Petition for Writ of Certiorari — Atlantic Coast Pipeline, LLC, Petitioner v. Cowpasture River Preservation Association, et al.
Supreme Court briefJun 25, 2019
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APPENDIX
TABLE OF APPENDICES
Appendix A
Opinion, United States Court of Appeals
for the Fourth Circuit, Cowpasture River
Preservation Association v. Forest Service,
No. 18-1144 (Dec. 13, 2018)......................... App-1
Appendix B
Order, United States Court of Appeals for
the Fourth Circuit, Cowpasture River
Preservation Association v. Forest Service,
No. 18-1144 (Feb. 25, 2019)....................... App-67
Appendix C
Record of Decision, United States
Department of Agriculture, Atlantic
Coast Pipeline Project Special Use
Permit/Land & Resource Management
Plan Amendment (Nov. 17, 2017) ............. App-69
Appendix D
Relevant Statutory Provisions ................ App-237
30 U.S.C. §185 ...................................... App-237
16 U.S.C. §1244 .................................... App-237
16 U.S.C. §1246 .................................... App-289
16 U.S.C. §521 ...................................... App-301
App-1
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.,
v.
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.
________________
On Petition for Review of a Decision of the
United States Forest Service
________________
Argued: Sept. 28, 2018
Decided: Dec. 13, 2018
________________
App-2
THACKER, Circuit Judge:
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.
I.
A.
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
App-3
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. 65-66. The Forest
Service’s comments further identified concerns about
1 Citations to the “J.A.” refer to the Corrected Deferred Joint
Appendix filed by the parties in this appeal.
App-4
landslides, slope failures, sedimentation, and impacts
to groundwater, soils, and threatened and 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.
B.
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
App-5
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.
App-6
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
App-7
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 sitespecific 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
App-8
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
App-9
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:
App-10
Restoration will consist of erosion control,
some NNIS [non-native invasive species]
control, and some native plant reintroduction, 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 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.
App-11
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.
C.
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 which it stated—for the first time—
that it would not require the remaining eight sitespecific 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
App-12
“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 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
App-13
of non-national 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 Service’s April 24, 2017 comments on the
draft biologic evaluation. Nonetheless, in an aboutface, 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,
App-14
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.,
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
App-15
NFMA, NEPA, and the MLA. We address each of these
Acts and alleged violations in turn.
A.
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, 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
App-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.
1.
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.
a.
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
App-17
apply to Forest Plans developed under the 1982 rule
in certain circumstances. See 36 C.F.R. §§ 219.8219.11; 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 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
App-18
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).
b.
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
2 Faced with a nearly identical situation in Sierra Club v.
Forest Service, we concluded that the Forest Service acted
App-19
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:
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 project-specific 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
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.
App-20
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 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)).
App-21
c.
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 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
App-22
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 (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
App-23
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.”). 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
App-24
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.
d.
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 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
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
3
App-25
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 is a substantial adverse
effect? Maybe not one. All of them?
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/oralsubstantial. 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.
App-26
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. 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
App-27
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.
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
App-28
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 pre-construction 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.
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.
App-29
e.
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:
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
App-30
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.
2.
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
App-31
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.
3.
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 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
App-32
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 60405 (concluding 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
App-33
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:
The Forest Service policy was that
consistency could only be determined with
App-34
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
App-35
(FSM 2703.2).”); id. at 3593-94 (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.
B.
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
App-36
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.
1.
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”
App-37
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.
The Forest Service frames Petitioners’ argument
as an impermissible collateral attack on FERC’s
actions, but that ignores the Forest Service’s
App-38
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 information should also be provided
App-39
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
App-40
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.
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
App-41
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 was
essentially identical in its response to objections filed
to the draft ROD and in its final ROD. 4
4 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.
App-42
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 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 offforest 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
App-43
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
unchanged alternatives analysis in the FEIS was
arbitrary and capricious.
2.
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
site-specific 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
5 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 for crossing the [ANST] need[s] to be based on sound
resource and compelling public interest determinations.”).
App-44
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.
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
App-45
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 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
App-46
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 insufficient to satisfy NEPA, and
did not constitute the necessary hard look at the
environmental consequences of the ACP project.
a.
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 site-specific 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.
App-47
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 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 sitespecific 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
App-48
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 science-based 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 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
App-49
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.
b.
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
See, e.g., Anya Litvak, Landslide Caused West Virginia
Pipeline Explosion, TransCanada Reports, Pittsburgh PostGazette (July 11, 2018), http://www.post-gazette.com/business/
powersource/2018/07/11/Landslide-caused-pipeline-explosionColumbia-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).
6
App-50
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.
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
App-51
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, 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
App-52
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 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.”).
App-53
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 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
App-54
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:
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
App-55
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—
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
App-56
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 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
App-57
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.
C.
Mineral Leasing Act
1.
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 parties also do
not dispute that NPS indicated it does not have
authority under the MLA to grant pipeline rights of
App-58
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:
App-59
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
App-60
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.
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.
App-61
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 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.
2.
The Forest Service also argues that Petitioners
have no standing to bring this challenge because they
App-62
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 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 nonnational 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
App-63
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).
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
App-64
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)
(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
App-65
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)).
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.
App-66
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 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
App-67
Appendix B
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.,
v.
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.
________________
Decided: Feb. 25, 2019
________________
ORDER
________________
Upon consideration of the petition for en banc
rehearing filed by Atlantic Coast Pipeline and the
App-68
petition for panel and en banc rehearing filed by the
federal respondents, and no judge having requested a
poll of the court on the petitions for en banc rehearing,
the court denies the petition for en banc rehearing and
the petition for panel and en banc rehearing.
Entered at the direction of the panel: Chief Judge
Gregory, Judge Wynn, and Judge Thacker.
For the Court
/s/ Patricia S. Conner, Clerk
App-69
Appendix C
UNITED STATES DEPARTMENT OF
AGRICULTURE
________________
ATLANTIC COAST PIPELINE PROJECT SPECIAL USE
PERMIT/LAND AND RESOURCE MANAGEMENT
PLAN AMENDMENTS
________________
Pocahontas County, West Virginia and Highland,
Bath, and Augusta Counties, Virginia
________________
Lead Agency: Federal Energy Regulatory
Commission
Cooperating Agency: U.S.D.A. Forest Service
________________
Dated: Nov. 17, 2017
________________
RECORD OF DECISION
________________
LIST OF ACRONYMS
ACP
Atlantic Coast Pipeline
ANST
Appalachian National Scenic Trail
ATWS
Additional Temporary Workspace
BA
Biological Assessment
BASI
Best Available Scientific
Information
BI
Beneficial Impact
BIC
Best in Class
App-70
BRP
Blue Ridge Parkway
BO
Biological Opinion
CFR
Code of Federal Regulations
CWA
Clean Water Act
COM
Construction, Operations, and
Maintenance
DEIS
Draft Environmental Impact
Statement
EPA
Environmental Protection Agency
ESA
Endangered Species Act
FEIS
Final Environmental Impact
Statement
FERC
Federal Energy Regulatory
Commission
FS
Forest Service
FWS
US Fish and Wildlife Service
FR
Federal Register
FR
Forest Road
GWNF
George Washington National Forest
HDD
Horizontal Directional Drilling
KOP
Key Observation Point
LRMP
Land and Resource Management
Plan
MNF
Monongahela National Forest
NEPA
National Environmental Policy Act
NFS
National Forest System
NFMA
National Forest Management Act
NOA
Notice of Availability
App-71
NOI
Notice of Intent
NRCS
Natural Resource Conservation
Service
NRHP
National Register of Historic Places
RACR
Roadless Area Conservation Rule
RFSS
Regional Forester Sensitive Species
ROD
Record of Decision
ROW
Rights of Way
RUSLE
Revised Universal Soil Loss
Equation
SHP
Supply Header Project
SHPO
State Historic Preservation Office
SIO
Scenic Integrity Objectives
SSURGO
Soil Survey Geographic Database
SUP
Special Use Permit
TEP
Threatened, Endangered, and
Proposed Species
U.S.C.
United States Code
USDA
United States Department of
Agriculture
VDCR-DNH
Virginia Department of Conservation
and Recreation–Division of Natural
Heritage
VIA
Visual Impact Analysis
WVDEP
West
Virginia
Department
Environmental Protection
of
App-72
INTRODUCTION
This record of decision (ROD) documents Forest
Service (FS) decisions and rationale for:
(1) Authorizing the use and occupancy of National
Forest System (NFS) land for Atlantic Coast
Pipeline, LLC (Atlantic) to construct, operate,
maintain, and eventually decommission a
natural gas pipeline that crosses NFS lands
administered by the Monongahela National
Forest (MNF) and George Washington
National Forest (GWNF); and
(2) Approving:
a.
a project-specific Forest Plan amendment
to the Monongahela National Forest’s
Land and Resource Management Plan1
(United
States
Department
of
Agriculture [USDA] Forest Service
2011), and
b.
a project-specific Forest Plan amendment
to the George Washington National
Forest’s LRMP (USDA Forest Service
2014).
Our decisions are based on the Final
Environmental Impact Statement (FEIS) prepared by
the Federal Energy Regulatory Commission (FERC)
for the Atlantic Coast Pipeline (ACP) Project and
Supply Header Project (SHP) (FERC 2017). In
accordance with the Natural Gas Act (Title 15 United
States Code [U.S.C.] § 717), the FERC is the lead
Federal agency for the environmental analysis of the
1 Hereafter referred to as the “LRMP” or “Forest Plan”
App-73
construction and operation of the ACP and SHP.
Federal agencies with a role in authorizing an
application for a natural gas pipeline are required by
law to cooperate in processing the application and to
comply with the processing schedule established by
FERC (Section 313 of Energy Policy Act of 2005). We
participated as a cooperating agency with the FERC
during the FEIS development. We have adopted the
environmental analysis conducted by FERC (in
accordance with 40 Code of Federal Regulations [CFR]
1506 (a) and (c)) to support this ROD.
Please note, while the pronoun “we” is used in this
document, the Regional Forester for the Eastern
Region (R9) is responsible for any decisions related to
the MNF and the Regional Forester for the Southern
Region (R8) is responsible for any decisions related to
the GWNF.
BACKGROUND
The ACP Project will involve the construction and
operation of 604.5 miles of an interstate natural gas
pipeline. Of the total ACP route miles, about 21 miles
are located on NFS lands. The SHP involves the
construction and operation of 37.5 miles of pipeline,
but since it will not impact NFS lands, it is not
addressed in this ROD. Figure 1-1 in the FEIS
provides an overview map of the two pipeline projects
analyzed in the FERC’s FEIS.
Section 1.0 (Introduction) of the FEIS describes
the background for the ACP Project. The ACP Project
on NFS lands includes the construction, operation,
and maintenance of a buried 42-inch diameter
interstate mainline natural gas pipeline that crosses
about 5 miles of lands managed by the MNF and 16
App-74
miles of lands managed by the GWNF. The pipeline
route will cross the Appalachian National Scenic Trail
(ANST) on the GWNF and the Blue Ridge Parkway
(BRP) on National Park Service land.
The construction corridor for the pipeline in most
instances will be 125 feet wide, but narrows to 75-feet
wide when crossing wetlands. The construction
corridor will be reclaimed to a final operational
corridor width of 50 feet. The pipeline will be buried so
that there will be three feet of cover in most areas, 18
inches of cover in consolidated rock and deeper when
crossing waterbodies. There will be no significant
above ground facilities located on either the MNF or
GWNF, although there will be minor equipment such
as test stations and line markers (size of a fence post).
The land use requirements of the project on NFS lands
is shown in Table 1:
Table 1 - Land Requirements of the Atlantic Coast
Pipeline on NFS Lands
App-75
If all approvals are in place, construction activity
to install the pipeline on NFS lands is scheduled to
begin in April 2018 and conclude in late 2019. Timber
removal would occur prior to pipeline installation
activity, but must occur between November 15 and
March 31 to avoid impacts to threatened and
endangered bats. Operation and maintenance within
the right-of-way (ROW) will begin shortly thereafter
and continue during the 30 year life of the special use
permit (SUP).
PURPOSE
ACTION
AND
NEED
AND
PROPOSED
Section 1.1 (Project Purpose and Need) of the
FEIS describes the purpose of the project is to serve
the growing energy needs of multiple public utilities
and local distribution companies in Virginia and
North Carolina. Atlantic states the ACP Project will
increase the reliability and security of natural gas
supplies in these two States, with the majority of the
gas supplied to be used to generate electricity for
industrial, commercial, and residential uses.
The purpose and need for the FS proposed action
is to respond to Atlantic’s application for a special use
permit that was submitted to the FS on June 16, 2016.
The proposed action by the FS is to authorize Atlantic
to use and occupy NFS lands for the ACP Project and
approve LRMP amendments to allow the project to be
consistent with the LRMPs. The FS decisions are
needed to meet our statutory obligations as a
cooperating agency in processing applications for
natural gas pipelines involving Federal land under
provisions Section 28 of the Mineral Leasing Act of
App-76
1920 (30 U.S.C. § 181) and the Energy Policy Act of
2005.
The Mineral Leasing Act of 1920 and federal
regulations at 36 CFR 251 Subpart B provide the FS
with authority to issue a SUP for construction and
operation of an oil and gas pipeline across these NFS
lands. The FS may include stipulations in the SUP it
deems necessary to protect Federal property and
otherwise protect the public interest.
Section 4.8.9 (“Federal Lands”) of the FEIS
describes the four MNF and nine GWNF Forest Plan
standards that will be modified and constitute the
amendment of each Forest LRMP. These amendments
allow the ACP Project to meet Forest Plan Standards
and minimize impacts to soil, water, riparian,
threatened and endangered species, recreational and
visual resources. Section 4.8.9.1 (“Forest Service”) of
the FEIS describes the function of Forest Plan
standards, as well as other types of management
direction that guide design of the ACP Project across
NFS lands. The National Forest Management Act
(NFMA) requires that proposed projects, including
third-party proposals subject to permits, be consistent
with the Forest Plan of the administrative unit where
the project will occur. The amendments are being
approved concurrently with our adoption and
use/occupancy decisions for the MNF and GWNF in
accordance with 36 CFR 219.15(c)(4).
DECISION TO BE MADE
are:
The decisions to be made by the Forest Service
(1) Whether to authorize the use and occupancy of
NFS land for Atlantic Coast Pipeline, LLC to
App-77
construct, operate, maintain, and eventually
decommission a natural gas pipeline that crosses
NFS lands administered by the MNF and GWNF;
and
(2) Whether to approve:
a.
A
project-specific
Forest
Plan
amendment to modify four standards in
the MNF’s Forest Plan, and
b.
A
project-specific
Forest
Plan
amendment to modify nine standards in
the GWNF’s Forest Plan.
We have reviewed those portions of the FEIS
directly related to NFS lands and the effects from the
ACP Project on those lands. We adopted the FEIS
because the analysis provides sufficient evidence to
support our decisions in compliance with Forest
Service regulations 36 CFR Part 219 (Planning), Part
220 (National Environmental Policy Act Compliance),
and Part 251 (Land Uses).
We have determined that the scope of the FEIS
analysis and this decision is limited to considering
authorizing use and occupancy and approving projectspecific plan amendments related to the ACP Project
on NFS lands. “Project-specific plan amendments”
means the amendments are applicable only to the ACP
Project and not to other current or future projects. We
have determined whether and how the four MNF and
nine GWNF modified Forest Plan standards are
directly related to the substantive requirements (36
CFR 219.8 through 219.11) of the Forest Service
planning regulations. The substantive requirements
address sustainability, diversity of plant and animal
communities, multiple use, and timber requirements
App-78
based on the NFMA. A forest plan amendment is
“directly related” to a substantive requirement if it has
one or more of the following relationships to a
substantive requirement:
•
•
•
•
the purpose for the amendment,
there would be a beneficial effect of the
amendment,
there would be a substantial adverse effect of
the amendment, or
there would be a substantial lessening of plan
protections by the amendment.
If a proposed amendment is determined to be
“directly related” to a substantive rule requirement,
we as the responsible officials must apply that
requirement within the scope and scale of the
proposed amendment and, if necessary, make
adjustments to the proposed amendment to meet the
substantive requirements. 36 CFR 219.13 (b)(5) and
(6); 81 Federal Register (FR) 90738 (Dec. 15, 2016).
Finally, mitigation for the ACP Project on NFS
lands is described in Section 2.3.1 (“Mitigation”) of the
FEIS. This section in the FEIS identifies the
construction and restoration plans that apply to the
ACP project as required both by FERC and by the FS.
Specifically, the Construction, Operation, and
Maintenance Plan (COM Plan) is a series of
construction plans, procedures, and mitigation
measures that will be implemented on NFS lands. The
COM Plan will be attached to and made a part of the
SUP issued by the FS. The SUP is the administrative
instrument that will implement this ROD.
App-79
CHANGES FROM DRAFT EIS (DEIS) TO FEIS
In the DEIS, the proposed Forest Plan
amendments consisted of one part with two potential
modified standards for the MNF and six parts with
eight proposed modified standards and three potential
modified standards for the GWNF. One part of the
GWNF amendment was proposed to be a “plan-level”
amendment; that is, it would have applied not only to
the ACP Project but also any future projects within the
area covered by the applicable modified standard. The
amendment proposals were based on the knowledge
and anticipated effects of the proposed project at that
time.
Since the DEIS, we reviewed additional
information, recent revisions to our planning
regulations, and comments from the public on the
DEIS. Our review resulted in determining that two of
the standards considered in the DEIS (FW-243 and
11-019 in the GWNF LRMP) do not need to be
modified for the project. However, the FEIS includes
modification of four standards (SW03 and TE07 in the
MNF LRMP; FW-8 and 11-003 in the GWNF LRMP)
that were not considered for modification in the DEIS.
Another change addressed in the FEIS was that we no
longer proposed to reallocate 104.2 acres of land on the
GWNF to Management Area 5C – Designated Utility
Corridor, but instead will exempt the ACP linear ROW
from being reallocated to the 5C management
prescription (See FW-244 in Table 3 below).
With one exception, the public was notified of the
aforementioned changes to the proposed Forest Plan
amendments through a notice that was published in
the Federal Register on June 5, 2017 (82 FR 25756).
App-80
One standard (TE07 in the MNF LRMP relating to
threatened and endangered species) was not included
in the DEIS nor in the June 5 FR Notice. TE07 is
identified in the FEIS as a standard that needs
modification based on results of biological surveys
completed since the DEIS.
The net result of the aforementioned changes is
that the FEIS evaluated proposed project-specific
amendments consisting of two parts modifying four
standards in the MNF LRMP (See Table 2 below) and
six parts modifying ten standards in the GWNF LRMP
(see Table 3 below.) The FEIS acknowledged that the
results of surveys completed after the release of the
FEIS would determine the need to modify two of the
standards identified (TE07 and FW-85). The
applicable surveys have now been completed and from
that information, it has been determined that TE07
(in the MNF’s LRMP) will need to be modified, but
FW-85 (in the GWNF’s LRMP) will not need to be
modified.
We also reviewed analyses from Atlantic and
worked with them to develop project design features
and mitigation measures that are designed to protect
resources including soil, riparian, special status
species habitat, visual, and recreational resources.
The additional mitigation measures or project design
features relating to the proposed amended standards
are discussed in the FEIS, Chapter 4 and in Atlantic’s
COM Plan. As described in the FEIS in Section 2.3.1.2
(“General Forest Service Mitigation”), our intent is to
avoid or minimize adverse impacts on NFS lands. The
COM Plan outlines mitigation measures that are
referenced throughout Chapter 4 in the FEIS
App-81
describing how the measures minimize impacts to
NFS resources. The COM Plan underwent a number
of changes from the DEIS to FEIS as described in
Section 4 of the FEIS. By adopting the FERC-prepared
FEIS, all design features and mitigation measures
applicable to NFS lands are made a part of this
decision. Atlantic submitted an updated COM plan in
October 2017 which addressed Forest Service
comments and includes additional details on
mitigation measures to minimize impacts. The COM
Plan will be a requirement of the SUPs the Forest
Service issues to implement the project.
The Federal Register on June 5, 2017 (82 FR
25756) also informed the public of a change to the
administrative review procedures for the ACP Project.
By not designating the ACP permit area as a
Management Area 5C Utility Corridor on the GWNF,
we are no longer considering a plan-level amendment
and the requisite administrative review process under
36 CFR 219 is no longer applicable. For this decision,
all of the modified standards were project-specific and
therefore the administrative review procedures of 36
CFR 218 were followed. (See the “Administrative
Review/Objections”
section
below
for
more
information.)
UPDATES SINCE DRAFT ROD RELEASE
This ROD reflects a number of updates since the
Draft ROD was published on July 21, 2017. The
completion of additional biological and cultural
resource surveys; updates to supporting documents,
reports, and plans; completion of our pre-decision
administrative review; and actions by other federal
agencies have helped shape the ROD. Discussed in
App-82
more detail throughout this document, the major
items influencing the ROD are summarized here:
Atlantic submitted an updated Biological
Evaluation (BE) report on August 4, 2017. The
BE
assesses
impacts
and
identifies
conservation measures for avoiding or
minimizing impacts on Regional Forester
Sensitive Species (RFSS). The updated report
incorporated the results of additional field
surveys and FS comments. On November 16,
2017, the Forest Service accepted the BE but
made different determinations for three RFSS.
• Atlantic completed a survey of old growth
areas that would be impacted by the ACP
Project and provided the results to the Forest
Service on September 8, 2017. Upon review of
survey results, the FS determined that the
GWNF’s old growth standard does not need to
be modified is addressed in this ROD.
• On October 13, 2017, FERC issued a Certificate
to Atlantic 2 for authorization to construct and
operate the ACP Project, subject to a number of
environmental conditions designed to mitigate
the environmental impacts associated with
construction and operation of the ACP Project.
The FERC’s Certificate will be referenced
throughout this ROD.
• The US Fish and Wildlife Service (FWS)
provided a biological opinion (BO) to FERC on
October 16, 2017, which contained the FWS
review of the effects of the ACP Project on eight
•
2 Hereafter referred to as the “FERC’s Certificate”
App-83
•
•
•
•
•
federally listed threatened and endangered
species. It also provided reasonable and
prudent measures which Atlantic must
implement to minimize harm as required by the
Endangered Species Act (ESA).
Atlantic submitted an updated COM Plan on
October 24,
2017 which incorporated
clarifications, additional information and
addressed FS comments. The updated COM
Plan is available at: http://elibrary.FERC.gov/
idmws/filelist.asp?accession_num=201710275240
On October 27, 2017, the FS completed its predecision administrative review of public
objections that were filed after the Draft ROD
was released. Objectors received a collective
response letter that addressed issues raised in
their objections.
Atlantic completed a Phase II cultural resource
survey on sites in the GWNF and on November
1, 2017, the FS notified the Virginia
Department of Historic Resources that the
tested sites were determined to not be eligible
for listing on the NRHP.
FERC requested a Conference Opinion from the
FWS on the candy darter on November 9, 2017.
The FWS had recently proposed the candy
darter for listing as a threatened species under
the ESA. FERC’s request asks FWS to confirm
its provisional finding that the ACP Project is
not likely to jeopardize the candy darter.
We recognize a need for the public to stay
informed as new information is obtained and
the project progresses on the National Forests.
App-84
We will meet this obligation by posting on the
GWNF website for the ACP Project relevant
plans,
documents,
weekly
inspection/
monitoring reports, photos, and links to other
websites
(FERC,
Dominion
Energy
Transmission,
Inc.,
etc…)
containing
information about the project.
DECISION
DECISION
AND
RATIONALE
FOR
THE
Authorization of the use and occupancy of NFS
land
Based on our review of the FEIS and project
record, we are authorizing Atlantic to use and occupy
NFS land to construct, operate, maintain, and
eventually decommission a natural gas pipeline, the
ACP Pipeline Project, on NFS lands administered by
the MNF and GWNF. The construction phase of the
project on NFS lands will disturb approximately 430.4
acres of land, including the pipeline construction
right-of-way, additional temporary workspaces
(ATWS), and access roads. Following construction, 214
acres of NFS lands will be maintained and operated
for long-term use. The long-term use will include
approximately 56 acres of lands associated with the
proposed 5.1 mile pipeline corridor and associated
access roads for the ACP Project that crosses the MNF
in Pocahontas County, West Virginia; and
approximately 158 acres and 15.9 miles of pipeline
corridor on the GWNF in Highland, Bath, and
Augusta Counties, Virginia. See Figure 1. More
detailed maps of the pipeline route are found in
Appendix B of the FEIS. This authorization will be
App-85
implemented through the FS issuing two SUPs: l)a
temporary SUP for the construction of the ACP; and
2) a SUP for use and maintenance of the ACP for a
term of 30 years with an option to renew in accordance
with 36 CFR 251.64.
Our decision allows Atlantic to implement the
ACP Project in a manner consistent with the terms
and conditions of this decision.
Approval of Forest Plan amendments
Based on our review of the FEIS and project
record, we amend the MNF's LRMP as displayed in
Table 2 and the GWNF's LRMP as displayed in Table
3. As the Tables show, the plan amendments modify
certain plan standards relating to: Utility Corridors,
Soil and Riparian, Threatened and Endangered
Species, Eligible Recreational River Access,
Appalachian National Scenic Trail Area, and Scenic
Integrity Objectives. Modified plan amendment
language is in "bold" text in column 2 of the tables.
App-86
Figure 1 - Atlantic Coast Pipeline Route on the MNF
and GWNF.
Table 2. MNF Revised Land and Resource
Management Plan Amendment Specific to the ACP
Project
MNF
Forest
Plan Standards
as
Standards Prior to Modified for the ACP
Modifying for the ACP Project
Project
Part One - Soils
Standard SW06: Severe
rutting resulting from
management activities
shall be confined to less
than 5 percent of an
activity area.
Standard SW06: Severe
rutting resulting from
management activities
shall be confined to less
than 5 percent of an
activity area with the
exception
of
the
App-87
construction
of
Atlantic
Coast
Pipeline, where the
applicable mitigation
measures identified
in the COM Plan and
SUP
must
be
implemented.
Standard SW07: Use of
wheeled and/or tracked
motorized
equipment
may be limited on soil
types that include the
following
soil/site
conditions:
Steep Slopes (40 to
50 percent) – Operations
on these slopes shall be
analyzed on a case-bycase basis to determine
the best method of
operation
while
maintaining
soil
stability
and
productivity. Very Steep
Slopes (more than 50
percent)
–
Use
is
prohibited
without
recommendations from
interdisciplinary team
review and line officer
approval.
Standard SW07: Use of
wheeled and/or tracked
motorized
equipment
may be limited on soil
types that include the
following
soil/site
conditions with the
exception
of
the
construction
of
Atlantic
Coast
Pipeline, where the
applicable mitigation
measures identified
in the COM Plan and
SUP
must
be
implemented:
Steep Slopes (40 to
50 percent) – Operations
on these slopes shall be
analyzed on a case-bycase basis to determine
the best method of
operation
while
maintaining
soil
stability
and
App-88
Susceptible
to
Landslides – Use on
slopes greater than 15
percent
with
soils
susceptible to downslope
movement when loaded,
excavated, or wet is
allowed
only
with
mitigation
measures
during periods of freezethaw and for one to
multiple days following
significant
rainfall
events. If the risk of
landslides during these
periods
cannot
be
mitigated, then use is
prohibited.
productivity. Very Steep
Slopes (more than 50
percent)
–
Use
is
prohibited
without
recommendations from
interdisciplinary team
review and line officer
approval.
Susceptible
to
Landslides – Use on
slopes greater than 15
percent
with
soils
susceptible to downslope
movement when loaded,
excavated, or wet is
allowed
only
with
mitigation
measures
during periods of freezethaw and for one to
multiple days following
significant
rainfall
events. If the risk of
landslides during these
periods
cannot
be
mitigated, then use is
prohibited.
Soils Commonly Wet
At or Near the Surface
During a Considerable
Part of the Year or Soils
Highly Susceptible to
Compaction. Equipment
use shall normally be
prohibited or mitigated
when soils are saturated
Soils Commonly Wet
or when freeze-thaw At or Near the Surface
cycles occur.
During a Considerable
Part of the Year or Soils
Highly Susceptible to
Compaction. Equipment
use shall normally be
App-89
prohibited or mitigated
when soils are saturated
or when freeze-thaw
cycles occur.
Standard
SW03:
Disturbed
soils
dedicated to growing
vegetation
shall
be
rehabilitated
by
fertilizing,
liming,
seeding, mulching, or
constructing structural
measures as soon as
possible, but generally
within 2 weeks after
project completion, or
prior to periods of
inactivity, or as specified
in
contracts.
Rip
compacted sites when
needed for vegetative
reestablishment
and
recovery
of
soil
productivity
and
hydrologic function.
Standard
SW03:
Disturbed
soils
dedicated to growing
vegetation
shall
be
rehabilitated
by
fertilizing,
liming,
seeding, mulching, or
constructing structural
measures as soon as
possible, but generally
within 2 weeks after
project completion, or
prior to periods of
inactivity, or as specified
in
contracts.
Rip
compacted sites when
needed for vegetative reestablishment
and
recovery
of
soil
productivity
and
hydrologic function with
the exception of the
construction,
restoration,
and
rehabilitation
activities associated
with
the
Atlantic
Coast Pipeline where
the
applicable
mitigation measures
App-90
identified in the COM
Plan and SUP must be
implemented.
Part 2 - Threatened and Endangered Species
Standard TE07: Special
use permits may be
authorized
in
TEP
[Threatened,
Endangered, Proposed]
species habitat if the
uses do not adversely
affect populations or
habitat. This standard
does not apply to Indiana
bat or running buffalo
clover. See special use
direction
for
these
species, [in the MNF
LRMP].
Standard TE07: Special
use permits may be
authorized
in
TEP
species habitat if the
uses do not adversely
affect populations or
habitat. However, this
requirement will not
apply to the Atlantic
Coast
Pipeline
Construction SUP for
the northern longeared bat and small
whorled
pogonia
where the applicable
mitigation measures
identified in the COM
Plan and SUP must be
implemented.
This
standard does not apply
to
Indiana
bat
or
running buffalo clover.
App-91
Table 3: GWNF Land and Resource Management Plan
Amendment Specific to the ACP Project
GWNF Forest Plan Standard as Modified
Standard Prior to for the ACP Project
Modification for the
ACP Project
Part 1 - Utility Corridors
Standard
FW-244:
Following evaluation of
the
above
criteria,
decisions
for
new
authorizations outside of
existing corridors and
designated
communication sites will
include an amendment
to the Forest Plan
designating them as
Prescription Area 5B or
5C
(Note: Use of the phrase
“above criteria” in this
standard
refers
to
criteria in other Plan
standards related to
utility corridors.)
Standard
FW
244:
Following evaluation of
the
above
criteria,
decisions
for
new
authorizations outside of
existing corridors and
designated
communication sites will
include an amendment
to the Forest Plan
designating them as
Prescription Area 5B or
5C with the exception
of the operational
right-of-way for the
Atlantic
Coast
Pipeline.
Part 2 - Soil and Riparian
Standard FW-5: On all
soils
dedicated
to
growing vegetation, the
organic layers, topsoil
and root mat will be left
Standard FW-5: On all
soils
dedicated
to
growing vegetation, the
organic layers, topsoil
and root mat will be left
App-92
in place over at least 85%
of the activity area and
revegetation
is
accomplished within 5
years.
in place over at least 85%
of the activity area and
revegetation
is
accomplished within 5
years,
with
the
exception
of
the
operational right-ofway
and
the
construction zone for
the Atlantic Coast
Pipeline, where the
applicable mitigation
measures identified
in the approved COM
Plan and SUP must be
implemented.
Standard FW-8: Water
saturated
in
areas
expected to produce
biomass
should
not
receive vehicle traffic or
livestock trampling to
prevent excessive soil
compaction.
Standard FW-8: Water
saturated
in
areas
expected to produce
biomass
should
not
receive vehicle traffic or
livestock trampling to
prevent excessive soil
compaction, with the
exception
of
the
operational right-ofway
and
the
construction zone for
the Atlantic Coast
Pipeline, where the
applicable mitigation
measures identified
in the approved COM
App-93
Plan and SUP must be
implemented.
Standard
FW-16:
Management activities
expose no more than 10%
mineral soil in the
channeled
ephemeral
zone.
Standard
FW-16:
Management activities
expose no more than 10%
mineral soil in the
channeled
ephemeral
zone,
with
the
exception
of
the
operational right-ofway
and
the
construction zone for
the Atlantic Coast
Pipeline, where the
applicable mitigation
measures identified
in the COM Plan and
SUP
must
be
implemented.
Standard FW-17: In
channeled
ephemeral
zones, up to 50% of the
basal area may be
removed down to a
minimum basal area of
50 square feet per acre.
Removal of additional
basal area is allowed on
a case-by-case basis
when needed to benefit
riparian
dependent
resources
Standard FW-17: Up to
50% of the basal area
may be removed, down to
a minimum basal area of
50 square feet per acre.
Removal of additional
basal area is allowed on
a case-by-case basis
when needed to benefit
riparian-dependent
resources, with the
exception
of
the
operational right-ofway
and
the
App-94
construction zone for
the Atlantic Coast
Pipeline, where the
applicable mitigation
measures identified
in the COM Plan and
SUP
must
be
implemented.
Standard
11-003:
Management activities
expose no more than 10
percent mineral soil
within the project area
riparian corridor
Standard
11-003:
Management activities
expose no more than 10
percent mineral soil
within the project area
riparian corridor, with
the exception of the
operational right-ofway
and
the
construction zone for
the Atlantic Coast
Pipeline, where the
applicable mitigation
measures identified
in the COM Plan and
SUP
must
be
implemented
Part 3 - Appalachian National Scenic Trial Crossing
Standard
4A-025:
Locate
new
public
utilities and rights-ofway in areas of this Rx
area
where
major
impacts already exist.
Limit linear utilities and
Standard 4A-025: Locate
new public utilities and
rights-of-way in areas of
this Rx area where major
impacts already exist,
with the exception of
the Atlantic Coast
App-95
rights-of-way to a single Pipeline right-of-way.
crossing of the Rx area Limit linear utilities and
rights-of-way to a single
per project.
crossing of the Rx area
per project.
Part 4 - Management Prescription 2C3 Eligible
Recreational River Area
2C3-015: Allow road
construction
or
reconstruction
to
improve
recreational
access, improve soil and
water, to salvage timber,
or to protect property or
public safety.
Standard 2C3-015: Allow
road construction or
reconstruction
to
improve
recreational
access, improve soil and
water, to salvage timber,
or to protect property or
public safety, and to
reconstruct FR 281 for
the Atlantic Coast
Pipeline, where the
applicable mitigation
measures identified
in the COM Plan and
SUP
must
be
implemented.
Part 5 - Scenic Integrity Objectives
Standard FW-182: The
Forest SIOs [Scenic
Integrity Objectives] are
met for all new projects
(including special uses).
Existing conditions may
not currently meet the
assigned SIO.
Standard FW-182: The
Forest SIOs are met for
all
new
projects
(including special uses),
with the exception of
the Atlantic Coast
Pipeline right-of-way.
The ACP ROW must
meet the established
App-96
SIOs within five years
after completion of
the
construction
phase of the project
for areas identified in
the COM Plan and
SUP, except for the
immediate
foreground of the
Shenandoah
Mountain
Trail
crossing where the
project must meet the
SIO of Low. Existing
conditions
may
not
currently
meet
the
assigned SIO.
Terms and Conditions
This decision will require compliance with the
following measures as special terms and conditions of
the special use permits:
1. Atlantic shall implement the ACP Project in
compliance with the October 2017 version of the
Construction, Operations and Maintenance Plan.
2. Atlantic shall comply with its proposal as described
in its submission to the Forest Service dated
October 17, 2017 regarding use of and
improvements to FR 281 (Campbell Hollow Road).
3. Atlantic shall implement the conservation
measures of the August 2017 version of the
Biological Evaluation
App-97
4. Atlantic shall comply with applicable provisions of
Appendix A – Environmental Conditions of FERC’s
Order Issuing Certificate; Docket Nos CP15-554000 and CP15- 554-001 (Issued October 13, 2017)
5. Atlantic shall not begin activities with the
potential to impact any eligible historic properties
on NFS lands until all signatories have signed the
Programmatic Agreement for compliance with the
National Historic Preservation Act for the ACP
Project and any required cultural resource
treatment plans for sites on NFS lands have been
completed.
6. Atlantic shall comply with applicable provisions of
the Reasonable and Prudent Measures and Terms
and Conditions of the USFWS Biological Opinion
(BO) for the ACP Project. In addition, Atlantic will
also comply with the BO’s Monitoring and
Reporting Requirements for the rusty patched
bumble bee and the Indiana bat to the extent
applicable to NFS land.
7. Atlantic shall not begin activity on NFS land that
may impact candy darter habitat until the USFWS
provides FERC with a non-jeopardy determination
for the species. The FS will not authorize activity
that could impact candy darter habitat until the
aforementioned condition is satisfied.
8. Atlantic shall obtain West Virginia and Virginia
Clean Water Act Section 401 Certifications (or
waivers thereof) before beginning activity on NFS
land that may impact waters of the U.S.
9. Atlantic shall obtain and comply with the Erosion
and Sediment Control Plan as approved by the
App-98
Virginia DEQ before beginning construction on
NFS land.
10. Atlantic shall obtain and comply with the
Stormwater Pollution Prevention Plan as approved
by the Virginia DEQ before beginning construction
on NFS land.
11. Atlantic shall obtain and comply with the Erosion
and Sediment Control Plan as approved by the
West Virginia DEP before beginning construction
on NFS land.
12. Where mechanical removal of timber products is
employed, merchantable material will be removed
from NFS lands in accordance with provisions of
Timber Sale Contract.
13. Atlantic shall provide a timber removal plan that
addresses access road improvements for Forest
Service approval prior to removing timber.
14. In addition to consideration of areas where safe
removal of timber is not reasonable, on the GWNF
merchantable timber will not be required to be
removed on lands that are less than or equal to site
index 40, slopes greater than 55%, and forest types
not equal to 48, 53, 56, and 81.
15. On the GWNF, forwarders and/or shovel loggers
may be utilized on slopes from 35% to 45%. Skyline
and/or helicopters may be used on slopes steeper
than 35%, but are required on slopes steeper than
45%.
16. Where windrows are necessary and do not conflict
with the COM Plan, windrowed slash shall be
limited to 8-foot-high, 20- foot-wide, and 100-footlong with 50-foot breaks between the windrows to
App-99
allow for movement
construction corridor.
of
wildlife
across
the
17. Atlantic will mitigate for the loss of habitat for
threatened, endangered, and sensitive bats on
MNF with a combination of tree-snagging and
installation of bat box (rocket box) clusters along
the edge of disturbance (within the temporary
workspace) following construction. These efforts
shall include suitable replacement habitat for the
loss of potential optimal roost trees (i.e., all
shagbark hickory greater than 5 inches DBH and
any snags cut within the construction right-ofway), shall be focused in those affected areas, and
specific locations guided by coordination with the
MNF. The installed boxes shall be monitored
annually for a minimum of three years to ensure
proper installation and assess efficacy in providing
roosting habitat in the impacted area.
18. No surface-disturbing activity would occur on NFs
lands as part of the crossing under the
Appalachian National Scenic Trail.
19. Wild brook trout activity timing restrictions of
October 1 to March 31 shall be applied to stream
crossings saua427p, saua428, and saua429.
20. Any adjustments to stream buffers must be
approved by the Forest Service prior to any work
in the area that is proposed for adjustment.
21. To reduce movement barriers to small animals,
protective barriers for wetlands shall substitute
filter stocks wherever silt fences would ordinarily
be used.
App-100
22. Atlantic shall employ the COM Plan feathering
vegetation clearing technique at the following
milepost locations to minimize impacts to visually
sensitive areas:
73.3-73.6
78.0-78.3
80.35-80.85
81.25-81.32
82.6-84.7
93.7-94.2
98.65-98.75
105.9-106.0
115.8-116.2
116.5-120.5
121.0-123.2
154.0-155.1
23. Atlantic shall identify trees to be retained for
feathering purposes and protected during
construction by clearly marking with flagging or
safety fencing.
24. Atlantic shall have a landscape architect onsite to
monitor for activities pertaining to scenery
including but not limited to feathered construction
right-of-way edges, and monitoring growth of
vegetation from a variety of viewpoints to assure
scenic integrity objectives are met within five
years.
25. Atlantic shall employ enhanced restoration
techniques of the permanent ROW at the
aforementioned mileposts to include a planting
configuration that transitions from the outside
edges to the center with small, shallow rooted
trees, then shrub species, then a minimum 10-foot
herbaceous strip centered over the pipe. Atlantic
shall coordinate with the FS on details of planting
prior to implementing restoration. The width and
frequency of mowing within the ROW will be
determined by the FS following completion of
planting.
App-101
26. Atlantic shall monitor herbaceous vegetation used
for stabilization at least quarterly for three years
after restoration is completed. Post-construction
and post-disturbance monitoring for tree and
shrub vegetation will be conducted annually for the
first five growing seasons following the initial
revegetation effort, and at five-year intervals
thereafter, for the life of the Project on the NFS
lands. Written reports, including photographs, will
be submitted to the Forest Service following each
monitoring cycle.
27. Any proposed substitutes for the ProGanics and
Flexterra soil supplements must be approved by
the Forest Service prior to use.
28. Atlantic shall conduct bleeder drain water quality
monitoring monthly to identify if there are
seasonal variability in parameters.
29. Atlantic shall install twelve-inch diameter (or
larger) compost filter socks at the outlet of slope
breakers to control sediment transport until
vegetation becomes established.
30. Atlantic shall employ standard industry standard
industry practices to ensure backfill, compaction,
and restoration activities occur only during
suitable soil moisture content conditions.
31. Atlantic shall submit Site Specific Designs (SSDs)
for the remaining eight steep slope sites identified
by the FS in its letter dated October 24, 2016. Each
respective SSD must be submitted to the FS a
minimum of 30 days in advance before beginning
work at the involved site. Each SSD will be
certified by a registered professional engineer or
engineering geologist with experience using
App-102
engineering geologic information in steep slope
design and construction of this type of facility.
Qualified professionals, including an engineering
geologist and a geotechnical engineer, will also
monitor construction activities at sites on NFS
lands to oversee implementation of design and
address unforeseen circumstances.
32. Prior to construction, Atlantic will provide FS with
all outstanding geotechnical studies and status of
Best in Class (BIC) program team analysis relating
to operations on NFS lands. At least 30 days prior
to the start of construction for a spread with slopes
greater than 30% and over 100 foot long, Atlantic
will notify FS. The notification will include the
anticipated start date, location based on mileposts,
and estimated duration of the construction
activities for that spread. The holder will
participate in pre-construction conference with FS.
33. Atlantic will immediately notify the FS of a slope
failure on NFS land during construction. Atlantic
shall use qualified professionals, including a
geotechnical engineer and an engineering
geologist, to assess the nature and extent of the
slope failure (including the potential for off-site
impacts) and to a develop remediation plan for
review and approval by the FS.
34. Atlantic shall provide access road designs for FS
review and approval at least 30 days prior to any
activity on the roads. In addition to construction
and improvements, designs shall also include plans
for deconstructing and restoring roads to their
prior maintenance standard within six months
after pipeline construction has been completed. No
App-103
use or improvement of roads shall occur until any
corrections required by the FS have been made and
FS approval of designs has been granted.
35. Atlantic shall provide legal access to the FS on any
roads that cross private land in the course of
accessing NFS land for purposes of administering
this project.
36. Atlantic
shall
inspect,
at
a
frequency
commensurate with weather conditions, temporary
erosion and sedimentation control features
installed within 250 feet of identified RFSS habitat
to ensure proper function of the feature.
37. Atlantic shall implement the following protections
for the potential hibernaculum near FR 1026:
a.
No trees shall be cut within 200’ of the
hibernaculum, except where public or worker
safety concerns require it;
b.
Explosives shall not be used within 200 feet of
the hibernaculum, unless the Forest Service
concurs that this activity will not have an
adverse effect on bat populations or habitat.
Explosives outside of these areas shall not be
used when such use has potential to damage
the cave or disturb the bats;
c.
Any road work (e.g., upgrades, maintenance)
within 200’ of the hibernaculum shall occur
outside the hibernacula period (Nov 15-March
31); and
d.
No entry into the cave is allowed. Ensure that
all personnel working on site are made aware
of this restriction.
App-104
38. If active northern goshawk nests are found in the
project area during tree clearing and other
construction activities, Atlantic shall notify the FS
for direction on appropriate course of action.
39. If active long-eared owl nests are found in the
project area during tree clearing and other
construction activities, Atlantic shall notify the FS
for direction on appropriate course of action.
40. Prior to construction, provide analysis of new
RFSS that were added to the MNF’s RFSS list in
October, 2017. Include effect determinations and
any avoidance, minimization, and mitigation
needed to meet Forest Plan direction.
41. Atlantic shall perform additional surveys in
suitable habitats near the project area for
populations of Roan Mountain sedge, Appalachian
oak fern, and white alumroot to improve size and
abundance data for the species.
Decision Rationale
Based on the analysis provided by FERC in the
FEIS, we are authorizing Atlantic to use and occupy
NFS lands for the ACP Project, and approve projectspecific amendments for the MNF and GWNF LRMPs
as described above, because our decision:
•
•
•
Can be implemented with limited adverse
impacts and will not impair the overall longterm productivity of NFS lands;
Meets the requirements of Forest Service
planning and special use regulations (36 CFR
Part 219 and Part 251 Subpart B);
Meets the purpose and need of the project to
transport natural gas to serve the growing
App-105
•
•
energy needs of multiple public utilities and
local distribution companies in Virginia and
North Carolina;
Has been developed through an extensive
public involvement and collaboration effort
with
our
publics,
partners,
adjacent
landowners, and other agencies; and
Is consistent with other Federal policy.
Rationale by Topic Area
Long-term productivity of NFS lands
The FERC analysis in the FEIS concludes that
implementation of the ACP Project will result in
limited adverse environmental impacts, noting an
increased potential for: project-induced landslides on
steep slopes; long term impacts related to slope
instability adjacent to waterbodies (impacting water
quality, stream channel geometry, and downstream
aquatic biota); creation of additional forest edge
habitat through fragmentation; and significant
impacts associated with karst, cave, subterranean
habitat, and the species associated with subterranean
habitat. (FEIS, Sections 4 and 5). We recognize that
the ACP Project will directly impact resources, though
mostly in the area disturbed by construction. The
extent of these impacts will occur within the 430-acre
construction phase footprint on the MNF and the
GWNF, which is a small percentage of their nearly two
million-acre total land base. The greatest potential for
impact will be during the estimated 18-month
construction phase, with impacts diminishing as
reclamation is completed. Because of the adverse
environmental impacts, we are requiring a broad
spectrum of mitigation measures for the ACP Project.
App-106
Therefore through application of mitigation and the
limited extent of the project, long-term productivity of
NFS lands will be maintained.
The SUPs issued by the FS will be subject to
required terms, conditions, and mitigation described
throughout the FEIS (particularly Sections 2.3.1. and
4.8.9 and the COM Plan) and highlighted in the
“Terms and Conditions” section of this ROD. Measures
to avoid or minimize environmental harm that are
incorporated in this decision include forestwide LRMP
standards and guidelines, which at a minimum meet
all requirements of applicable laws, regulations, State
standards, and additional standards and guidelines
for the affected NFS lands.
Adverse effects of pipeline construction will be
mitigated through measures proposed by Atlantic and
through measures required by FERC’s Certificate, the
FWS’s BO, and FS SUPs, as well as other agencies’
permits and plans. Singularly and collectively, they
avoid, rectify, reduce, or eliminate potential adverse
environmental impacts to NFS lands. The listing of
Construction and Restoration Plans that are
applicable to the ACP Project, taken from FEIS, Table
2.3.1-1, are displayed in Table 4 below. Readers should
note that there may be updates to the documents and
their associated website links shown in Table 4. Refer
to
FERC’s
eLibrary
webpage
(https://www.ferc.gov/docs-filing/elibrary.asp)
and
search by Docket Number CP15-554 for the latest
information if any of the links provided are no longer
valid.
App-107
Table 4: Construction and
Applicable to ACP Project
General Plan Name
Restoration
Plans
Location of Plan
Upland
Erosion The FERC Plan and
Control, Revegetation, Procedures can both be
and Maintenance Plan viewed on the FERC
Internet
website
at
Wetland and
https://www.ferc.gov/
Waterbody
industries/gas/enviro/
Construction and
guidelines.asp
Mitigation Procedures
Atlantic’s
proposed FERC
Accession
No.
modifications to FERC 20170526-5257. PDF file:
https://elibrary_ferc.
Plan and Procedures
gov/idmws/common/Open
Nat.asp?fileID=14598802
Restoration
and EIS Appendix F
Rehabilitation Plan
Construction,
EIS Appendix G
Operation,
and
Maintenance Plan
Horizontal Directional EIS Appendix H1
Drill Drilling Fluid
Monitoring, Operations,
and Contingency Plan
Contingency Plan for EIS Appendix H2
the Proposed Crossing
of the Appalachian
National Scenic Trial
and
Blue
Ridge
Parkway
App-108
Site-Specific
Crossing Plans
HDD EIS Appendix H3
Karst
Terrain EIS Appendix I
Assessment,
Construction,
Monitoring,
and
Mitigation Plan
Residential
Construction Plans
EIS Appendix J1
Site-Specific Crossing EIS Appendix J2
Plan for the James
River
Wildlife
Management Area
Spill
Prevention,
Control,
and
Countermeasures Plan
(SPCC Plan)
FERC
Accession
No.
20160718-5164. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14311323
Timber Removal Plan
FERC
Accession
No.
20160718-5164. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14311323
Stormwater Pollution
Prevention Plans (SHP;
AP-1 [WV]; AP-2 [NC];
remaining facility plans
are pending)
FERC
Accession
No.
20170609-5196. PDF file:
https://elibrary.ferc.gov/
idmws/file_list.asp?
accession_num=20170609
-5196
Contaminated
Plan
Media FERC
Accession
No.
20160718-5164. PDF file:
http://elibrary.ferc.gov/
App-109
idmws/common/OpenNat.
asp?fileID=14311323
Traffic
and FERC
Accession
No.
Transportation
20160718-5164. PDF file:
http://elibrary.ferc.gov/
Management Plan
idmws/common/OpenNat.
asp?fileID=14311323
Non-Native
Invasive FERC
Accession
No.
Plant
Species 20161115-5160. PDF file:
http://elibrary.ferc.gov/
Management Plan
idmws/common/OpenNat.
asp?fileID=14399112
Blasting Plan
FERC
Accession
No.
20161109-5138. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14395436
Slope Stability Policy FERC
Accession
No.
20170127-51202.
and Procedure
file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14475036
Winter
Plan
Construction FERC
Accession
No.
20170127-5202. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14475037
Plans for Unanticipated FERC
Accession
No.
Discovery of Historic 20160718-5164. PDF file:
Properties or Human http://elibrary.ferc.gov/
Remains
During
App-110
Construction
(ACP: idmws/common/OpenNat.
West Virginia, Virginia, asp?fileID=14311323
North Carolina, SHP:
West
Virginia,
Pennsylvania
Unanticipated
Discoveries Plans for
Cultural Resources and
Human Remains Policy
(MNF and GWNF)
FERC
Accession
No.
20170512-5163. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14588372
Migratory Bird Plan
FERC
Accession
No.
20170505-5036. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14582932
Fire Prevention
Suppression Plan
Open Burning Plan
and FERC
Accession
No.
20170127-5202. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14475038
FERC
Accession
No.
20160701-5255. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14295967
Fugitive Dust Control FERC
Accession
No.
20160718-5164. PDF file:
and Mitigation Plan
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14311323
Protected
Snake FERC
Accession
201607295-5256.
Conservation Plan
No.
App-111
file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14319660
Virginia
Relocation Plan
Fish FERC
Accession
No.
20160816-5051. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14330185
North Carolina Revised
Fish and Other Aquatic
Taxa Collection and
Relocation Protocol for
Instream Construction
Activities
FERC
Accession
No.
20170310-5157. PDF file:
http://elibrary.ferc.gov/
idmws/common/OpenNat.
asp?fileID=14515832
The following paragraphs and other sections of
this ROD discuss how impacts to Forest resources
would be mitigated to the extent practical. Impacts
and mitigation relating to Forest resources that are
the subject of the LRMP amendments are discussed in
the “Compliance with 36 CFR 219 Applicable
Substantive Provisions” section of this ROD.
Additional discussion of impacts and mitigation is also
contained in the “Findings Required by Other Laws,
Regulations, and Policy” section of this ROD.
Sustainability of surface and groundwater
resources was considered in our decision. Landslide
potential and slope instability concerns, soil erosion,
stream crossings, and karst topography are activities
associated with this project that could potentially
impact water quality. The ACP will be installed under
17 perennial, 28 intermittent, and 11 ephemeral
waterbodies on NFS lands. It will also cross about 2.4
App-112
miles of karst topography on the Forests.
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. Water for hydrostatic testing of the
pipeline will not come from, or be discharged on, NFS
lands. Pipeline construction activities affecting
surface waters would be conducted in accordance with
Atlantic’s construction and restoration plans, along
with conditions that are part of other federal or state
water approvals. Atlantic will implement the Spill
Prevention, Control, and Countermeasure Plan and
the Karst Mitigation Plan to minimize impacts on
karst systems and protect groundwater quality. We
agree with the FERC’s conclusion that with these
measures, along with our additional recommended
mitigation measures, impacts on groundwater and
surface waters will be effectively minimized or
mitigated, and will be largely temporary in duration.
Restoration and revegetation of disturbed areas will
be completed in accordance with federal and
state/commonwealth permits, the FERC Plan and
Procedures, and the COM Plan that will be approved
and incorporated as a requirement into the SUPs.
Acknowledging that revegetation of steep slopes is
made more challenging due to soil erosion by water,
Section
5.6
of
Atlantic’s
Restoration
and
Rehabilitation Plan (FEIS Appendix F) describes the
methods that will be used to establish vegetation in
steep slope areas. Post-construction monitoring will
also be required to assure successful re-establishment
of vegetation and stability of upland soils and slopes
that drain to surface waters.
App-113
Sustainability of wildlife species and their
habitats was considered in our decision. The ACP
Project’s impacts to wildlife will vary depending on the
habitat requirements of each species and the existing
habitat present within the project area. The FEIS
concludes that despite the mitigation measures,
forested areas would experience long-term to
permanent significant impacts as a result of
fragmentation.
The
landscape
context
of
fragmentation is of particular concern to the FS. The
fragmentation of larger blocks, as is often the case on
NFS lands, may have an impact on habitat quality
potential of the entire patch thus affecting a much
larger amount of interior forest than a direct
measurement of acreage cleared. These effects will
diminish after construction, and some wildlife could
return to the newly disturbed areas and adjacent,
undisturbed habi
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