Virginia Electric and Power d/b/a Dominion Energy Virginia on Oct. 24 filed with the Virginia State Corporation Commission an update on the status of a project that includes the Surry-Skiffes Creek 500-kV Transmission Line.
As noted in the filing, by a Nov. 26, 2013 order, as modified by a Feb. 28, 2014 order, and confirmed in an April 10, 2014 order, the commission approved the construction and operation by Dominion Energy Virginia of the project, which also includes the Skiffes Creek-Whealton 230-kV Transmission Line and the Skiffes Creek 500-kV-230-kV-115-kV switching station.
The company said that as of Oct. 1, the construction of the switching station is about 75%; the 230-kV and 115-kV line work is about 72% complete; and the new 500-kV line on land is about 98% complete and on water is about 40% complete.
The 2013 and 2014 orders were appealed by BASF Corporation and jointly by James City County (JCC), Save the James Alliance Trust, and James River Association (JCC Parties) to the Supreme Court of Virginia, which issued its unanimous opinion in those appeals in April 2015, affirming the commission’s approval and certification of those transmission facilities, which comprise the certificated project.
The company added in its filing that the court’s opinion in the BASF case also reversed and remanded – by a 4-3 vote – the holding in the commission’s Nov. 26, 2013 order that the term “transmission line” includes transmission switching stations such as the Skiffes station under Va. Code § 56-46.1 F, which exempts transmission lines approved by the commission under that section from Va. Code § 15.2-2232 and local zoning ordinances.
Petitions of the commission and the company seeking rehearing of that aspect of the BASF opinion were denied by the court on May 15, 2015, and as a result, the company is required to obtain local land use approval from JCC to build the Skiffes station, the company said.
Discussing updates on the status of the certificated project, Dominion Energy Virginia noted that it must obtain permits from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act to place fill material in the James River for construction of the transmission line towers and Section 10 of the Rivers and Harbors Act of 1899 for resulting obstructions to navigation. The Army Corps on July 3, 2017 issued the company a final permit under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899, and on July 12, 2017, the National Parks Conservation Association (NPCA) sought to challenge the Army Corps permit by filing a complaint for declaratory and injunctive relief with the United States District Court for the District of Columbia.
The company added that in August 2017, the National Trust for Historic Preservation (NTHP) and Association for the Preservation of Virginia Antiquities (Preservation Virginia) also sought to challenge the Army Corps permit by filing a complaint for declaratory and injunctive relief with the same court. The company noted that the court last October denied motions for preliminary injunction of the NPCA and of NTHP/Preservation Virginia, which each filed in December 2017 a motion for summary judgment, the company said.
The court on May 24 issued an order denying the motions for summary judgment of NPCA and of NHTP/Preservation Virginia, granting the cross-motions for summary judgment in their entirety of the Army Corps and of the company, and dismissing both cases (District Court MSJ Order).
NPCA on June 1 filed a notice of appeal in the District Court, appealing the District Court MSJ Order to the United States Circuit Court of Appeals for the District of Columbia (D.C. Circuit), the company added, noting that NTHP/Preservation Virginia on June 11 filed a notice of appeal in the District Court, appealing the District Court MSJ Order to the D.C. Circuit.
The District Court on July 3 denied NPCA’s emergency motion for injunction pending appeal, and on July 31, the D.C. Circuit denied NPCA’s emergency motion for injunction pending appeal, as well as set a briefing schedule on the merits of the appeal. Among other things, the company added that the D.C. Circuit has set oral argument on the appeal for Dec. 7.
The company also noted that the two Corps permits trigger, for instance, review under the Endangered Species Act (ESA); the Army Corps must determine that the construction and operation of the facilities will not violate the ESA. The Army Corps has been consulting with the United States Fish and Wildlife Service (USFWS) regarding the certificated project’s potential effect on the Northern Long Eared Bat (NLEB) and the National Marine Fisheries Service (NMFS) regarding the Atlantic Sturgeon.
The company added that NMFS indicated in a Jan. 28, 2016 letter that it agreed with the Army Corps that the project is not likely to adversely affect listed species, and on April 12, 2016, the USFWS concurred with the Army Corps conclusions regarding the NLEB, indicating the Army Corps would permit project construction without a time of year restriction on tree clearing.
The company noted that the Army Corps sent out a request for the USFWS to update its concurrence for all species on May 11, 2017, adding that consultation was completed upon the issuance of the permit decision. Dominion Energy Virginia said that NPCA on May 21 sent the Army Corps and NMFS a 60-day notice of intent to sue letter for alleged violations of the ESA based on claims that the agencies failed to consider the impacts of the project on juvenile Atlantic Sturgeon, Atlantic Sturgeon designated critical habitat, and Shortnose Sturgeon.
The two Army Corps permits also trigger review under the National Historic Preservation Act (NHPA), the company said, adding that the NHPA process has four components, including mitigation of adverse effects on historic properties.
Discussing mitigation, for instance, Dominion Energy Virginia said that it received a letter from the Army Corps dated July 31, noting that the Army Corps finds the company has met its obligations to begin “construction above the James River.”
The company also said that an application that it submitted to the USFWS for the removal of an inactive bald eagle nest on one of the 230-kV structures that is proposed to be replaced is awaiting approval.
The company further noted that JCC has issued to the company a land disturbance permit, and that JCC has provided the company final approval on its site plan for work at the switching station.
Among other things, Dominion Energy Virginia said that it obtained from the Virginia Department of Environmental Quality a one-year extension of the April 16, 2015 deadline for the coal-fired Yorktown Units 1 and 2 to comply with the U.S. Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards (MATS) regulation that will be achieved by retiring the units, which drove the original June 1, 2015 need date for the new transmission facilities.
On April 16, 2016, the EPA issued an administrative order authorizing the company to operate the units through April 15, 2017, under certain limitations consistent with the MATS rule.
Upon expiration of the EPA administrative order, the units ceased operations to comply with the MATS rule, the company added, noting that PJM Interconnection in June 2017 filed a request for emergency order under Section 202(c) of the Federal Power Act with the U.S. Department of Energy, which on June 16, 2017 granted an order (DOE order) to PJM to direct Dominion Energy Virginia to operate the units as needed to avoid reliability issues on the Virginia Peninsula for 90 days.
PJM on Aug. 17 submitted a request to DOE for another 90-day renewal of the fifth DOE order, the company said, adding that DOE on Sept. 5 issued a sixth 90-day emergency order under Section 202(c) of the Federal Power Act.