensure the protection of its waters, lands,
ancestors, and sacred places"), attached hereto as Exhibit M; Letter from NCDEQ to FERC re
Tribal Consultation and Atlantic Coast Pipeline Project (Aug. 7, 2017), attached hereto as
Exhibit N (expressing dismay over the lack of direct consultation between FERC and North
Carolina's tribal governments impacted by the ACP project).
" 33 U.S.C. § 1344(e)(1).
90 Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493, 501 (4th Cir. 2005). See also id.
("it is impossible for the Corps' ex ante determinations of minimal impact to be anything more
than reasoned predictions").
12

they also apply throughout the verification stage. 91 Courts have upheld this interpretation as
reasonable, explaining that the unavoidable uncertainties at the issuance stage require sorne
flexibility at the verification stage. 92
In practical effect, this means not every project that meets the formal tern -is of a
nationwide permit is authorized thereby. Instead, Section 404, corresponding regulations, and
Corps decision-making documents all confirm that the "safeguard" of individual review is
appropriate when speculative predictions at the issuance stage cannot reasonably account for the
number, scope, or magnitude of projects that arise during the permit's lifetime. 93 The Corps in
the NWP 12 Decision Document stated that "[t]he information regarding the CLIMUlative effects
of all of the utility line activities authorized by NWP 12 will be considered by the district
9 1 See, e.g., 77 Fed. Reg. 10184, 10185-86 (Feb. 21, 2012) ("In response to a pre-constrUCti011
notification or a request to verify that an activity is authorized by an NWP, a district engineer
may add activity -specific conditions to the NWP authorization if he or she determines that the
proposed activity would result in more than minimal adverse effects."); Decision Document at 4
("Potential adverse impacts and compliance with the laws cited in 33 CFR 320.3 are controlled
by," inter alia, "case -specific conditions"); id. at 5 (describing "[a]dditional safeguards" for
ensuring compliance with prescribed limitations, including that "the Chief of Engineers, division
engineers, and/or district engineers [may] assert discretionary authority and require all individual
permit for a specific activity"); id. at 48 ("Division and district engineers have the authority to
require individual permits in watersheds or other geographic areas where the cumulative adverse
environmental effects are determined to be more than minimal, or add conditions to the NWP
either on a case-by-case or regional basis to require mitigation measures to ensure that the
cumulative adverse environmental effects of these activities are no more than minimal."), See
also 33 U.S.C. § 1344(e)(2) (allowing Corps to revoke or modify a general permit if "the
activities authorized by such general permit have an adverse impact on the environment or such
activities are more appropriately authorized by individual permits").
92 See generally Sierra Club v. Bostick, 787 F.3d 1043, 1056 (1 Oth Cir. 2015) (because analysis
of environmental impacts at NWP 12 issuance stage "had to entail some level of speculation
about future operations[J ... the Corps added safeguards involving the use of project -level
personnel, requiring them to ensure that particular activities Would not have more than a minimal
impact on the aquatic environment."); Bulen, 429 F.3d at 500 (allowing Corps to "rely on post -
issuance procedures in making" minimal -impact determinations); id. ("it is simply not the case
that issuance of a general permit functions as a guarantee ab initio that every instance of the
permitted activity will have only a minimal impact."). But see Bostick, 787 F.3d at 1067
(McHugh, J., concurring) (arguing that minimal -impacts determination cannot be deferred to the
verification stage).
93 See, e.g., Decision Document at 42-43 ("Division and district engineers will impose, as
necessary, additional conditions on the NWP authorization or exercise discretionary authority to
address locally important factors or to ensure that the authorized activity results in no more than
minimal individual and cumulative adverse environmental effects"). See also Bulen, 429 F.3d at
501 ("[G]iven the inevitable ex ante uncertainty the Corps confronts when issuing a nationwide
permit, its reliance on post -issuance procedures is a reasonable, if not the only possible, way for
it to cement its determination that the projects it has authorized will have only minimal
environmental impacts.").
13

engineer in his or her decision-making process for an NWP 12 verification." 94 Activities that
64result in more than minimal individual and curnulative adverse environmental effects cannot be
authorized by NWPs." 95
That is the case here. The project's stream and wetland crossings will have more than
minimal individual adverse environmental impacts on waterways and wetlands, 96 as well as
more than minimal Cumulative adverse impacts. Atlantic would cut a 75 -foot -wide path through
wetlands along the proposed route. Construction in wetlands can damage and destroy wildlife
habitat, including foraging, nesting, spawning, rearing, and resting sites for migratory birds,
including endangered species. It can also damage and destroy the wetland plants that influence
water chemistry and trap sediments and other pollutants, harming water quality. 97 Constructing
the ACP would also harm rivers and streams. Waterbodies would be crossed using the open -cut,
flurne, dam and purrip, HDD, and cofferdarn methods. 98 These activities would disturb and
increase sediment pollution in waters that support fish and other wildlife and that people along
the proposed route use for drinking, recreation, and agriculture. These impacts would be further
exacerbated by the project's environmental setting, including steep slopes and highly erodible
soils.99 Thus, construction and operation of the Atlantic Coast Pipeline would harm wetlands,
rivers, and streams, and the humans and wildlife—including endangered species—that live along
the more than 604 -mile route. These effects would be more than minimal, and thus the Corps
cannot verify the ACP Linder NWP 12. Moreover, these impacts must be considered in the
context of other existing and proposed pipeline projects in the region. The Corps must require an
individual permit process for this proposed major infrastructure project.
Notably, in assessing the potential impacts of NWP 12, the Corps predicted that it would
"be used approximately 11,500 times per year on a national basis, resulting in impacts to 100
approximately 1,700 acres of waters of the United States, including jurisdictional wetlands."
Thus, the Corps predicted that, on average, each use of NWP 12 would result in impacts to 0.147
acres of waters of the United States. The acreage impacted by ACP crossings demonstrates the
glaring discrepancy between the intended use of NWP 12 for minor projects and the proposed
94 Decision Document at 2 1.
9' let at 4.
96 See id at 63 ("The district engineer will exercise discretionary authority and require an
individual permit if the proposed activity will result in more than minimal adverse environmental
effects on the project site.") (emphasis added).
97 See id at 57 ("The loss of wetland vegetation will adversely affect water quality because these
glants trap sediments, pollutants, and nutrients and transform chemical compounds.")
8 Final EIS at 4-113.
99 See Decision Document. at 43 ("The district engineer will also consider site specific factors,
such as the environmental setting in the vicinity of the NWP activity"); Final EIS at 4-606
("steep slopes adjacent to stream crossings would continue to be vulnerable to heavy
precipitation events and slope instability"); id. at 4-37 ("Steep slopes at the base of mountains
next to stream crossings would be Susceptible to natural landslides due to various factors such as
rainfal I -induced pore pressure increase or stream undercutting.").
100 Decision Document at 70. See also id. ("The Corps estimates that approximately 300 acres of
compensatory mitigation will be required each year to offset authorized impacts.").
14

use for this massive interstate pipeline. For example, the first five wetiand crossings ill
Southampton County, Virginia, between MP 12.4 and 14.4, would impact 3.5, 6.3, 0.7, 2.3, and
4.6 acres of wetlands, respectively. 101 A single crossing (wchr002f) in the City of Chesapeake
would impact 27.3 acres. 1 02 Construction of the Atlantic Coast Pipeline alone Would result in
temporary impacts to 795.4 acres of wetland, and operation would result in permanent impacts to
243 acres of wetland. 103 This one project's temporary impacts would thus account for almost
half of the projected impacts for all projects authorized under NWP 12. The impacts of the ACP
would exceed the impacts that the Corps determined would be "minimal" when it issued the
permit. Coverage under NWP 12 is inappropriate for projects with the scale of impacts of tile
Atlantic Coast Pipeline, which under no reasonable interpretation can be classified as "i-ninii-nal,"
as required for coverage under a CWA section 404 general permit.
Final Environmental Impact Statement
The Corps was a cooperating agency in the environmental review of the ACP under the
National Environmental Policy Act, for which the Federal Energy Regulatory Commission
("FERC") was the lead agency and which culminated in the Final EIS inJuly 2017. Agencies
prepare EISs for projects that would have significant environmental impacts. �ee 42 U.S.C.
§4332(2)(C). For projects that would have less than significant impacts, an agency will prepare
a less -detailed Environmental Assessment ("EA"), 40 C.F.R. § 1501.4(b), and if the agency finds
impacts would be only minimal, it will issue a Finding of No Significant Impact ("FONSI").
Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1274 (1 Oth Cir. 2003); 40 C.F.R. §
1501.4(e). Here, the agencies prepared an EIS rather than an EA/FONSI. The Final EIS
discusses the project's impacts, including but not limited to cumulative effects, "' impacts to
wetlands and surface water resources, 105 and impacts to fisheries and aquatic reSOUrces. 1 06
The Corps cannot credibly claim that the effects of the ACP would be only minimal so as
to qualify for the streamlined NWP 12 process. 107 Even the flawed Final EIS determined that the
project would result in "some adverse effects." 108 The Final EIS acknowledged that ACP has the
potential to contribute to individual and cumulative impacts oil waterbodies and wetlands, as
well as threatened and endangered species. These impacts are more than "minimal":
"Impacts on waterbodies could result frorn construction activities in stream channels,
on adjacent banks and riparian areas, and from the use of access roads Clearing and
grading of stream banks, blasting (if required), in-strearn trenching, trench
dewatering, and backfilling could each result in temporary, local modifications of
'0' Final EIS at L-41. These crossing are also not "separate and distant."
Id. at L-49.
Id. at 4-138. See also Comments on Draft EIS, attached hereto as Exhibit 0. at 174-77.
104 See id. at section 4.13.
105 See id. at sections 4.3.2 and 4.3.3.
106 See id. at section 4.6.
107 See, e.g., Ex. 0 (Comments on Draft EIS), at 54-59, 82-84, 89-91, 152-65, 172-86, 199-202,
224-31, 278-47, 359-61.
108 Final EIS at ES- 16.
15

aquatic habitat involving sedinnentation, increased turbidity, and decreased dissolved
oxygen concentrations."' 09
"Sediinentation and increased turbidity can occur as a result of in -stream construction
activities, trench dewatering, or stormwater runoff from construction areas and access
roads. In slow moving waters, increases in suspended sediments (turbidity) may
increase the biochemical oxygen dernand and reduce levels of dissolved oxygen in
localized areas during construction." 110
"Vegetation clearing, grading for construction, and soil compaction by heavy
equipment near stream banks Could promote erosion of the banks and the transport of
sediment into waterbodies by stormwater runoff.""'
0 "Clearing of riparian trees in forested areas would reduce shade near streams, and
may result in rninor increases in local water temperature." 112
"[13] lasting may be required to install portions of the pipeline. Individual stream
crossing locations where blasting may be necessary would be identified during
construction based on site-specific conditions.... Preparation of the rock for blasting
(e.g., drilling shot holes) is expected to cause enough disturbance in waterbodies to
displace most aquatic organisms from the immediate vicinity of the blast.... 113
[O]rganisms that are not displaced by pre -blast measures could be affected."
"[B]enthic rnacroinvertebrate impairment can be caused by numerous factors, but are
often associated with sedimentation and/or low flow conditions, which has the
potential to be exacerbated by the proposed pipeline construction and
maintenance." 114
"Sorne extreme and unpredictable impacts from seasonal precipitation events could
cause slope instability, flash flooding, and debris flow hazards along the right-of-way
or access roads. These events could have significant short term and long-term impacts
on water resources. Mass sediment/debris loading to streams may result in substantial
water quality impairments related to water chemistry and stream channel
geornorphology. Impacts could drastically alter water temperature, turbidity,
dissolved oxygen, and other water quality criteria, as well as benthic-
macro invertebrate bioassessments." 11 5
109 Id. at 4-113.
110 &
... M. at 4-114.
112 ki
"' ki at 4-119.
114 ki. at 4-128.
115 ki.
N

"Long-term impacts related to slope instability adjacent to streams have the potential
to adversely impact water quality and stream channel geometry, in addition to
downstream aquatic biota." 116
"[O]ngoing impacts could occur due to increased surface runoff and
erosion/sedimentation from cleared areas, disturbed steep slopes, surface cornpaction,
access roads, and the proximity of the right-of-way and other features to strearns. If
sources of sedimentation result from storrnwater runoff from access roads or tile
construction right-of-way, and are received by waterbodies, there is potential for
substantial episodic impacts." 117
"Construction activities would temporarily and permanently affect wetland vegetation
and habitats, and could temporarily affect soil and hydrology characteristics....
Impacts on forested wetlands would be much longer, and may include changes in the
density, type, and biodiversity of vegetation. Given the species that dominate the
forested wetlands crossed by ACP and SHP, recovery to preconstruction state may
take up to 30 years or more. Impacts on habitat may Occur due to fragmentation, loss
of riparian vegetation, and microclimate changes associated with gars in forest
canopy." 118
"Compaction and rutting of soils during construction could result from the movement
of heavy machinery and the transportation of pipe sections, altering natural
hydrologic patterns of the wetlands and potentially inhibiting seed germination and
regeneration of vegetation species.... [C] onstrUCtion clearing activities and
disturbance of wetland vegetation could also temporarily affect the wetland's capacity
to buffer flood flows and/or control erosion." 119
"Impacts on water quality may include changes in temperature, biochernistry, or
water chemistry; sedimentation or release of hazardous materials (e.g., fuels,
lubricants); addition of nutrients; and turbidity." 120
"Most of the permanent impacts on wetland vegetation would be in forested wetlands
where trees within 15 feet of the pipeline centerline would be selectively Cut and
removed once every 3 years. Therefore, by maintaining the right-of-way and limiting
revegetation of a portion of scrub -shrub and forested wetlands, sorne of the functions
(primarily habitat) of these wetlands would be permanently altered by conversion to
scrub -shrub and/or emergent wetlands." 121
Id. at 4-129.
Id. at 4-13 0.
Id. at 4-137.
119 Id.
120 id.
121 Id. at 4-138.
17

"ACP and SHP may affect and are likely to adversely affect the clubshell due to
potential impacts from erosion and sedimentation associated with the proximity of the
pipeline and access road to a known population in Hacker's Creek in Lewis County,
West Virginia. Due to the cumulative effects of increased sedimentation related to
ACP and ongoing stressors within Hacker's Creek, there is the potential that this
Population may become extirpated. This is the last remaining genetic material of
clubshell in the Monongahela watershed.""'
"[L]ong-term impacts related to slope instability adjacent to waterbodies have the
potential to adversely impact water quality and stream channel geometry, and
therefore downstream aquatic biota." 123
"Longer term impacts, such as erosion and sediment transport to waterbodies from
the adjacent construction riglit-of-way and access roads, and restoration of riparian
vegetation could also Occur as the right-of-way is stabilized over time." 124
a "Chan(yes in surface runoff, infiltration rates, and trench drainage could occur over
125
the life of the project."
"In the longer term, steep slopes adjacent to stream crossings would continue to be
vulnerable to heavy precipitation events and slope instability." 126
"Construction and operation of ACP would temporarily and permanently impact
795.4 and 243.0 acres of wetland, respectively." 127
"[A]bout 227 acres of forested wetlands would be converted to emergent and scrub -
shrub conditions, representing a permanent impact on wetland function." 128
"Impacts on aquatic resources would be temporary to long-term. Long-term impacts
related to slope instability adjacent to streams have the potential to adversely impact
water quality and stream channel geometry, and therefore downstream aquatic
biota. , 121
These inipacts would harm the aquatic organisms that rely on the affected streams for
their survival. As FERC stated in the Final EIS:
122 Id at 4-3 12.
123 Id at 4-594.
121 Id at 4-604.
125 id
126 Id. at 4-606.
127 Id at 4-607.
128 Id.
121 Jd at 4-6 10.
IE]

Increased sedimentation and turbidity resulting from in -stream and adjacent
construction activities would displace and impact fisheries and aquatic resources,
The EPA considers both suspended and bedded sediments and their potential
impacts to aquatic life for water quality standards. Suspended sediments inay
adversely affect submerged macrophytes by reducing light available for
photosynthesis by plants and visual capacity for animals, while bedded sediments
settle out on the bottom of the waterbody and smother spawning beds and other
habitats. Sedimentation could smother fish eggs and other benthic biota and alter
stream bottom characteristics, such as converting sand, gravel, or rock Substrate to
silt or mud. These habitat alterations could reduce juvenile fish survival,
spawning habitat, and benthic community diversity and health. Increased turbidity
could also temporarily reduce dissolved oxygen levels in the water column and
reduce respiratory functions in stream biota. Turbid conditions could also reduce
the ability for biota to find food sources or avoid prey, and cause physiological
effects in fish, such as gill clogging. 130
This extensive list of adverse impacts clearly demonstrates that the environmental effects
at issue here are more than "minimal," and thus that NWP 12 verification is inappropriate for the
Atlantic Coast Pipeline.
The Virginia Department of Game and Inland Fisheries (VDGIF) echoed many of these
concerns regarding impacts in an August 17, 2017 letter to FERC discussing the Filial El S. 1 3 1
There, VDGIF stated that it continued to have serious concerns regarding certain "[rn]ajor
issues," including the impacts of the Project on threatened and endangered species (including
aquatic species), impacts to "important water resources" such as trout streams, AnadroMOLIS Fish
Use Areas, 132 and Threatened and Endangered Species Waters, and impacts associated with
construction on steep slopes and in sensitive in karst terrain. 133 The agency, which is responsible
for determining likely impacts upon fish and wildlife resources and habitat — and recommending
131 Id. at 4-228 to 4-229. See 82 Fed. Reg. at 1948 (General Condition 3 "recognizes that
activities distant from spawning areas can physically destroy important spawning areas because
of sediment transport to downstream areas and deposition of sediment in those spawning areas.
Those indirect adverse effects are prohibited by this general condition.").
131 See VDGIF Letter, attached hereto as Exhibit P.
132 The Norfolk PCN acknowledges that the 2017 NWP Norfolk District regional conditions for
Virginia place a time -of -year restriction on "all in -water work" in a confirmed or potential
anadromous fish use area, but then states only that "[h]ydrostatic testing" in such areas "will be
completed in accordance with the time of year restrictions." Norfolk PCN at 78 (emphasis
added).
... Ex. P (VDGIF Letter) at 2-4. See also Pamela C. Dodds, Ph.D., Licensed Professional
Geologist, Assessment of the Adverse Hydrogeological Impacts Resulting Frorn Construction Of
the Proposed Atlantic Coast Pipeline in West Virginia, Virginia, and North Carolina (March
2017) ("Dodds March 2017 Hydrogeological Report"), at section 5.0 (increased sedimentation
and turbidity increase embeddedness, which "constitutes a significant degradation for streams
that are classified as warmwater or coldwater fisheries because the juvenile fish hide in the
spaces between cobbles and pebbles for protection"), attached hereto as Exhibit Q.
ice

appropriate measures to avoid, reduce, or compensate for those impacts — made clear that
significant additional analysis and coordination would be necessary to ensure that the proposed
project would not result in unacceptable adverse impacts. 134 The ACP thus presents numerous
unresolved threats to the quality of water resources. 135
Moreover, the impacts of the ACP must be considered along with the impacts of the
numerous large-scale pipeline projects currently proposed (or built) to move fracked gas from
the Marcellus and Utica drilling areas. There are currently numerous proposals for major gas
transmission projects in the region that qualify as "reasonably foreseeable future actions." For
example, like the Atlantic Coast Pipeline, the Mountain Valley Pipeline ("MVP") would begin in
West Virginia and traverse Virginia, crossing numerous streams and wetlands along the way. In
her dissenting opinion for the ACP and MVP FERC decisions, Commissioner LaFleur wrote:
ACP and MVP are proposed to be built in the same region with certain segments
located in close geographic proximity. Collectively, they represent approximately
900 miles of new gas pipeline infrastructure through West Virginia, Virginia and
North Carolina.... The record demonstrates that these two large projects will have
similar, and significant, environmental impacts on the region. Both the ACP and
MVP cross hundreds of miles of karst terrain, thousands of waterbodies, and
many agricultural, residential, and cornmercial areas.... Given the environmental
impacts and possible superior alternatives, approving these two pipeline projects
on this record is not a decision I can support.' 36
Other proposed large-scale gas utility line projects in the region anticipate a similar
timeline. These projects would have adverse impacts to waters of the U.S. similar to those of the
proposed ACP. From the Final EIS for ACP:
"[O]ther FERC -regulated projects would cross multiple waterbodies, as listed in table
W-1 in appendix W within the HUC-10 watersheds comprising the geographic scope
of influence. Examples of shared waterbody crossings between the [FERC -regulated]
projects include the Blackwater River (ACP, MYP), Greenbrier River and its
branches (ACP, MVP), Laurel Run (ACP, MVP, Texas Eastern Appalachia Market
2014 Project), Roanoke River and its tributaries (ACP, MVP), and Stony Creek
(ACP, MVP, Rover, Texas Eastern Appalachia Market 2014 Project). Due to their
134 Ex. P (VDGIF Letter) at 2-4.
135 Particular threats and impacts are discussed in more detail in the following reports: Ex. Q
(Dodds March 2017 Hydrogeological Report); Pamela C. Dodds, Ph.D., Licensed Professional
Geologist, Hydrogeological Assessment of the Proposed 401 Water Quality Certification to Be
Issued for the Atlantic Coastal Pipeline Project, Virginia, By The Virginia State Water Control
Board, August 17, 2017, attached hereto as Exhibit R; Downstream Strategies, Atlantic Coast
Pi P eline Sediment Modeling Methodology, attached hereto as Exhibit S.
13
Statement of Commissioner Cheryl A . LaFleur on Order Issuing Certificates and Granting
Abandonment Authority, Docket Nos. CP 16-10-000 & CPI 5-554-000 (Oct. 13, 2017) (emphasis
added), attached hereto as Exhibit T.
20

proximity, the greatest overlap in waterbody crossings would be between ACP. SHP,
and MVp.55137
"The projects listed in table W-1 in appendix W are within watersheds crossed by
ACP and SHP routes, and some of these other projects may result in impacts on
surface waters. Thus, potential cumulative impacts could result if tile proposed
projects are constructed at the same time as other projects listed in table W- I in
appendix W.,,138
"ACP and SHP, as well as the other FERC -regulated and other projects, Would affect
numerous waterbodies that provide habitat for fish, mussels, and other aquatic
organisms within the geographic scope of influence." 139
"Cumulative impacts on fisheries and aquatic resources could occur if other projects
take place within the same segment of a waterbody and have similar construction
timeframes as ACP and SHP or that could result in permanent or long-term impacts
on the same or similar habitat types. If constructed on the same waterbody in a similar
timeframe, construction and operation of the projects identified in table W- I ill
appendix W could result in cumulative impacts on waterbodies and fisheries fi-orn
sedimentation and turbidity, habitat alteration, streambank erosion, fuel and chemical
spills, water depletions, entrainment or entrapment due to water withdrawals or
construction crossing operations, and blasting." 140
"The ensuing operations of the proposed ACP and SHP could result in cumulative
impacts if maintenance activities take place in or near streams at the sarne
time/location as other (non -related) project work, " 1 41
"[W]e recognize that some of the projects identified in table W- I in appendix W
would affect the same species. For example, the candy darter would be affected by
both ACP and MVp.,,142
The Decision Document's prediction that NWP 12 as a whole would authorize impacts
equal to roughly double that of just one of these pipelines shows that the Corps did not consider
the cumulative impacts of the numerous proposed gas pipeline projects when issuing NWP 12.
If it had, the Corps would have been required to find that tile gas transmission utility line projects
fail to meet Section 404(e)'s requirement that activities authorized by nationwide permits hav'e
only minimal cumulative adverse effects on the environment. Indeed, the combined impacts of
these projects could result in impacts an order of magnitude greater than those accounted for and
"' Final EIS at 4-606
138 id.
"' Id. at 4-610.
140 id.
141 id.
142 id.
21

determined to be minimal in the Decision Document. 143 Because the impacts of the ACP and
similar projects in this region were not adequately considered by the Corps and exceed the
statutory threshold of "minimal" impacts both individually and cumulatively, the projects cannot
be authorized by NWP 12. 144 Major pipeline projects such as the ACP may only be considered
under the Corps' individual permitting process.
Expert Analysis Shows that ACP Cannot be Verified Using NWP 12
Along with this letter, Sierra Club submits three expert reports demonstrating that NWP
12 verification is inappropriate for this massive pipeline project. 145 As explained in the reports,
for waterway crossings, "disturbance of the streambank and streambed would cause a marked
increase in sedimentation and turbidity during the period of initial disturbance and when flow is
reestablished over the construction at -ca." 146 The ACP would cause "substantial erosion and
sedimentation, increase instrearn turbidity, and harm aquatic life by, among other things,
smothering spawning beds and fish eggs, reducing juvenile fish survival, and impacting benthic
community diversity and health." 147 In wetlands, the open -cut trenching method would, inter
alia, increase erosion and sedimentation during and after construction, as well as cause long-term
or permanent impacts due to "soil structure alterations and hydrology changes. 048 In addition,
some wetland crossings would "result in conversions from forested to either scrub -shrub or
herbaceous wetlands, which will nearly always result in a loss of important wetland
functions." 149 Thus, the crossings "would have more than minimal individual adverse
environmental effects on the waterways and wetlands that they cross." 150
143 Moreover, the environmental impacts of these major projects may be qualitatively different
than the impacts of smaller, unrelated utility line projects. As the Corps has recognized, many
forest -d e pendent species are particularly sensitive to degradation along the "edges" left exposed
by forest fragmentation. See Decision Document at 58 ("The construction of utility line right-of-
ways may fragment existing habitat and increase the arnount of edge habitat in the area, causing
changes in local species composition."). The long corridors associated with buried pipelines
create co -extensive stretches of newly -exposed forest edge. Along these edges, the abundance
and nesting Success of forest birds is impaired due to increases in predators and brood parasites
who use the corridors to penetrate into previously unfragmented habitats. See Aimee J. Weldon,
et al., The Effects ofPatch Shape on Indigo Buntings: Evidencefor an Ecological Trap, 86
Ecology 1422, 1428 (2005). Unlike the smaller, unconnected corridors associated with unrelated
projects, the corridors left by large-scale pipelines allow predators, parasites, and exotic species
access to a Much larger span of previously unfragmented forest habitat by way of a single
corridor. Ili addition, increased predation along forest edges is heightened where—as with the
Atlantic Coast Pipeline and other "greenfield" projects—a corridor cuts through historically
unfragmented areas.
144 See also Ex. A (NWP 12 Comment) at 110-16.
141 See Exhibits B (Norfolk Report), C (Pittsburgh Report), and H (Wilmington Report).
146 Ex. B at 4; Ex. C at 4. See also Ex. B at 13; Ex. C at 9.
147 Ex. B at iv; Ex. C at iv.
14' Ex. B at 18. See also id. (describing additional severe impacts to wetlands).
141 Id. at iv.
150 161 See also id at 4, 13, 16, 23; Ex. C at iv, 4, 9, 12, 14, 22.
22

Exhibit B presents an example of a watershed in the Norfolk District that is crossed by
the ACP, for which cumulative effects are more than rninirnal. Exhibit C presents examples of
two watersheds in the Pittsburgh District that are crossed by the ACP, for which cumulative
effects are more than minimal. 151 Exhibit H analyzes potential environmental impacts to aquatic
life, water quality, and ecologically sensitive habitats due to wetland and waterbody crossings in
the Wilmington District.
The Norfolk and Pittsburgh Reports discuss sediment impacts from pipel ine construction.
Some of the crossing methods utilized would "result in the ternporary dewatering and excavation
of the stream bed," which would "disrupt fish life and kill benthic macroi n vertebrate organisms
within the construction corridor of the crossing." 152 The "disturbance of the strearnbanl< and
streambed would cause a marked increased sedimentation and turbidity for a temporary period of
unknown duration." 153 Increases in sedimentation and turbidity would continue in the rnediurn-
term "until revegetation occurs in the area immediately adjacent to the construction side." 154
Even in the long-term, sediment contribution from the pipeline corridor could "result in
measurable long-term increases in sedimentation and turbidity.,,' 55 During construction,
sedimentation could increase by over 9,000% in mountainous watersheds in Virginia. 156
The Pittsburgh Report evaluates cumulative impacts in the Kincheloe Creek and the Left
Fork Buckhannon River watersheds. 157 It concludes that the curnulative impacts in both of these
watersheds would be significant. 158 In addition, strearns in these watersheds are already
impaired; the proposed crossings would cause additional sediment inputs that would make it less
likely that the TMDL would be achieved. 159 The Norfolk Report evaluates cumulative impacts
in the Inch Branch -Back Creek Watershed. 160 It concludes that curnulative impacts in this
watershed would be significant. 161 In addition, streams in this watershed are impaired;
"[b]ecause of the existing impairments and potential sediment -related pollutant reductions that
may be required to return Back Creek to health, additional sediment inputs caused by the ACP
would make it less likely that the TMDL would be achieved." 162 Moreover, conversion of
forested wetlands in the Norfolk District would result "in a loss of important wetland
15 1 The Norfolk and Pittsburgh Reports explain why the Corps should use evaluate curnulative
impacts at the HUC12 watershed scale, rather than the inappropriately large HUC8 scale See
ExhibitB at 12; Exhibit Cat 8. However, the ACP has more than minimal Cumulative
environmental effects even when assessed at the HUC8 level, Id.
152 Ex. B at 13, Ex. C at 9.
153 id.
154 id.
155 id.
156 id.
151 See Ex. C at 11-16.
151 Id. at 12,14.
151 Id. at 14, 16.
16' Ex. B at 15-17
161 Id. at 16.
162 Id. at 17.
2 3

functions." 163 For example, important functions including soil stabilization, nutrient storage,
stream shading, core forest area, vegetative biomass, structural diversity, and species diversity
(both flora and fauna) are likely to decrease when a forested wetland is converted to another type
of wetland. 164 'rhis conversion of forested wetlands thus constitutes a "loss of waters." 165
The Norfolk and Pittsburgh Reports also explain that the ACP route crosses spawning
areas for many types of fish, including important trout spawning areas. 166 General Condition 3
protects spawning areas during spawning seasons. Because the ACP "would cause substantial
turbidity and smother important trout habitat," an individual 404 permit is required. 167 The
proximity of crossings to water Supply intakes (General Condition 7) further demonstrates that
NWP 12 verification is inappropriate. 168
The Wilmington Report shows that inipacts would be more than minimal in North
Carolina. The expert selected 30 representative wetland/waterbody crossings: 21 perennial
waterbodies, 6 intermediate waterbodies, and 3 ephemeral waterbodies. 169 At perennial
crossings, impacts would include "the generation and management of dredge spoils often within
a wetland area; increased downstream sedimentation and turbidity; displacement and loss of
aquatic organisms; loss of wetland, riparian upland, and aquatic habitats; compaction of soils
with the possibility of changes in hydrology; and the potential for invasive species
introduction." IT) At intermediate and ephemeral crossing, impacts would "also include the
generation and management of dredge spoils, wetland and riparian upland habitat loss, soil
compaction with possible hydrology impacts, and the potential for invasive species
introduction." 171 The report identifies the following adverse impacts associated with the
crossing construction methods (open cut, darn, pump/or flume water redirection, cofferdam,
conventional boring, and HDD):
• Generation of dredge spoils/drilling spoils or muds that would have to be stockpiled and
managed are common to all crossings to varying degrees.
• Increased sedimentation or turbidity impacts would be realized heaviest by open cut
crossing, but Would be a potential Source for all dry trench methods.
• Displacement and loss of aquatic organisms and habitat would occur with all trench
methods.
• Entrainment of aquatic species would be limited to pumping and drill methods if water
is fron-i natural source.
• Disruption and loss of wetland habitat would occur with all methods.
"' M. at 18.
164 Id
165 See, e g., Ex. 0 (Comments on Draft EIS) at 178-81.
116 Ex. B at 19, Ex. C at 17-18.
167 I(j. See also Decision Document at 75 ("NWP activities cannot create turbidity plumes that
smother important spawning areas downstream.").
16' Ex. B at 20-22, Ex. C at 19-21.
169 Ex. H at 6.
170 id
171 161
24

• Loss of riparian bank habitat and wet forest habitat fragmentation would occur with all
methods.
• Compaction of soils within the wetlands would occur with all methods because of
equipment needs, staging areas, and access roads.
• Potential introduction of invasive species would occur with all methods. 172
Even "dry crossing methods have historically experienced significant problerns leading to
difficulties in meeting turbidity standards across the nation."' 73 Documented problems
associated with the use of flume crossings include releases due to poorly sealed dams, short
flumes limiting ditch widths, the ability to maintain sinuous channels, approach angle problerns
leading to an inability to thread the gas pipe under the flume, equipment selection and bank and
substrate problems associated with a lack of understanding of on-site conditions. 174 Sediment
and turbidity impacts should be anticipated with the removal of both dams and the removal of
flume and diversion structures. 175 The methods of crossings proposed, other than HDD, would
result in "stream or wetland disturbance resulting in habitat loss (permanent or temporary),
changes in species diversity, the loss of aquatic organisms, varying levels of sedimentation and
turbidity, the_potential for the introduction of pollution and /or invasive species and riparian
disruption." 176 The project may cause "significant alterations in the water regime of tile
wetlands," which would "significantly change the viability and functions of the systeill," 177
Moreover, "Some wildlife losses of near endangered species may never recover while the
mature hardwood canopy could take up to as much as a century to recover." 178 Atlantic
66commonly turned to the method with the least cost and most potential for severe impacts (open
Cut).,, 179 Impacts associated with this method, such as changes associated with the reduction of
wildlife species, can be severe and permanent. 180 Open cuts in forested wetlands associated with
the project would "result in permanent habitat loss and fragmentation of the mature tree canopy
and can result in several negative impacts associated with the edge effect." 181 Strearriand
wetland crossings would disrupt critical and sensitive aquatic and wetland habitats, which would
result in various extents of species displacement and loss, decreases in prey
availability, and possibly restrict fish and amphibian passage for foraging and
breeding. Increases in sedimentation and turbidity associated with construction as
" Id. at 7-8.
173 Id. at 8.
" Id. at 9.
175 Id.
171 Id. at 11.
117 Id. at 12.
178 Id.
171 Id. at 13.
180 Id.
181 Id. See also id. ("Significant impacts associated with these intrusions 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.")
25

per the crossing proposed for this effort, sediment stock piling efforts, long term
episodic stormwater runoff from cleared right-of-way, and stream bank clearings
are common occurrences with any activity involving equipment working in these
systems and can cause severe impacts associated with biological oxygen demand,
reductions in dissolved oxygen, covering and elimination of interspatial habitats
for egg/larval development, and aquatic insects, covering and suffocation of
benthic organisms to include mussel beds, introduction of toxics from
contaminated sediments or equipment contributions, and interference with fish
visibility for feeding and breeding activities. Such impacts have the potential to
drastically change the species diversity of a system by eliminating sensitive
species and cover special habitats that are . critical to aquatic insects and larva
opening the door for less desirable species representative of the degraded
habitat. 182
In addition, trenched construction of larger streams and rivers that are "too wide to
excavate the trench from banks" would likely require operation of construction equipment
c6within the waterbody." 183 Large streams and rivers—including the Neuse River, Rocky
Swarnp, and Cypress Creek—are expected to suffer from severe sedimentation and erosion from
heavy "large construction equipment," necessary for the construction of a 36 -inch pipeline. 184
Hydraulic excavators and pipelayers, each weighing up to 100 tons, would devastate streambeds
within flowing waters, and motor graders, weighing anywhere from 20 tons to over 50 tons,
Would plow through trees and vegetation on easily degraded stream banks. 185
As the North Carolina Department of Environmental Quality noted in its September 14,
2017 request for additional information, the project "involves numerous stream crossings that
have the potential to affect downstream water quality both temporarily during construction and
permariently."' " At both an individual and cumulative level, these impacts would be more than
Ccminirnal."
The Atlantic Coast Pipeline water crossings are not "separate and distant"
NWP 12 is also inapprgriate for use on the ACP because the crossings are not of
66separate and distant" waters. 18 The Corps justifies the usage of NWP 12 multiple times for a
single project based on the notion that crossings are often on separate and distant waters:
112 1(l at 15.
183 Wilmington PCN at 18.
1 " Id. at 16.
185 See Pipeline Machines and Specifications, available at
http://www.pattencat.com/indListry/pipeline.
186 See NCDEQ letter to Atlantic Coast Pipeline, LLC, Request for Additional Information, dated
Sept. 14, 2017, attached as Exhibit U. Comments to the NCDEQ on Atlantic's section 401
application are attached hereto as Exhibits 1, J, and K.
187 See also Ex. 0 (Comments on Draft EIS) at 181-82.
26

[T]he separate and distant crossings of waters of the United States are usually at
separate waterbodies scattered along the length of the utility line, and are often in
different watersheds especially for utility lines that run through multiple counties,
states, or Corps districts. For utility lines that cross the same waterbody (e g, a
river or stream) at separate and distant locations, the distance between those
crossings will usually dissipate the direct and indirect adverse environmental
effects so that the cumulative adverse environmental effects are no more than
minimal. 188
Here, according to the Final EIS, there are 1,536 waterbody crossings along the 604.6 -mile
pipeline. According to the PCNs, there are 1,861 "single and complete crossings" (187 in the
Pittsburgh District; 153 in the Huntington District; 958 in the Norfolk District; 563 ) in the
Wilmington District). 189 That means that, on average, there is a "single and complete" crossing
every 0.32 miles along the pipeline route. 190 (A single and complete project can include more
than one wetland and/or waterbody crossing. 191 ) The large number of crossings (in total, per
mile, and per watershed) illustrates that this project is not a proper candidate for verification
under NWP 12, which is to be used for minor activities involving distant crossings with only
temporary impacts. 192
The PCNs demonstrate that there are numerous crossings per mile. Forexample,71'able
13- 1 of the Norfolk PCN identifies eight "single and complete" projects between M P 85.0 and
85.5; four between MP 87.2 and 87.6; eight between MP 90.0 and 90.8; nine between MP 9 1.1
and 91.8; four between MP 97.6 and 98.0; and so 011.193 The pipeline's crossings are clearly not
a "substantial distance from each other," 194 such that impacts might dissipate and cumulative
effects would be no more than minimal. Rather, the crossings are in close proximity to eacli
other and would cause more than minimal cumulative impacts. 195 The fact that the pipeline's
... 82 Fed. Reg. at 1886.
189
, In other words, this one pipeline project would account for more than 16% of the 11,500
times per year that the Corps predicted NWP 12 would be used (on a national basis).
1 90 See also Huntington PCN at 43 ("Despite efforts to avoid Multiple crossings of the same
waterbody during routing, there are instances where the flow path of the waterbody and the
direction of the pipeline route required more than one crossing of the sarne waterbody
temporarily during construction."). Cf. Decision Document at I I ("[T]he sepal -ate and distant
crossings of waters of the United States are usually at separate waterbodies scattered along the
length of the utility line, and are often in different watersheds,").
191 See Norfolk PCN at B-8 1.
192 Decision Document at 11.
193 See also Final EIS at Appendix L, Table L -I. For example, in Southampton County, Virginia
there are five wetland crossings between MP 12.4 and MP 14.4. In total, these five crossings are
10,471 feet (almost two miles) in length.
114 82 Fed. Reg. at 1975.
195 See, e.g., Ex. C (Pittsburgh Report) at Figure 4 and p. 12 ("The pipeline and access roads
would cross the headwaters of Kincheloe Creek and several tributaries.... These tributary
crossings are, at most, approximately one-half mile upstream frorn Kincheloe Creek, Because
the crossings are so close to Kincheloe Creek, the cumulative impacts of these crossings would
27

Multitudinous waterbody and wetland crossings occur both in close proximity to each other and
across several watersheds (and states) is a testament to the magnitude of the project; contrary to
Atlantic's faulty logic, it does not somehow suggest that the massive project would have minimal
impacts. 196
Moreover, these crossings that are in close proximity to each other will impact
endangered species such as the ClUbshell. One of the threats leading to the decline of the Hacker
Creek population, which is the only extant clubshell population in the Monongahela River
drainage, is a high sediment load: 197
Approximately 6.4 miles of construction ROW and 11.9 miles of access roads
from MP 14.7 to MP 21.1 are proposed in the upstream drainage area of the
Hackers Creek H U C- 12 watershed. The construction ROW and access roads
in this area total approximately 151.28 acres, of which 149 acres are forested. Six
1ributaries of Hackers Creek are proposed to be crossed within this HUC-12; the
closest is 1.23 miles upstream from the Hackers Creek clubshell population and
the furthest is 6.25 miles upstream from the Hackers Creek clubshell population.
Sedimentation will affect clubshell and degrade/alter clubshell habitat.... The
strearn crossings and access roads are expected to result in sedimentation and
increased turbidity causing impaired feeding, resulting in reduced physiological
function; depressed rates of growth, reproduction, and recruitment....
Sedimenlation may permanent1j) alter and degrade habitat through siltation such
that conditions are no longer favorable for clubshell. 198
The (nori-distant) crossing of six tributaries of Hackers Creek within this HUC-12 watershed
Would thus harm this species. Even With use of erosion and sedimentation control measures,
"due to the magnitude oj'anticipated disturbance, not all sediment will be prevented from
entering waterways. As a result, we expect habitat degradation and loss will occur and some
individual clubshell will experience impaired feeding while others may suffocate and die."199 In
West Virginia, "[c]onstruction will occur during months of highest precipitation and flow rates in
Wv.�3200 According to the U.S. Fish and Wildlife Service:
be felt in Kincheloe Creek."); Ex B. (Norfolk Report) at Figure 4 and p. 16 ("The pipeline and
access roads would cross the headwaters of Back Creek, including Back Creek, Mills Creek, and
Orebank Creek—all of which are impaired.... These tributary crossings are all within one mile
from each other, and these three creeks join together approximately 1.5 miles downstream from
the three crossing locations. Because these crossings are so close together and all have short
flow paths to the same point, the cumulative impacts of these crossings will be felt in Back
Creek ").
196 See Wilmington PCN at 89.
197 U.S. Fish and Wildlife Set -vice, Biological Opinion for the Atlantic Coast Pipeline, at 18.
198 Id. at 30-31 (emphasis added).
199 Id at 31 (emphasis added).
200 Id. (citing S. Throndson, ERM, email to E. Stout, Service, September 13, 2017).
28

Large releases of sediment may occur during ston-n events. Much of the sediment
released from disturbed areas during storm events is expected to be transported
downstream, temporarily elevating suspended solids, with those solids not washed
out of the action area settling in pools. It is difficult to determine what level of
excess sedimentation will be generated by the project, how far downstrearn
sedimentation will occur, or how long these effects will pers i St. 201
The Corps cannot credibly claim that these impacts, including cumulative impacts frorn Multiple
crossings in close proximity to each other, will be no rnore than ininirnal. Therefore, an
individual permit is required.
The Atlantic Coast Pipeline is ineligible for authorization under the terms of NWP 12
When an entire linear project is comprised of multiple "single and complete projects," not
all of which qualify for authorization under a nationwide peri -nit, then generally "all portions of
the project must be evaluated as part of the individual permit process .,,202 A narrow exception
applies only where "the portions of the project qualifying for [nationwide permit] authorization
would have independent utility and [would be] able to function or meet their purpose
,,203
independent of the project.
Atlantic states that the "purpose of the proposed pipeline is to transport natural gas frorn
West Virginia and Pennsylvania to use in areas of Virginia and North Carolina. ,204 Unless the
pipeline is constructed in its entirety, its constituent parts will neither "have independent utility"
nor be "able to function or meet their purpose. ,205 As such, the ACP can proceed under the
nationwide permitting scheme only if all constituent parts are authorized under a nationwide
permit. As discussed below, however, significant segments of the pipeline do not qualify for
authorization under NWP 12, and the entire linear project therefore requires review Linder the
206
individual permitting process.
A substantial segment of the project fails to ineet applicable water quality
certification requirements
Approximately 83 miles of the proposed pipeline would traverse West Virginia. As Such,
all stream and wetland crossings in West Virginia must meet "any case specific conditions
,,207
added" by West Virginia "in its section 401 Water Quality Certification, The West Virginia
Department of Environmental Protection's 401 Certification for NWP 12 limits the perinit's use
201 Id.
2" 33 C.F.R. § 330.6(d).
203 Id.
214 See Norfolk PCN at 85.
201 Cf. 33 C.F.R. § 330.6(d).
206 See also Ex. 0 (Comments on Draft EIS) at 183-86 (discussing non-cornpliance with
nertment regional conditions).
16 82 Fed. Reg. at 2002.
'Fie]

to pipelines that are less than 36 inches in diameter. 208 The Pittsburgh PCN, however, describes
AP- I —the segment of the mainline pipeline traversing West Virginia, Virginia, and
Northampton County, North Carolina—as "approximately 333.1 miles of underground 42 -inch
outside diameter natural gas transmission pipeline." 209 Atlantic thus cannot rely on NWP 12 for
construction of its pipeline through West Virginia. 210
PurSLiant to 33 C.F.R. § 330.6(d), because Atlantic has failed to demonstrate that the
West Virginia portion of the ACP can be authorized under NWP 12, the remainder of the
project's "single and complete projects," including in Virginia and North Carolina, are similarly
ineligible for NWP authorization.
At least 115 crossings Would result in the permanent loss of more than 1/2 -acre of
wetlands
Nationwide Permit 12 does not authorize any activity that "result[s] in the loss of greater
than 1/2 -acre of waters of the United States." 21 1 The permit defines "loss of waters of the United
States" as:
[w]aters of the United States that are permanently adversely affected by filling,
flooding, excavation, or drainage because of the regulated activity. Permanent
adverse effects include permanent discharges of dredged or fill material that
change an aquatic area to dry land, increase the bottom elevation of a waterbody,
or change the use of a waterbody. 212
This definitioii "'examines activities that caLlse adverse effects to jurisdictional waters and
wetlands, even if those activities do not convert those waters or wetlands to uplands so that those
wetlands area [sic] loSt.,,213 The Corps has stated that permanent conversion of a wetland of one
classil'ication to a wetland of another may "permanently adversely [affect]" "certain functions
and services." 214 When a Forested Wetland is converted to a lower -functioning wetland such as
208 West Virginia Department of Environmental Protection, Nationwide Permit Reissuance and
Issuancefir the State qf West Virginia, Public Notice No. LRH -2016-00006- WV at 10 (Apr. 13,
2017), available at http://www.steptoe-jolinson.com/sites/default/files/SJDOCS-`/`237675080-
vl-WV DEP.PDF. See also id. at I ("These conditions must be implemented into any activity
authorized by ail ACOE NWP.") (emphasis added).
211 Pittsburgh PCN at 7.
210 In addition, WVDEP's 401 Certification for NWP 12 states that "[n]o structure authorized by
this permit shall impede or prevent fish movement upstream or downstream." The "dam and
punip" method proposed for sorne crossings in West Virginia would not allow for fish passage.
See Ex. C (Pittsburgh Report) at 9.
211 82 Fed. Reg. at 1985.
212 Id. at 2006.
211 Id.. at 1977.
214 Id at 2002.
all

an Emergent Wetland, a dramatic change in use occurs .215 SUCII a conversion thus fits within the
,,216
definition of "loss of the waters of the United States.
Atlantic proposes a permanent 30 -foot -wide footprint for the ACP: a central ten -foot
corridor maintained in an herbaceous state, flanked on either side by ten -foot corridors regularly
cleared of trees. 217 Atlantic acknowledges this footprint will result in a "permanent chanoe of
,,2
wetland function and value. 18 One-half acre is equivalent to 21,780 square feet. In practical
effect, this means any crossing of more than 726 feet of Forested Wetland will result in the loss
of over 1/2 -acre of waters of the United States. Table L- I of Appendix L of the Final EIS lists
the wetlands crossed and crossing methods for the ACP. There are more than H 5 crossings of
219
Palustrine forested wetlands with crossing lengths greater than 726 feet. Many of these are
greater than 2,178 feet, and would thus trigger the acreage I irn it even if there was an exception
for Forested-to-Scrub/Shrub conversions .220 Without these crossings, the remaining segments
would lack "independent utility," thereby requiring review of the entire project Linder the
individual permitting process.
There are also numerous crossings that would, during operation of the pipeline, impact
more than a 1/2 -acre of wetland .221 While these crossings may not result in complete losses of
wetlands, the impacts of the pipeline may permanently alter the wetland's functions by
converting it to a new type of wetland. The Final EIS notes that of the 227 acres of permanent
211 See id. at 1977 ("The conversion of forested wetlands to ennergent wetlands, other types of
wetlands, or to open waters may be a loss of waters of the United States if that conversion
involves activities that require DA authorization."). See also Ralph W. Tiner, Assessing
Cumulative Loss of Wetland Functions in the Nanticoke River Tvalershed Using Enhanced
National Wetland Inventory Data, 25 Wetlands 405 (2005) (documenting 23-50 percent
reduction in most wetland functions within watershed affected by significant conversion of
forested and scrub -shrub wetlands to emergent wetlands); James A. Schmid, The /
1�,fects of
Converting Forest or Scrub Wetlands into Herbaceous Wellands in Pennsylvania at 27, 29-30
(2014) (noting that "[florest and scrub wetlands can be converted to herbaceous wetlands" with
C6more or less catastrophic [effects] ... on wetland functions," including impaired structural
diversity, biodiversity, soil and streambank stabilization, nutrient storage, and trout habitability).
216 See Ex. 0 (Comments on Draft EIS) at 178-81. The decision document accompanying the
recent reissue of Nationwide Permit 12 acknowledges that conversion of Forested or Scrub -
Shrub Wetland to other wetland categories results in impacts to aquatic habitats qualitatively
different from those seen in Forested -to-Scru b -Shrub conversions. This is because the"[w1oody
riparian vegetation" associated with both Forested and Scrub -Shrub Wetlands "creates habitat
diversity in streams when trees and large shrubs fall into the channel, forming snags that provide
habitat and shade for fish." Decision Document at 58.
"' See Norfolk PCN at 84.
218 Id. Atlantic refers to these impacts as "permanent convers ions." Id.
2 " Final EIS at Table L-1. This table states that "Temporary wetland impacts associated with the
construction right-of-way" include "permanent impacts," Id. at L-51
220 For example, crossing wchr002f is over three miles long (16,879 'feet), id. at L-49; wchi,00 If
is 4,851 feet, id.; wcmfU06f is 5,159 feet, id. at L-36; and wrohO I 9f is 4,280 feet, id. at L-3 8.
221 See id., Appendix L at Table L- 1.
31

forested wetland impacts, 98% would be considered type conversions. 222 Forested wetlands may
experience impacts that include "changes in the density, type, and biodiversity of vegetation. ,223
According to the Final EIS, "[g]iven the species that dominate the forested wetlands crossed by
ACP..., recovery to preconstruction state may take up to 30 years or more."224
The largest single -crossing operational impact would be to 11.5 acres of PFO wetlands at
milepost 71 g.225 Given NWP 12's 1/2 -acre loss limitation, operational impacts to 11.5 acres of
wetlands cannot be considered minimal for purposes of the Nationwide Permit. Since there are
single and complete projects that result in more than minimal impacts and that exceed the 1/2 -
acre loss I in-iit, the entire project is ineligible for N WP authorization.
Atlantic's PCNs lack information necessary for authorization under Nationwide Permit 12
The Norfolk PCN lacks information necessary to determine whether the mitiggipn2!�Ln
meets requirements imposed by Virginia's Section 401 Water Quality Certification
Nationwide Permit General Condition 27 requires that any activity authorized under a
nationwide perinit comply with, inter alia, "any case specific conditions added ... by the state ...
in its section 401 Water Quality Certification." 226 The Virginia Department of Environmental
Quality's Section 401 Water Quality Certification for the 2017 Nationwide Permit
Program conditions certification of activities Linder NWP 12 upon compliance with Section 62.1-
44.15:23 of the Code of Virginia, which contain requirements for use of mitigation banking
credits 227 Specifically, Section 62.1-44.15:23 requires that any mitigation bank be: (1) located
in the Commonwealth or in Maryland on property wholly surrounded by the Potomac River; (2)
located within either the same fourth order sub -basin or, if necessary, an adjacent sub -basin
within the sai-ne river watershed; (3) "ecologically preferable to practicable onsite and offsite
individual mitigation options as defined by federal wetland regulations"; and (4) subject to a
mitigation bank instrument "approved by a process that included public review and 5:23."'
comment.""' The Norfolk PCN fails to dernonstrate compliance with Section 62.1-44.1
The Norfolk PCN lacks a sufficient alternatives analysis
The Norfolk, District's Regional Condition 3 for NWP 12 requires that preconstruction
notifications for buried utility lines contain "[a]n alternatives analysis, which specifically
222 Id. at 4-138.
22' Id at 4-137.
224 id.
12' ki at L-49.
226 82 Fed Reg. at 2002.
227 Commonwealth of Virginia Department of Environmental Quality, Section 401 Water Quality
Certification of the 2017 Nationwide Permits, at 4 (Apr. 7, 2017), available at
http://www.na . o.usace.army.mil/Portals/3 I/docs/regulatory/IssuedPermits/401—Certification-20I
7 NWP 7April2Ol7.pdf9ver--2017-04-11-100044-330.
22T -
Va. Code § 62.1-44.15:23(A) (2017).
229 See, e g., Norfolk PCN at 96-97.
32

addresses," inter alia, "[s]election of an alignment which avoids fragmenting large tracts of
forested wetlands" and "allowance of natural succession to restore the area to tree and
-230
scrub/shrub except for a 20 -foot wide access corridor, to the maximum extent practicable. In
its PCN, Atlantic fails to adequately address these in its analysis. For example, Atlantic states
that it intends to permanently maintain "[t]he center 30 -feet of the cleared rights-of-way that
previously consisted of forested wetlands ... free of trees" and "[t]he center I 0 -feet of the
cleared rights-of-wy that previously consisted of forested and scrub -shrub wetland ... ill ail
herbaceous state." 23 Atlantic does not adequately explain why a 30 -foot wide corridor is
necessary or why a 20 -foot wide corridor would not suffice. Atlantic has thus failed to
demonstrate that its plan for the ACP will allow natural succession "to the rnaxirnurn extent
possible."232
The ACP is not "similar in nature" to other activities authorized under NWP 12
Nationwide permits must be limited in scope to a single "category of activities ... similar
in nature." 233 Before issuing a nationwide permit, the Corps' own regulations require that it "set
forth in writing an evaluation" that includes, inter alia, "a precise description of the activities to
be perinitted under the General permit, explaining why they are sufficiently similar in nature and
environmental impact to warrant regulation- under a single General permit. 35234
On its face, NWP 12 applies to all "activities required for the construction, maintenance,
repair, and removal of. . . any pipe or pipeline for the transportation of any gaseous, liquid,
liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the transmission
for any purpose of electrical energy, telephone, and telegraph messages, and internet, radio, and
television communication. "235 The Decision Document accompanying NWP 12 states:
The activities authorized by this NWP are sufficiently similar in nature and
environmental impact to warrant authorization by a general permit. The terms of
the NWP authorize a specific category of activity (i.e., discharges of dredged or
fill material for the construction, maintenance, repair, or removal of utility lines
and associated facilities) in a specific category of waters (i.e., waters of the United
States). The terms of the NWP do not authorize the construction of utility line
substations in tidal waters or in non -tidal 'wetlands adjacent to tidal waters. The
restrictions imposed by the terms and conditions of this NWP will result in the
authorization of activities that have similar impacts on the aquatic environment.
namely the replacement of aquatic habitats, such as certain categories of non -tidal
230 Norfolk Regional Conditions for the 2017 Nationwide Permits (NWPs) Applicable in
Virginia ("Norfolk Regional Conditions") at 12-13.
21 'Norfolk PCN at 84.
232 Norfolk Regional Conditions at 13.
233 33 U.S.C. § 1344(e)(1).
234 40 C.F.R. § 230.7(b) (emphasis added).
23' 82 Fed. Reg. at 1985.
.33

wetlands, with utility line facilities. Most of the impacts relating to the
construction, maintenance, repair, or removal of utility lines will be temporary. 236
A IthOLIgh the language defining the scope of the permit is broad, the scope of any permit
remains Subordinate to the limitations expressed in section 404: that activities under a general
permit are "similar in nature, will cause only minimal adverse environmental effects when
performed separately, . . . will have only minimal cumulative adverse effects on the
environment," and are not "more appropriately authorized by individual permits." 237
Large-scale interstate pipelines like the Atlantic Coast Pipeline are not "similar in nature"
to the other utility line projects contemplated in the Corps' decision-making process, nor were
such projects evaluated by any "precise description" in the Decision Document. They will result
in more than minimal individual and cumulative impacts. The Corps predicted that "[m]ost of
the impacts relating to [activities under the Permit] will be temporary."238 By contrast, the Final
EIS states that ACP will permanently impact 243 acres of wetlands (including 227 acres of
permanent forested wetland impacts), and there would be approximately 6.9 acres of permanent
wetland F,11.23) And as discussed above, the prediction that NWP 12 will result annually in 1,700
acres of impacts nationwide 240 demonstrates that the Corps' decision-making process did not
consider the individual or cumulative impacts of a project of this scale—let alone a multitude of
such projects in the sarne region. The Corps cannot reasonably determine that massive pipeline
projects Such as the proposed Atlantic Coast Pipeline would have only minimal adverse impacts,
or that it is SLIfficiently "similar in nature" to the minor projects envisioned when NWP 12 was
issued.
Conclusion
For the reasons described herein, the Atlantic Coast Pipeline does not qualify for
authorization under Nationwide Permit 12. The Corps must deny the applications and instruct
Atlantic to seek authorization under an individual permit.
236 Decision Document at 69.
23' 33 U.S.C. § 1344(e).
238 Decision Document at 69.
239 Final EIS at 4-138.
240 Decision Document at 70.
34
Thank you,
Elly Benson
Staff Attorney
Sierra Club
2101 Webster Street, Suite 1300
Oakland, CA 94612
[e-mail]

cc: Tom Walker, USACE, Norfolk District, Williai-n.T,[e-mail]
Peter Kube, USACE, Norfolk District, peter. [e-mail] I
Melissa Nash, USACE, Norfolk District, [e-mail]
Colonel Jason Kelly, USACE, Norfolk District, [e-mail].i-niI
Joseph A Savage, USACE, Huntington District, [e-mail] i I
Teresa Spagna, USACE, Pittsburgh District, teresa. d. spagna@u sace. army. m i I
Alani Taylor, U USACE, Pittsburgh District, [e-mail]
Scott McLendon, USACE, Wilmington District, scott. c. mcl end on@usace. army. III i I
Ronnie Smith, USACE, Wilmington District, ronnie.d.si-nitll@usace,army.mil
Scott Mandirola, WVDEP, Div. of Water & Waste Management, scott.g.mandirolaCy,)wv.gov
Dave Davis, VADEQ, Office of Wetlands & Strearn Protection, [e-mail]
Virginia State Water Control Board, [e-mail]
Jennifer Burdette, NCDEQ, 401 Wetlands & BLIffer Permitting, [e-mail]
Jeffrey Poupart, NCDEQ, Water Quality Permitting, [e-mail]
35

. P
Exhibit B

Inch Branch Back Creek HUC 12 Proposed ACP corridor
Streams: not impaired Proposed ACP access roads
Impaired streams A
Biological
Downstream
S t. r a t. e.. g i e. S
6iiai
Ideas that sustain.
0 1 2 4
�Milqs

% . I
TABLE OF CONTENTS
EXECUTIVESUMMARY .......................................................................................................................................... IV
1. INTRODUCTION ............................................................................................................................................. I
2. BACKGROUND ............................................................................................................................................... 4
2.1 THE IMPORTANCE OF EVALUATING CUMULATIVE EFFECTS IN THE PERMITTING PROCESS .................................................... 4
2.2 ATLANTIC COAST PIPELINE'S EVALUATION OF CUMULATIVE EFFECTS ............................................................................. 5
2.3 THE APPROPRIATE SCALE FOR MEASURING CUMULATIVE EFFECTS ............................................................................... 12
2.4 SEDIMENT IMPACTS FROM PIPELINE CONSTRUCTION ................................................................................................ 13
3. CUMULATIVE IMPACTS IN THE INCH BRANCH -BACK CREEK WATERSHED .................................................... 15
4. CONVERSION OF FORESTED WETLANDS ...................................................................................................... 18
S. SPAWNING AREAS ....................................................................................................................................... 19
6. WATER SUPPLY INTAKES .............................................................................................................................. 20
7. SUMMARY AND CONCLUSIONS ................................................................................................................... 23
7.1 INDIVIDUAL AND CUMULATIVE EFFECTS ................................................................................................................. 23
Z1.1 The Inch Branch -Back Creek watershed .................................................................................................. 23
7.2 WETLANDS ..................................................................................................................................................... 24
7.3 SPAWNINGAREAS ............................................................................................................................................ 25
7.4 WATER SUPPLY INTAKES .................................................................................................................................... 25
REFERENCES......................................................................................................................................................... 26
ii Pa ge

TABLE OF TABLES
Table 1: Atlantic Coast Pipeline's summary of cumulative waterbody impacts by HUC8 watershed .................. 7
Table 2: Atlantic Coast Pipeline's summary of cumulative wetland impacts by HUC8 watershed ...................... 9
Table 3: Impaired streams in the Inch Branch -Back Creek watershed ............................................................... 16
Table 4: Stream crossings in source water assessment areas crossed by the Atlantic Coast Pipeline ............... 21
TABLE OF FIGURES
Figure 1: The Atlantic Coast Pipeline route through West Virginia, Virginia, and North Carolina ....................... 2
Figure 2: The Atlantic Coast Pipeline route through the Norfolk District ............................................................. 3
Figure 3: The difference between HUC12 and HUC8 watersheds ...................................................................... 11
Figure 4: The Inch Branch -Back C i reek watershed .............................................................................................. 15
Figure 5: Source water assessment areas upstream from drinking water intakes in counties crossed by the
AtlanticCoast Pipeline ........................................................................................................................................ 22
ABBREVIATIONS
ACP
Ailarific Coast Pipeline
E2EM
estuarine intertidal emergent
E21`0
estuarine intertidil forested
HIS
Final Environmental Impact Statement
FERC
Federal Energy Regulatory Commission
HDD
horizontal directional drilling
MVP
mountain Valley Pipeline
NWP
nationwide permit
PEM
palustiine' -emergent
PFO
palustrine forested
PSS
ppluftrinizscrbb-shrub
TOYR
time of year restriction
TMD ' L
total maxiriiLifti daily load
USACE
U.S. Army Corps of Engineers
USEPA
U.S. Environmental Protection Agency
VDCR
Virginia Department of Conservation & Recreation
VDEQ
Virginiai Department of Environmental Quality
VDOH
Virginia Department of Health
iii P a g e

EXECUTIVE SUMMARY
The Atlantic Coast Pipeline is proposed to run between Harrison County, West Virginia and Robeson County,
North Carolina—a length of approximately 600 miles. If constructed, it would cross three states—West
Virginia, Virginia, and North Carolina—and four U.S. Army Corps of Engineers districts. Clean Water Act
Section 404 permits, required before dredged or fill material can be placed in streams, are issued at the
district level. This report discusses whether it is appropriate for the USACE's Norfolk District to permit the
Atlantic Coast Pipeline under Nationwide Permit 12.
Stream crossings and impacts to streambanks and upland areas from pipeline and access road construction
would cause substantial erosion and sedimentation, increase instrearn turbidity, and harm aquatic life by,
among other things, smothering spawning beds and fish eggs, reducing juvenile fish survival, and impacting
benthic community diversity and health. Also, wetland crossings will result in conversions from forested to
either scrub -shrub or herbaceous wetlands, which will nearly always result in a loss of important wetland
functions. The crossings themselves would have more than minimal individual adverse environmental effects
on the waterways and wetlands that they cross.
This report considers two questions regarding the applicability of Nationwide Permit 12 to the Atlantic Coast
Pipeline. The first relates to cumulative effects. The District Engineer must evaluate not just the individual
crossings of waters of the United States to determine whether they satisfy the terms and conditions of
Nationwide Permit 12, but also the cumulative effects caused by all crossings authorized by Nationwide
Permit 12. If the project will result in more than minimal cumulative adverse environmental effects, then an
individual permit must be required. This report presents an example watershed crossed by the Atlantic Coast
Pipeline, for which cumulative effects are more than minimal.
The second question relates to the general conditions associated with the permit. This report highlights two
key general con d itions —spawning areas and water supply intakes—that severely restrict allowable activities
or preclude the use of Nationwide Permit 12 for the Atlantic Coast Pipeline.
For the reasons discussed in this report, the use of Nationwide Permit 12 is inappropriate, and the District
Engineer should require an individual 404 permit.
iv P a g e

1. INTRODUCTION
The Atlantic Coast Pipeline (ACP) is proposed to run between Harrison County, West Virginia and Robeson
County, North Carolina—a length of approximately 600 miles. If constructed, it would bring up to 1.5 billion
cubic feet of Marcellus Shale gas to energy markets each day. (ACP, 2017a)
As illustrated in Figure 1, the ACP would cross three states: West Virginia, Virginia, and North Carolina. In
Virginia, the main pipeline would be 42 inches in diameter (ACP, 2017a). To construct and bury this section of
the pipeline, operators would timber and clear a 125 foot–wide right-of-wayl which would be reduced to a
75 foot–wide strip of grass after construction (ACP, 2017b) .2 The lateral pipeline running from the
Virginia/North Carolina border eastward toward Norfolk would be a 20 -inch diameter pipe, and its
construction right-of-way would be 75 feet wide regardless of habitat being crossed.
The pipeline would cross four U.S. Army Corps of Engineers (USACE) districts: Pittsburgh, Huntington, Norfolk,
and Wilmington. Clean Water Act Section 404 permits, required before dredged or fill material can be placed
in streams, are issued at the district level. This report discusses whether it is appropriate for the USACE's
Norfolk District to permit the ACP under Nationwide Permit (NWP) 12. The pipeline path through the Norfolk
District is entirely in Virginia in the following cities and counties: Augusta, Bath, Brunswick, Buckingham,
Chesapeake, Cumberland, Dinwiddie, Greensville, Greensville, Greensville, Highland, Nelson, Nottoway,
Prince Edward, Southampton, and Suffolk (See Figure 2).
ACP submitted its Pre -Construction Notification (PCN) documents for its 404 permit to the Norfolk District in
July 2017. The District Engineer will now decide whether to issue the NWP 12 verification and allow the
project to proceed under NWP 12, or whether an individual 404 permit is required. NWP 12 applies to certain
utility line activities—including natural gas pipelines. NWPs, in general, allow for a more streamlined
permitting process for projects with minimal individual and cumulative adverse environmental effects and
that meet certain other requirements (82 Fed. Reg. 1860).
Approximately 307 miles of the proposed pipeline, together with associated aboveground facilities and
access roads, would be located within the Norfolk District. By ACP's count, construction would result in 958
single and complete crossings of Waters of the United States. (ACP, 2017c) If constructed, the pipeline and
access roads would cause substantial erosion and sedimentation, increase instrearn turbidity, and harm
aquatic life by, among other things, smothering spawning beds and fish eggs, reducing juvenile fish survival,
and impacting benthic community diversity and health.
This report considers two questions regarding the applicability of NWP 12 to the ACP. The first relates to
cumulative effects. As described in Section 2.1, the Norfolk District Engineer must evaluate not just the
individual crossings of waters of the United States to determine whether they satisfy the terms and
conditions of NWP 12, but also the cumulative effects caused by all crossings authorized by NWP 12. The
project will result in more than minimal cumulative adverse environmental effects, such that an individual
permit must be required. Chapter 3 presents an example of a watershed in the Norfolk District that is crossed
by the ACP, for which cumulative effects are more than minimal.
The second question relates to the general conditions associated with the permit. This report highlights two
key general conditions—spawning areas (Chapter 4) and water supply intakes (Chapter 6)—that severely
restrict allowable activities or preclude the use of NWP 12 for the ACP.
1 This is the width of the upland construction right-of-way The width of the right-of-way through wetlands will be reduced to 75 feet.
2 Forested and scrub -shrub wetlands would typically be converted to a combination of herbaceous and scrub -shrub wetland, with 15 feet on either side ofthe
pipelimepaintained in a herbaceous state CA(�.P 2017�ct
11 P a g e

Figure 1: The Atlantic Coast Pipeline route through West Virginia, Virginia, and North Carolina
V, C MAPYLAND 0 Baltimore
-k USACE
Pittsburgh District Annapolis I
LI -T VIRUNIA 0 USACE
Baltimore District
,ton ;cn la
Mon DC1 I
' "La"Iti'll
USACE
Huntington Distric USACE
VIRGINIA Norfolk District
LynchbLx 3
0 Richmond
Nisland
No if ol k
*V gir-ga
h
Winslon-Salenj c> Greensboro
0 Durham
0 Raleigh 0 Rody Mours
P I E 0 A4 0 N T 0
NORIH Greenville
0
,:AROLINA
razal
r 0
0
Durham
a h
0
R 0
'IN
. 111 T OR leig
NA
FO#34 USACE parnbco, I
Chailollp Wilim
0 Wilmington District Sound
F etteville
0
Lufr E� jad�
Lumbe* Sd
Jacksonville �ijabonii
Proposed ACP corridor
USACE Norfolk District boundary N
USACE District boundaries 0 25 50 100
-�Miles
2 1 P a g e

Figure 2: The Atlantic Coast Pipeline route through the Norfolk District
Da' Y
USACE
Hair"riburg Baltimore District
re
CE
A I
ol Distr Fon A,
Hot
162 ft A
Inch Branch
'Back Creek
H - UC,1�,_,
ich d
19
3 1 P a g e
USACE
Wilmington District
Durham 0 Ro4y Mount
Inch Branch Back Creek HUC 12
Proposed ACP corridor N
ED
USACE Norfolk District boundary A
0 15
30 60
Miles
3 1 P a g e

2. BACKGROUND
2.1 The importance of evaluating cumulative effects in the permitting process
Cumulative effects from construction of the ACP would be caused by stream crossings, wetland crossings and
conversions, and construction in upslope areas. Whether crossings use the Dam and Pump, Flume, or
Cofferdam methods, they would disrupt fish life and kill benthic macroinvertebrate organisms within the
construction corridor of the crossing, and the disturbance of the streambank and streambed would cause a
marked increase in sedimentation and turbidity during the period of initial disturbance and when flow is
reestablished over the construction area. These crossings would result in more than minimal individual
adverse effects. In upslope areas, land would be cleared on steep slopes, leading to drastically increased
levels of erosion and sedimentation of the downhill rivers and streams.
NWPs, including NWP 12, can only be used for activities that have no more than minimal individual and
cumulative adverse environmental effects. (82 Fed. Reg. 1860) In its final rule for the issuance and reissuance
of nationwide permits, the USACE offers guidance regarding the interpretation of the phrase "minimal
cumulative adverse effect on the environment:"
"The phrase 'minimal cumulative adverse effect on the environment' refers to the collective direct and
indirect adverse environmental effects caused by the all the activities authorized by a particular NWP
during the time period that NWP is in effect (which can be no more than 5 years) in a specific geographic
region. The appropriate geographic area for assessing cumulative effects is determined by the decision-
making authority for the general permit." (82' Fed. Reg. 1860)
Direct effects "are caused by the activity and occur at -the same time and place," and indirect effects "are
caused by the activity and are later in time or farther removed in distance, but are still reasonably
foreseeable." (82 Fed. Reg. 2006) Construction of the pipeline and access roads in upslope areas is "farther
removed" from the crossings themselves, but it is certainly "foreseeable"— in fact, the pipeline would not
exist if it were not built across the upslope areas that connect the stream crossings.
In its PCN, ACP discusses reasonably foreseeable future impacts and how uplands impact the permitting
process:
"Assessment of cumulative effects also involves a general characterization of impacts on Waters of
the U.S. from similar types of projects in the past and reasonably foreseeable future. The area that
the pipeline would traverse largely involves a mix of small community development, agricultural use
and open undisturbed forested land. Past impacts would be those of typical rural development with
road and various utility line crossings of streams and wetlands in support of agriculture and
dispersed human development. Reasonablyforeseeable impacts would include continued slow
additional growth in the small human communities with associated road and utility line crossings
of Waters of the U.S." (ACP, 2017c, p. 85, emphasis added)
"Contextual information is provided in this supplement on the overall project to provide a basis for
the USACE's no more than minimal impact determinations, understanding that the USACE's scope of
analysis under the NWP 12 is limited to the single and complete crossings and the uplands in the
immediate vicinity of the single and complete crossings that impact the location of such crossings
of Waters of the US." (ACP, 2017c, p. 2, emphasis added)
"For purposes of the USACE evaluation of single and complete projects, the 'alternatives analysis' is
to ensure that the crossing of each single and complete crossing of wetlands, streams, and other
waters is made in a manner that avoids and minimizes impacts to the aquat,ic environment to the
4 P a g e

maximum extent practicable, after considering the approach to the crossing in the uplands
immediately adjacent to those aquaticfeatures." (ACP, 2017c, p. 34, emphasis added)
The pipeline segments built in upslope areas, which are connected to the pipeline segments that cross rivers
and wetlands, are thus foreseeable. In fact, they are not just foreseeable; they are necessary for the
completion of the entire pipeline, including portions that cross rivers and wetlands. ACP appears to
acknowledge this when it states that the scope of analysis includes the uplands in the immediate vicinity of
the single and complete crossings.
The above definition of "minimal cumulative adverse effect on the environment" refers to, but does not
define, a "specific geographic region." ACP selects an inappropriately large region (a HUC8 watershed).
Significant cumulative adverse effects are clearly evident in smaller watersheds. In this report, we use a more
appropriately sized HUC12 watershed, as explained in Section 2.3.
The Norfolk District Engineer is charged with determining whether to issue the NWP 12 verification or
whether an individual permit is required:
"In reviewing the PCN for the proposed activity, the district engineer will determine whether the activity
authorized by the NWP will result in more than minimal individual or cumulative adverse environmental
effects or may be contrary to the public interest. If a project proponent requests authorization by a
specific NWP, the district engineer should issue the NWP verification for that activity if it meets the terms
and conditions of that NWP, unless he or she determines, after considering mitigation, that the proposed
activity will result in more than minimal individual and cumulative adverse effects on the aquatic
environment and other aspects of the public interest and exercises discretionary authority to require an
individual permit for the proposed activity. For a linear project, this determination will include an
evaluation of the individual crossings of waters of the United States to determine whether they
individually satisfy the terms and conditions of the NWP(s), as well as the cumulative effects caused by all
of the crossings authorized by NWP." (82 Fed. Reg. 2004-5)
2.2 Atlantic Coast Pipeline's evaluation of cumulative effects
As shown in Table 1 and Table 2, copied from ACP's PCN, ACP's only attempt to document cumulative
impacts accumulates impacts by HUC8 watershed. HUC8 watersheds are very large (See Figure 3). In the
Norfolk District, the 12 HUC8 watersheds of interest are:
• Albemarle (03010205), 4,320 square miles;
• Appomattox (02080207), 1,610 square miles;
• Blackwater (03010202), 740 square miles;
• Chowan (03010203),898 square miles;
• Hampton Roads (02080208), 505 square miles;
• Maury (02080202),838 square miles;
• Meherrin (03010204), 1,612 square miles;
• Middle James -Buffalo (02080203), 2,023 square miles;
• Middle James -Willis (02080205), 945 square miles;
• Nottoway (03010201), 1,723 square miles;
• South Fork Shenandoah (02070005), 1,672 square miles; and
• Upper James (02080201), 2,212 square miles.
ACP summarizes its impacts in the HUC8 watershed as follows:
"The fact that these impacts, resulting in no more than minimal impact to wetlands and waterbodies, at
each single and complete project, are spread widely over numerous watersheds and over approximately
5 1 P a g e

307 miles in Virginia, clearly indicates that the cumulative impacts of the overall pipeline project to
wetlands and waterbodies will be no more than minimal as well. Therefore, the cumulative impacts of
the overall pipeline project in Virginia on each HUC 8 watershed are not of a nature and extent that
would result in the requirement of an individual permit for the Project." (ACP, 2017c, p. 86)
ACP acknowledges that the impacts of the pipeline "are spread widely over numerous watersheds" but does
not attempt to quantify the impacts on each individual watershed —except at a scale that covers 505 to 4,320
square miles. As described in Section 2.3, this is an inappropriately large scale. Also, ACP does not take into
consideration water quality impacts from upslope pipeline and access road construction.
Even the Federal Energy Regulatory Commission (FERC) finds that HUC8 watersheds are too large for
addressing cumulative impacts; its Final Environmental Impact Statement (FEIS) uses smaller HUCIO
watersheds for this purpose (FERC, 2017). As described in Section 2.3, an even more appropriate scale for
addressing cumulative impacts is the HUC12 scale.
Tables Table 1 and Table 2 summarize ACP's reported impacts to waterbodies and wetlands by HUC8
watershed. In the South Fork Shenandoah River HUC8 (02070005), ACP reports 81 waterbody crossings,
which would impact approximately 2.2 linear miles of streams and 3.86 acres wetlands. This would include
the conversion of 0.79 acres of forested wetland to a less desirable wetland type. This HUC8 is fairly typical
for its impacts to waterbodies, but underrepresents the impacts to wetlands in some of the HUC8s along the
eastern portion of the pipeline. For example, in the Hampton Roads HUC8 (02080208), which is the smallest
HUC8 crossed by the ACP in Virginia, ACP reports 104.25 acres of wetland impacts, including the conversion
of 26.57 acres of forested wetland to a less desirable wetland type. The wetland impacts in this single HUC8
account for more than one-third of the total wetland impacts by ACP within Virginia.
6 1 P a g e

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Blackwater Ephemeral 4
I I
24
/Ij
0
0
Intermittent 6
14
1,006
0
0
Perennial 11
83
348
1,398
0
0
0
Subtotal 29
168
3,465
0
0
0
03010203 Ditch 3
40
311
Chowan Ephemeral 2
12
0
0
Intermittent 4
8
375
0
0
Perennial 4
31
320
0
0
Subtotal 13
431
0
0
90
1,437
0
0
03010204 Ditch 6
42
921
Meherrin Ephemeral 5
14
0
0
Intermittent 31
149
481
3,416
0
126
0
Perennial 38
566
5,099
62
0.01
Pond 1
0
82
0
0.01
Subtotal 81
770
9,998
188
0
0.03
03010205 Perennial 3
39
1,088
0
Albemarle
0
Subtotal 3
39
1,088
0
0
Project Tota 1 808
Source: Copied from ACP (917 Table B-3 REVISED July 21, 2017, Note:
7,938
According
112p003
1,973(228)
0.37
IoACP (2017c), the permanent affected bank length column represents -the
waterbody bank length that will be permanenUy impacted due to adding a culvert or other improvements that are necessary to utilize
and operation of the pipeline. This column includes parenthetical numbers that
are along temporary
access roads and have been
access roads during
construction
but remain in this column to idenbly these as temporary impacts
removed from permanent
impact totals,
P a g e

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PSS 6,424 11.79 1.46 0
Subtotal 40,855 72.54 17.95 0.21
03010205 PFO 0.19
Albemarle
Subtotal 0.19
Project total 296.45 79.8 1.04
Swrce: Copied from ACP (2017c) Table 84 REVISED July 21, 2017. Note: According to ACP (2017c), temporary impacts include all permanent,
temporary, and extra temporary workspace, Conversion of PFO and PSS wetlands consists of acreage that will be maintained as
herbaceoustscrub-shrub wetlands following construction to facilitate inspection and maintenance of the pipeline.
10 1 P a g e

Figure 3: The difference between HUC12 and HUC8 watersheds
486d
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t -b I ty j
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111 P a g e
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111 P a g e

2.3 The appropriate scale for measuring cumulative effects
Cumulative impacts are those that result from the incremental impacts of many actions combined.
Cumulative impacts could occur over time or space or both. We focus on the potential spatial cumulative
impacts of the ACP. Analyzing the presence and intensity of a cumulative impact is complex and relies heavily
on scale.
The appropriate scale of analysis changes with each impact type and species/ecosystem impacted. Ziemer
(2000) states that cumulative impacts should be addressed on two scales: "As a general guide, one spatial
analysis scale should encompassthe distribution range of each species, and another scale, the home range of
individuals." For example, the appropriate scale for assessing a cumulative impact for wetland mitigation may
be different than the appropriate scale for assessing cumulative impacts to aquatic communities, and
appropriate scales for individual aquatic species would vary, depending on life history, distribution range, and
mobility of the target species. While the distribution range of some species likely to be impacted during ACP
construction may correlate with the HUC8 scale, the home range of individual fish and macroinvertebrates is
much smaller, and would likely range from a few hundred feet for some macroinvertebrates to a moderately
sized watershed similar to a HUC12 watershed.
HUC12 watersheds are a functionally relevant scale for watershed analyses and have been utilized by a wide
range of aquatic studies focused on fish, macro! nverte brates, and hydrology (USEPA, 2017; Merovich et al.,
2013; Watson et al., 2017). Additionally, Merovich et al. (2013) found that reduced ecological conditions of a
stream at the segment level decreased the ecological condition of the HUC12 watershed in which they were
nested. Merriam and Petty (2016) found that poorer conditions in HUC12 watersheds resulted in the
proliferation of tolerant taxa of macroinvertebrates, and additionally, communities within even the most
pristine streams are at risk when isolated within heavily impacted regions. Distributions of fish species are
influenced by hierarchical effects of environmental variables (Hopkins and Burr, 2009). Likewise, community
composition depends on local conditions and on conditions at larger spatial scales that may interact with
local processes (Poff, 1997; Black et al., 2004).
Cumulative environmental effects can be measured at single points on streams or can represent average
conditions across watersheds of different sizes. At single points on streams, the health of aquatic life is tied
to both the upstream and downstream conditions within the stream network. in other words, when many
local impacts occur in close proximity, more than minimal cumulative environmental effects would be caused
at these points. Measuring these effects does not require the selection of a specific watershed size such as a
HUC8 or HUC12 watershed.
If cumulative environmental effects are to be measured across a watershed, they would be represented as
some type of average (for example, the average sediment concentrations or benthic macroinvertebrate
scores across the watershed). In this case, the academic research summarized above indicates that local
disturbances would have less impact on larger watersheds such as HUC8 watersheds, and more impact on
smaller watersheds such as HUC12 watersheds. HUC12 watersheds would therefore be a more appropriate
scale at which to measure average cumulative watershed impacts because the pipeline only crosses a small
part of each HUC8 watershed—diluting the impact of the pipeline on metrics; averaged across an
inappropriately wide area.
If cumulative environmental effects are nonetheless considered at the HUC8 level, then the most appropriate
method for documenting these effects would be to document the single points on streams within the HUC8
watershed for which more than minimal cumulative environmental effects are found—rather than using
watershed -wide averages. Because of the numerous single points on streams that are impacted, the ACP has
more than minimal cumulative environmental effects, even at the HUC8 level.
12 1 Page

2.4 Sediment impacts from pipeline construction
Even when best management practices are used, pipeline and access road construction would cause erosion
and sedimentation. This includes stream and wetland crossings, and upland pipeline and access road
construction.
increased sedimentation and turbidity has real impacts on aquatic life. According to FERCs FEIS:
"Increased sedimentation and turbidity resulting from in -stream and adjacent construction activities
would displace and impact fisheries and aquatic resources. The EPA considers both suspended and
bedded sediments and their potential impacts to aquatic life for water quality standards. Suspended
sediments may adversely affect submerged macrophytes by reducing light available for
photosynthesis by plants and visual capacity for animals, while bedded sediments settle out on the
bottom of the waterbody and smother spawning beds and other habitats. Sedimentation could
smother fish eggs and other benthic biota and alter stream bottom characteristics, such as
converting sand, gravel, or rock substrate to slit or mud. These habitat alterations could reduce
juvenile fish survival, spawning habitat, and benthic community diversity and health. Increased
turbidity could also temporarily reduce dissolved oxygen levels in the water column and reduce
respiratory functions in stream biota. Turbid conditions could also reduce the ability for biota to find
food sources or avoid prey, and cause physiological effects in fish, such as gill clogging. The extent of
impacts from sedimentation and turbidity would depend on sediment loads, stream flows, stream
bank and stream bed composition, sediment particle size, and the duration of the disturbances..."
(FERC, 2017, p. 4-228-229)
The majority of stream crossings (610) in the Norfolk District would use either the "Dam and Pump" or
"Flume" methods (ACP, 2017c). The Appomattox River, Nottoway River, and Meherrin River would be
crossed using the "Cofferdam" method. An additional eight crossings would be constructed using one of the
aforementioned methods, but the exact method has not yet been determined. Each of these methods would
result in the temporary dewatering and excavation of the stream bed. This would disrupt fish life and kill
benthic macro! nvertebrate organisms within the construction corridor of the crossing. ACP asserts that when
important fish species, such as trout, are present, the "Flume" or "Cofferdam" method would be utilized to
allow for fish passage through the area. The "Dam and Pump" method proposed for most other small
crossings would not allow for fish passage.
Regardless of method utilized and care taken during construction, the disturbance of the streambank and
streambed would cause a marked increase in sedimentation and turbidity for a temporary period of unknown
duration—both during the period of initial disturbance and when flow is reestablished over the construction
area. In the medium-term, moderate (perhaps intermittent) increases in sedimentation and turbidity would
continue from the streambed and stream bank until revegetation occurs in the area immediately adjacent to
the construction site. This would cause more than minimal individual environmental effects. In the long-term,
the sediment contribution from upland pipeline corridors could still result in measurable long-term increases
in sedimentation and turbidity, dependent upon soil type, slope, and success of revegetation in the upland
corridor.
Clingerman and Hansen (2017) estimated the sedimentation impact expected from ACP crossings in
mountainous watersheds in West Virginia and Virginia, which were expected to have a high risk of
sedimentation from pipeline construction. The crossings include Turkeypen Creek of Kincheloe Creek in
Harrison and Lewis counties, West Virginia and Falls Run of Dutch Creek in the James River watershed in
Nelson County, Virginia. For each scenario, pre -construction, during -construction, and post -construction
sedimentation loads were estimated. During -construction sedimentation was estimated to increase by 805%
in West Virginia and 9,051% in Virginia.
13 P a g e

Clingerman and Hansen (2016) also estimated the sedimentation impact expected from the Mountain Valley
Pipeline (MVP), which like the ACP would start in West Virginia and transport natural gas out of state. This
analysis focused on two West Virginia watersheds: one expected to have a lower risk (Turtletree Fork of
Tenmile Creek of West Fork River in Harrison County) and one expected to have a higher risk (an unnamed
tributary to Laurel Creek of the Little Kanawha River in Braxton County) of sedimentation from pipeline
construction. For each scenario, pre -construction, during -construction, and post -construction sedimentation
loads were estimated. During -construction sedimentation was estimated to increase by 42% and 1,536%,
respectively.
MVP's FEIS includes a hydrologic analysis of sedimentation of pipeline construction in parts of West Virginia
and Virginia (Environmental Solutions & Innovations, 2017). This analysis confirms that pipeline construction
causes erosion and sedimentation:
• "...catchments within these subwatersheds are expected to experience increases in sediment yield
over baseline conditions during construction, restoration, and operation with the highest expected
increases occurring during the construction timeframe for most waterbodies." (Environmental
Solutions & Innovations, 2017, p. 24)
• "Sediment loss from the proposed action will likely be transported into downstream waterbodies;
however, predicted total sediment loads demonstrate that these impacts will largely be confined to
tributary systems and nof larger order rivers..." (Environmental Solutions & Innovations, 2017, p. 24)
• "For most waterbodies studied in this analysis, expected impacts to streams are greatest during the
active construction phase of the Project." (Environmental Solutions & Innovations, 2017, p. 25)
• "Based on this analysis, it is expected that sediment loads and yields will reach a new sediment
equilibrium approximately four to five years from the start of the Project." (Environmental Solutions
& Innovations, 2017, p. 25) This new equilibrium will increase sediment loads from less than 1
percent to more than 10 percent over baseline, depending on the watershed.
Similar sedimentation impacts would likely be expected because the ACP and, MVP would traverse similar
mountainous terrain. FERCs FEIS for the ACP summarizes findings related to increased sedimentation in
certain watersheds:
"The [U.S. Forest Service] requested that Atlantic prepare a Soil Erosion and Sedimentation Model
Report assessing the extent of sedimentation that could occur within priority subwatersheds within the
[Monongahela Nati ' onal Forest) and [George Washington National Forest] during construction.
Generally, the model results indicate a substantial increase in soil loss relative to baseline rates for the
first year of construction. Soil rates are predicted to be higher where there are steeper slopes and
higher soil erodibility values. The model results indicate a decline in soil erosion with time as the
construction workspace is restored and becomes revegetated. Although according to the model, the
predicted soil erosion rates returned to baseline by the third year, some of the model results were
skewed to present a best case scenario, and likely underestimate short-term and long-term sediment
loads." (FERC, 2017, p. 4-231)
14 1 P a g e

3. CUMULATIVE IMPACTS IN THE INCH BRANCH -BACK CREEK
WATERSHED
The 42 -square mile Inch Branch -Back Creek watershed is a HUC12 watershed (20700050703) within the
South Fork Shenandoah River HUC8 watershed (2070005) (See Figure 4). Within this watershed, about 4% of
the pipeline corridor crosses very steep slopes, and 62% of the corridor crosses highly erodible soils.
Figure 4: The Inch Branch -Back Creek watershed
Sources: Impairments from VDEQ et al. (2016 and 2017). Note: For clarity, e. coli impairments are not mapped because they will not be
impacted by pipeline construction.
15 1 P a g e

The cumulative impacts in this watershed are significant. ACP counts 31 single and complete projects3 within
the watershed, including 38 stream crossings by the pipeline. Access road crossings reported by ACP include
three stream crossings and one pond crossing. (ACP, 2017c, Table B-1) The crossings documented by ACID do
not exactly match those illustrated in Figure 4 because some crossings are for small tributaries that are not
mapped in Figure 4.
The pipeline and access roads would cross the headwaters of Back Creek, including Back Creek, Mills Creek,
and Orebank Creek—all of which are impaired. Crossings would disrupt fish life and kill benthic
macroinvertebrate organisms within the construction corridor of the crossing, and the disturbance of the
streambank and streambed would cause a marked increase in sedimentation and turbidity. These impacts,
individually, would be more than minimal. These tributary crossings are all within one mile from each other,
and these three creeks join together approximately 1.5 miles downstream from the three crossing locations.
Because these crossings are so close together and all have short flow paths to the same point, the cumulative
impacts of these crossings will be felt in Back Creek.
Adding to the cumulative impacts of the ACP would be the sediment generated from upslope, where the
pipeline right-of-way would be cleared and where access roads would be built. Approximately 8.1 miles of
pipeline and 1.2 miles of access roads are planned for this small watershed, which would result in
approximately 127 acres of temporary impacts.
Also, according to ACP, 12 wetland crossings (11 single and complete projects) within the Inch Branch -Back
Creek HUC12 would result in 2.72 acres of total wetland impacts. Six crossings would impact forested
wetlands and would result in a total conversion of 0.38 acres to either scrub -shrub or emergent wetlands.
The VDEQ maintains a list of impaired streams across the state that is updated every two years; this list
includes several streams within the Inch Branch -Back Creek watershed (VDEQ et al., 2016 and 2017).
As illustrated in Figure 4 and Table 3, Back Creek and Mills Creek are biologically impaired and listed in
Category SA, meaning that a water quality standard is not attained and a TMDL is required. The source of the
Back Creek biological impairment is unknown, and the source of the Mills Creek impairment is acidity from
atmospheric deposition (VDEQ et al., 2016).
Table 3: Impaired streams in the Inch Branch -Back Creek watershed
Bloloxical impairment
Back Creek
B31R-01-BEN Aquatic life 5A 12.85
Mills Creek
B3111 -02 -BEN Aquatic life SA 9.12
Toms Branch
B31R-03-BEN Aquatic life 4C 3.49
PH Impairmen
Orebank Creek B31R-07-PH Aquatic life 5A 3.55
Source: Impairments tom VDEQ et al. (2016 and 2017). Note: For clanty, e. coil Impairments are omitted because they Will n Tt
be impacted by pipeline construction.
The other biologically impaired stream, Toms Branch, is listed in Category 4C, meaning that the water is
impaired but does not require a TMDL because the impairment is not caused by a pollutant and/or is
determined to be caused by natural conditions. The Toms Branch impairment is therefore not considered
further in this report.
3Reporl�ngACP'saccountinqof lng!qAqj��rppl�tep ces ot mplyAqt �e authors agree wM this accounii
Jnq -
16 1 P a g e

Orebank Creek, impaired by pH, is in Category 5A and requires a TIVIDL. The source of the Orebank Creek
impairment is acidity from atmospheric deposition (VDEQ et al., 2016).
A TIVIDL has not yet been written for Back Creek's biological impairment. However, Back Creek flows into
South River, and a TMDL for South River's bacteria and biological impairments was written in 2009. According
to a stressor analysis performed in this TMDL, sediment and phosphorus are the most probable stressors
causing South River's biological impairment. The TIVIDL then allocates sediment loads to meet the TIVIDL.
(Engineering Concepts, 2009) While a more detailed TIVIDL for the Back Creek watershed, including a stressor
analysis, would be needed to definitively tie sediment to Back Creek's biological impairment, the fact that
sediment was tied to South River's biological impairment indicates that existing sediment loads may also
cause the impairment in Back Creek.
Because of the existing impairments and potential sediment -related pollutant reductions that may be
required to return Back Creek to health, additional sediment inputs caused by the ACP would make it less
likely that the TMDL would be achieved.
The stream impairments and TMDLs in the watershed present an additional complication. However, even
absent the impairments and TMDLs, ACP pipeline and access road construction would cause more than
minimal cumulative adverse environmental effects on Back Creek just downstream from the pipeline
crossings across the Inch Branch -Back Creek watershed.
17 P a g e

4. CONVERSION OF FORESTED WETLANDS
A wetland that is converted from a forested wetland to either a scrub -shrub or herbaceous wetland will
nearly always result in a loss of important wetland functions. The capability of forested wetlands to stabilize
soil, store nutrients, and reduce erosion and sedimentation is higher than either scrub -shrub or herbaceous
wetlands. Other important functions such as stream shading, core forest area, vegetative biomass, structural
diversity, and species diversity (both flora and fauna) are also likely to decrease when a forested wetland is
converted to another type of wetland. (Schmid & Company, 2014)
In the Norfolk District, ACP reports that the project would convert a total of 74.9 acres of forested wetlands
into either herbaceous or herbaceous/scrub-shrub wetlands. These conversions would occur at 362 crossings
(351 single and complete projects), and 32 of the crossings would convert greater than one-half acre from a
single wetiand. Additionally, when examining all wetland types within the Norfolk District, ACP reports
individual wetland impacts greater than one-half acre for a total of 133 crossings. (ACP, 2017c)
Several areas in the Norfolk District stand out due to the large number of wetland crossings in close
proximity. In the immediate vicinity of the Great Dismal Swamp National Wildlife Refuge, for example, 22
wetland crossings would impact 75.9 total wetland acres. These wetlands are hydrologically connected to
those in the National Wildlife Refuge. Of these, 13 forested wetlands would be crossed, resulting in 21.7
acres of conversion to scrub -shrub or herbaceous wetlands. Six of these forested wetland crossings would
result in greater than one-half acre of conversion to scrub -shrub or herbaceous wetiands.,(ACP, 2017c)
The open -cut trenching method described by ACP for wetlands will have numerous potential short- and long-
term impacts to the quality and function of wetlands. In addition to the increase in erosion and
sedimentation during and shortly after construction, soil structure alterations and hydrology changes can
cause long-term or permanent impacts. Soil compaction by heavy equipment can cause increased surface
water runoff, hinders revegetation, and decreases absorption and 1 ' nfiltration of surface waters. Additionally,
the soil removed from the trench, even when properly segregated and returned, may have reduced
functionality and vegetative productivity. Further, any incorrect regrading or the installation and
maintenance of poor erosion and sedimentation controls can cause significant hydrologic change that cause
the partial or complete clewatering of existing wetlands. Additionally, the trench and pipeline can direct
water away from wetlands, further causing changes in hydrology that may be permanent. (Kanouff, 2015)
Wetland crossings and conversions can also add to the cumulative effects of stream crossings. As mentioned
above in Chapter 3, the Inch Branch -Back Creek HUC12 watershed will be impacted by numerous stream and
wetland crossings that, together, will cause more than minimal cumulative environmental effects.
18 1 P a g e

S. SPAWNING AREAS
General Condition 3 protects spawning areas during spawning seasons:
"Activities in spawning areas during spawning seasons must be avoided to the maximum extent
practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or
downstream smothering by substantial turbidity) of an important spawning area are not authorized."
(82 Fed. Reg. 1998)
The ACP route across the Norfolk District crosses spawning areas for many types of fish, including important
migratory fish and trout spawning areas. In Virginia, there is one native s ' pecies of trout, the brook trout.
Brook trout live and reproduce in only the cleanest, cold streams. Typically, in Virginia, these streams are
small, have good forest canopy, and are typically found in higher elevations or in association with sprilngs.
Rainbow and brown trout have also been introduced to many streams within Virginia. In some of the best
streams, even brown and rainbow trout reproduce and survive without supplemental stockings. Wild trout
streams containing any of the three trout species are highly regarded among anglers and conservationists, as
they represent a nearly pristine aquatic environment.
The fact that the ACP pipeline and access roads will cause substantial turbidity and smother important trout
habitat is justification for requiring an individual 404 permit based on the second sentence of General
Condition 3: "Activities that result in the physical destruction (e.g., through excavation, fill, or downstream
smothering by substantial turbidity) of an important spawning area are not authorized."
ACP explains its compliance with the Spawning Areas general condition as follows:
"Atlantic will comply with General Condition 3 by completing installation of the pipeline during
periods of low flow where practicable, expediting in -stream activities, installing temporary
equipment bridges, and completing installation of the pipeline in perennial waterbodies with cold or
warm water fisheries outside of in -stream work restriction periods required by federal and or state
agencies." (ACP, 2017c, Table D-1)
In its PCN, ACP provides time of year restrictions (TOYRs) (ACP, 2017c, Table B-1). Most of these exclusionary
dates seem appropriate given the aquatic communities impacted at each crossing location, but ACP does not
provide detailed information on why or how these TOYRs were established. Additionally, there are apparent
errors/omissions to the TOYRs for some crossings. For example, the crossing of UNT of Dry Run (single and
complete project ID: VA AP -1 9014) does not list any TOYR in Table B-1. According to Virginia WQS
classifications "Dry Run (Bath County) from 1.5 miles above its confluence with the Cowpasture River
upstream including all named and unnamed tributaries" is listed as Class ii Natural Trout Water—and thus
should be subject to appropriate TOYR to protect spawning trout. (9VAC25-260-430, emphasis added) While
such discrepancies were not evaluated across the entire Norfolk District, similar errors/omissions may be
present for other crossings as well.
19 1 P a g e

6. WATER SUPPLY INTAKES
Drinking water providers rely on clean source water in rivers and streams to produce clean drinking water at
the tap. The ACP will cause additional sedimentation and turbidity,, which complicates drinking water
treatment. In addition, should a spill of fuel or other pollutants occur upstream from an intake, it may flow
downstream quickly. For example, a diesel fuel spill along the right-of-way of a natural gas pipeline in Virginia
contaminated the drinking water for a community in nearby Monroe County, West Virginia (Adams, 2015).
General Condition 7 protects water supply intakes:
"No activity may occur in the proximity of a public water supply intake, except where the activity is
for the repair or improvement of public water supply intake structures or adjacent bank
stabilization." (82 Fed. Reg. 1999)
The Norfolk District Engineer has clear authority to require an individual 404 permit based on compliance
with this general condition:
"District engineers can also take action if they determine that a specific activity does not comply with
this general condition [regarding public water supply intakes] and therefore does not qualify for
NWP authorization." (82 Fed. Reg. 1949)
ACP explains its compliance with the Water Supply Intakes general condition as follows:
"Atlantic has complied with General Condition 7 by identifying potable water intakes located within
three miles downstream of proposed crossing locations. Water supply owners will be provided prior
notice according to the FERC Procedures (one week prior notice) where construction crossings are
scheduled to occur within 3 miles upstream of potable water supply intakes. Atlantic has coordinated
with the Virginia Department of Health – Office of Drinking Water (VDH-ODW) to determine surface
water intakes, and has identified three surface water intake facilities located within 3 miles of the
project area within the Norfolk District:
City of Staunton at MP 130.4 on AP -1 – ACP will cross the Middle River using the cofferdam
method, or the dam and pump method as an alternative should the cofferdam method
prove to be infeasible.
City of Norfolk at MP 61.0 on AP -3 – ACP will cross Prince Lake using the [horizontal
directional drilling] HDD crossing method.
City of Norfolk at MP 62.4 on AP -3 – ACP will cross Western Branch Reservoir using the HDD
crossing method.
Atlantic will comply with any conditions added to permits by the Commonwealth of Virginia for
protection of these surface water intakes." (ACID, 2017c, Appendix D)
ACP acknowledges that the pipeline would cross upstream of three intakes. However, Figure 5 and Table 4
clarify that the ACP would actually cross the source water assessment areas for four intakes—the three noted
by ACP plus the City of Emporia-Meherrin River's source water assessment area. Of the 21 stream crossings
within these source water assessment areas, 18 stream crossings would occur within five miles of the intakes.
A total of 11 of these crossings would occur less than a mile from the City of Norfolk's two reservoirs that
serve as drinking water sources.
20 P a g e

Table 4: Stream crossings in source water assessment areas crossed by the Atlantic Coast Pipeline
City of Staunton -Middle River 2.5 N/A VA AP -1 0192
Jennings Branch 3.5 N/A VA AP -1 0192
Middle River
City of Emporia- Meherri n River
Meherrin River
4.7
N/A
VA AP -1 0668
U NT to Meherrin River
4.5
N/A
VA AP -1 0672
U NT to Meherrin River
4.6
N/A
VA AP -1 0671
LINT to Meherrin River
4.9
N/A
VA AP -1 0664
LINT to Meherrin River
4.9
N/A
VA AP -1 0665
LINT to Meherrin River
5.5
N/A
VA AP -1 0664
LINT to meadows Branch
6.0
N/A
VA AP -1 0663
UNT to Greensville Creek
7.6
N/A
VA AP -1 0661
CitV of Norfolk -Western Branch
U NT to Western Branch Reservoir
0.8
0.05
VA AP -3 0197
LINT to Western Branch Reservoir
0.8
0.05
VA AP -3 0197
U NT to western Branch Reservoir
1.4
0.2
VA AP -3 0196
LINT to Western Branch Reservoir
2.7
0.2
VA AP -3 0191
U NT to Western Branch Reservoir
2.7
0.2
VA AP -3 0192
LINT to Western Branch Reservoir
2.8
0.1
VA AP -3 0193
U NT to Western Branch Reservoir
2.8
0.1
VA AP -3 0194
CitV of Norfolk -Lake Prince
U NT to Lake Prince
1.2
0.2
VA AP -3 0189
LINT to Lake Prince
2.7
0.6
VA AP -3 0187
U NT to Lake Prince
2.7
0.6
VA AP -3 0188
UNT to Lake Prince
2.7
0.6
VA AP -3 0188
Source� Stream names and project FDs from -ACP (2017c), Appendix B-1. Approximate stream distances were
estimated using
ArclVlap. Note: Both the Western Branch Reservoir and the Lake Prince Reservoir will be crossed by the pipeline,
but no crossing
information is included in Appendix B-1 because HIDD will be used
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Figure 5: Source water assessment areas upstream from drinking water intakes in counties crossed by the
Atlantic Coast Pipeline
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7. SUMMARY AND CONCLUSIONS
For the reasons summarized below, the use of NWP 12 is inappropriate, and the District Engineer should
require an individual 404 permit.
7.1 individual and cumulative effects
The project will result in more than minimal individual and cumulative adverse environmental effects.
Whether stream crossings use the Dam and Pump, Flume, or Cofferdam methods, they would
disrupt fish life and kill benthic macroinvertebrate organisms within the construction corridor of the
crossing, and the disturbance of the streambank and streambed would cause a marked increase in
sedimentation and turbidity during the period of initial disturbance and when flow is reestablished
over the construction area. These crossings would result in more than minimal individual adverse
effects.
In addition to conversions from forested to scrub -shrub or herbaceous wetlands, wetland crossings
will have numerous potential short- and long-term impacts. Crossings will increase erosion and
sedimentation and alter soil structure and hydrology, and compacted soil can cause increased
surface water runoff, hinder revegetation, and decrease infiltration of surface waters. Any incorrect
regrading or the use of poor erosion and sedimentation controls can cause significant hydrologic
changes.
Cumulative environmental effects can be measured at single points on streams or can represent
average conditions across watersheds of different sizes. At single points on streams, the health of
aquatic life is tied to both the upstream and downstream conditions within the stream network. In
other words, when many local impacts occur in close proximity, more than minimal cumulative
environmental effects will be caused at these points. Measuring these effects does not require the
selection of a specific watershed size such as a HUC8 or HUC12 watershed.
If cumulative environmental effects are to be measured across a watershed, they would be
represented as some type of average (for example, the average sediment concentrations or benthic
macroinvertebrate scores across the watershed). in this case, the academic research summarized
above indicates that local disturbances would have less impact on larger watersheds such as HUC8
watersheds and more impact on smaller watersheds such as HUC12 watersheds. HUC12 watersheds
are a more appropriate scale at which to measure average cumulative watershed impacts because
the pipeline only crosses a small part of each HUC8 watershed—diluting the impact of the pipeline
on metrics averaged across a wide area.
If cumulative environmental effects are nonetheless considered at the HUC8 level, then the most
appropriate method for documenting these effects would be to document the single points on
streams within the HLIC8 watershed for which more than minimal cumulative environmental effects
are found—rather than using watershed -wide averages. Because of the numerous single points on
streams that are impacted, the ACP has more than minimal cumulative environmental effects, even
at the H UC8 level.
7.1.1 The Inch Branch -Back Creek watershed
In the Inch Branch -Back Creek watershed, about 4% of the pipeline corridor crosses very steep
slopes, and 62% of the corridor crosses highly erodible soils.
ACP counts 38 stream crossings within this watershed, all of which would impact Back Creek.
Whether stream crossings use the Dam and Pump, Flume, or Cofferdam methods, they would
disrupt fish life and kill benthic macro! nvertebrate organisms within the construction corridor of the
crossing, and the disturbance of the streambank and streambed would cause a marked increase in
23 1 P a g e

sedimentation and turbidity during the period of initial disturbance and when flow is reestablished
over the construction area.
• In addition to the stream crossings themselves, sediment would be generated from upslope, where
the pipeline right-of-way would be cleared and where access roads would be built. Approximately
8.1 miles of pipeline and 1.2 miles of access roads are planned for this small watershed, which would
result in approximately 127 acres of temporary impacts.
• Erosion and sedimentation would increase instrearn turbidity and harm aquatic life by, among other
things, smothering spawning beds and fish eggs, reducing juvenile fish survival, and impacting
benthic community diversity and health.
• Also, 12 wetland crossings within the watershed would result in 2.72 acres of total wetland impacts.
Six crossings would impact forested wetlands and would result in a total conversion of 0.38 acres to
either scrub -shrub or emergent wetlands.
• In addition to conversions from forested to scrub -shrub or herbaceous wetlands, wetland crossings
will have numerous potential short- and long-term impacts. Crossings will increase erosion and
sedimentation and alter soil structure and hydrology, and compacted soil can cause increased
surface water runoff, hinder revegetation, and decrease infiltration of surface waters. Any incorrect
regrading or the use of poor erosion and sedimentation controls can cause significant hydrologic
changes.
• Back Creek is biologically impaired. A TIVIDL has not yet been written for this stream; however,
biological stream impairments just downstream have been linked with sedimentation.
• Because of the existing impairments and potential sediment -related pollutant reductions that may
be required to return Back Creek to health, additional sediment inputs caused by the ACP would
make it less likely that the TIVIDL would be achieved.
• As illustrated above in Figure 4, ACP pipeline and access road construction would cause more than
minimal cumulative adverse environmental effects on Back Creek just downstream from the pipeline
crossings across the Inch Branch -Back Creek watershed.
• If cumulative environmental effects are to be measured across watersheds, rather than at single
points, the Inch Branch -Back Creek HUC12 watershed would be a more appropriate scale at which to
measure average cumulative watershed impacts than the South Fork Shenandoah River HUC8
watershed. The PCN and related materials do not support a finding of no more than minimal
cumulative environmental effects at any watershed scale.
7.2 Wetlands
• Converting forested wetlands to scrub -shrub or herbaceous wetlands will nearly always result in a
loss of important wetland functions.
• In the Norfolk District, the project would convert a total of 74.9 acres of forested wetlands into
either herbaceous or herbaceous/scrub-sh rub wetlands. These conversions would occur at 362
crossings, and 32 of the crossings would convert greater than one-half acre from a single wetland.
• Within the Great Dismal Swamp Complex, there are 22 wetland crossings that would impact 75.9
total wetland acres. Of these, 13 forested wetlands would be crossed, resulting in 21.7 acres of
conversion to scrub -shrub or herbaceous wetlands. Six of these forested wetland crossings would
result in greater than one-half acre of conversion of a single wetland to scrub -shrub or herbaceous
wetlands.
• In addition to conversions from forested to scrub -shrub or herbaceous wetlands, wetland crossings
will have numerous potential short- and long-term impacts. Crossings will increase erosion and
sedimentation and alter soil structure and hydrology, and compacted soil can cause increased
surface water runoff, hinder revegetation, and decrease infiltration of surface waters. Any incorrect
24 P age

regrading or the use of poor erosion and sedimentation controls can cause significant hydrologic
changes.
7.3 Spawning areas
• General Condition 3 protects spawning areas during spawning seasons.
• Because the ACP pipeline and access roads would cause substantial turbidity and smother important
trout habitat, the District Engineer should require an individual 404 permit based on the second
sentence of General Condition 3: "Activities that result in the physical destruction (e.g., through
excavation, fill, or downstream smothering by substantial turbidity) of an important spawning area
are not authorized."
• The ACP routeacross the Norfolk District crosses spawning areas for many types of fish, including
important migratory fish and trout spawning areas.
• While the PCN materials include TOYRs, TOYRs are omitted for at least one stream listed as a Class ii
Natural Trout Water.
7.4 Water supply intakes
• General Condition 7 protects water supply intakes.
• While ACP identified three downstream water systems in proximity to the pipeline route, it did not
acknowledge a fourth: the City of Emporia-Meherrin River system.
• ACP also did not acknowledge the 21 stream crossings within source water assessment areas for the
four systems, 18 of which would occur within five miles of the intakes. Also, 11 of these crossings
would occur less than a mile from the City of Norfolk's two reservoirs that serve as drinking water
sources.
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