Category Archives: Energy

Individual 401 Water-quality Certification Permits would NOT be Required in Virginia for Proposed Atlantic Coast and Mountain Valley Natural Gas Pipeline Projects, according to Va. DEQ on May 24, 2017; Agency Acknowledges Incorrect Announcement of April 6, 2017

On May 24, 2017, the Virginia Department of Environmental Quality (DEQ) acknowledged that the agency will not require individual permits for stream and wetland impacts of the proposed Atlantic Coast and Mountain Valley pipelines, should the projects be approved (both proposed projects are under review (as of May 2017) by the Federal Energy Regulatory Commission (FERC).  Instead,  the U.S. Army Corps of Engineers would be responsible for determining whether such impacts required individual permits or could be authorized under the Clean Water Act Nationwide Permit 12 process, a general permit that would cover all of a project’s wetland and stream crossings.

The agency had announced on April 7, 2017, the it would require individual state permits for each stream/wetland crossing in addition to the Corps’ process, but the agency asserted on May 24 that the April announcement was an error resulting from miscommunication between the agency’s technical staff and public affairs staff.

The DEQ said in May that it still intends to require certifications–known as 401 certifications after the relevant section of the federal Clean Water Act–of the potential water impacts of each project as a whole, and that it will hold public hearings on that process.  That process would focus on water impacts beyond the jurisdiction of the Corps, according to news reports on May 24-25, 2017.

For more information on the federal Clean Water Act’s required Section 401 state certification process, see “401 Certification,” Association of State Wetland Managers, online at https://www.aswm.org/wetland-programs/regulation/401-certification.

Sources:

Virginia DEQ denies backpedaling on pipeline water-crossing reviews, Richmond Times-Dispatch, 5/24/17.
DEQ acknowledges error, clarifies approach to review of pipelines, Roanoke Times, 5/24/17.
As gas pipelines roil Virginia governor’s race, regulators backtrack on their role, Washington Post, 5/25/17.
A Brain-Frying Foray into the Regulatory Maze, Bacon’s Rebellion, 4/19/17 [discussing differences between “nationwide” and “individual” permits under the federal Clean Water Act, relating to potential stream/wetland impacts of the proposed natural gas pipelines].
DEQ will require additional individual 401 certifications for natural gas transmission pipeline projects, Virginia Department of Environmental Quality News Release, 4/6/17.
Virginia pipelines will be subject to Department of Environment Quality water-quality review, Richmond Times-Dispatch, 4/6/17.
DEQ to require pipeline projects to secure state water quality certification, Roanoke Times, 4/6/17.
What’s Next for the Pipeline Controversies?, Bacon’s Rebellion, 4/14/17.

For more details about natural gas developments in Virginia, please see the Water Central News Grouper post, Natural Gas Drilling and Transport in Virginia under Close Scrutiny in 2014-17.

Va. Governor Executive Directive on Reducing Carbon Emissions from Power Plants; Issued May 16, 2017

On May 16, 2017, Va. Gov. Terry McAuliffe signed and announced Executive Directive 11, which instructs the Department of Environmental Quality (DEQ) to begin a process of developing regulations to reduce carbon emissions from electric power plants.  The directive is available online (as a PDF) at http://governor.virginia.gov/media/9155/ed-11-reducing-carbon-dioxide-emissions-from-electric-power-facilities-and-growing-virginias-clean-energy-economy.pdf.

Following is an excerpt from the directive: “I hereby direct the Director of the Department of Environmental Quality, in coordination with the Secretary of Natural Resources, to take the following actions…
1. Develop a proposed regulation for the State Air Pollution Control Board’s consideration to abate, control, or limit carbon dioxide emissions from electric power facilities that: a. Includes provisions to ensure that Virginia’s regulation is “trading-ready” to allow for the use of market-based mechanisms and the trading of carbon dioxide allowances through a multi-state trading program; and b. Establishes abatement mechanisms providing for a corresponding level of stringency to limits on carbon dioxide emissions imposed in other states with such limits.
2. By no later than December 31, 2017, present the proposed regulation to the State Air Pollution Control Board for consideration for approval for public comment….”

The new directive follows the report on May 12 of the Executive Order 57 Work Group, which the governor established in June 2016 to study and make recommendations about reducing carbon emissions from the Commonwealth’s power plants.  The group’s final report, along with more information about Executive Order 57, is available online at https://naturalresources.virginia.gov/initiatives/eo-57/.

Source: Governor McAuliffe Takes Executive Action to Reduce Carbon Emissions Across Virginia; “Clean Energy Virginia” initiative will cap greenhouse gases and grow Virginia’s clean energy economy, Virginia Governor’s Office News Release, 5/16/17.

Following are some news media accounts on Executive Directive 11, listed from newest to oldest.
Virginia Begins Development of Cap-and-Trade Program for Electric Power Sector, National Law Review, 5/19/17.
Wagner takes aim at McAuliffe carbon order; critics say he’s seeking attention, Daily Press, 5/19/17.
Amid longshot run for governor, Wagner says he’ll call emergency hearing to fight McAuliffe’s climate change plan, Richmond Times-Dispatch, 5/19/17.
Virginia Governor Orders Power Plant Carbon Regulations, POWER Magazine, 5/18/17.
Bucking D.C. and Republican legislature, Virginia governor moves to limit carbon emissions, ThinkProgress (Center for American Progress Action Fund), 5/17/17.
McAuliffe Moves to Cap Utility Carbon Emissions, Bacon’s Rebellion, 5/17/17.
McAuliffe moves to curb carbon emissions blamed for sea level rise, [Newport News] Daily Press, 5/16/17.
McAuliffe: Virginia will regulate carbon emissions; ‘the threat of climate change is real’, Richmond Times-Dispatch, 5/16/17.
McAuliffe proposes statewide carbon cap, Washington Post, 5/16/17.
Virginia AG: State board can regulate carbon pollution, Richmond Times-Dispatch, 5/12/17.
Will Virginia forge its own path on carbon regulation?, Richmond Times-Dispatch, 5/3/17.

Trump Administration’s April 28, 2017, Executive Order on Offshore Oil and Gas Exploration and Production

On April 28, 2017, the Trump Administration issued an executive order on regulations and policies concerning offshore oil and gas exploration and production.  The order, “Presidential Executive Order Implementing an America-First Offshore Energy Strategy,” is available online at https://www.whitehouse.gov/the-press-office/2017/04/28/presidential-executive-order-implementing-america-first-offshore-energy.

Here are some key features of the order, excerpted from its text:

Sec. 2.  Policy.
It shall be the policy of the United States to encourage energy exploration and production, including on the Outer Continental Shelf, in order to maintain the Nation’s position as a global energy leader and foster energy security and resilience for the benefit of the American people, while ensuring that any such activity is safe and environmentally responsible.

Sec. 3.  Implementing an America-First Offshore Energy Strategy.
[T]he Secretary of the Interior shall…
a) give full consideration to revising the schedule of proposed oil and gas lease sales…so that it includes, but is not limited to, annual lease sales, to the maximum extent permitted by law, in each of the following Outer Continental Shelf Planning Areas, as designated by the Bureau of Ocean Energy Management (BOEM) (Planning Areas):  Western Gulf of Mexico, Central Gulf of Mexico, Chukchi Sea, Beaufort Sea, Cook Inlet, Mid-Atlantic, and South Atlantic;
(b) ensure that any revisions made pursuant to subsection (a) of this section do not hinder or affect ongoing lease sales currently scheduled as part of the 2017-2022 Outer Continental Shelf Oil and Gas Leasing Proposed Final Program, as published on November 18, 2016; and
(c) develop and implement, in coordination with the Secretary of Commerce and to the maximum extent permitted by law, a streamlined permitting approach for privately funded seismic data research and collection aimed at expeditiously determining the offshore energy resource potential of the United States within the Planning Areas.

Sec. 4.  Responsible Planning for Future Offshore Energy Potential.
(a) The Secretary of Commerce shall, unless expressly required otherwise, refrain from designating or expanding any National Marine Sanctuary under the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq., unless the sanctuary designation or expansion proposal includes a timely, full accounting from the Department of the Interior of any energy or mineral resource potential within the designated area including offshore energy from wind, oil, natural gas, methane hydrates, and any other sources that the Secretary of Commerce deems appropriate and the potential impact the proposed designation or expansion will have on the development of those resources. …
(b) The Secretary of Commerce…shall conduct a review of all designations and expansions of National Marine Sanctuaries, and of all designations and expansions of Marine National Monuments under the Antiquities Act of 1906, recently recodified at sections 320301 to 320303 of title 54, United States Code, designated or expanded within the 10-year period prior to the date of this order. …
(c) To further streamline existing regulatory authorities, Executive Order 13754 of December 9, 2016 (Northern Bering Sea Climate Resilience), is hereby revoked.

Sec. 5.  Modification of the Withdrawal of Areas of the Outer Continental Shelf from Leasing Disposition.
The body text in each of the memoranda of withdrawal from disposition by leasing of the United States Outer Continental Shelf issued on December 20, 2016, January 27, 2015, and July 14, 2008, is modified to read, in its entirety, as follows:
“Under the authority vested in me as President of the United States, including section 12(a) of the Outer Continental Shelf Lands Act, 43 U.S.C. 1341(a), I hereby withdraw from disposition by leasing, for a time period without specific expiration, those areas of the Outer Continental Shelf designated as of July 14, 2008, as Marine Sanctuaries under the Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C. 1431-1434, 33 U.S.C. 1401 et seq.” …

Sec. 6.  Reconsideration of Notice to Lessees and Financial Assurance Regulatory Review.
The Secretary of the Interior shall direct the Director of BOEM to take all necessary steps consistent with law to review BOEM’s Notice to Lessees No. 2016 N01 of September 12, 2016 (Notice to Lessees and Operators of Federal Oil and Gas, and Sulfur Leases, and Holders of Pipeline Right-of-Way and Right-of-Use and Easement Grants in the Outer Continental Shelf), and determine whether modifications are necessary, and if so, to what extent, to ensure operator compliance with lease terms while minimizing unnecessary regulatory burdens.  The Secretary of the Interior shall also review BOEM’s financial assurance regulatory policy to determine the extent to which additional regulation is necessary.

Sec. 7.  Reconsideration of Well Control Rule.
The Secretary of the Interior shall review the Final Rule of the Bureau of Safety and Environmental Enforcement (BSEE) entitled “Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control,” 81 Federal Register 25888 (April 29, 2016), for consistency with the policy set forth in section 2 of this order, and shall publish for notice and comment a proposed rule revising that rule, if appropriate and as consistent with law….

Sec. 8.  Reconsideration of Proposed Offshore Air Rule.
The Secretary of the Interior shall take all steps necessary to review BOEM’s Proposed Rule entitled “Air Quality Control, Reporting, and Compliance,” 81 Federal Register 19718 (April 5, 2016), along with any related rules and guidance, and, if appropriate, shall, as soon as practicable and consistent with law, consider whether the proposed rule, and any related rules and guidance, should be revised or withdrawn.

Sec. 9.  Expedited Consideration of Incidental Harassment Authorizations, Incidental-Take, and Seismic Survey Permits.
The Secretary of the Interior and the Secretary of Commerce shall, to the maximum extent permitted by law, expedite all stages of consideration of Incidental Take Authorization requests, including Incidental Harassment Authorizations and Letters of Authorization, and Seismic Survey permit applications under the Outer Continental Shelf Lands Act, 43 U.S.C. 1331 et seq., and the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.

Sec. 10.  Review of National Oceanic and Atmospheric Administration (NOAA) Technical Memorandum NMFS-OPR-55.
The Secretary of Commerce shall review NOAA’s Technical Memorandum NMFS-OPR-55 of July 2016 (Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing) for consistency with the policy set forth in section 2 of this order and, after consultation with the appropriate Federal agencies, take all steps permitted by law to rescind or revise that guidance, if appropriate.

Sec. 11.  Review of Offshore Arctic Drilling Rule.
The Secretary of the Interior shall immediately take all steps necessary to review the Final Rule entitled “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf,” 81 Federal Register 46478 (July 15, 2016), and, if appropriate, shall, as soon as practicable and consistent with law, publish for notice and comment a proposed rule suspending, revising, or rescinding this rule.

2010 BP Gulf Oil Spill Ecological Damages Valued at $17.2 Billion, According to Research Published on April 20, 2017

In the April 20, 2017, issue of Science, a team of researchers (including Kevin Boyle of Virginia Tech’s Department of Agricultural and Applied Economics) estimated that the BP Deepwater Horizon oil spill, which began April 20, 2010, resulted in the equivalent of $17.2 billion of damage to natural resources.

The estimate was based on a household survey asking what people would be willing to pay to prevent or reduce a future recurrence of the kinds of damages (to organisms and habitats) seen from the 2010 incident.

The article is “Putting a value on injuries to natural assets: The BP oil spill,” in the April 20, 2017, issue of Science (Vol. 356, Issue 6335, pages 253-254), available online at http://science.sciencemag.org/.  (The direct link to article is http://science.sciencemag.org/content/356/6335/253, but a subscription is required for access.)  A summary of the research is available in BP oil spill did $17.2 billion in damage to natural resources, scientists find in first-ever financial evaluation of spill’s impact, Virginia Tech News, 4/20/17.

Mining Reclamation Conference Held April 9-13, 2017, in Morgantown, W. Va.

On April 9-13, 2017, in Morgantown, W. Va., “What’s Next for Reclamation?” was presented by  the West Virginia Mine Drainage Task Force, the American Society of Mining and Reclamation, and the Appalachian Regional Reforestation Initiative.  More information about the meeting is available online at https://wvmdtaskforce.com/2017-joint-conference/.

The meeting included two presentations by scientists connected with the Virginia Water Resources Research Center (which produces this Water Central News Grouper blog).  Center Director Stephen Schoenholtz presented “Water Quality and Biotic Condition in Mining-influenced Appalachian Headwater Streams: An Overview of a Long-term Study.”  Kriddie Whitmore, a graduating master’s student under Dr. Schoenholtz, presented “Selenium Dynamics in Mining-Influenced Headwater Streams of Central Appalachia.”

Clean Water Act Issues of Chesapeake Energy Center Coal Ash Ruling in March 2017 Discussed in 3/30/17 National Law Review Article

Virginia Ash Pond Seeps Violate CWA, But Do Not Warrant Civil Penalty, by Amy Antoniolli, Daniel Deeb, and Joshua Moore, in National Law Review, 3/30/17, reviews the legal issues related to the federal Clean Water Act (CWA) in a federal lawsuit over coal-ash storage ponds at Dominion Virginia Power’s Chesapeake Energy Center on the Southern Branch Elizabeth River in the city of Chesapeake, Virginia.

On March 23, 2017, U.S. District Court Judge John Gibney, Jr., issued a 21-page opinion, ruling that the plaintiff, the Sierra Club, had proved that arsenic from four impoundments at the Chesapeake Center had contaminated groundwater and reached the Elizabeth River.  Gibney’s ruling stated that that pollution violates the federal Clean Water Act, because Dominion did not have a Virginia Pollutant Elimination Discharge Systems permit for such discharges.  Key parts of the ruling are that the judge considered the ash-storage area to be point source of pollution under the CWA, and that groundwater contamination from the storage area was a violation of CWA because the groundwater was connected to surface waters covered by the law.  The National Law Review article discusses those findings.

For more detail on the lawsuit, please see this Water Central News Grouper post: Lawsuit Filed by Sierra Club in March 2015.

For more detail on coal-ash storage issues in Virginia, please see this Water Central News Grouper post: Closure of Coal Ash Ponds at Dominion and APCO Power Stations in Virginia, 2015-2017.

Trump Administration’s March 28, 2017, Executive Order on Climate/Energy Policies of the Obama Administration, Including Review of Clean Power Plan

On March 28, 2017, the Trump Administration issued an executive order affecting several energy and climate policies implemented by the Obama Administration, including most prominently the Clean Power Plan, issued by the U.S. Environmental Protection Agency (EPA) in August 2015.  (For more on the Clean Power Plan regulation, please see the following News Grouper items: Final Version of “Clean Power Plan” Announced by President Obama and the U.S. EPA on August 3, 2015; and Clean Power Plan Lawsuit Against U.S. EPA Overview and Information Sources; or the U.S. EPA Web site, https://www.epa.gov/cleanpowerplan).

The order, “Presidential Executive Order on Promoting Energy Independence and Economic Growth,” is available online at https://www.whitehouse.gov/the-press-office/2017/03/28/presidential-executive-order-promoting-energy-independence-and-economi-1.

The order’s actions include the following:
reviewing the Clean Power Plan regulation;
rescinding an August 2016 guidance on climate change issued by the Council on Environmental Quality;
starting a 170-day process for each executive agency and department to identify regulations or policies that inhibit domestic energy production;
stopping the use of estimates made during the Obama Administration of the social cost of greenhouse gases;
rescinding a moratorium on coal leases on federal lands;
ordering a review of regulations issued in November 2016 on methane releases from oil and gas production facilities; and
rewriting a regulation issued in 2015 on hydraulic fracturing on federal and tribal lands.

Sources:
Trump signs executive order to review Clean Power Plan, Utility Dive, 3/28/17.

Trump moves decisively to wipe out Obama’s climate-change record
, Washington Post, 3/28/17.

Background Briefing on the President’s Energy Independence Executive Order
, White House Press Secretary, 3/27/17.

Additional sources and news accounts related to the March 28 executive order:

“Clean Power Plan Hub,” E&E News, online at http://www.eenews.net/interactive/clean_power_plan (subscription required; trial subscriptions available).

The big announcement is over. What happens now?, E&E News/Climate Wire, 3/29/17 (subscription required; trial subscriptions available).

States vow to defend rule
, E&E News, 3/28/17 (subscription required; trial subscriptions available).

Trump signs executive order rolling back Obama-era energy regs, Fox News, 3/28/17.

Trump launches aggressive campaign to dismantle Obama climate agenda; Barrasso: Trump climate rollback helps U.S. as an energy superpower [with U.S. Sen. John Barasso, R-Wyo.]; and “Difficult slog” ahead to undo Obama climate legacy, says former EPA chief [with former U.S. EPA Director Gina McCarthy] – all on PBS NewsHour, 3/28/17.

Trump signs order dismantling Obama-era climate policies
, Reuters, 3/28/17.

What to Know About Trump’s Order to Dismantle the Clean Power Plan
, New York Times, 3/27/17.