Petition for Writ of Certiorari — United States Forest Service, et al., Petitioners v. Cowpasture River Preservation Association, et al.

Supreme Court briefJun 25, 2019

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In the Supreme Court of the United States

UNITED STATES FOREST SERVICE, ET AL.,

PETITIONERS

COWPASTURE RIVER PRESERVATION ASSOCIATION,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

STEPHEN A. VADEN

General Counsel

Department of Agriculture

Washington, D.C. 20250

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

ERIC GRANT

Deputy Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

JENNY C. ELLICKSON

Assistant to the Solicitor

General

ANDREW C. MERGEN

J. DAVID GUNTER II

AVI KUPFER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion (Dec. 13, 2018) ...... 1a

Appendix B — U.S. Forest Service special use

permit (exhibits not included)

(Approved Jan. 23, 2018) ........................... 65a

Appendix C — U.S. Forest Service record of decision

(Nov. 17, 2017) .......................................... 102a

Appendix D — Court of appeals order (Feb. 25, 2019) .......241a

Appendix E — Statutory provisions ................................... 243a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-1144

COWPASTURE RIVER PRESERVATION ASSOCIATION;

HIGHLANDERS FOR RESPONSIBLE DEVELOPMENT;

SHENANDOAH VALLEY BATTLEFIELDS FOUNDATION;

SHENANDOAH VALLEY NETWORK; SIERRA CLUB;

VIRGINIA WILDERNESS COMMITTEE; WILD VIRGINIA,

INC., PETITIONERS

FOREST SERVICE, AN AGENCY OF THE U.S. DEPARTMENT

OF THE AGRICULTURE; KATHLEEN ATKINSON, IN HER

OFFICIAL CAPACITY AS REGIONAL FORESTER OF THE

EASTERN REGION; KEN ARNEY, IN HIS OFFICIAL

CAPACITY AS ACTING REGIONAL FORESTER OF THE

SOUTHERN REGION, RESPONDENTS

ATLANTIC COAST PIPELINE LLC, INTERVENOR

Argued: Sept. 28, 2018

Decided: Dec. 13, 2018

On Petition for Review

of a Decision of the United States Forest Service

Before: GREGORY, Chief Judge, WYNN and THACKER,

Circuit Judges.

THACKER, Circuit Judge:

(1a)

In this case, we address whether the United States

Forest Service (“Forest Service”) complied with the National Forest Management Act (“NFMA”), the National

Environmental Policy Act (“NEPA”), and the Mineral

Leasing Act (“MLA”) in issuing a Special Use Permit

(“SUP”) and Record of Decision (“ROD”) authorizing

Atlantic Coast Pipeline, LLC (“Atlantic”), the project

developer, to construct the Atlantic Coast Pipeline

(“ACP” or “the pipeline”) through parts of the George

Washington and Monongahela National Forests

(“GWNF” and “MNF,” respectively) and granting a

right of way across the Appalachian National Scenic

Trail (“ANST”).

For the reasons more fully explained below, we conclude that the Forest Service’s decisions violate the

NFMA and NEPA, and that the Forest Service lacked

statutory authority pursuant to the MLA to grant a

pipeline right of way across the ANST. Accordingly,

we grant the petition for review of the Forest Service’s

SUP and ROD, vacate those decisions, and remand to

the Forest Service for further proceedings consistent

with this opinion.

Background

The ACP is a proposed 604.5 mile, 42-inch diameter

natural gas pipeline that would stretch from West Virginia to North Carolina. The ACP route approved by

the Federal Energy Regulatory Commission (“FERC”)

—and for which the Forest Service issued the SUP,

ROD, and right of way challenged in this case—crosses

21 miles of national forest land (about 16 miles in the

GWNF and five miles in the MNF) and crosses the

ANST in the GWNF. Construction would involve clearing trees and other vegetation from a 125-foot right of

way (reduced to 75 feet in wetlands) through the national forests, digging a trench to bury the pipeline, and

blasting and flattening ridgelines in mountainous terrains. Following construction, the project requires

maintaining a 50-foot right of way (reduced to 30 feet in

wetlands) through the GWNF and MNF for the life of

the pipeline.

Pursuant to NEPA, when a federal agency proposes

to take a “major Federal action[] significantly affecting

the quality of the human environment,” the agency must

prepare a detailed environmental impact statement

(“EIS”) describing the likely environmental effects, “adverse environmental effects which cannot be avoided,”

and potential alternatives to the proposal. 42 U.S.C.

§ 4332(C). On April 27, 2015, the Forest Service provided scoping comments on FERC’s Notice of Intent to

prepare an EIS for the ACP project. The scoping comments stated, among other concerns, that the EIS must

analyze alternative routes that do not cross national forest land, and that the EIS must address the Forest Service’s policy that restricts special uses on national forest

lands to those that “cannot reasonably be accommodated

on non-National Forest System lands.” J.A. 3593; 1 see

also Forest Serv. Manual, Addendum to Pet’rs’ Br. 6566. The Forest Service’s comments further identified

concerns about landslides, slope failures, sedimentation,

and impacts to groundwater, soils, and threatened and

Citations to the “J.A.” refer to the Corrected Deferred Joint Appendix filed by the parties in this appeal.

endangered species that it believed would result from

the ACP project.

On September 18, 2015, Atlantic filed its formal application with FERC to construct, own, and operate the

pipeline. On November 12, 2015, Atlantic applied for

the SUP from the Forest Service to construct and operate the pipeline across the MNF and GWNF. This application was amended in June 2016.

Review and Comment

As FERC prepared the EIS, the Forest Service reviewed and commented on draft environmental resource

reports, construction designs, biologic evaluations, and

the first draft of Atlantic’s Construction, Operation, and

Maintenance (“COM”) Plan filed with FERC. Additionally, in a letter to Atlantic dated October 24, 2016,

the Forest Service requested ten site-specific stabilization designs for selected areas of challenging terrain to

demonstrate the effectiveness of Atlantic’s proposed

steep slope stability program, which Atlantic called the

“Best in Class” (“BIC”) Steep Slopes Program. As the

Forest Service explained:

Both the [GWNF and MNF] contain Forest Plan

standards that limit activities in areas that are at

high risk for slope and soil instability. To facilitate

the acceptance of ACP’s [SUP] application for further processing, the Forests need to be able to determine that the project is consistent or can be made

consistent with this Forest Plan direction.

J.A. 3379. The letter further noted that the ten selected sites were “merely representative sites that have

been selected to demonstrate whether stability can be

maintained for the purpose of making a preliminary determination of Forest Plan consistency. Should the

ACP Project be permitted, multiple additional high hazard areas will need to be addressed on a site-specific basis.” Id.

In a meeting between Atlantic and the Forest Service

on November 21, 2016, Atlantic presented the first two

of these site-specific stabilization designs (identified as

MNF01 and GWNF02 in the October 24, 2016 letter).

According to the meeting notes, the MNF Forest Supervisor noted:

[W]hile the BIC program [Atlantic] is proposing is

laudable [the MNF Forest Supervisor] is skeptical

the techniques will work; the Forest Service has seen

slope failures on lesser slopes and would be able to

provide examples. [Atlantic] needs to be able to

demonstrate that the techniques will work in extreme

conditions. . . . The [Forest Service] wants to

know beforehand that these examples have a reasonable chance of working.

J.A. 3319. Additionally, the Forest Service observed

that the MNF01 and GWNF02 “drawings are a step in

the right direction but more detail is needed for site specific design, the Forest Service needs to see how this

lays out on the land.” Id. at 3320.

Thereafter, beginning in December 2016, Atlantic

circulated a timeline of “FERC and Forest Service Reviews” to the Forest Service, which set the following

deadlines for the agency’s decisions (as proposed by Atlantic): (1) FERC’s Draft Environmental Impact Statement (“DEIS”) to be issued in December 2016;

(2) FERC’s Final Environmental Impact Statement

(“FEIS”) to be issued in June 2017; (3) the Forest Service’s draft ROD to be issued also in June 2017; (4) a

“Federal Agency Decision Deadline” of September 2017

(for issuance of the FERC Certificate of Convenience

and Public Necessity and the Forest Service’s SUP

and ROD); (5) Forest Plan amendments completed in

October 2017; and (6) the pipeline in service by 2019.

See J.A. 3252-53.

In line with Atlantic’s deadlines for the agencies’ decisions, FERC issued the DEIS on December 30, 2016.

Regarding its analysis of alternative routes, the DEIS

explicitly stated that the ACP was routed on national

forest lands in order to avoid the need for congressional

approval for the pipeline to cross the ANST:

A significant factor in siting ACP was the location at which the pipeline would cross the ANST.

In the general project area, the ANST is located on

lands managed by either the [National Park Service

(“NPS”)] or [the Forest Service]. The NPS has indicated that it does not have the authority to authorize a pipeline crossing of the ANST on its lands. Instead, legislation proposed by Congress and signed

into law by the President would be necessary to allow

the NPS the authority to review, analyze, and approve a pipeline crossing of the ANST on its lands.

Because of this legislative process, Atlantic considered locations where the ANST was located on lands

acquired and administered by the [Forest Service],

which significantly constrained the pipeline route

and severely limits opportunities for avoiding and/or

minimizing the use of [National Forest System]

lands.

J.A. 3207-08 (emphasis supplied). Regarding the environmental impact on forest resources, the DEIS further

stated:

[W]e acknowledge that a shorter pipeline route could

conceptually have significantly greater qualitative

impacts to sensitive resources than a longer route,

which could make the longer route preferable. In

this instance, we have not identified or received any

information that suggests the shorter pipeline route

through the National Forests has significantly greater

impacts to sensitive resources than the alternative,

but acknowledge that ground resource surveys have

not been conducted.

Id. at 3208 (emphasis supplied).

On February 17, 2017, Atlantic and the Forest Service met again to discuss the ten requested site-specific

stabilization designs. During this meeting, Atlantic informed the Forest Service that the two earlier site designs were for demonstration purposes, and the remaining eight sites were not currently being designed. The

Forest Service stated that it was “not comfortable” with

not seeing the remaining designs, and that it was the

Forest Service’s understanding that specific designs for

all ten sites were still needed. J.A. 2939. Significantly,

the Forest Service stated, it “want[ed] to see actual information, including specs on the actual controls and

protocol on how they will be installed, not conceptual

drawings.” Id.

On April 6, 2017, the Forest Service provided comments on FERC’s DEIS. In multiple places, the Forest Service’s comments stated that FERC’s conclusions

in the DEIS were premature given the incomplete information used to make them—this was particularly the

case regarding the extent of impacts to national forest

resources and the effectiveness of mitigation techniques. See, e.g., J.A. 2444 (“This statement [in the

DEIS] acknowledges deficiencies in information needed

to conduct an appropriate effects analysis for at least

some sensitive species. Given this, the [Forest Service] has serious reservations about the conclusions of

the analyses up to this point because those conclusions

have been reached prior to acquiring the necessary information to substantiate what must otherwise be presumed to represent judgments based on incomplete information.”); id. at 2445 (“There will be irreversible impacts to the soil and vegetation resources from construction of the ACP pipeline on [National Forest System]

lands. No matter how [Atlantic] plans to implement

measures to reduce these impacts, there will still be an

unavoidable irreversible dedication of the soil resource

as defined by NEPA. . . . The [COM] Plan is currently not complete, and substantial work remains to develop and refine measures to avoid, minimize, and mitigate impacts to a variety of resources on [National Forest System] lands, including steep slopes/sensitive soils;

threatened, endangered, and sensitive species; and management indicator species.”).

Further, regarding the DEIS’s analysis of nonnational forest alternative routes, the Forest Service

commented:

No analysis of a National Forest Avoidance Alternative has been conducted, and environmental impacts

of this alternative have not been considered or compared to the proposed action. Therefore, the Forest

Service cannot support the recommendation that the

National Forest Avoidance Alternative be dropped

from consideration. In our scoping comments, we

requested that all alternatives, including a National

Forest Avoidance Alternative, be fully addressed in

regard to their feasibility and environmental effects.

We hereby reiterate that request.

J.A. 2454 (emphasis supplied).

The Forest Service’s comments on Atlantic’s draft biologic evaluation, issued on April 24, 2017, paint a similarly grim picture of the ACP project’s effects on erosion

and on threatened and endangered species. For example, Atlantic’s draft biologic evaluation contained the following statement: “Construction activities may displace certain sensitive species from within and areas adjacent to the right-of-way, but the impact is expected to

be short-term and limited to the period of construction.

After construction, Atlantic will restore the right-of-way

as near as practicable to preconstruction contours and

conditions. . . .” J.A. 2324. In response, the Forest Service stated:

Restoration will consist of erosion control, some

NNIS [non-native invasive species] control, and some

native plant re-introduction, so it will create habitat

of some sort, but the impact to sensitive species should

be expected to be long-term. Restoration plantings

will take many years to establish and flourish, will in

most cases consist of different species than were present before, and will in many cases not re-create the

conditions sensitive species need to survive. NNIS

introductions, given the current lack of plans to conduct treatment along access roads, likely will create

10a

long-term negative impacts to the ecosystem, including potentially to sensitive species.

Id. (emphasis supplied).

Additionally, in response to a statement in the draft

biologic evaluation that the loss of potential roosting

habitat for the little brown bat (caused by construction

of the pipeline and the resulting permanent right of way)

would be “offset,” since the species could use the right

of way as foraging habitat, the Forest Service stated:

A potential increase in foraging habitat (which is not

really proven here) does not offset the long-term loss

of good roosting habitat—they apply to different life

history needs and an increase in one does not offset

loss of the other. Also, the loss of forested habitat

would be a long-term impact given the time period

required for recovery.

J.A. 2333. The Forest Service further noted, “Bats utilizing the more open areas (such as the [right of way]

and road corridors) for foraging are also more vulnerable to predators. This offset is counteracted by an increase in potential predation, which negates the [right

of way] and roads as potentially beneficial to the bat.”

Id. at 2332.

Change of Course

Despite the Forest Service’s clearly stated concerns

regarding the adverse impacts of the ACP project, as

Atlantic’s deadlines for the agency’s decisions drew

closer, its tenor began to change. On May 14, 2017, the

Forest Service sent a letter to FERC and Atlantic in

11a

which it stated—for the first time—that it would not require the remaining eight site-specific stabilization designs before authorizing the project. Specifically, the

letter stated: “If the ACP project is authorized, the

site-specific designs for the remaining eight sites identified in our October 24, 2016 letter must be reviewed

and approved by the [Forest Service] before construction at those locations could begin.” J.A. 2307. The

letter did not acknowledge that the agency was changing its position from its original request for all ten site

designs prior to granting approval for the ACP nor did

it provide any further explanation regarding the reason

for the Forest Service’s change in position. On July 5,

2017, the Forest Service sent a letter to Atlantic “acknowledg[ing]” that the two site-specific stabilization designs

that had so far been provided (MNF01 and GWNF02)

and the subsequent information about those sites provided by Atlantic “w[ere] adequate for the purposes of

disclosing the environmental effects” associated with

the ACP project. Id. at 1881. The letter did not provide any explanation as to why the two plans were “adequate.”

On July 21, 2017, FERC released the FEIS. On the

very same day, and in line with Atlantic’s timeline, the

Forest Service released its draft ROD proposing to

adopt the FEIS, grant the SUP, and exempt Atlantic

from several forest plan standards. The FEIS’s “National Forest Avoidance Route Alternatives” section,

which the Forest Service commented on previously (as

explained above), is identical to the DEIS. Regarding

the alternatives analysis, the Forest Service’s draft

ROD states: “FERC’s evaluation concluded that the

major pipeline route alternatives and variations do not

12a

offer a significant environmental advantage when compared to the proposed route or would not be economically practical.” Id. at 1411.

Regarding the COM Plan, on October 6, 2017, the

Forest Service sent a letter to Atlantic stating that Atlantic’s June 30 responses to the Forest Service’s second

draft COM Plan comments “largely addressed our comments except for a limited number of items needing further explanation or clarification.” J.A. 847. The letter requested an updated COM Plan incorporating these

responses. Atlantic filed this third (and final) draft of

the COM Plan on October 27, 2017.

FERC issued the Certificate of Convenience and

Public Necessity to ACP for construction of the pipeline

on October 13, 2017.

Shortly after, on October 27, 2017, the Forest Service

filed its responses to objections to the draft ROD. In

response to an objection regarding the range of nonnational forest route alternatives, the Forest Service

stated that FERC “adequate[ly] consider[ed] the route

across the National Forests” and “concluded these alternatives would not provide a significant environmental

advantage over a shorter route that passes through National Forests.” J.A. 676.

On November 16, 2017, the Forest Service sent a letter to Atlantic regarding Atlantic’s updated biologic

evaluation, which had been filed on August 4, 2017.

That biologic evaluation stated that the ACP project was

likely to result in a “loss of viability” for three Regional

Forester Sensitive Species (“RFSS”) in the MNF, a conclusion which, we note, was in line with the Forest Ser-

13a

vice’s April 24, 2017 comments on the draft biologic evaluation. Nonetheless, in an about-face, the Forest Service’s letter amended the updated biologic evaluation to

conclude that, in fact, the project was not likely to result

in a loss of viability to the three RFSS. This conclusion

is significant, because the Forest Service cannot authorize uses of national forests that are likely to result in a

loss of viability for a species. See J.A. 64 (“Per [Forest

Service Manual] 2670.32, activities or decisions on [National Forest System] lands ‘must not result in a loss of

species viability or create significant trends towards

federal listing.’ ”). However, as noted above, the Forest Service had already issued its draft ROD proposing

to authorize the SUP before the updated biologic evaluation was filed.

The Forest Service issued its final ROD on November 17, 2017, and it issued the SUP and granted the right

of way across the ANST on January 23, 2018. Cowpasture River Preservation Association, Highlanders for

Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra

Club, Virginia Wilderness Committee, and Wild Virginia, Inc. (collectively, “Petitioners”) filed this challenge on February 5, 2018. We possess jurisdiction

pursuant to the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 701-06, and the Natural Gas Act, 15 U.S.C.

§ 717r(d)(1).

II.

We may “ ‘hold unlawful and set aside [a federal]

agency action’ for certain specified reasons, including

whenever the challenged act is ‘arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with the law.’ ” Sierra Club, Inc. v. U.S. Forest Serv.,

14a

897 F.3d 582, 589-90 (4th Cir. 2018) (quoting 5 U.S.C.

§ 706(2)(A)). An agency’s decision is arbitrary and capricious if:

the agency relied on factors which Congress has not

intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could

not be ascribed to a difference in view or the product

of agency expertise.

Id. at 590 (quoting Defs. of Wildlife v. N.C. Dep’t of

Transp., 762 F.3d 374, 396 (4th Cir. 2014)).

III.

Petitioners assert that the Forest Service violated

three federal Acts in issuing the ROD and SUP: the

NFMA, NEPA, and the MLA. We address each of

these Acts and alleged violations in turn.

National Forest Management Act

The NFMA sets forth substantive and procedural

standards that govern the management of national forests. See 16 U.S.C. § 1604. As this court recently explained in Sierra Club v. Forest Service, the NFMA establishes a procedure for managing National Forest

System lands using “Forest Plans,” which “provide a

framework for where and how certain activities can occur in national forests.” Sierra Club, Inc. v. U.S. Forest Serv., 897 F.3d 582, 600 (4th Cir. 2018) (quoting Am.

Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914,

919 (D.C. Cir. 2017); 16 U.S.C. § 1604(a)). First, the

NFMA directs the Forest Service to “develop, maintain,

15a

and, as appropriate, revise” Forest Plans; second, it directs the Forest Service to ensure that all activities on

national forest lands—specifically, all “resource plans

and permits, contracts, and other instruments for the

use and occupancy of National Forest System lands”—

are consistent with the Forest Plans. Id. (quoting Perdue, 873 F.3d at 919; 16 U.S.C. § 1604(i)).

The NFMA also charges the Department of Agriculture (through the Forest Service, see 36 C.F.R.

§ 200.3(b)) with “promulgating guidelines for Forest

Plans, which should, inter alia, ‘insure consideration of

the economic and environmental aspects of various systems of renewable resource management’ and ‘provide

for diversity of plant and animal communities based on

the suitability and capability of the specific land area.’ ”

Sierra Club, 897 F.3d at 600 (quoting 16 U.S.C.

§ 1604(g)(3)(A)-(B)). At issue in this case are two Forest Service regulations issued pursuant to this authority: the 2012 Planning Rule and the 2016 Amendment

to the 2012 Planning Rule, both of which deal with

amendments to Forest Plans.

Petitioners assert that the Forest Service violated

the NFMA by: (1) determining that amendments to

the GWNF and MNF Plans’ standards to accommodate

the ACP were not “directly related” to the 2012 Forest

Planning Rule’s (“2012 Planning Rule’s”) substantive

requirements; (2) failing to meet public participation requirements in amending forest plans; and (3) failing to

analyze whether the ACP project’s needs could be reasonably met off of national forest land.

16a

2012 Planning Rule

Petitioners assert that the Forest Service violated

the NFMA by failing to apply the substantive requirements of the 2012 Planning Rule to the amendments of

the GNF and MNF Plans’ standards. Specifically, Petitioners assert that the amendments are directly related to the substantive requirements both in their purpose and their effects.

Background

In 2012, the Forest Service updated its Forest Planning Rule, which superseded the 1982 rule and set forth

new, substantive requirements for Forest Plans. See

2012 Planning Rule, 77 Fed. Reg. 21,162 (U.S. Dep’t of

Agric. Apr. 9, 2012). The updated substantive requirements in the 2012 Planning Rule apply to Forest Plans

developed under the 1982 rule in certain circumstances.

See 36 C.F.R. §§ 219.8-219.11; Sierra Club, 897 F.3d at

600-01. Specifically, as the 2016 Amendment to the

2012 Planning Rule clarified, a substantive requirement

from the 2012 Planning Rule applies to a Forest Plan

amendment if that requirement is “directly related to

the plan direction being added, modified, or removed by

the amendment.” Sierra Club, 897 F.3d at 601 (quoting 36 C.F.R. § 219.13(b)(5) (emphasis supplied in Sierra

Club)).

If the substantive requirement is directly related to

the amendment, then the responsible official must “apply such requirement(s) within the scope and scale of the

amendment.” Sierra Club, 897 F.3d at 601 (quoting

17a

36 C.F.R. § 219.13(b)(5)). Conversely, if the substantive requirement from the 2012 Planning Rule is not directly related to the amendment, the responsible official

is not required to apply it to the amended Forest Plan.

See id. Thus, Petitioners’ arguments on this point turn

on whether the requirements in the 2012 Planning Rule

are directly related to the Forest Service’s amendments

to the GWNF and MNF Plans.

A substantive requirement is directly related to the

amendment when the requirement “is associated with

either the purpose for the amendment or the effects

(beneficial or adverse) of the amendment.” Sierra

Club, 897 F.3d at 602 (quoting 2016 Amendment to 2012

Rule, 81 Fed. Reg. 90,723, 90,731 (U.S. Dep’t of Agric.

Dec. 15, 2016)); see also 36 C.F.R. § 219.13(b)(5)(i) (“The

responsible official’s determination must be based on

the purpose for the amendment and the effects (beneficial or adverse) of the amendment, and informed by the

best available scientific information, scoping, effects

analysis, monitoring data or other rationale.”). Further, regarding the adverse effects of an amendment,

“[t]he responsible official must determine that a specific

substantive requirement is directly related to the amendment when scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse effects associated with that requirement, or when the proposed

amendment would substantially lessen protections for a

specific resource or use.” 36 C.F.R. § 219.13(b)(5)(ii).

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GWNF and MNF Plan Amendments:

Purpose Analysis

In its ROD, the Forest Service decided to apply

project-specific amendments to a total of 13 standards

in the GWNF and MNF Plans for the purpose of construction and operation of the ACP. The amendments

exempt the ACP project from four MNF Plan standards

and nine GWNF Plan standards that relate to soil, water, riparian, threatened and endangered species, and

recreational and visual resources.

Petitioners assert that the Forest Service violated

the NFMA and the 2012 Planning Rule because it

skipped the “purpose” prong of the “directly related”

analysis. Consistent with our decision in Sierra Club,

we conclude that Petitioners are correct. 2 Although the

ROD states the rule correctly, see J.A. 36 (“[W]hether a

planning regulation requirement is directly related to an

amendment is based upon the amendment’s purpose or

its effect (beneficial or adverse).”), it fails to analyze the

purpose of the amendments and instead moves directly

to analyzing the amendments’ effects, see id. at 36-48.

This omission is particularly striking because the Forest

Service specifically identified the purpose and need for

the amendments in the ROD:

Faced with a nearly identical situation in Sierra Club v. Forest

Service, we concluded that the Forest Service acted arbitrarily and

capriciously by failing to analyze the purpose of the amendment in

its ROD (and instead focusing on only the effects) when “the clear

purpose of the amendment [was] to lessen requirements protecting

soil and riparian resources so that the pipeline project could meet

those requirements.” Sierra Club, 897 F.3d at 603.

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The purpose of the amendments are [sic] to meet the

requirements of the NFMA and its implementing

regulations that projects authorized on [National

Forest System] lands must be consistent with the

LRMP. Without the MNF and GWNF projectspecific Forest Plan amendments the ACP project

would not be consistent with some Forest Plan standards related to soil, riparian, threatened and endangered species, utility corridors, the ANST, an Eligible Recreational River Area, and scenic integrity objectives.

Id. at 31.

Indeed, this purpose and need is repeated several

times throughout the ROD. See, e.g., J.A. 27 (“The

project-specific amendments to MNF and GWNF

LRMP’s [sic] approved by this decision are needed to

allow the ACP Project to be consistent with LRMP

standards.”); id. at 37 (“[T]he purpose of the plan

amendments is to ensure consistency of the ACP Project

with the provisions of the two Forest Plans.”). There

would be no need to amend the Forest Plans to “ensure

consistency” if the ACP project could meet the Forest

Plan standards in the first place. In other words, the

ROD makes clear that the purpose of the amendments

was to lessen certain environmental requirements in the

GWNF and MNF Plans because the ACP project could

not meet those Plans’ existing requirements.

Accordingly, by failing to analyze whether the substantive requirements of the 2012 Planning Rule are directly related to the purpose of the amendments, the

Forest Service “entirely failed to consider an important

aspect of the problem.” Defs. of Wildlife v. N.C. Dep’t of

Transp., 762 F.3d 374, 396 (4th Cir. 2014) (quoting Motor

20a

Vehicle Mnfs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)). This failure is significant, because it is clear that the amendments (intended to lessen

protections for soils, riparian areas, and threatened and

endangered species in the GWNF and MNF Plans) are

directly related to the 2012 Planning Rule’s substantive

requirements for these same categories: “soil and soil

productivity” (36 C.F.R. § 219.8(a)(2)(ii)); “water resources” (id. § 219.8(a)(2)(iv)); “ecological integrity of riparian areas” (id. § 219.8(a)(3)(i)); “ecological integrity of

terrestrial . . . ecosystems” (id. § 219.8(a)(1)); “appropriate placement and sustainable management of . . .

utility corridors” (id. § 219.10(a)(3)); and “recovery of

federally listed . . . species” (id. § 219.9(b)).

Ex Post Facto Statements of Purpose

Notwithstanding the Forest Service’s statements of

purpose and need in the ROD, in its briefing and at oral

argument the Forest Service attempted to recharacterize the purpose of the amendments as “to relax thirteen

planning standards just enough to ‘authorize [Atlantic]

to use and occupy [National Forest System] lands for

the [ACP] Project’ consistent with the forest plans.”

Resp’t’s Br. 18. Meanwhile, Atlantic asserts that the

Forest Service did “explicitly evaluate[] the purpose of

the proposed amendments” and determined that “the

purpose of ACP is not directly related to any of [the 2012

Planning Rule’s] management guidelines.” Intervenor’s Br. 25. Instead, according to Atlantic, “the purpose of ACP is to ‘serve the growing energy needs of

multiple public utilities and local distribution companies, and Virginia and North Carolina’ and the ‘purpose

21a

and need’ of the ‘proposed action’ is to ‘respond to Atlantic’s application for a special use permit.’ ” Id. (quoting J.A. 10, 37). Quite the contrary—the ROD does

not analyze whether the amendments’ purpose is directly related to the 2012 Planning Rule’s substantive

requirements. Rather, the ROD lists the purpose and

need of the amendments but analyzes only the amendments’ effects. See J.A. 36-48. The Forest Service’s

and Atlantic’s attempts to recharacterize the purpose of

the amendments (despite the clear statements of the

amendments’ purpose in the ROD) are without merit.

First, the Forest Service asserts that the true purpose of the amendments was just to authorize the ACP

project—not to lessen environmental protections for

certain resources—and that “not every amendment with

an effect on a particular resource has the purpose of adjusting the forest plan’s direction for that resource.”

Resp’t’s Br. 18-19 (emphasis in original). But this contradicts the Forest Service’s own description of the

amendments’ purpose in both the ROD and in its brief,

which begins with the phrase “to relax thirteen planning

standards.” Id. at 18. Relaxing, lessening, loosening

—regardless of the Forest Service’s verb preference,

the purpose of the Forest Plan amendments is to reduce

the Plans’ environmental protections for certain resources.

Further, this is not a situation where a proposed

project-specific amendment may have an incidental effect on a Forest Plan standard; rather, the amendments’

entire purpose is to weaken existing environmental

standards in order to accommodate the ACP, which cannot meet the current standards. To say that a 2012

Planning Rule requirement protecting water resources

22a

(as one example) is not “directly related” to a Forest

Plan amendment specifically relaxing protection for water resources is nonsense.

Meanwhile, Atlantic conflates the purpose of the

amendments to the Forest Plans with, first, the overall

purpose of the ACP project (to “serve the growing energy needs of multiple public utilities and local distribution companies, and Virginia and North Carolina,” Intervenor’s Br. 25), and second, the Forest Service’s reason for taking action at all (to “respond to Atlantic’s application for a special use permit,” id.). Both interpretations of “purpose” are facially incorrect applications of

the 2012 Planning Rule’s “directly related” analysis, and

neither address the Forest Service’s purpose for amending the GWNF and MNF Plans. First, the purpose of

the plan amendment, not the ACP project, is the focus

of this analysis. Second, the Forest Service’s need to

respond to Atlantic’s application for the SUP is overly

broad and does not address the need for amending

the Forest Plans—clearly, the Forest Service could

have “responded” to Atlantic’s application without the

amendments.

Finally, both the Forest Service and Atlantic suggest

that only amendments changing a management standard for the forest as a whole—and not project-specific

amendments—can trigger the substantive requirements

of the 2012 Planning Rule. See Resp’t’s Br. 18-20 (“A

substantive requirement is directly related to the purpose for an amendment when the amendment’s objective

is to adjust the management of the corresponding forest

resource.”); Intervenor’s Br. 26 (“[T]he proposed amendments for ACP did not change any of the generally applicable standards or guidelines in the forest plans.”).

23a

Neither party offers authority to support this assertion,

which is contrary to the purpose of the 2012 Planning

Rule: to promote consistency in the protections for national forest resources across Forest Plans. See 2012

Planning Rule, 77 Fed. Reg. at 21,162. If the Forest

Service could circumvent the requirements of the 2012

Planning Rule simply by passing project-specific amendments on an ad hoc basis, both the substantive requirements in the 2012 Planning Rule and the NFMA’s Forest Plan consistency requirement would be meaningless.

Accordingly, in line with our decision in Sierra Club

v. Forest Service, we conclude that the 2012 Planning

Rule requirements for soil, riparian resources, and

threatened and endangered species are directly related

to the purpose of the Forest Plan amendments. The

Forest Service acted arbitrarily and capriciously in concluding otherwise.

Effects Analysis

Although we need not reach the “effects” prong of the

analysis in light of our conclusion that the purpose of the

amendments is directly related to the 2012 Planning

Rule’s substantive requirements, the Forest Service’s

assertion that the Plan amendments will not have substantial adverse effects warrants additional discussion.

As noted above, a substantive requirement is directly

related to a Forest Plan amendment when the requirement “is associated with . . . the effects (beneficial

or adverse) of the amendment.” Sierra Club, 897 F.3d

at 602 (quoting 2016 Amendment to 2012 Rule, 81 Fed.

Reg. at 90,731); see also 36 C.F.R. § 219.13(b)(5)(i).

The Forest Service asserts that an adverse effect must

24a

be “substantial” in order to be directly related to a substantive provision in the 2012 Planning Rule. 3 When

asked at oral argument how the Forest Service defines

“substantial adverse effects,” counsel for the Forest

Service responded:

COUNSEL: [T]he best guidance for that issue can

be found in the preamble to the 2012 [Planning] Rule

where the Forest Service says that rarely, if ever,

will a project-specific amendment rise to the level of

having a substantial adverse effect on these resources.

. . .

COURT: How can that be, rarely if ever will something rise to have a substantial adverse effect on the

forest? How many trees do you cut down before it

It is not necessary for us to determine whether this characterization of the regulations is accurate because, for the reasons explained below, we conclude that the Forest Service’s determination

that the amendments will not have substantial adverse effects was

arbitrary and capricious. Nevertheless, we note that the regulation

at issue—36 C.F.R. § 219.13—does not define “adverse effects” as

including only substantial effects; rather, it says that the applicable

substantive requirement from the 2012 Planning Rule must apply

when the effects are substantial. See 36 C.F.R. § 219.13(b)(5)(ii).

Curiously, there is no corresponding guidance for beneficial effects.

In other words, under the Forest Service’s interpretation of the regulation, only “substantial” adverse effects could trigger application

of a substantive requirement, but any beneficial effect at all would

trigger the same substantive requirement. The Forest Service does

not explain why the regulations would intend to make it easier to

pass amendments that harm the environment (by not requiring application of the substantive requirements, which aim to protect the

environment, unless that harm is substantial) but more difficult to

pass amendments that benefit the environment.

25a

is a substantial adverse effect?

All of them?

Maybe not one.

COUNSEL: The way the Forest Service stated it

in the 2012 preamble to [the Planning] Rule was that

it was going to look at the impact of the resource over

the entire forest.

Oral Argument at 22:55-24:04, Cowpasture River Preservation Ass’n v. Forest Serv., No. 18-1144 (4th Cir. Sept.

28, 2018), http://www.ca4.uscourts.gov/oral-argument/

listen-to-oral-arguments (hereinafter “Oral Argument”).

It is nothing short of remarkable that the Forest

Service—the federal agency tasked with maintaining

and preserving the nation’s forest land—takes the position that as a bright-line rule, a project-specific amendment, no matter how large, will rarely, if ever, cause a

substantial adverse effect on a national forest. And it

is even more remarkable that the agency is unable to say

what would constitute a substantial adverse effect on

the forest.

Indeed, counsel’s response did not answer the court’s

question, and the Forest Service has never explained (in

its briefing nor at argument) what makes an adverse effect “substantial.” Even more telling, however, is that

the “rarely, if ever” language used by counsel is nowhere

to be found in the preamble to the 2012 Planning Rule,

nor in any other Forest Service guidance that the court

could find. The closest language to counsel’s assertion

that the court could identify is in the preamble to the

2016 Amendment to the 2012 Planning Rule, which

states, “[i]t is unlikely that a change in land allocation

for a small area would have substantial adverse effects.”

2016 Amendment to 2012 Rule, 81 Fed. Reg. at 90,728.

26a

This language was a response by the Forest Service to

a public comment which was concerned that the proposed rule (the 2016 Amendment) might impose a burden on small changes to land allocation. The Forest

Service’s full response was as follows:

The 2012 rule did not require that every resource or

use be present in every area. The Department clarifies in this final rule that directly related specific

substantive requirements within §§ 219.8 through

219.11 apply within the scope and scale of the amendment. Changes in land allocation for a small area

would likely require a similarly narrow application of

the directly related substantive requirements, depending on the purpose and effects of the changes.

It is unlikely that a change in land allocation for a

small area would have substantial adverse effects.

Id.

Even assuming that this language from the 2016

Amendment’s preamble is what counsel was referring to

during argument, it still does not provide any support

for the Forest Service’s interpretation of “substantial

adverse effects.” A “change in land allocation for a

small area” is plainly not the same as generalizing to any

project-specific amendment, and “unlikely” is a far cry

from “rarely, if ever.” Perhaps this is why counsel

struggled to define what “rarely, if ever” would mean in

this context.

Thus, we find no basis in the law for the Forest Service’s assertion that “rarely, if ever, will a projectspecific amendment rise to the level of having a substantial adverse effect” on the natural forests.

27a

In any event, the Forest Service’s application of the

“effects” prong of the directly related test was still

flawed. In each instance in the ROD where the Forest

Service concluded that the 2012 Planning Rule’s substantive requirements were not “directly related” to the

Plan amendments, the ROD states that the amendment

“will not cause substantial long-term adverse effects.”

J.A. 39, 41, 43 (emphasis supplied). But nowhere do

the regulations (nor does the ROD, nor does the Forest

Service’s brief ) state that a substantial adverse effect

must be long term for the substantive requirement in

the 2012 Planning Rule to be “directly related” to the

amendment.

The Forest Service’s strained and implausible interpretations of “substantial adverse effects” are especially

striking in light of the significant evidence in the record

that the GWNF and MNF Plan amendments would

cause substantial adverse effects on the forests. See,

e.g., J.A. 25 (“Sedimentation modeling indicates annual

soil loss will be 200 to 800 percent above baseline erosion

during the first year of construction, returning to preconstruction levels within 5 years following restoration”); id. at 2320 (“Full recovery of forested sites would

take many decades.”); id. at 2351 (“It is unsubstantiated

as to how [erosion] increases of that magnitude are considered moderate and impacts will be temporary and

minimal.”).

The lengths to which the Forest Service apparently

went to avoid applying the substantive protections of the

2012 Planning Rule—its own regulation intended to protect national forests—in order to accommodate the ACP

project through national forest land on Atlantic’s timeline are striking, and inexplicable.

28a

Accordingly, we conclude that the Forest Service’s

determination that the GWNF and MNF Plan amendments would not have substantial adverse effects on the

forests was arbitrary and capricious.

Remand to the Forest Service

Because the 2012 Planning Rule requirements for

soil, riparian resources, and threatened and endangered

species are directly related to the purpose and effect of

the GWNF and MNF Forest Plan amendments, the

Forest Service must “apply [those] requirement[s] within the scope and scale of the amendment.” Sierra Club,

897 F.3d at 603 (quoting 36 C.F.R. § 219.13(b)(5) (alterations in Sierra Club)). Accordingly, we remand to the

Forest Service for proper application of the Planning

Rule requirements for soil, riparian resources, and

threatened and endangered species to the Forest Plan

amendments.

The Forest Service contends that remand is unnecessary because the Plan amendments already meet the

substantive requirements of the 2012 Planning Rule.

Thus, the Forest Service asserts, any error in applying

the 2012 Planning Rule was harmless. We find no basis

to support such a conclusion. In fact, the ROD suggests just the opposite is true: in its analysis of the

amendments’ compliance with the 2012 Planning Rule’s

substantive requirements, the Forest Service explicitly

stated when an amendment met the applicable substantive requirement. For example, regarding the GWNF

Plan amendment for utility corridors, the ROD states:

29a

The FEIS evaluated a variety of options to transport

natural gas and adequately analyzed the appropriate

placement and sustainable management of the ACP.

Consequently, I find this amendment meets the 36

CFR 219.10(a)(3) planning rule requirement. Since

the amendment meets the rule requirement, there is

no need to make a further determination as to whether the rule requirement is directly related to it.

J.A. 41-42 (emphasis supplied); see also id. at 44, 46, 47,

48 (similarly concluding that the Plan amendments for

the ANST, scenic integrity objectives, road reconstruction, and management of old growth, respectively, meet

the 2012 Planning Rule’s substantive requirements and

thus “there is no need” to determine whether the substantive requirement is directly related to the amendment).

Yet, tellingly, the Forest Service specifically did not

conclude that the GWNF and MNF Plan amendments

for soils, riparian areas, and threatened and endangered

species met the applicable 2012 Planning Rule’s substantive requirement. Instead, it concluded (incorrectly) that in each case, the substantive requirements

were not directly related to the applicable Plan amendment. According to the ROD, conducting the directly

related analysis would have been unnecessary if the

amendment in fact satisfied the substantive requirement: where “the amendment meets the rule requirement, there is no need to make a further determination

as to whether the rule requirement is directly related to

it.” J.A. 41-42 (emphasis supplied)). Accordingly, the

case must be remanded.

30a

Public Participation Requirements

Petitioners further assert that the Forest Service violated the NFMA because it provided no opportunity for

public comment for four of the amended forest plan

standards. Even assuming Petitioners are correct (a

point the Forest Service disputes), Petitioners do not attempt to demonstrate “that the outcome of the process

would have differed in the slightest had notice been at

its meticulous best.” Friends of Iwo Jima v. Nat’l

Capital Planning Comm’n, 176 F.3d 768, 774 (4th Cir.

1999). Without even an allegation of prejudice, Petitioners fail to carry their burden to prove that any

notice-related deficiency was prejudicial. Accordingly,

we reject this argument.

Accommodation of the ACP Project on

Non-National Forest Land

Petitioners assert that the Forest Service violated

NEPA by failing to consider alternatives that avoid national forest land. Relatedly, Petitioners argue that

the Forest Service violated the GWNF and MNF Plans

and the NFMA because it failed to demonstrate that the

ACP project’s needs could not be reasonably met on

non-national forest lands.

The GWNF Plan limits “Special Use Authorizations”

to “needs that cannot be reasonably met on non[National Forest System] lands or that enhance programs and activities.” J.A. 4068 (emphasis supplied).

Similarly, an MNF Plan goal states: “[p]roposed special uses of [National Forest System] lands . . . are

considered that meet public needs, are consistent with

31a

direction for other Forest resources and management

prescriptions, and cannot be accommodated off the National Forest.” J.A. 4069 (emphasis supplied). Finally,

the Forest Service’s regulations state: “[a]n authorized officer shall reject any proposal . . . if, upon

further consideration, the officer determines that:

. . . the proposed use would not be in the public interest.” 36 C.F.R. § 251.54(e)(5)(ii). The Forest Service

Manual provides further guidance on § 251.54(e)(5)(ii),

directing that a proposed use should be authorized as “in

the public interest” “only if . . . the proposed use cannot reasonably be accommodated off of National Forest

System lands.” Forest Serv. Manual, Addendum to

Pet’rs’ Br. 65-66 (emphasis supplied). The Forest Service Manual further directs, “[d]o not authorize the use

of National Forest System lands solely because it affords the applicant a lower cost or less restrictive location.” Id. at 66.

We agree that the Forest Service violated its obligations under the NFMA and its own Forest Plans because it failed to demonstrate that the ACP project’s

needs could not be reasonably met on non-national forest lands. The Forest Service’s ROD adopted and incorporated FERC’s alternative routes analysis in the

EIS, but the EIS applied a different standard than the

one imposed on the Forest Service by the NFMA and its

own Forest Plans. In the EIS, FERC considered only

whether a route alternative “confers a significant environmental advantage over the proposed route.” J.A.

1533. This is a significantly different standard than

whether the proposed use “cannot reasonably be accommodated off of National Forest System lands.” Forest

Serv. Manual, Addendum to Pet’rs’ Br. 65-66 (emphasis

supplied); cf. Sierra Club, 897 F.3d at 604-05 (concluding

32a

that the Bureau of Land Management violated its MLA

obligations where it failed to analyze whether alternative pipeline routes were “impractical,” as required by

the Bureau’s regulations, and instead adopted an EIS

that considered only whether an alternative route offered a “significant environmental advantage”).

Accordingly, adopting FERC’s EIS was not sufficient for the Forest Service to fulfill its obligations under the Forest Service Manual and its own Forest Plans,

and the Forest Service did not purport to undertake this

required analysis anywhere else in the ROD.

The Forest Service asserts that it “determines project consistency only ‘with respect to standards and

guidelines,’ not general forest planning ‘goals’ like Monongahela LS17.” Resp’t’s Br. 24 (quoting 2012 Planning Rule, 77 Fed. Reg. at 21,241). As an initial matter,

the Forest Service regulations and the Forest Service

Manual apply to both the GWNF and the MNF, so even

if the court were to disregard the MNF goal cited by

Petitioners, the proposed use of national forest land

must still fit the Forest Service Manual’s definition of

“in the public use,” which contains essentially the same

requirement as the MNF goal: that the proposed use

cannot be reasonably accommodated outside of the national forest. See Forest Serv. Manual, Addendum to

Pet’rs’ Br. 65-66.

However, the Forest Service’s assertion about forest

planning goals and objectives deserves additional discussion. The regulatory guidance quoted by the Forest Service—from the preamble to the 2012 Planning

Rule, 77 Fed. Reg. at 21,241—is a response by the Forest Service to a public comment regarding the 2012

Planning Rule’s consistency requirement, which states:

33a

The Forest Service policy was that consistency

could only be determined with respect to standards

and guidelines, or just standards, because an individual project alone could almost never achieve objectives and desired conditions. . . .

The Department continues to believe that the consistency requirement cannot be interpreted to require achievement of the desired conditions or objectives of a plan by any single project or activity, but

we believe that we can provide direction for consistency to move the plan area toward desired conditions and objectives, or to not preclude the eventual

achievement of desired conditions or objectives, as

well as direction for consistency with the other plan

components.

77 Fed. Reg. at 21,241 (emphasis supplied). In other

words, even if the Forest Service is not required to conclude that an individual project alone meets a forest

planning goal, it is not free to disregard the goal

entirely—as the Forest Service apparently wishes to do

here.

The Forest Service was aware of its obligation to determine that the ACP project could not be reasonably

accommodated on non-national forest land from the beginning of the project. Indeed, the Forest Service specifically cited to the Forest Service Manual and Forest

Plan requirements in its initial scoping comments in response to FERC’s Notice of Intent to Prepare an EIS.

See J.A. 3593 (“[T]he analysis must address Forest Service Manual direction that restricts special uses to those

that cannot reasonably be accommodated on non-National

Forest System lands (FSM 2703.2).”); id. at 3593-94

34a

(stating that the GWNF Plan requires special use authorizations be “[l]imit[ed] to needs that cannot be reasonably met on non-[National Forest System] lands or

that enhance programs and activities”). The Forest

Service’s failure to undertake this analysis violated the

NFMA. Accordingly, we remand to the Forest Service

for proper analysis of whether the ACP project’s needs

can be reasonably met on non-national forest lands, in

compliance with the NFMA and the GWNF and MNF

Plans.

National Environmental Policy Act

As this court recently explained in Sierra Club v.

Forest Service, Congress enacted NEPA “to reduce or

eliminate environmental damage.” 897 F.3d at 590

(quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,

756 (2004)). “ ‘NEPA itself does not mandate particular results in order to accomplish these ends,’ but rather,

‘imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their

proposals and actions.’ ” Id. (quoting Dep’t of Transp.,

541 U.S. at 756-57).

NEPA requires that agencies consider alternatives

to the proposed action, 40 C.F.R. § 1502.14, and “take a

hard look at environmental consequences,” Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)

(internal quotation marks omitted). To that end, whenever a federal agency proposes to take a “major Federal

action[] significantly affecting the quality of the human

environment,” the agency must prepare a detailed EIS

35a

describing the likely environmental effects of the proposal, any unavoidable adverse environmental effects,

and potential alternatives. 42 U.S.C. § 4332(2)(C). Consideration of alternatives “is the heart of the [EIS].”

40 C.F.R. § 1502.14.

In this case, FERC was the lead agency charged with

issuing the EIS, and the Forest Service acted as a cooperating agency by assisting FERC to analyze the environmental impacts to 430 acres of national forest lands

on the proposed ACP route. As a cooperating agency,

the Forest Service may adopt FERC’s EIS only if it undertakes “an independent review of the [EIS]” and “concludes that its comments and suggestions have been satisfied.” 40 C.F.R. § 1506.3(c); see also Sierra Club,

897 F.3d at 590. It must also ensure that the EIS is “adequate” under NEPA regulations. 40 C.F.R. § 1506.3(a).

In reviewing an EIS, the court’s responsibility is to “determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Sierra

Club, 897 F.3d at 594 (quoting Balt. Gas & Elec. Co. v.

Nat. Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)).

Petitioners assert that the Forest Service violated

NEPA by (1) failing to study alternative off-forest

routes, and (2) adopting a FEIS that failed to take a

hard look at landslide risks, erosion, and degradation of

water quality.

36a

Study of Alternative Off-Forest Routes

As noted above, an agency may only adopt an EIS if

it “meets the standards for an adequate statement” under the applicable regulations. 40 C.F.R. § 1506.3(a).

One applicable regulation provides:

If a [DEIS] is so inadequate as to preclude meaningful analysis, the agency shall prepare and circulate a

revised draft of the appropriate portion. The agency shall make every effort to disclose and discuss at

appropriate points in the draft statement all major

points of view on the environmental impacts of the alternatives including the proposed action.

Id. § 1502.9(a) (emphasis supplied). Petitioners assert

that FERC’s FEIS was inadequate because it failed to

sufficiently study alternative pipeline routes for the

ACP that avoided national forest lands. According to

Petitioners, the Forest Service violated NEPA because

it adopted FERC’s inadequate EIS without undertaking

the required “independent review,” and because the

FEIS did not satisfy the Forest Service’s earlier comments and suggestions on the DEIS. Id. § 1506.3(c).

In counter, the Forest Service asserts that once

FERC had issued the Certificate of Convenience and

Public Necessity, the choice before the Forest Service

was simple: either approve the pipeline route as it was

authorized by FERC or deny the right of way. According to the Forest Service, since FERC was responsible

for analyzing alternative pipeline routes, the Forest

Service reasonably relied on that alternatives analysis

in adopting the FEIS.

37a

The Forest Service frames Petitioners’ argument as

an impermissible collateral attack on FERC’s actions,

but that ignores the Forest Service’s obligation to “independent[ly] review” the EIS and ensure its comments

and suggestions to the lead agency were satisfied before

adopting it. 40 C.F.R. § 1506.3(c). Neither the Forest Service nor Atlantic points to evidence in the record

to demonstrate that the Forest Service undertook the

required independent review. To the contrary, the

record suggests that they did not. Instead, the record

reflects that at first the Forest Service strenuously objected to the lack of non-national forest route alternatives in the DEIS, but it eventually reversed course and

adopted the FEIS even though the analysis of nonnational forest alternatives was unchanged from the

DEIS—all in an effort to prevent Atlantic from having

to obtain congressional approval for the project to cross

the ANST.

From the beginning, the Forest Service made clear

through its comments to FERC and Atlantic that the

EIS would need to analyze non-national forest alternative routes and justify the necessity of any proposed

route crossing of national forest lands. The Forest

Service’s scoping comments for the ACP project noted:

It is . . . necessary to understand why any proposed routes (preferred or alternative) crossing [National Forest System] lands are selected over those

not crossing [National Forest System] lands. Therefore, the EIS should contain a comparison of project

effects for routes crossing [National Forest System]

lands versus routes not crossing [National Forest

System] lands. Discussions and other relevant in-

38a

formation should also be provided to justify the necessity of any proposed route crossing [National Forest System] lands. . . . Comparisons of the alternatives should be based on analyses of site-specific

impacts to resources potentially affected by the proposed project, which may not necessarily be correlated with the footprint of the proposed project.

J.A. 3593.

Then, FERC’s DEIS indicated that “[a] significant

factor in siting ACP was the location at which the pipeline would cross the ANST.” J.A. 3207. As the DEIS

stated, crossing the ANST on NPS lands would require

congressional approval. “Because of this legislative

process”—that is, to avoid obtaining congressional approval to cross the ANST on NPS lands—“Atlantic considered locations where the ANST was located on [Forest Service lands], which significantly constrained the

pipeline route and severely limits opportunities for

avoiding and/or minimizing the use of [National Forest

System] lands.” Id. at 3207-08 (emphasis supplied).

Because of this, and even though ground resource surveys had not been conducted, FERC concluded that it

“ha[d] not identified or received any information that

suggests the shorter pipeline route through the National Forests has significantly greater impacts to sensitive resources than the alternative” that avoided national forest lands. Id. at 3208. In response to this

analysis of off-forest routes in the DEIS, the Forest Service commented:

No analysis of a National Forest Avoidance Alternative has been conducted, and environmental impacts

of this alternative have not been considered or compared to the proposed action. Therefore, the Forest

39a

Service cannot support the recommendation that the

National Forest Avoidance Alternative be dropped

from consideration. In our scoping comments, we

requested that all alternatives, including a National

Forest Avoidance Alternative, be fully addressed in

regard to their feasibility and environmental effects.

We hereby reiterate that request.

Id. at 2454. Further, in response to the DEIS’s assertion that in general, as the length of a pipeline route increases, the environmental impacts also increase, the

Forest Service commented: “Miles of line do not necessarily equate to severity of the environmental impact.

The nature of the resources to be impacted needs to be

considered. The Forest Service has previously requested that such comparative information on impacts

be obtained and considered for alternatives to the proposed action.” Id. at 2451.

Despite the Forest Service’s concerns regarding the

lack of study of off-forest alternatives, the “National

Forest Avoidance Route Alternatives” section in the

FEIS is identical to the DEIS. Nevertheless, on the

very same day that FERC issued the FEIS, the Forest

Service released its draft ROD, which proposed adopting the FEIS (and, consequently, the unchanged alternatives analysis). Without explaining the Forest Service’s change of position from the scoping comments or

its comments on the DEIS, the draft ROD states:

“FERC’s evaluation concluded that the major pipeline

route alternatives and variations do not offer a significant environmental advantage when compared to the

proposed route or would not be economically practical.”

J.A. 1411. The Forest Service’s discussion on this point

40a

was essentially identical in its response to objections

filed to the draft ROD and in its final ROD. 4

The Forest Service asserts, “Petitioners present no

record evidence that FERC did not” continue to analyze

non-national forest alternatives following the Forest

Service’s comments on the DEIS. Resp’t’s Br. 39.

But no such analysis is apparent anywhere in the record,

and most tellingly, neither the Forest Service nor Atlantic even attempt to identify evidence to demonstrate

that FERC did anything to address the Forest Service’s

concerns about off-forest alternative routes. What is

The Forest Service’s response to objections filed to the draft

ROD stated:

The Project Record shows consideration of alternatives that avoid

National Forests. One such alternative would have increased the

route by 43 miles to the south and another would have increased

the route by 15 miles to the north. The FERC noted, as a general

matter, environmental impacts increase as the length of a pipeline

route increases. Furthermore, the FERC lacked information concluding a shorter overall route through NFS lands would have significantly greater impacts on sensitive resources. . . . Therefore, it was concluded these alternatives would not provide a significant environmental advantage over a shorter route that passes

through National Forests.

J.A. 676. Similarly, the final ROD stated:

The proposed crossing of the MNF and GWNF received a considerable amount of comment and criticism from stakeholders, and

accordingly, resulted in a number of evaluated route alternatives

and variations. FERC evaluated . . . several variations to avoid

or minimize crossing of [Forest Service] and [NPS] lands. . . .

FERC’s evaluation concluded the major pipeline route alternatives

and variations do not offer a significant environmental advantage

when compared to the proposed route or would not be economically

practical.

Id. at 48.

41a

apparent from the record is that: (1) the Forest Service repeatedly expressed concerns about the need to

analyze alternative pipeline routes that avoided the national forests (particularly in the scoping comments,

comments on the draft resource reports, and the DEIS);

(2) FERC’s analysis of alternative pipeline routes remained unchanged from the DEIS to the FEIS, and

there is no other evidence apparent from the record that

FERC addressed the Forest Service’s concerns about

off-forest alternative routes; and (3) the Forest Service

never explains, in the ROD or elsewhere, how its concerns about off-forest alternative routes were assuaged.

The chain of events surrounding the Forest Service’s

sudden acquiescence to the alternatives analysis in the

FEIS is similar to that in Sierra Club v. Forest Service,

where we determined that the Forest Service had acted

arbitrarily and capriciously in adopting the sedimentation analysis in the FEIS for a different pipeline project.

See Sierra Club, 897 F.3d at 594-96. Here, like in Sierra Club, “[g]iven the circumstances, we simply cannot

conclude that the Forest Service undertook an independent review and determined that its comments and

concerns were satisfied” when it seemingly dropped its

demand that off-forest alternative routes be studied before the ACP was authorized without any further analysis. Id. at 595. In light of this, and particularly considering the Forest Service’s earlier skepticism that location decisions for the ACP were made solely to avoid

congressional approval, 5 we hold that adopting the

See, e.g., J.A. 3661 (“[T]he report should . . . not base all of

the routing decisions for the [ANST] crossing on project timeline issues with getting [c]ongressional approval. The proposed location

42a

unchanged alternatives analysis in the FEIS was arbitrary and capricious.

Analysis of Landslide Risks, Erosion, and

Degradation of Water Quality

Petitioners further contend that the Forest Service’s

deficient analysis of landslide risks, erosion impacts, and

water quality degradation from the ACP project violated NEPA. Specifically, Petitioners assert that the

Forest Service abandoned its request for ten sitespecific stabilization designs prior to granting the SUP,

which it previously stated were necessary to evaluate effects under NEPA, and instead accepted the two that

Atlantic provided as “adequate” without explanation for

this change in position. Additionally, Petitioners assert that Atlantic’s erosion and sedimentation mitigation plan had not been determined at the time the FEIS

and ROD were issued. Thus, the Forest Service did

not know if the mitigation measures it relied on to approve the project would actually be successful. As a result, Petitioners argue that the FEIS does not provide

“a thorough investigation into the environmental impacts of [the] agency’s action.” Pet’rs’ Reply Br. 29

(quoting Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d

174, 185 (4th Cir. 2005)). For its part, the Forest Service contends that it thoroughly analyzed the impacts of

the proposed route on national forest lands, and that

NEPA does not require an agency to formulate and

adopt a complete mitigation plan before it can act.

for crossing the [ANST] need[s] to be based on sound resource and

compelling public interest determinations.”).

43a

As noted above, NEPA does not require the Forest

Service to ensure “environment-friendly outcomes.”

Nat’l Audubon Soc’y, 422 F.3d at 184. Rather, “an

agency decision is acceptable even if there will be negative environmental impacts resulting from it, so long as

the agency considered these costs and still decided that

other benefits outweighed them. ‘NEPA merely prohibits uninformed—rather than unwise—agency action.’ ”

Id. (quoting Robertson, 490 U.S. at 350-51 (citations

omitted)). Nevertheless, an EIS must still “contain a

detailed discussion of possible mitigation measures.”

Robertson, 490 U.S. at 351. Further, NEPA requires

“particular care” “when the environment that may be

damaged is one that Congress has specially designated

for federal protection,” such as national forests. Nat’l

Audubon Soc’y, 422 F.3d at 186-87.

We conclude that the Forest Service violated NEPA

by failing to take a hard look at the environmental consequences of the ACP project. The Forest Service expressed serious concerns that the DEIS lacked necessary information to evaluate landslide risks, erosion impacts, and degradation of water quality, and it further

lacked information about the effectiveness of mitigation

techniques to reduce those risks.

Specifically, the record reflects that the Forest Service voiced concerns about (1) authorizing the SUP without ten site-specific stabilization designs to demonstrate

the effectiveness of Atlantic’s BIC program; (2) the

overly high efficiency rate of erosion control devices

used in the sedimentation analysis (96 percent); (3) relying on the use of water bars as a mitigation technique,

when Atlantic had not analyzed whether water bars

44a

would mitigate or exacerbate erosion effects during construction; and (4) Atlantic’s use of averaged versus episodic sediment calculations to analyze the water resource impacts from increases in sedimentation due to

the ACP project.

However, the FEIS did not address any of these concerns; rather, it made clear that this incomplete and/or inaccurate analysis in the DEIS remained incomplete. The

FEIS stated (among other examples): “slope instability/

landslide risk reduction measures have not been completed or have not been adopted,” J.A. 1615; “[Atlantic

is] currently working to provide documentation of the

likelihood that their proposed design features and mitigation measures would minimize the risk of landslides

in the project area,” id. at 1616 (emphasis supplied);

“specific [erosion] effects are unknown” and “it is

unclear if erosion control and rehabilitation measures

would meet the standards of the Forest Plan[s],” id. at

1659; and “water resource impacts from sedimentation

are largely uncertain,” id. at 1663.

Accordingly, the FEIS could not have satisfied the

Forest Service’s concerns that the DEIS lacked necessary information to evaluate the environmental consequences of the pipeline. Indeed, the FEIS conceded

that the Forest Service’s concerns remained unresolved.

Nevertheless, as Atlantic’s deadlines drew near, the

Forest Service disregarded these concerns and adopted

the FEIS—including its conclusions that landslide risks,

erosion impacts, and degradation of water quality remained unknown—the very same day FERC issued it.

To support its decision to approve the project and grant

the SUP, the Forest Service relied on the very mitigation measures it previously found unreliable. This was

45a

insufficient to satisfy NEPA, and did not constitute the

necessary hard look at the environmental consequences

of the ACP project.

Landslide Risks

The Forest Service clearly explained its concerns

about landslides, erosion, and pipeline safety and stability in its October 24, 2016 letter requesting the ten sitespecific stabilization designs:

The route for the [ACP project] proposed by [Atlantic] would cross some very challenging terrain in

the central Appalachians. Potentially difficult situations include steep slopes, presence of headwater

streams, geologic formations with high slippage potential, highly erodible soils, and the presence of

high-value natural resources downslope of high hazard areas. These hazards are exacerbated by high

annual rates of precipitation and the potential for extreme precipitation events.

Similar hazards on other smaller pipeline projects

in the central Appalachians have led to slope failures,

erosion and sedimentation incidents, and damage to

aquatic resources. Therefore, the [Forest Service]

is concerned that crossing such challenging terrain

with a much larger pipeline could present a high risk

of failures that lead to resource damage.

J.A. 3379.

In addition to highlighting these concerns, the Forest

Service’s October 24, 2016 letter made clear that the ten

selected sites were “merely representative sites,” required for the Forest Service to determine whether the

46a

ACP project could be permitted in the GWNF and

MNF. J.A. 3379. In other words, the site designs were

needed to aid the Forest Service in its decision whether

to permit the pipeline at all. Accordingly, the Forest

Service’s later decision to only require the designs prior

to construction was not simply a question of timing. It

meant the Forest Service approved the pipeline without

information it previously determined was necessary to

making its decision, and it did so without acknowledging, much less explaining, its change in position.

The Forest Service’s reversal is particularly puzzling

considering the reason it requested the site-specific stabilization designs in the first place: to demonstrate

that Atlantic’s BIC program could actually work in particular conditions, rather than simply being a “cookbook

with generalities.” J.A. 2514. The Forest Service

also conducted a literature review on Atlantic’s BIC incremental controls to attempt to determine the effectiveness of these measures. Far from proving the effectiveness of the BIC program, the literature review

concluded: “[T]he majority of these BIC incremental

controls are either too new to provide any real insight to

the effectiveness on erosion control, especially on steep

slopes, or there has not been any research to prove the

effectiveness of these incremental controls for adequate

erosion control.” Id. at 3703.

Thus, despite its own well-documented concerns with

Atlantic’s mitigation plans, the Forest Service abandoned its request for the eight site-specific stabilization

designs and adopted the FEIS, all without sciencebased evidence of the BIC program’s effectiveness.

This falls far short of NEPA’s hard look requirement,

and the Forest Service’s brief, conclusory letter stating

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that the information provided by Atlantic was “adequate” is insufficient to show that the Forest Service’s

concerns had been addressed as NEPA requires.

J.A. 1881.

Perhaps nothing demonstrates the dangers of the

Forest Service’s insufficient analysis of landslide risks

clearer than the FEIS’s use of the Columbia Gas Transmission pipeline as an example of an existing pipeline in

the Appalachian Mountains that safely crosses karst

terrain. See, e.g., J.A. 1589, 1609 (“There are differences between ACP and corridor and the Columbia pipeline project and corridor, and so, there can be more potential for project-induced slope failures in the ACP

corridor. But the decades of slope stability performance of the Columbia pipeline corridor on slopes generally similar to those along the ACP pipeline route is

relevant information to consider.”). Significantly, during the briefing of this case, a landslide in Marshall

County, West Virginia, caused the Columbia pipeline—

highlighted by the Forest Service for its safety and

stability—to rupture and explode. 6 Clearly, the Forest

Service’s concerns about landslide risks and pipeline

safety highlighted in its October 24, 2016 letter deserve

serious consideration, for the protection of both the environment and the public.

See, e.g., Anya Litvak, Landslide Caused West Virginia Pipeline

Explosion, TransCanada Reports, Pittsburgh Post-Gazette (July

11, 2018), http://www.post-gazette.com/business/powersource/2018/

07/11/Landslide-caused-pipeline-explosion-Columbia-Gas-reported/

stories/201807100176. We can take judicial notice of this fact because it “is not subject to reasonable dispute” and “can be accurately

and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

48a

Erosion Impacts and Degradation of Water Quality

In adopting the FEIS and approving the pipeline, the

Forest Service concluded that because of “mitigation

measures, impacts on groundwater and surface waters

will be effectively minimized or mitigated.” J.A. 25.

However, as explained above, the Forest Service had

previously expressed serious concerns about the extensive erosion and sedimentation that the ACP project

could cause, and it additionally questioned the mitigation techniques that Atlantic relied on to reduce those

impacts. This is particularly true regarding the overly

high efficiency rate of erosion control devices used in the

sedimentation analysis (96 percent), the use of water

bars as a mitigation technique, and the use of averaged

versus episodic sediment calculations to analyze water

resource impacts in the sedimentation analysis. Despite

these concerns, and the FEIS’s conclusion that “specific

[erosion] effects [remained] unknown,” id. at 1659, the

Forest Service nevertheless relied on the incomplete

analysis in the FEIS and disregarded its concerns about

the effectiveness of the mitigation techniques.

For example, in the draft biologic evaluation, Atlantic

asserted that installation of erosion control devices

would “reduce erosion by about 96 percent.” J.A. 2633.

The Forest Service criticized this conclusion in its

March 10, 2017 comments to the draft biologic evaluation, stating, “Use of lab testing and efficiency rates are

inappropriate for steep slope pipeline construction.

Update model with more conservative assumptions about

containment efficiencies. Document the literature references that apply to efficiencies in the field, particularly

mountainous terrain in WV and VA.” Id. at 2357.

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However, Atlantic did not comply with the Forest

Service’s request, and the 96 percent erosion control efficiency rate remained in Atlantic’s August 2017 Soil

Erosion and Sedimentation Modeling Report. See J.A.

909 (“Installation of [erosion control devices] was predicted to reduce erosion by about 96 percent.”). We

note that this report was issued five months after the

Forest Service directed Atlantic to update its erosion efficiency rate, one month after the Forest Service issued

its draft ROD, just two months before the final version

of the COM Plan was issued, and only three months before the Forest Service issued the final ROD. Accordingly, we see no evidence in the record that the Forest

Service’s concerns regarding the 96 percent erosion control efficiency rate were ever resolved; nonetheless, the

Forest Service ultimately relied on this figure to determine that Atlantic’s proposed mitigation measures would

effectively reduce erosion and sedimentation impacts

from the ACP project.

During oral argument, Atlantic claimed that the Forest Service’s concern about the 96 percent efficiency

rate was resolved because Atlantic agreed not to use silt

fences as a mitigation technique in certain areas, which

it claims were the cause of the “overly optimistic” efficiency rate. Oral Argument at 37:50-39:41. As counsel for Atlantic stated:

The Forest Service never accepted the 96 percent efficiency. Indeed, that model was predicated on a

standard erosion and sediment control device called

the silt fence. Instead of debating . . . over the

percent effectiveness of the silt fence, the Forest Service made a much more direct and compelling move,

50a

which was to prohibit the use of silt fences in the areas over which it had concern . . . Atlantic committed not to use the silt fences that were the subject

of the overly optimistic erosion sediment model.

Id.

As an initial matter, we note that the Soil Erosion and

Sedimentation Modeling Report attributes the 96 percent erosion control efficiency rate to all erosion control

devices “such as silt fences, waterbars, and mulch application,” not just silt fences. J.A. 929. Additionally,

the final draft of the COM Plan is riddled with uses of

silt fences as proposed mitigation techniques. See, e.g.,

id. at 303, 409, 473, 475, 586, 587.

However, even if Atlantic is correct that it committed

not to use silt fences in certain areas, this is beside the

point. The use of silt fences was not the problem.

The problem, as the Forest Service itself pointed out,

was assuming that these devices would function nearly

perfectly to reduce erosion and sediment, despite a wealth

of evidence to the contrary. This assumption remained

in the August 2017 Soil Erosion and Sedimentation Modeling Report. See J.A. 908 n.2 (“The effectiveness predicted by the model is influenced by slope, soil, groundcover, and type of erosion control device; the model assumes perfect installation, soil retention, and maintenance.” (emphasis supplied)). This assumption infected the sedimentation model—the model that produced the “200 to 800 percent above baseline erosion”

estimate cited in in the ROD. Id. at 25.

Crucially, we can identify no other more conservative

efficiency rate used to correct the sedimentation model

51a

which drove the Forest Service’s erosion and sedimentation analysis. Indeed, the use of the 96 percent efficiency rate in the August 2017 Soil Erosion and Sedimentation Modeling Report, which was issued only

three months before the Forest Service’s final ROD,

suggests that the Forest Service’s concern with Atlantic’s overly high efficiency rate for erosion control devices was never resolved. See J.A. 908-09 (“Installation of [erosion control devices] was predicted to reduce

erosion by about 96 percent.”).

Additionally, the FEIS relied on the use of water

bars as a mitigation technique that would reduce the environmental impacts of the ACP project. See J.A. 1662

(“The use of water bars (i.e., slope breakers) was assumed on long slopes. . . .”). The Forest Service had

previously stated in its comments on Atlantic’s updated

biologic evaluation that further analysis was needed to

determine whether water bars would be effective:

“Slope breaker locations relative to pertinent habitat

features need to be disclosed[.] It is important to be

sure that they are not potentially directing water into

habitats (in which case they would actually do more

harm than good).” Id. at 2337. Nevertheless, the

FEIS candidly acknowledged that this further analysis

was never done:

[W]ater bars create concentrated flows where they

discharge adjoining off right-of-way areas. The

[Forest Service] has stated that Atlantic has not assessed how or whether the adjoining areas can receive concentrated flows, or whether measures would

be implemented to allow these areas to safely receive

and convey the concentrated flows. In addition, the

slopes to be encountered in the MNF and GWNF

52a

would require several water bars to be “stacked”

along their length, creating multiple points of discharge. The [Forest Service] has stated the potential impacts of multiple points of concentrated discharges onto the adjoining areas has not been assessed.

Id. at 1663 (emphasis supplied). Once again, the Forest Service adopted the FEIS (including its use of water

bars as a mitigation technique), issued its ROD, and

granted the SUP based on an erosion and sedimentation

analysis using water bars as a mitigation technique, despite the clear evidence in the record that (1) the Forest

Service had concerns with this technique; (2) the Forest

Service’s concerns were not resolved in the FEIS; and

(3) the effectiveness of water bars for this project was

never analyzed.

Finally, the record further reflects that the Forest

Service believed Atlantic used an incorrect calculation

to analyze how sedimentation from the ACP project

would impact aquatic species. In its draft biologic evaluation, Atlantic analyzed the total sediment that would

erode a stream in a year divided by the volume of water

that would flow through the stream in a year—to create

an average sediment level over an entire year—rather

than analyzing sediment levels in terms of discrete episodic events, where the sediment levels vary based on

precipitation events that cause larger amounts of erosion to enter the stream. In other words, Atlantic employed a simplistic (and unrealistic) calculation that

made in-stream sedimentation levels look much lower

than they would be during construction. Of note, the

Forest Service sharply criticized this approach in its

comments on the draft biologic report:

53a

This entire paragraph has false rationale and needs

to be deleted or modified extensively. Erosion and

sediment transport to streams cannot be averaged

evenly over a year, rather it happens in discrete episodic events. It is not appropriate to minimize impacts by making a comparison of total load evenly

spread over time. The point of the load calculation

is to address impacts to sensitive aquatic species

which are impacted by flow and timing of sediment

during these erosion events.

J.A. 2358. However, despite the Forest Service’s concerns with Atlantic’s calculations in the sedimentation

analysis, the record does not indicate that Atlantic ever

updated its calculation to reflect actual conditions.

Nevertheless, the Forest Service adopted Atlantic’s updated biologic report and the FEIS, and it concluded

that erosion and sedimentation from the ACP project

would not substantially adversely affect sensitive aquatic

species.

The Forest Service argues—correctly—that NEPA

does not require a fully formed mitigation plan to be in

place. As this court has noted, “it would be inconsistent

with NEPA’s reliance on procedural mechanisms—as opposed to substantive, result-based standards—to demand

the presence of a fully developed plan that will mitigate

environmental harm before an agency can act.” Robertson, 490 U.S. at 353. However, in this case, the Forest Service adopted the FEIS and issued its draft ROD

in reliance on a mitigation plan that had not been established, and one that, as demonstrated by the Forest

Service’s own concerns, had not been proven effective.

To satisfy NEPA in this case, the Forest Service

needed to resolve its own concerns with the EIS—

54a

which, for the reasons we have explained, it did not do—

and it needed to have a reasonable basis for concluding

that the mitigation plan, once fully formed, would be effective. Here, the Forest Service relied on the generalities of the BIC program and other techniques proposed by Atlantic to achieve particular mitigating results, with neither actual site designs nor science-based

evidence demonstrating such results were likely. This

is precisely the sort of uninformed agency action that

NEPA prohibits. See Nat’l Audubon Soc’y, 422 F.3d

at 184.

Accordingly, we cannot conclude that the Forest Service took a hard look at the environmental consequences

of its decision. Rather, the record before us readily

leads to the conclusion that the Forest Service’s approval of the project “was a preordained decision” and

the Forest Service “ ‘reverse engineered’ the [ROD] to

justify this outcome,” despite that the Forest Service

lacked necessary information about the environmental

impacts of the project. Nat’l Audubon Soc’y, 422 F.3d

at 183 (concluding that the U.S. Navy “reverse engineered” its EIS to achieve a particular outcome, and

although “[t]he deficiencies in each area of the Navy’s

analysis would not, on their own, be sufficient to invalidate the EIS,” “a review of the various components of

the EIS taken together indicates that the Navy did not

conduct the ‘hard look’ that NEPA requires.”).

Pursuant to NEPA, we conclude the Forest Service

acted arbitrarily and capriciously in adopting the FEIS

and granting the SUP. Upon remand, the Forest Service should explain its decision that receiving only two

of the eight site-specific stabilization designs was “adequate” to determine the environmental effects of the

55a

ACP project, and it should also explain how it took a

“hard look” at the erosion, sedimentation, and water

quality issues discussed here considering the Forest

Service’s numerous concerns that were not addressed in

the FEIS. If supplemental analysis is needed, particularly regarding the effectiveness of mitigation strategies relied on in the COM Plan, the Forest Service should

perform that analysis as well.

Mineral Leasing Act

The MLA authorizes the “Secretary of the Interior

or appropriate agency head” to grant gas pipeline rights

of way across “Federal lands.” 30 U.S.C. § 185(a). As

relevant here, “Federal lands” means “all lands owned

by the United States except lands in the National Park

System.” 30 U.S.C. § 185(b)(1) (emphasis supplied).

Pursuant to the Park Service’s Organic Act, land in the

National Park System includes “any area of land and

water administered by the Secretary [of the Interior]”

through NPS. 54 U.S.C. § 100501.

Congress designated the ANST as a National Scenic

Trail administered by the Secretary of the Interior, who

delegated that duty to NPS. See 16 U.S.C. § 1244(a)(1).

Accordingly, the ANST is land in the National Park System. The parties are generally in agreement about this;

after NPS informed FERC that “the entire [ANST] corridor [is] part of the ANST park unit” and a “unit” of the

National Park System, J.A. 1849, 3186, FERC’s FEIS

concluded that NPS is “the lead federal agency for the

administration of the entire ANST” and that the ANST

“is a ‘unit’ of the national park system,” J.A. 1794. The

56a

parties also do not dispute that NPS indicated it does

not have authority under the MLA to grant pipeline

rights of way across the ANST. However, the parties

disagree about whether the Forest Service has the authority to grant such rights of way across the ANST.

The FEIS concluded:

The ANST is a unit of the National Park system;

however, the lands acquired and administered by the

[Forest Service] for the ANST are [National Forest

System] lands and subject exclusively to [Forest Service] regulations and management authority. . . .

[A]n authorization from the NPS is not required for

Atlantic’s proposed ANST crossing on [National Forest System] lands.”

Id. at 1489 (emphasis supplied).

The Forest Service asserts that the MLA authorizes

the Forest Service to grant pipeline rights of way on

Forest Service land traversed by the ANST. Specifically, the Forest Service argues that the National Trails

System Act, which provides for the administration of national trails like the ANST, distinguishes between the

“overall” administration of the ANST (with which NPS

is charged) and administration of the ANST’s underlying lands (most of which are under the jurisdiction of other

agencies, like the Forest Service). Pursuant to this reading of the National Trails System Act, the Forest Service

asserts, the MLA authorizes the Forest Service to grant

pipeline rights of way on portions of the ANST traversing

lands administered by the Forest Service.

The Forest Service largely relies on the following

language from the National Trails System Act to support this argument:

57a

The Secretary of the Interior or the Secretary of Agriculture as the case may be, may grant easements

and rights-of-way upon, over, under, across, or along

any component of the national trails system in accordance with the laws applicable to the national park

system and the national forest system, respectively:

Provided, That any conditions contained in such easements and rights-of-way shall be related to the policy

and purposes of this chapter.

16 U.S.C. § 1248(a) (emphasis supplied). The MLA,

the Forest Service asserts, prevents NPS from authorizing pipeline rights of way across components of the

ANST on National Park System lands, but it does not prevent the Forest System from authorizing pipeline rights of

way across components of the ANST on National Forest

System lands. In any event, the Forest Service concedes

that its position on this issue is entitled to no judicial deference. See Resp’t’s Surreply Br. 12-13.

The problem with the Forest Service’s argument is it

misreads both the MLA and the National Trails System

Act. The MLA specifically excludes lands in the National Park System from the authority of the Secretary

of the Interior “or appropriate agency head” to grant

pipeline rights of way. See 30 U.S.C. §§ 185(a), 185(b)(1).

In other words, the MLA concerns the land, not the

agency. The FEIS concluded, and the parties agree,

that the ANST is a unit of the National Park System.

Accordingly, even if the Forest Service were the “appropriate agency head” in this instance, it could not grant a

pipeline right of way across the ANST pursuant to the

MLA. Interpreting the MLA as the Forest Service argues would give the Forest Service more authority than

NPS on National Park System land. This defies logic.

58a

Further, the Forest Service is not the “appropriate

agency head” for the ANST. The Forest Service’s arguments notwithstanding, the National Trails System

Act does not distinguish between various levels of administration of the ANST (“overall” versus by “jurisdiction”); rather, as NPS explained to FERC, the Act is

clear that the Secretary of the Interior administers the

entire ANST, while “other affected State and Federal

agencies,” like the Forest Service, manage trail components under their jurisdiction. See 16 U.S.C. §§ 144(a),

1246(a). Indeed, 16 U.S.C. § 1246(a) clearly distinguishes

between trail administration and management:

The Secretary charged with the overall administration of a trail pursuant to section 1244(a) of this title

shall, in administering and managing the trail, consult with the heads of all other affected State and

Federal agencies. Nothing contained in this chapter shall be deemed to transfer among Federal agencies any management responsibilities established

under any other law for federally administered lands

which are components of the National Trails System.

§ 1246(a)(1)(A) (emphasis supplied).

Section 1248(a) of the Act does not transfer administration responsibilities of the ANST to the Forest Service simply because the Forest Service manages land

underlying components of the ANST. Although it is

true that § 1248(a) does permit the Secretary charged

with overall administration of a national trail—“[t]he

Secretary of the Interior or the Secretary of Agriculture

as the case may be”—to grant easements and rights of

way in accordance with the laws applicable to either the

National Park System or the National Forest System, in

this case, the applicable administrator is the Secretary

59a

of the Interior, not the Secretary of Agriculture, and the

applicable laws are those of the National Park System.

See 16 U.S.C. § 1244(a)(1) (“The Appalachian Trail shall

be administered primarily as a footpath by the Secretary of the Interior, in consultation with the Secretary

of Agriculture.”). Other national trails are administered by the Secretary of Agriculture and are subject

to laws applicable to the National Forest System—

the ANST is simply not one of those trails. See, e.g.,

§ 1244(a)(2), (5), (13), (14), (27), (30) (charging the Secretary of Agriculture with overall administration of the

Pacific Crest Trail, the Continental Divide National Scenic Trail, the Florida National Scenic Trail, the Nez

Perce National Historic Trail, the Arizona National Scenic Trail, and the Pacific Northwest National Scenic

Trail).

The Forest Service’s arguments to the contrary are

unavailing, and the Forest Service does not have statutory authority to grant pipeline rights of way across the

ANST pursuant the MLA. The Forest Service’s ROD

and SUP granting this right of way are, accordingly,

vacated.

The Forest Service also argues that Petitioners have

no standing to bring this challenge because they allege

no harm traceable to the right of way grant. For the

reasons this court explained in Sierra Club v. U.S. Department of the Interior, this standing argument fails.

See 899 F.3d 260, 282-85 (4th Cir. 2018). Petitioners’

alleged injuries are fairly traceable to the Forest Service because “without [the Forest Service’s] grant of a

right of way, the pipeline could not have been authorized

in its currently proposed form. It therefore cannot be

60a

said that Petitioners’ injuries are ‘the result of the independent action of some third party not before the

court.’ ” Id. at 284 (quoting Bennett v. Spear, 520 U.S.

154, 168-69 (1997)).

Furthermore, the Forest Service asserts that Petitioners waived their argument that the Forest Service

lacks statutory authority to grant rights of way across

the ANST because Petitioners failed to adequately raise

that argument before the Forest Service. In comments on the draft ROD, Petitioners objected to the

agency’s failure to consider non-national forest routes

for the pipeline and the viability of Atlantic’s proposed

method for crossing the ANST. Petitioners did not

challenge the Forest Service’s authority to issue the

right of way in the first instance.

Those challenging agency actions, such as Petitioners here, are generally required to raise their arguments to the agency during the administrative review

process and to exhaust their administrative remedies

before this Court may consider their arguments. See

7 U.S.C. § 6912(e). Nonetheless, the draft ROD—to

which the Forest Service claims that Petitioners should

have lodged their MLA objection—nowhere mentions

that the Forest Service was contemplating granting

right of way through lands administered by NPS, or the

ANST, in particular. To the contrary, the draft ROD

characterizes the decision to be made as “[W]hether to

authorize the use and occupancy of NFS lands for [Atlantic] to construct, operate, maintain, and eventually

decommission a natural gas pipeline that crosses NFS

lands administered by the MNF and GWNF.” J.A.

1378 (emphasis added).

61a

Because (1) the draft ROD purported to be considering granting right of way through only Forest Service

“lands administered by the MNF and GWNF” and

(2) the FEIS, upon which the draft ROD relied, stated that

NPS “administered” the entire ANST and that the entire

ANST is a “unit” of the National Park System, there was

no reason for Petitioners, or any other public commenter,

to believe that the ROD or the SUP would grant right of

way across the ANST. To be sure, Petitioners may have

been on notice from the FEIS that the pipeline would require a right of way across the ANST from some agency

at some point, but Petitioners had no way to know that

such right of way would be granted by the Forest Service

through the ROD. Indeed, the plain language of the SUP

authorizes Atlantic “to use or occupy” only “National Forest System lands in the [MNF] and the [GWNF] of the

National Forest System.” Put simply, the Forest Service never notified the public that it intended to grant Atlantic right of way through a unit of the National Park System like the ANST.

Furthermore, and significantly, the draft ROD nowhere mentions that the Forest Service intended to rely

on the MLA as the basis of its authority to grant the

right of way across the ANST. Indeed, regarding the

MLA, the FEIS stated only that separate, congressional

approval would be required if NPS were the agency issuing the right of way. See, e.g., Bowen v. City of New

York, 476 U.S. 467, 482-87 (1986) (refusing to enforce exhaustion requirement when plaintiffs could not have

been expected to administratively “attack a policy they

could not be aware existed” (internal quotation marks

omitted)); Beth V. v. Carroll, 87 F.3d 80, 83 (3d Cir. 1996)

62a

(excepting plaintiff from statutory exhaustion requirement when he “was given no prior notice or opportunity

to object” and requiring exhaustion would be “futile”).

Moreover, the question of whether the MLA authorized the Forest Service to issue the SUP is a purely legal

question that this Court may answer without the benefit

of the Forest Service’s expertise. Our sister courts

have recognized an exception to the administrative exhaustion requirement for such legal issues. See Bartlett v. U.S. Dep’t of Agric., 716 F.3d 464, 474 (8th Cir.

2013); Vt. Dep’t of Pub. Serv. v. United States, 684 F.3d

149, 159-60 (D.C. Cir. 2012); Beth V., 87 F.3d at 88. Under the legal question exception, a party’s failure to exhaust administrative remedies is excused if the issues

“are legal questions which are not suitable for administrative resolution and are more properly resolved by the

courts.” Bartlett, 716 F.3d at 474 (citation omitted).

This exception is narrow. See id.; 7 West’s Fed. Admin. Prac. § 8226 (2018) (“[C]ourts have plenary power

over questions of law, but usually legal questions must

first be presented to the agency.”). Nonetheless, when

the agency has no expertise in the issue, and no factual

disputes must be resolved, the question may be ripe for

judicial review notwithstanding a party’s failure to exhaust its administrative remedies. See Ace Prop. and

Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 1001

(8th Cir. 2006); see also EEOC v. Seafarers Int’l Union,

394 F.3d 197, 201 (4th Cir. 2005) (discussing exhaustion

exception for legal issues and stating that “courts have

limited it to issues that are quintessentially legal and fail

to implicate the agency’s expertise in any meaningful

manner” (citation omitted)).

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The issue of whether the Forest Service had authority under the MLA to issue a right of way across the

ANST is a question of statutory interpretation. Such a

question is the peculiar province of the courts. Indeed,

“[t]he judiciary is the final authority on issues of statutory construction. . . .” Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984).

And the Forest Service has pointed to no factual disputes that must otherwise be resolved before the Court

may determine the scope of the agency’s authority under the MLA.

Accordingly, because (1) Petitioners were not put on

notice that the right of way across the ANST would be

granted by the Forest Service through the ROD; (2) the

Forest Service gave no hint of the legal authority that it

would claim in issuing the SUP during the administrative review process; and (3) the Forest Service’s authority to issue rights of way pursuant to the MLA is a

purely legal question, we decline to find that Petitioners

were required to exhaust their administrative remedies

in connection with their MLA argument.

IV.

We trust the United States Forest Service to “speak

for the trees, for the trees have no tongues.” Dr. Seuss,

The Lorax (1971). A thorough review of the record

leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources. This conclusion is particularly informed

by the Forest Service’s serious environmental concerns

that were suddenly, and mysteriously, assuaged in time

to meet a private pipeline company’s deadlines. Accordingly, for the reasons set forth herein, we grant the

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petition to review the Forest Service’s Record of Decision and Special Use Permit, vacate the Forest Service’s

decisions, and remand to the Forest Service for proceedings consistent with this opinion.

PETITION FOR REVIEW GRANTED,

VACATED AND REMANDED

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APPENDIX B

Authorization ID: MAR205003

Contact ID: ATLANTIC COAST PIPELINE

Expiration Date: 12/31/2022

Use Code: 634, 753

FS-2700-4 (VER. 03/17)

OMB 0596-0082

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

SPECIAL USE PERMIT

AUTHORITY:

MINERAL LEASING ACT, AS AMENDED Feb. 25, 1920,

FEDERAL LAND POLICY AND MGMT ACT,

AS AMENDED Oct. 21, 1976

ATLANTIC COAST PIPELINE, LLC of 707 EAST MAIN

STREET, RICHMOND, VA, 23219 (hereinafter “the holder”)

is authorized to use or occupy National Forest System

lands in the Monongahela National Forest and the George

Washington and Jefferson National Forest of the National

Forest System, subject to the terms and conditions of

this special use permit (the permit).

This permit covers 381.78 acres (GIS) or 36.43 miles (GIS)

in various US Tracts in the West Virginia County of Pocahontas, and Virginia Counties of Highland, Bath, and

Augusta, (“the permit area”), as shown on the maps attached as Exhibits A-D and described in the land list attached as Exhibit E. These and any other exhibits to

this permit are hereby incorporated into this permit.

Alignment sheets and “as built” plans to be provided by

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the Holder will be the most accurate representation of

the pipeline location and will be provided as completed

by the Holder upon request by the Authorized Officer or

his delegated contact.

This permit is issued for the purpose of:

Temporary construction, installation, and use of a 42 inch

natural gas transmission pipeline right-of-way (known as

Atlantic Coast Pipeline /ACP), temporary pipeline rightsof-way, temporary additional workspace, new access

roads, and widening of existing system roads that are

closed to the public within both the Monongahela and

George Washington and Jefferson National Forests as

shown on attached maps and land list Exhibits A-E.

The authorized width of the long-term pipeline right-ofway shall be 50 feet. The authorized width of temporary

pipeline rights-of-way, temporary additional workspace,

and roads are shown on Exhibits A-E.

A Construction, Operation and Maintenance (COM) Plan

is attached to and made part of this permit as Exhibit F.

The holder shall exercise the privileges granted herein

in accordance with the COM Plan. Additional requirements for construction and operation are found in Exhibit G. Changes or updates to the COM Plan may be

made in accordance with Clause III.C. of this permit.

Following construction, all areas used shall be returned

to its pre-existing state in accordance with the COM Plan

and to the satisfaction of the Forest Service authorized

officer as stated in Clause VII.E. of this permit. The exception shall be the pipeline and long-term road rightsof-way authorized in special use permit MAR205002.

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As-built surveys, drawings, and maps shall be submitted

to the Forest Service upon completion of the construction. These surveys will become part of special use permit MAR205002, issued for the operation and maintenance of the ACP pipeline.

Maps showing threatened endangered species are shown

on Exhibit H while maps showing sensitive species are

shown on Exhibit I. Both maps are privilege information

and not for public release.

TERMS AND CONDITIONS

GENERAL TERMS

AUTHORITY. This permit is issued pursuant to

the MINERAL LEASING ACT, AS AMENDED February

25, 1920, FEDERAL LAND POLICY AND MGMT ACT,

AS AMENDED October 21, 1976 and 36 CFR Part 251,

Subpart B, as amended, and is subject to their provisions.

AUTHORIZED OFFICER. The authorized officer

is the Regional Forester, the Forest or Grassland Supervisor, a District Ranger, or a Station Director with

delegated authority pursuant to Forest Service Manual

2700.

C. TERM. This permit shall expire at midnight on

12/31/2022, 5 years from the date of issuance.

CONTINUATION OF USE AND OCCUPANCY.

This permit is not renewable. Prior to expiration of

this permit, the holder may apply for a new permit for

the use and occupancy authorized by this permit. Applications for a new permit must be submitted at least

6 months prior to expiration of this permit. Issuance

of a new permit is at the sole discretion of the authorized

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officer. At a minimum, before issuing a new permit,

the authorized officer shall ensure that (1) the use and

occupancy to be authorized by the new permit is consistent with the standards and guidelines in the applicable land management plan; (2) the type of use and occupancy to be authorized by the new permit is the same as

the type of use and occupancy authorized by this permit;

and (3) the holder is in compliance with all the terms of

this permit. The authorized officer may prescribe new

terms and conditions when a new permit is issued.

This permit may be amended in

whole or in part by the Forest Service when, at the discretion of the authorized officer, such action is deemed

necessary or desirable to incorporate new terms that

may be required by law, regulation, directive, the applicable forest land and resource management plan, or projects and activities implementing a land management

plan pursuant to 36 CFR Part 215.

AMENDMENT.

F. COMPLIANCE WITH LAWS, REGULATIONS AND

OTHER LEGAL REQUIREMENTS. In exercising the

rights and privileges granted by this permit, the holder

shall comply with all present and future federal laws and

regulations and all present and future state, county, and

municipal laws, regulations, and other legal requirements that apply to the permit area, to the extent they

do not conflict with federal law, regulation, or policy.

The Forest Service assumes no responsibility for enforcing laws, regulations, and other legal requirements

that fall under the jurisdiction of other governmental

entities.

NON-EXCLUSIVE USE. The use or occupancy

authorized by this permit is not exclusive. The Forest

Service reserves the right of access to the permit area,

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including a continuing right of physical entry to the permit area for inspection, monitoring, or any other purpose

consistent with any right or obligation of the United

States under any law or regulation. The Forest Service reserves the right to allow others to use the permit

area in any way that is not inconsistent with the holder’s

rights and privileges under this permit, after consultation with all parties involved. Except for any restrictions

that the holder and the authorized officer agree are necessary to protect the installation and operation of authorized temporary improvements, the lands and waters

covered by this permit shall remain open to the public

for all lawful purposes.

This permit is not assignable

ASSIGNABILITY.

TRANSFER OF TITLE TO THE IMPROVEMENTS

or transferable.

1. Notification of Transfer. The holder shall notify

the authorized officer when a transfer of title to all or

part of the authorized improvements is planned.

2. Transfer of Title. Any transfer of title to the improvements covered by this permit shall result in termination of the permit. The party who acquires title to

the improvements must submit an application for a permit. The Forest Service is not obligated to issue a new

permit to the party who acquires title to the improvements. The authorized officer shall determine that the

applicant meets requirements under applicable federal

regulations.

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CHANGE IN CONTROL OF THE BUSINESS

ENTITY

1. Notification of Change in Control. The holder shall

notify the authorized officer when a change in control of

the business entity that holds this permit is contemplated.

(a) In the case of a corporation, control is an interest,

beneficial or otherwise, of sufficient outstanding voting

securities or capital of the business so as to permit the

exercise of managerial authority over the actions and

operations of the corporation or election of a majority of

the board of directors of the corporation.

(b) In the case of a partnership, limited partnership,

joint venture, or individual entrepreneurship, control is

a beneficial ownership of or interest in the entity or its

capital so as to permit the exercise of managerial authority over the actions and operations of the entity.

under which a third party has the ability to exercise

management authority over the actions or operations of

the business.

2. Effect of Change in Control. Any change in control of the business entity as defined in paragraph 1 of

this clause shall result in termination of this permit.

The party acquiring control must submit an application

for a special use permit. The Forest Service is not obligated to issue a new permit to the party who acquires

control. The authorized officer shall determine whether

the applicant meets the requirements established by applicable federal regulations.

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II.

IMPROVEMENTS

Nothing in this permit

gives or implies permission to build or maintain any structure or facility or to conduct any activity, unless specifically authorized by this permit. Any use not specifically authorized by this permit must be proposed in accordance with 36 CFR 251.54. Approval of such a proposal through issuance of a new permit or permit amendment is at the sole discretion of the authorized officer.

LIMITATIONS ON USE.

All plans for development, layout, construction, reconstruction, or alteration of improvements

in the permit area, as well as revisions to those plans

must be prepared by a professional engineer, architect,

landscape architect, or other qualified professional based

on federal employment standards acceptable to the authorized officer. These plans and plan revisions must

have written approval from the authorized officer before

they are implemented. The authorized officer may require the holder to furnish as-built plans, maps, or surveys upon completion of the work.

PLANS.

Any construction authorized by

this permit shall commence after the date this permit is

issued and shall be completed by the date this permit exC.

CONSTRUCTION.

pires.

III. OPERATIONS

Use or occupancy of the permit

area shall be exercised at least 10 days each year.

PERIOD OF USE.

CONDITION OF OPERATIONS. The holder shall

maintain the authorized improvements and permit area

to standards of repair, orderliness, neatness, sanitation,

and safety acceptable to the authorized officer and consistent with other provisions of this permit. Standards

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are subject to periodic change by the authorized officer

when deemed necessary to meet statutory, regulatory,

or policy requirements or to protect national forest resources. The holder shall comply with inspection requirements deemed appropriate by the authorized officer.

OPERATING PLAN. The holder shall prepare

and annually revise by a date determined by the Forest

Service an operating plan. The operating plan shall be

prepared in consultation with the authorized officer or

the authorized officer’s designated representative and

shall cover all operations authorized by this permit.

The operating plan shall outline steps the holder will

take to protect public health and safety and the environment and shall include sufficient detail and standards to

enable the Forest Service to monitor the holder’s operations for compliance with the terms and conditions of

this permit. The operating plan shall be submitted by

the holder and approved by the authorized officer or the

authorized officer’s designated representative prior to

commencement of operations and shall be attached to

this permit as an appendix. The authorized officer may

require an annual meeting with the holder to discuss the

terms and conditions of the permit or operating plan, annual use reports, or other concerns either party may

have.

The

Forest Service shall monitor the holder’s operations and

reserves the right to inspect the permit area and transmission facilities at any time for compliance with the

terms of this permit. The holder shall comply with inspection requirements deemed appropriate by the authorized officer. The holder’s obligations under this

MONITORING BY THE FOREST SERVICE.

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permit are not contingent upon any duty of the Forest

Service to inspect the permit area or transmission facilities. A failure by the Forest Service or other governmental officials to inspect is not a justification for noncompliance with any of the terms and conditions of this

permit.

IV. RIGHTS AND LIABILITIES

This permit,

which is revocable and terminable, is not a contract or a

lease, but rather a federal license. The benefits and requirements conferred by this authorization are reviewable solely under the procedures set forth in 36 CFR

214, and 5 U.S.C. 704. This permit does not constitute

a contract for purposes of the Contract Disputes Act,

41 U.S.C. 601. The permit is not real property, does

not convey any interest in real property, and may not be

used as collateral for a loan.

LEGAL EFFECT OF THE PERMIT.

VALID EXISTING RIGHTS. This permit is subject to all valid existing rights. Valid existing rights include those derived under mining and mineral leasing

laws of the United States. The United States is not liable to the holder for the exercise of any such right.

C. ABSENCE OF THIRD-PARTY BENEFICIARY

RIGHTS. The parties to this permit do not intend to

confer any rights on any third party as a beneficiary under this permit.

SERVICES NOT PROVIDED. This permit does

not provide for the furnishing of road or trail maintenance, water, fire protection, search and rescue, or any

other such service by a government agency, utility, association, or individual.

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The holder assumes all risk of

loss associated with use or occupancy of the permit area,

including but not limited to theft, vandalism, fire and

any fire-fighting activities (including prescribed burns),

avalanches, rising waters, winds, falling limbs or trees,

and other forces of nature. If authorized temporary

improvements in the permit area are destroyed or substantially damaged, the authorized officer shall conduct

an analysis to determine whether the improvements can

be safely occupied in the future and whether rebuilding

should be allowed. If rebuilding is not allowed, the permit shall terminate.

RISK OF LOSS.

DAMAGE TO UNITED STATES PROPERTY.

The holder has an affirmative duty to protect from damage the land, property, and other interests of the United

States. Damage includes but is not limited to fire suppression costs and damage to government-owned improvements covered by this permit.

1. The holder shall be liable for all injury, loss, or

damage, including fire suppression, prevention and control of the spread of invasive species, or other costs in

connection with rehabilitation or restoration of natural

resources resulting from the use or occupancy authorized by this permit. Compensation shall include but

not be limited to the value of resources damaged or destroyed, the costs of restoration, cleanup, or other mitigation, fire suppression or other types of abatement

costs, and all administrative, legal (including attorney’s

fees), and other costs. Such costs may be deducted

from a performance bond required under clause IV.J.

2. The holder shall be liable for damage caused by use

of the holder or the holder’s heirs, assigns, agents, employees, contractors, or lessees to all roads and trails of

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the United States to the same extent as provided under

clause IV.F.1, except that liability shall not include reasonable and ordinary wear and tear.

HEALTH AND SAFETY. The holder shall take all

measures necessary to protect the health and safety of

all persons affected by the use and occupancy authorized

by this permit. The holder shall promptly abate as

completely as possible and in compliance with all applicable laws and regulations any physical or mechanical

procedure, activity, event, or condition existing or occurring in connection with the authorized use and occupancy during the term of this permit that causes or

threatens to cause a hazard to the health or safety of the

public or the holder’s employees or agents. The holder

shall as soon as practicable notify the authorized officer

of all serious accidents that occur in connection with

these procedures, activities, events, or conditions. The

Forest Service has no duty under the terms of this permit to inspect the permit area or operations of the holder

for hazardous conditions or compliance with health and

safety standards.

ENVIRONMENTAL PROTECTION

1. For purposes of clause IV.H and section V, “hazardous material” shall mean (a) any hazardous substance under section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. 9601(14); (b) any pollutant or contaminant under section 101(33) of CERCLA, 42 U.S.C.

9601(33); (c) any petroleum product or its derivative, including fuel oil, and waste oils; and (d) any hazardous

substance, extremely hazardous substance, toxic substance, hazardous waste, ignitable, reactive or corrosive

materials, pollutant, contaminant, element, compound,

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mixture, solution or substance that may pose a present

or potential hazard to human health or the environment

under any applicable environmental laws.

2. The holder shall avoid damaging or contaminating

the environment, including but not limited to the soil,

vegetation (such as trees, shrubs, and grass), surface

water, and groundwater, during the holder’s use and occupancy of the permit area. Environmental damage

includes but is not limited to all costs and damages associated with or resulting from the release or threatened release of a hazardous material occurring during

or as a result of activities of the holder or the holder’s

heirs, assigns, agents, employees, contractors, or lessees on, or related to, the lands, property, and other interests covered by this permit. If the environment or

any government property covered by this permit becomes damaged in connection with the holder’s use and

occupancy, the holder shall as soon as practicable repair

the damage or replace the damaged items to the satisfaction of the authorized officer and at no expense to the

United States.

3. The holder shall as soon as practicable, as completely as possible, and in compliance with all applicable

laws and regulations abate any physical or mechanical

procedure, activity, event, or condition existing or occurring in connection with the authorized use and occupancy during or after the term of this permit that causes

or threatens to cause harm to the environment, including areas of vegetation or timber, fish or other wildlife

populations, their habitats, or any other natural resources.

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INDEMNIFICATION OF THE UNITED STATES.

The holder shall indemnify, defend, and hold harmless

the United States for any costs, damages, claims, liabilities, and judgments arising from past, present, and future acts or omissions of the holder in connection with

the use or occupancy authorized by this permit. This

indemnification provision includes but is not limited to

acts and omissions of the holder or the holder’s heirs,

assigns, agents, employees, contractors, or lessees in

connection with the use or occupancy authorized by this

permit which result in (1) violations of any laws and regulations which are now or which may in the future become applicable; (2) judgments, claims, demands, penalties, or fees assessed against the United States; (3) costs,

expenses, and damages incurred by the United States;

or (4) the release or threatened release of any solid waste,

hazardous waste, hazardous materials, pollutant, contaminant, oil in any form, or petroleum product into the

environment. The authorized officer may prescribe

terms that allow the holder to replace, repair, restore,

or otherwise undertake necessary curative actions to

mitigate damages in addition to or as an alternative to

monetary indemnification.

The authorized officer may require

the holder to furnish a surety bond or other security for

any of the obligations imposed by the terms and conditions of this permit or any applicable law, regulation, or

order.

BONDING.

1. As a further guarantee of compliance with the

terms and conditions of this permit, the holder shall deliver and maintain a surety bond or other acceptable security, such as cash deposited and maintained in a federal depository or negotiable securities of the United

78a

States, in the amount of $4,300,000 for environmental restoration efforts of the authorized area if Holder fails to

comply with terms and conditions acceptable to the authorized officer for the duration of this permit until

closed by the authorized officer. The authorized officer

may periodically evaluate the adequacy of the bond or

other security and increase or decrease the amount as

appropriate. If the bond or other security becomes

unsatisfactory to the authorized officer, the holder shall

within 30 days of demand furnish a new bond or other

security issued by a surety that is solvent and satisfactory to the authorized officer. If the holder fails to

meet any of the requirements secured under this clause,

money deposited pursuant to this clause shall be retained by the United States to the extent necessary to

satisfy the obligations secured under this clause, without prejudice to any other rights and remedies of the

United States.

2. The bond shall be released or other security returned 30 days after (a) the authorized officer certifies

that the obligations covered by the bond or other security are met and (b) the holder establishes to the satisfaction of the authorized officer that all claims for labor

and material for the secured obligations have been paid

or released.

3. Prior to undertaking additional construction or alteration not covered by the bond or other security, or

when the authorized improvements are to be removed

and the permit area restored the holder may be required

to obtain additional bonding or security.

STRICT LIABILITY. The holder shall be strictly

liable (liable without proof of negligence) to the United

States for $1,000,000.00 per occurrence for any injury,

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loss, or damage arising in tort under this permit. Liability in tort for injury, loss, or damage to the United

States exceeding the prescribed amount of strict liability

in tort shall be determined under the law of negligence.

The holder shall furnish proof of

insurance, such as a certificate of insurance, to the authorized officer prior to issuance of this permit and each

year thereafter that this permit is in effect. The Forest Service reserves the right to review the insurance

policy and require any changes needed to ensure adequate coverage of the United States in connection with

the authorized use and occupancy. The holder shall

send an authenticated copy of any insurance policy obtained pursuant to this clause to the authorized officer

immediately upon issuance of the policy. Any insurance policies obtained by the holder pursuant to this

clause shall name the United States as an additional insured, and the additional insured provision shall provide

for insurance coverage for the United States as required

under this clause and to the extent of the full limits of

insurance available to the holder. The holder shall give

30 days prior written notice to the authorized officer of

cancellation of or any modification to the insurance policy. The certificate of insurance, the authenticated

copy of the insurance policy, and written notice of cancellation or modification of insurance policies should be

sent to United States, C/O Monongahela National Forest,

INSURANCE.

200 Sycamore Street, Elkins, WV 26241, Attention: Special

Use Administrator. Minimum amounts of coverage and

other insurance requirements are subject to change at

the sole discretion of the authorized officer on the anniversary date of this permit.

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1. The holder shall have in force liability insurance

covering losses, including those arising from strict liability, associated with the use or occupancy authorized by

this permit arising from personal injury or death and

third-party property damage in the minimum amount of

$1 million as a combined single limit per occurrence.

2. Depending on the holder’s operations, the Forest

Service may require the holder to demonstrate the availability of funds to address any release or threatened release of hazardous materials that may occur in connection with the holder’s use or occupancy. Any requirements imposed would be established on a case-by-case

basis by the authorized officer based on the degree of

environmental risk from the holder’s operations. The

storage and use of normal maintenance supplies in nominal amounts generally would not trigger financial assurance requirements.

RESOURCE PROTECTION

COMPLIANCE WITH ENVIRONMENTAL LAWS.

The holder shall in connection with the use or occupancy

authorized by this permit comply with all applicable federal, state, and local environmental laws and regulations, including but not limited to those established pursuant to the Resource Conservation and Recovery Act,

as amended, 42 U.S.C. 6901 et seq., the Federal Water

Pollution Control Act, as amended, 33 U.S.C. 1251 et

seq., the Oil Pollution Act, as amended, 33 U.S.C. 2701

et seq., the Clean Air Act, as amended, 42 U.S.C. 7401 et

seq., CERCLA, as amended, 42 U.S.C. 9601 et seq., the

Toxic Substances Control Act, as amended, 15 U.S.C.

2601 et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, 7 U.S.C. 136 et seq., and the

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Safe Drinking Water Act, as amended, 42 U.S.C. 300f et

seq.

The holder shall take reasonable

measures to prevent and discourage vandalism and disorderly conduct and when necessary shall contact the

appropriate law enforcement officer.

VANDALISM.

PESTICIDE USE

1. Authorized Officer Concurrence. Pesticides may

not be used outside of buildings in the permit area to

control pests, including undesirable woody and herbaceous vegetation (including aquatic plants), insects, birds,

rodents, or fish without prior written concurrence of the

authorized officer. Only those products registered or

otherwise authorized by the U.S. Environmental Protection Agency and appropriate State authority for the

specific purpose planned shall be authorized for use

within areas on National Forest System lands.

2. Pesticide-Use Proposal. Requests for concurrence

of any planned uses of pesticides shall be provided in advance using the Pesticide-Use Proposal (form FS-2100-2).

Annually the holder shall, on the due date established

by the authorized officer, submit requests for any new,

or continued, pesticide usage. The Pesticide-Use Proposal shall cover a 12-month period of planned use.

The Pesticide-Use Proposal shall be submitted at least

60 days in advance of pesticide application. Information

essential for review shall be provided in the form specified. Exceptions to this schedule may be allowed, subject to emergency request and approval, only when unexpected outbreaks of pests require control measures

which were not anticipated at the time a Pesticide-Use

Proposal was submitted.

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3. Labeling, Laws, and Regulations. Label instructions and all applicable laws and regulations shall be

strictly followed in the application of pesticides and disposal of excess materials and containers. No pesticide

waste, excess materials, or containers shall be disposed

of in any area administered by the Forest Service.

D. ARCHAEOLOGICAL AND PALEONTOLOGICAL

DISCOVERIES. The holder shall immediately notify

the authorized officer of all antiquities or other objects

of historic or scientific interest, including but not limited

to historic or prehistoric ruins, fossils, or artifacts discovered in connection with the use and occupancy authorized by this permit. The holder shall follow the applicable inadvertent discovery protocols for the undertaking provided in an agreement executed pursuant to

section 106 of the National Historic Preservation Act,

54 U.S.C. 306108; if there are no such agreed-upon protocols, the holder shall leave these discoveries intact and

in place until consultation has occurred, as informed, if

applicable, by any programmatic agreement with tribes.

Protective and mitigation measures developed under

this clause shall be the responsibility of the holder.

However, the holder shall give the authorized officer

written notice before implementing these measures and

shall coordinate with the authorized officer for proximate and contextual discoveries extending beyond the

permit area.

E. NATIVE AMERICAN GRAVES PROTECTION AND

REPATRIATION ACT (NAGPRA). In accordance with

25 U.S.C. 3002(d) and 43 CFR 10.4, if the holder inadvertently discovers human remains, funerary objects,

sacred objects, or objects of cultural patrimony on Na-

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tional Forest System lands, the holder shall immediately cease work in the area of the discovery and shall

make a reasonable effort to protect and secure the

items. The holder shall follow the applicable NAGPRA

protocols for the undertaking provided in the NAGPRA

plan of action or the NAGPRA comprehensive agreement; if there are no such agreed-upon protocols, the

holder shall as soon as practicable notify the authorized

officer of the discovery and shall follow up with written

confirmation of the discovery. The activity that resulted in the inadvertent discovery may not resume until

30 days after the forest archaeologist certifies receipt of

the written confirmation, if resumption of the activity is

otherwise lawful, or at any time if a binding written

agreement has been executed between the Forest Service and the affiliated Indian tribes that adopts a recovery plan for the human remains and objects.

F. PROTECTION OF THREATENED AND ENDANGERED SPECIES, SENSITIVE SPECIES, AND SPECIES

OF CONSERVATION CONCERN AND THEIR HABITAT

1. Threatened and Endangered Species and Their

Habitat. The location of sites within the permit area

needing special measures for protection of plants or animals listed as threatened or endangered under the Endangered Species Act (ESA) of 1973, 16 U.S.C. 1531 et

seq., as amended, or within designated critical habitat

shall be shown on a map in an appendix to this permit

and may be shown on the ground. The holder shall

take any protective and mitigation measures specified

by the authorized officer as necessary and appropriate

to avoid or reduce effects on listed species or designated

critical habitat affected by the authorized use and occupancy. Discovery by the holder or the Forest Service

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of other sites within the permit area containing threatened or endangered species or designated critical habitat not shown on the map in the appendix shall be

promptly reported to the other party and shall be added

to the map.

2. Sensitive Species and Species of Conservation

Concern and Their Habitat. The location of sites within

the permit area needing special measures for protection

of plants or animals designated by the Regional Forester as sensitive species or as species of conservation

concern pursuant to FSM 2670 shall be shown on a map

in an appendix to this permit and may be shown on the

ground. The holder shall take any protective and mitigation measures specified by the authorized officer as

necessary and appropriate to avoid or reduce effects on

sensitive species or species of conservation concern or

their habitat affected by the authorized use and occupancy. Discovery by the holder or the Forest Service

of other sites within the permit area containing sensitive

species or species of conservation concern or their habitat not shown on the map in the appendix shall be

promptly reported to the other party and shall be added

to the map.

CONSENT TO STORE HAZARDOUS MATERIALS.

The holder shall not store any hazardous materials at

the site without prior written approval from the authorized officer. This approval shall not be unreasonably

withheld. If the authorized officer provides approval,

this permit shall include, or in the case of approval provided after this permit is issued, shall be amended to include specific terms addressing the storage of hazardous

materials, including the specific type of materials to be

stored, the volume, the type of storage, and a spill plan.

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Such terms shall be proposed by the holder and are subject to approval by the authorized officer.

1. If the holder receives consent to store hazardous

material, the holder shall identify to the Forest Service

any hazardous material to be stored at the site. This

identifying information shall be consistent with column

(1) of the table of hazardous materials and special provisions enumerated at 49 CFR 172.101 whenever the hazardous material appears in that table. For hazard communication purposes, the holder shall maintain Material

Safety Data Sheets for any stored hazardous chemicals,

consistent with 29 CFR 1910.1200(c) and (g). In addition, all hazardous materials stored by the holder shall

be used, labeled, stored, transported, and disposed of in

accordance with all applicable federal, state, and local

laws and regulations.

2. The holder shall not release any hazardous material

as defined in clause IV.H onto land or into rivers, streams,

impoundments, or natural or man-made channels leading

to them. All prudent and safe attempts must be made to

contain any release of these materials. The authorized

officer in charge may specify specific conditions that must

be met, including conditions more stringent than federal,

state, and local regulations, to prevent releases and protect natural resources.

If the holder uses or stores hazardous materials at

the site, upon revocation or termination of this permit

the holder shall provide the Forest Service with a report

certified by a professional or professionals acceptable to

the Forest Service that the permit area is uncontaminated by the presence of hazardous materials and that

there has not been a release or discharge of hazardous

materials upon the permit area, into surface water at or

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near the permit area, or into groundwater below the

permit area during the term of the permit. If a release

or discharge has occurred, the professional or professionals shall document and certify that the release or

discharge has been fully remediated and that the permit

area is in compliance with all applicable federal, state,

and local laws and regulations.

CLEANUP AND REMEDIATION

1. The holder shall immediately notify all appropriate

response authorities, including the National Response

Center and the authorized officer or the authorized officer’s designated representative, of any oil discharge or

of the release of a hazardous material in the permit area

in an amount greater than or equal to its reportable

quantity, in accordance with 33 CFR Part 153, Subpart B,

and 40 CFR Part 302. For the purposes of this requirement, “oil” is as defined by section 311(a)(1) of the Clean

Water Act, 33 U.S.C. 1321(a)(1). The holder shall immediately notify the authorized officer or the authorized

officer’s designated representative of any release or

threatened release of any hazardous material in or near

the permit area which may be harmful to public health

or welfare or which may adversely affect natural resources on federal lands.

2. Except with respect to any federally permitted release as that term is defined under Section 101(10) of

CERCLA, 42 U.S.C. 9601(10), the holder shall clean up

or otherwise remediate any release, threat of release, or

discharge of hazardous materials that occurs either in

the permit area or in connection with the holder’s activities in the permit area, regardless of whether those activities are authorized under this permit. The holder

shall perform cleanup or remediation immediately upon

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discovery of the release, threat of release, or discharge

of hazardous materials. The holder shall perform the

cleanup or remediation to the satisfaction of the authorized officer and at no expense to the United States.

Upon revocation or termination of this permit, the

holder shall deliver the site to the Forest Service free

and clear of contamination.

VI. LAND USE FEE AND DEBT COLLECTION

LAND USE FEES. The holder shall pay an initial

annual land use fee of $45,733.79 for the period from

01/01/2018 to 12/31/2018, and thereafter on January 1st,

shall pay an annual land use fee of $45,733.79. The annual land use fee shall be adjusted annually using the

IDP-GNP.

The

land use fee may be revised whenever necessary to reflect the market value of the authorized use or occupancy or when the fee system used to calculate the land

use fee is modified or replaced.

MODIFICATION OF THE LAND USE FEE.

FEE PAYMENT ISSUES.

1. Crediting of Payments. Payments shall be credited on the date received by the deposit facility, except

that if a payment is received on a non-workday, the payment shall not be credited until the next workday.

2. Disputed Fees. Fees are due and payable by the

due date. Disputed fees must be paid in full. Adjustments will be made if dictated by an administrative appeal decision, a court decision, or settlement terms.

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Late Payments

(a) Interest. Pursuant to 31 U.S.C. 3717 et seq., interest shall be charged on any fee amount not paid

within 30 days from the date it became due. The rate

of interest assessed shall be the higher of the Prompt

Payment Act rate or the rate of the current value of

funds to the United States Treasury (i.e., the Treasury

tax and loan account rate), as prescribed and published

annually or quarterly by the Secretary of the Treasury

in the Federal Register and the Treasury Fiscal Requirements Manual Bulletins. Interest on the principal shall accrue from the date the fee amount is due.

(b) Administrative Costs. If the account becomes delinquent, administrative costs to cover processing and

handling the delinquency shall be assessed.

(c) Penalties. A penalty of 6% per annum shall be assessed on the total amount that is more than 90 days delinquent and shall accrue from the same date on which

interest charges begin to accrue.

(d) Termination for Nonpayment. This permit shall

terminate without the necessity of prior notice and opportunity to comply when any permit fee payment is

90 calendar days from the due date in arrears. The

holder shall remain responsible for the delinquent fees.

4. Administrative Offset and Credit Reporting. Delinquent fees and other charges associated with the permit shall be subject to all rights and remedies afforded

the United States pursuant to 31 U.S.C. 3711 et seq. and

common law. Delinquencies are subject to any or all of

the following:

(a) Administrative offset of payments due the holder

from the Forest Service.

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(b) If in excess of 60 days, referral to the United States

Department of the Treasury for appropriate collection

action as provided by 31 U.S.C. 3711(g)(1).

amount due the holder, as provided by 31 U.S.C. 3720

et seq.

(d) Disclosure to consumer or commercial credit reporting agencies.

VII. REVOCATION, SUSPENSION, AND TERMINATION

The Authorized Officer may revoke or suspend this authorization in

whole or in part:

REVOCATION AND SUSPENSION.

1. For noncompliance with applicable Federal, State,

or local laws and regulations, other than common carrier

provisions in 30 U.S.C. § 185(r), which are enforced by

the Secretary of the Interior.

2. For noncompliance with the terms of this authorization, other than common carrier provisions in clause

VII.C, which are enforced by the Secretary of the Interior.

3. For abandonment of the right-of-way. Failure of

the holder to use the right-of-way for a continuous

2-year period shall constitute a rebuttable presumption

of abandonment of the right-of-way.

Prior to revocation or suspension under this clause, other

than immediate suspension under clause VII.B, the Authorized Officer or, for common carrier provisions, the

Secretary of the Interior, shall give the holder written

notice of the grounds for revocation or suspension and a

reasonable period, not to exceed 90 days, to resume use

of the right-of-way or to cure any noncompliance.

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The Authorized Officer may immediately suspend this authorization in

whole or in part when necessary to protect public health

or safety or the environment. The suspension decision

shall be in writing. The holder may request an on-site

review with the Authorized Officer’s supervisor of the

adverse conditions prompting the suspension. The Authorized Officer’s supervisor shall grant this request

within 48 hours. Following the on-site review, the Authorized Officer’s supervisor shall promptly affirm, modify, or cancel the suspension.

IMMEDIATE SUSPENSION.

COMMON CARRIER OBLIGATIONS.

1. Pipelines and related facilities covered by this authorization shall be constructed, operated, and maintained as common carriers. The holder shall accept,

convey, transport, or purchase without discrimination

all oil or gas delivered to those pipelines without regard

to whether the oil or gas was produced from Federal or

non-Federal lands.

2. Whenever the Secretary of the Interior has reason

to believe that the holder is not operating any oil or gas

pipeline in complete accord with its obligations as a common carrier, the Secretary of the Interior may request

the Attorney General to prosecute an appropriate proceeding before the Secretary of Energy or Federal Energy Regulatory

Commission or any appropriate state agency or Federal

district court for the district in which the pipeline or any

part of it is located to enforce the holder’s common carrier obligations or to impose any penalty provided for

noncompliance with those obligations, or the Secretary

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of the Interior may suspend or revoke this authorization

pursuant to clause VII.A.

3. In the case of oil and gas produced from Federal

lands or from resources on Federal lands in the vicinity

of the pipelines covered by this authorization, the Secretary of the Interior may, after notice to the interested

parties, a full hearing, and proper finding of facts, determine the proportionate amounts of oil and gas to be

accepted, conveyed, transported, or purchased.

4. The common carrier provisions in clause VII.C

shall not apply to any natural gas pipeline covered by

this authorization that is operated by any person subject

to regulation under the Natural Gas Act, 15 U.S.C. 717

et seq., or by any public utility subject to regulation by

a State or municipal regulatory agency with jurisdiction

to regulate the rates and charges for the sale of natural

gas to consumers in that State or municipality.

5. Where natural gas not subject to state regulatory

or conservation laws governing its purchase by pipelines

is offered for sale, pipelines covered by this authorization shall purchase without discrimination any such natural gas produced in the vicinity of those pipelines.

Written decisions

by the Authorized Officer relating to administration of

this authorization, other than revocation or suspension

decisions, are subject to administrative appeal pursuant

to 36 CFR Part 214, as amended. Revocation and suspension of this authorization by the Authorized Officer

are subject to administrative proceedings pursuant to

7 CFR Part 1, Subpart H, as amended. Revocation and

suspension of this authorization by the Secretary of the

APPEALS AND REMEDIES.

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Interior are subject to administrative proceedings pursuant to regulations promulgated by the U.S. Department of the Interior. Revocation or suspension of this

authorization shall not give rise to any claim for damages by the holder against the Forest Service or the Secretary of the Interior.

This permit shall terminate when

by its terms a fixed or agreed upon condition, event, or

time occurs without any action by the authorized officer.

Examples include but are not limited to expiration of the

permit by its terms on a specified date and termination

upon change of control of the business entity. Termination of this permit shall not require notice, a decision

document, or any environmental analysis or other documentation. Termination of this permit is not subject to

administrative appeal and shall not give rise to any claim

for damages by the holder against the Forest Service.

TERMINATION.

F. RIGHTS AND RESPONSIBILITIES UPON REVOCATION OR TERMINATION WITHOUT ISSUANCE OF

A NEW PERMIT. Upon revocation or termination of

this permit without issuance of a new permit, the holder

shall remove all structures and improvements, except

those owned by the United States, within a reasonable

period prescribed by the authorized officer and shall restore the site to the satisfaction of the authorized officer.

If the holder fails to remove all structures and improvements within the prescribed period, they shall become

the property of the United States and may be sold, destroyed, or otherwise disposed of without any liability to

the United States. However, the holder shall remain

liable for all costs associated with their removal, including costs of sale and impoundment, cleanup, and restoration of the site.

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VIII. MISCELLANEOUS PROVISIONS

No member of or delegate to Congress or resident commissioner shall benefit from this permit either directly or indirectly, except

to the extent the authorized use provides a general benefit to a corporation.

MEMBERS OF CONGRESS.

CURRENT ADDRESSES. The holder and the Forest Service shall keep each other informed of current

mailing addresses, including those necessary for billing

and payment of land use fees.

SUPERSEDED PERMIT.

This permit supersedes

a special use permit designated Not Applicable.

SUPERIOR CLAUSES. If there is a conflict between any of the preceding printed clauses and any of

the following clauses, the preceding printed clauses

shall control.

RIGHT-OF-WAY WIDTH, OIL AND GAS PIPELINE.

The width of the right-of-way is limited to 50 feet regardless of the pipeline’s diameter.

All designs, materials, construction, operation, maintenance, and termination practices employed in connection with this use

shall be in accordance with safe and proven engineering

practices and shall meet or exceed the standards contained in the following:

STANDARDS AND PRACTICES.

1. U.S. Department of Transportation Regulations at

49 CFR Part 192.

SURVEYS, LAND CORNERS. The holder shall

protect, in place, all public land survey monuments, private property corners, and Forest boundary markers.

In the event that any such land markers or monuments

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are destroyed in the exercise of the privileges permitted

by this authorization, depending on the type of monument destroyed, the holder shall see that they are reestablished or referenced in accordance with (1) the procedures outlined in the “Manual of Instructions for the

Survey of the Public Land of the United States,” (2) the

specifications of the county surveyor, or (3) the specifications of the Forest Service.

Further, the holder shall cause such official survey records as are affected to be amended as provided by law.

Nothing in this clause shall relieve the holder’s liability

for the willful destruction or modification of any Government survey marker as provided at 18 U.S.C. 1858.

H. GROUND SURFACE PROTECTION AND RESTORATION. The holder shall prevent and control soil ero-

sion and gullying on National Forest System lands in

and adjacent to the permit area resulting from construction, operation, maintenance, and termination of the authorized use. The holder shall construct authorized improvements so as to avoid accumulation of excessive

amounts of water in the permit area and encroachment

on streams. The holder shall revegetate or otherwise

stabilize (for example, by constructing a retaining wall)

all ground where the soil has been exposed as a result of

the holder’s construction, maintenance, operation, or

termination of the authorized use.

OIL AND GAS PIPELINE AUTHORIZATION. This

clause was inserted earlier to replace standard clauses

in Sections VII.A through VII.D of this 2700-4 permit.

IMPROVEMENT RELOCATION. This authorization is granted with the express understanding that

should future location of United States GovernmentJ.

95a

owned improvements or road rights-of-way require the

relocation of the holder’s improvements, such relocation

will be done by, and at the expense of, the holder within

a reasonable time as specified by the Authorized Officer.

The

holder may furnish the Authorized Officer with the names

and addresses of shareholders owning three (3) percent

or more of the shares, and number and percentage of

any class of voting shares of the entity which such shareholder is authorized to vote. In addition, the holder shall

notify the Authorized Officer within fifteen (15) days of

the following changes:

CORPORATION STATUS NOTIFICATION.

Names of officers appointed or terminated.

2. Names of stockholders who acquire stock shares

causing their ownership to exceed 50 percent of shares

issued or who otherwise acquire controlling interest in

the corporation.

A copy of the articles of incorporation and bylaws.

4. An authenticated copy of a resolution of the board

of directors specifically authorizing a certain individual

or individuals to represent the holder in dealing with the

Forest Service.

5. A list of officers and directors of the corporation

and their addresses.

6. Upon request, a certified list of stockholders and

amount of stock owned by each.

7. The Authorized Officer may, when necessary, require the holder to furnish additional information as set

forth in 36 CFR 251.54(d)(2)(ii)(D).

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L. OIL, GAS AND RELATED MATERIALS PIPELINE

STANDARDS. Related mechanical facilities such as

pumps, pump stations, and tanks shall be designed, constructed, operated and maintained in accordance with

safe and proven engineering practice, and meet or exceed recognized engineering standards for the type of

facility.

PIPELINE CERTIFICATION REQUIREMENTS.

Pipeline and related mechanical facilities herein authorized shall be designed, constructed, operated and maintained under the supervision of, and certified by, a qualified professional engineer licensed in the State in which

the project is located.

Operation of pipelines or related mechanical facilities is

not authorized until the holder has furnished to the Forest Service written certification, by the qualified professional engineer who inspected construction, that the

pipeline and related mechanical facilities have been constructed in accordance with the standards identified in

clause VIII.F and the Forest Service has issued written

operating approval.

N. INVASIVE SPECIES PREVENTION AND CONTROL. The holder shall be responsible for the preven-

tion and control of noxious weeds and invasive species

arising from the authorized use. For the purpose of

this clause, noxious weeds and invasive species include

those species recognized as such by the Monongahela

and George Washington and Jefferson National Forests.

When determined to be necessary by the authorizing officer, the holder shall develop a plan for noxious weed

and invasive species prevention and control. Such plans

must have prior written approval from the authorizing

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official and upon approval, shall be attached to the permit as an appendix.

O. REMOVAL AND PLANTING OF VEGETATION

AND OTHER RESOURCES. This permit does not au-

thorize the cutting of timber or other vegetation. Trees

or shrubbery may be removed or destroyed only after

the Authorized Officer or the Authorized Officer’s designated representative has approved in writing and

marked or otherwise identified what may be removed or

destroyed. Timber cut or destroyed shall be paid for

at current stumpage rates for similar timber in the Monongahela and the George Washington and Jefferson National Forests. The Forest Service reserves the right

to dispose of the merchantable timber to those other than

the holder at no stumpage cost to the holder. Unmerchantable material shall be disposed of as directed by

the Authorized Officer.

Trees, shrubs, and other

plants may be planted within the permit area with prior

written approval of the Authorized Officer.

All National Forest timber

cut or destroyed in the construction of the permitted improvements shall be paid for at current stumpage rates

for similar timber in the National Forest. Young-growth

timber below merchantable size will be paid for at current damage-appraisal value; and all slash and debris resulting from the cutting or destruction of such timber

shall be disposed of as necessary or as the Forest Service may direct.

TIMBER PAYMENT.

SIGNS. Signs or advertising devices erected on

National Forest System lands shall have prior approval

by the Forest Service as to location, design, size, color,

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and message. Erected signs shall be maintained or renewed as necessary to neat and presentable standards,

as determined by the Forest Service.

R. PERFORMANCE BY HOLDER, SUCCESSORS, OR

ASSIGNS. Notwithstanding the expiration or any re-

newal of this authorization or its earlier relinquishment,

abandonment, or other termination, the provisions of

this authorization, to the extent applicable, shall continue in effect and shall be binding on the holder, successors, or assigns, until they have fully performed their

respective obligations and liabilities accruing before or

on account of the expiration, or prior termination, of the

authorization.

PERFORMANCE BY OTHER THAN HOLDER.

The acquisition or assumption by another party under

an agreement with the holder of any right or obligation

of the holder under this authorization shall be ineffective as to the Forest Service unless and until approved

by the Authorized Forest Officer. A subsequent acquisition or assumption shall not:

1. Operate to relieve the holder of the responsibilities

or liabilities they have assumed hereunder, or

2. Be given unless such other party (1) is acceptable

to the Forest Service as a holder, and assumes in writing

all of the obligations to the Forest Service under the

terms of this authorization as to the incomplete portion

thereof, or (2) acquires the rights in trust as security and

subject to such conditions as may be necessary for the

protection of the public interests.

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Before actively

initiating work under this authorization, the holder’s or

holder’s representative shall advise the Authorized Officer of the date upon which active field work will be initiated. Approval for the work shall be issued in writing by the Authorized Officer. The approval shall list

local restrictions pertaining to fire hazard, off-road vehicles, camp locations, and so forth.

APPROVAL TO INITIATE WORK.

Holder shall immediately advise the authorized officer in the likelihood of

any ownership changes affecting the operations authorized by this permit. The holder will inform the prospective buyer of the authorization and recommend contact with the authorized officer before a new permit application is submitted.

OWNERSHIP CHANGE.

To ensure against unauthorized public use of the permitted

road without interference with the Government’s use for

administrative purposes, the permittee is authorized to

install and/or sign a gate in accordance with design and

location approved in advance by the Forest Officer in

charge. Once installed, the custody, control, and safety

maintenance of said gate is the sole duty and responsibility of the permittee.

PRIVATE ROAD GATE INSTALLATION.

THIS PERMIT IS ACCEPTED SUBJECT TO ALL ITS

TERMS AND CONDITIONS.

ACCEPTED:

/s/

LESLIE HARTZ

12/14/17

LESLIE HARTZ

DATE

Vice President—Engineering and Construction

Dominion Energy, INC

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APPROVED:

/s/

KATHLEEN ATKINSON

1/23/18

KATHLEEN ATKINSON

DATE

Regional Forester, Eastern Region

National Forest Service

/s/

KEN ARNEY

1/23/2018

KEN ARNEY

DATE

Acting Regional Forester, Southern Region

National Forest Service

According to the Paperwork Reduction Act of 1995, an

agency may not conduct or sponsor, and a person is not

required to respond, to a collection of information unless

it displays a valid OMB control number. The valid

OMB control number for this information collection is

0596-0082. The time required to complete this information collection is estimated to average 1 hour per response, including the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data needed, and completing and reviewing

the collectio

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