                                 PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                  No. 18-1077


APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK;
SIERRA CLUB; WILD VIRGINIA, INC.; COWPASTURE RIVER
PRESERVATION       ASSOCIATION;    FRIENDS  OF  BUCKINGHAM;
HIGHLANDERS FOR RESPONSIBLE DEVELOPMENT; JACKSON RIVER
PRESERVATION ASSOCIATION; POTOMAC RIVERKEEPER, d/b/a Potomac
Riverkeeper Network, Inc.; SHENANDOAH RIVERKEEPER, a program of
Potomac Riverkeeper Network; SHENANDOAH VALLEY BATTLEFIELDS
FOUNDATION; SHENANDOAH VALLEY NETWORK; VIRGINIA
WILDERNESS COMMITTEE,

                  Petitioners,

            v.

STATE WATER CONTROL BOARD; DAVID K. PAYLOR, Director, Virginia
Department of Environmental Quality; ROBERT DUNN, Chair of the State Water
Control Board; VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY;
MELANIE D. DAVENPORT, Director, Water Permitting Division, Virginia
Department of Environmental Quality,

                  Respondents,

ATLANTIC COAST PIPELINE LLC,

                  Intervenor.


                                  No. 18-1079


CHESAPEAKE BAY FOUNDATION, INCORPORATED; ROBERT WHITESCARVER;
JEANNE HOFFMAN,

                  Petitioners,
             v.

STATE WATER CONTROL BOARD; MELANIE D. DAVENPORT, Director,
Water Permitting Division, Virginia Department of Environmental Quality;
ROBERT DUNN, Chair of the State Water Control Board; VIRGINIA
DEPARTMENT OF ENVIRONMENTAL QUALITY; DAVID K. PAYLOR,
Director, Virginia Department of Environmental Quality,

                    Respondents,

ATLANTIC COAST PIPELINE LLC,

                    Intervenor.


On Petition for Review of an Order of the Federal Energy Regulatory Commission.
(17-002)


Argued: September 28, 2018                                 Decided: January 14, 2019


Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges


Petition for review denied by published opinion. Chief Judge Gregory wrote the opinion,
in which Judge Wynn and Judge Thacker joined.


ARGUED: Benjamin Alan Luckett, APPALACHIAN MOUNTAIN ADVOCATES,
Lewisburg, West Virginia, for Petitioners. Toby Jay Heytens, OFFICE OF THE
ATTORNEY          GENERAL         OF      VIRGINIA,    Richmond,      Virginia,   for
Respondents. Brooks Meredith Smith, TROUTMAN SANDERS LLP, Richmond,
Virginia, for Intervenor. ON BRIEF: Gregory Buppert, Charmayne G. Staloff,
Jonathan M. Gendzier,      SOUTHERN         ENVIRONMENTAL         LAW       CENTER,
Charlottesville, Virginia, for Petitioners Cowpasture River Preservation Association,
Friends of Buckingham, Highlanders for Responsible Development, Jackson River
Preservation Association, Inc., Potomac Riverkeeper, Inc., Shenandoah Riverkeeper,
Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, and Virginia
Wilderness Committee.          Joseph M. Lovett, APPALACHIAN MOUNTAIN
ADVOCATES, Lewisburg, West Virginia, for Petitioners Appalachian Voices,
Chesapeake Climate Action Network, Sierra Club, and Wild Virginia. Jon Alan Mueller,

                                          2
Margaret L. Sanner, Ariel Solaski, CHESAPEAKE BAY FOUNDATION, INC.,
Annapolis, Maryland, for Petitioners Chesapeake Bay Foundation, Inc., Jeanne Hoffman,
and Robert Whitescarver. Mark R. Herring, Attorney General, Stephen A. Cobb,
Deputy Attorney General, Donald D. Anderson, Senior Assistant Attorney General,
J. Duncan Pitchford, Assistant Attorney General, David C. Grandis, Assistant Attorney
General, Matthew R. McGuire, Deputy Solicitor General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondents.
Andrea W. Wortzel, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.




                                         3
GREGORY, Chief Judge:

       Pursuant to Section 401 of the Clean Water Act (“CWA”), the Virginia State

Water Control Board (“Board”) certified that it had reasonable assurance that activities

related to the construction of a natural gas pipeline would not degrade the state’s water

resources.   Environmental groups and their individual members disagreed with this

certification, and they petitioned this Court to review the Board’s decision. Because we

conclude that the Board’s Section 401 Certification for upland areas was not arbitrary and

capricious, we deny the petition for review.



                                               I.

       The Atlantic Coast Pipeline (“ACP”), a project developed and overseen by

Atlantic Coast Pipeline LLC (“Atlantic”), is a proposed interstate natural gas pipeline,

constructed by Atlantic, that will be approximately 604 miles long and 42 inches in

diameter and will carry natural gas from Harrison County, West Virginia, to the eastern

portions of Virginia and North Carolina. Approximately 307 miles of the ACP would

traverse the Commonwealth of Virginia. There are a total of 890 water body crossings

locations in Virginia, and the route of the ACP encompasses 74 migratory fish spawning

waters or their tributaries. The proposed ACP access roads will intersect 89 Virginia

rivers and streams and will require the clearing of thousands of acres in Virginia. To

obtain approval for construction, Atlantic had to comply with the following federal and

state laws and regulations relevant to this appeal.



                                               4
                                             II.

       As an initial matter, Atlantic had to comply with the Natural Gas Act (“NGA”).

Under the NGA, a party is required to obtain authorization from the Federal Energy

Regulatory Commission (“FERC”) in the form of a certificate of public convenience and

necessity to build or operate a natural gas pipeline. Upon receipt of an application for

such a certificate, FERC undertakes a review of the environmental impacts of the

proposed project under the National Environmental Policy Act (“NEPA”) and the NGA.

42 U.S.C. §§ 4321 et seq.; 15 U.S.C. §§ 717 et seq. FERC accepts input from the public

and then produces an environmental impact statement (“EIS”). Functioning as a “lead

agency,” FERC coordinates the required authorizations, including Virginia’s water

quality certification under the CWA. See 15 U.S.C. § 717n(b).

       Because the pipeline project involves the discharge of fill and dredged materials

into waterways and wetlands, Atlantic needed to obtain not only a certificate of public

convenience and necessity from FERC, but also a Section 404 CWA authorization from

the U.S. Army Corps of Engineers (“Army Corps”). See 33 U.S.C. § 1344(a); AES

Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721, 724 (4th Cir. 2009). The Army

Corps provided the authorization necessary for the ACP through issuing Nationwide

Permit 12, which covers “activities required for the construction, maintenance, repair,

and removal of utilities lines and associated facilities in waters of the United States.” See

33 U.S.C. 1344(e)(1) (allowing the Secretary of the Army to issue permits on a

“nationwide basis for any category of activities involving discharges of dredged or fill

material if the Secretary determines that the activities in such category are similar in

                                             5
nature, will cause only minimal adverse environmental effects when performed

separately, and will have only minimal cumulative adverse effect on the environment”).



                                          III.

       Atlantic was also required to obtain a Section 401 Certification. The NGA allows

states to regulate the environmental impacts of pipelines under the CWA. Delaware

Riverkeeper Network v. Secretary Pa. Dep’t of Envtl. Prot., 833 F.3d 360, 368 (3d Cir.

2016) (citing 15 U.S.C. § 717b(d)). Virginia exercises this regulatory authority through

the Board. See Va. Code § 62.1-44.15. Pursuant to Virginia law, the Board wields broad

powers regarding regulatory matters impacting water quality in Virginia, and Section 401

Certifications fall under its authority. Id. The Virginia Department of Environmental

Quality (“DEQ”) serves as the Board’s staff, and the Board may assign DEQ tasks and

delegate DEQ the authority to make decisions. See Va. Code Ann. § 62.1-44.14. We

will refer to the Board and DEQ together as “the State Agencies” when their actions are

in concert.

       Under the Virginia Water Protection (“VWP”) Program, the Board, after soliciting

and considering public comment and consulting with relevant agencies, may issue a

VWP permit “if it has determined that the proposed activity is consistent with the

provisions of the Clean Water Act and the State Water Control Law and will protect in-

stream beneficial uses.” Va. Code Ann. § 62.1-44.15:20(B). The Board may also certify

a nationwide Corps permit, such as Nationwide Permit 12, as meeting these requirements

so long as the permit meets specified criteria. See 9 Va. Admin. Code 25-210-130(H).

                                           6
Specifically, Section 401 states “[a]ny applicant for a Federal license or permit to conduct

any activity . . . which may result in any discharge into the navigable waters” must seek

“a certification from the State in which the discharge originates . . . that any such

discharge will comply with the applicable provisions” of the CWA.               33 U.S.C.

§ 1341(a)(1). In addition, Section 401 states, “[n]o license or permit shall be granted if

certification has been denied by the State.” Id. If the state grants the Section 401

Certification — whether with or without conditions — it must contain “[a] statement that

there is a reasonable assurance that the activity will be conducted in a manner which will

not violate applicable water quality standards.” 40 C.F.R. § 121.2(a)(3); see PUD No. 1

of Jefferson Cty. v. Washington Dep’t of Ecology, 511 U.S. 700, 712 (1994). In addition,

the regulations allow for Virginia to consider activities that impact the upland areas that

may have the potential to affect water quality but do not fall under the scope of a VWP

permit when the pipeline is over 36 inches inside diameter. Va. Code § 62.1-44.15:80.



                                            IV.

       Atlantic applied for the certificate of public convenience and necessity from FERC

and Section 404 authorization from the Army Corps in September 2015. Atlantic filed an

amendment to its FERC certificate application in March 2016. In October 2017, FERC

issued the certificate to Atlantic to construct and operate the pipeline. On April 7, 2017,

the DEQ issued a Section 401 Certification for the wetland, river, and streams crossings

as covered in the Section 404 Nationwide Permit 12. In May 2017, the DEQ explained

that the Section 401 Certification for the Pipeline would entail two separate parts: (1) the

                                             7
certification for the Army Corps Nationwide Permit 12, issued in April, applying to the

Pipeline’s wetland, river, and streams crossings (the “Wetlands and Streams

Certification”), and (2) an additional Section 401 Certification review process to evaluate

the “upland” impacts of the Pipeline, terrestrial areas that are not covered by the Army

Corps Permit (the “Upland Certification”). Specifically, the Upland Certification would

“include all proposed upland activities associated with the construction, operation,

maintenance, and repair of the pipeline, any components thereof or appurtenances

thereto, and related access roads and rights-of-way as well as certain project related

surface water withdrawals.” J.A 1083.

       On November 9, 2017, the DEQ recommended that the Board approve a Section

401 Upland Certification of the project. On December 20, 2017, the Board issued the

Upland Certification for the ACP with conditions. This Certification was distinct from

the Wetlands and Steams Certification. This Upland Certification provided that it “shall

be effective only following submission, review and final approval as required by law of

the Karst Mitigation Plan, Annual Standards and Specifications, and Erosion and

Sediment Control Plans and Storm Water Management Plans, and a report to the Board

and the public by DEQ on the adequacy of these materials.” J.A. 29.

       Petitioners timely filed two petitions for review of the Certification on January 18,

2018. The petitions were consolidated by court order on January 31, 2018. We possess

jurisdiction to review the Board’s Section 401 Upland Certification pursuant to 15 U.S.C.

§ 717r(d)(1).



                                             8
       The petitioners contend the Board’s issuance of the Section 401 Upland

Certification was arbitrary and capricious and should be vacated for four reasons: (1) the

State Agencies effectively invalidated their own finding of reasonable assurance when it

voted to reopen the comment period on the Section 401 Certification of the Army Corps

of Engineers Nationwide Permit 12; (2) the State Agencies arbitrarily and capriciously

failed to assess the combined impacts on water quality that would result from multiple

areas of construction activities within individual watershed areas; (3) the State Agencies

arbitrarily and capriciously failed to conduct an adequate antidegradation review; and (4)

the State Agencies arbitrarily and capriciously failed to ensure that the water quality in

karst geology regions would be protected. Respondents and intervenor in turn deny that

the State Agencies acted arbitrarily and capriciously and argue that the petitioners lack

standing to bring this petition.

       On April 12, 2018, the Board approved a second 30-day public comment period

related to the Wetlands and Steams Certification. On August 21, 2018, the Board heard a

presentation from the DEQ summarizing the public comment period and denied a motion

to reevaluate this contested Certification.



                                              V.

       The respondents and intervenor argue as an initial matter that petitioners do not

have standing to litigate this petition for review. Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))

(Article III standing requires (1) an injury-in-fact (2) that is fairly traceable to the

                                              9
challenged conduct of the defendant, and (3) that is likely to be redressed through a

favorable judicial decision). We disagree.

       This Court has previously rejected respondents’ and intervenor’s arguments on

standing. Sierra Club v. State Water Control Bd., 898 F.3d 383, 400-02 (4th Cir. 2018).

Petitioners have established an injury-in-fact even though the State Agencies could

choose to waive certification. We have previously held that the denial of an opportunity,

in this case, to have the project vetoed or have additional restrictions can constitute an

injury-in-fact. Id. at 401. In addition, petitioners successfully establish traceability and

redressability given that we could vacate the Board’s decision and determine that its

decision was not based on a reasonable assurance and instead was arbitrary and

capricious. Petitioners’ injuries could be remedied if the Board required Atlantic to take

additional measures that would address petitioners’ grievances. In our previous decision

we held petitioners established traceability and redressability in this very context. Id.

Petitioners have demonstrated the requirements for standing.



                                             VI.

       We review Virginia’s Section 401 Certification under the standards set forth in the

Administrative Procedures Act (“APA”). See AES Sparrows Point LNG, LLC v. Wilson,

589 F.3d 721, 727 (4th Cir. 2009). 1 This Court applies the arbitrary and capricious


       1
         Asserting that the APA is not applicable to actions by State Agencies,
respondents argue that Va. Code § 2.2-4027 establishes the applicable standard of review.
That statute provides that issues of fact shall be decided based on “whether there was
(Continued)
                                             10
standard of the APA to the State Agencies’ challenged findings and conclusions. Sierra

Club, 898 F.3d at 403.

       To survive review under the arbitrary and capricious standard, an agency decision

must show that the agency examined “the relevant data and articulate[d] a satisfactory

explanation for its action including a ‘rational connection between the facts found and the

choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co.,

463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156,

168 (1962)).

       Agency action is arbitrary and capricious if the agency relies on factors that
       Congress did not intend for it to consider, entirely ignores important aspects
       of the problem, explains its decision in a manner contrary to the evidence
       before it, or reaches a decision that is so implausible that it cannot be
       ascribed to a difference in view.

Bedford Cty. Mem’l Hosp. v. Health & Human Servs., 769 F.2d 1017, 1022 (4th Cir.

1985) (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). This Circuit has held that

       [r]eview under this standard is highly deferential, with a presumption in
       favor of finding the agency action valid. Especially in matters involving
       not just simple findings of fact but complex predictions based on special
       expertise, a reviewing court must generally be at its most deferential. In
       determining whether agency action was arbitrary or capricious, the court
       must consider whether the agency considered the relevant factors and
       whether a clear error of judgment was made. Although this inquiry into the
       facts is to be searching and careful, the ultimate standard of review is a
       narrow one. The court is not empowered to substitute its judgment for that
       of the agency. Deference is due where the agency has examined the




substantial evidence in the agency record to support the agency decision.” As we did in
Sierra Club, we decline to resolve this issue because petitioners’ claims fail even under
the substantial evidence standard. 898 F.3d at 403 n.13.

                                            11
      relevant data and provided an explanation of its decision that includes a
      rational connection between the facts found and the choice made.

Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009)

(internal quotation marks and citations omitted). Nonetheless, if a state agency’s Section

401 certification is found to be arbitrary and capricious, the Court must vacate the

certification. 5 U.S.C. § 706(2)(A).



                                           VII.

                                            A.

       Turning to petitioners’ first argument, we hold that the decision to reopen the

comment period did not render the State Agencies’ Section 401 Upland Certification

arbitrary and capricious. The comment period was re-opened for the Wetlands and

Streams Certification and not the Upland Certification at issue in this case. In any event,

the Wetlands and Streams Certification was not ultimately revoked.

                                            B.

       Moving to the petitioners’ second argument, we conclude that the State Agencies’

decision not to conduct a combined effect analysis does not render their issuance of a

Section 401 Upland Certification arbitrary and capricious for three reasons.

       First, the Section 401 Upland Certification in question deals with project-related

activities taking place in upland areas. The Upland Certification supplemented the FERC

certificate and the prior Wetland and Streams Certification of the Army Corps’

Nationwide Permit 12 regarding waterways and utility line crossings. As the State


                                            12
Agencies explained, “the conditions in the proposed additional 401 Certification are in

addition to any other Federal or State permit or regulatory requirements including the

expressed conditions imposed by FERC.” J.A. 1059.            The Upland Certification in

question is not designed to function as a stand-alone document, comprehensively

covering all pieces of relevant data and potentialities. For example, record evidence

available to the State Agencies explains, “while the impacts to jurisdictional waters

authorized by the Corps under Section 404 of the Clean Water Act are separate from

upland activities that are the subject of this Certification, the Corps also analyzed the

cumulative effects of linear utility projects and found that the individual and cumulative

adverse effects on the aquatic environment resulting from the activities authorized by the

Nationwide Permit 12 will be no more than minimal and each crossing is a single and

complete project.” J.A. 999. The Army Corps examined cumulative impacts, and it

would be redundant and inefficient for the State Agencies to duplicate these efforts. The

Upland Certification works in conjunction with other regulatory tools and cannot be

judged in a void, and it supplements other pieces of the regulatory framework. It is not

required to cover combined effect analysis because other parts of the regulatory process

sufficiently address that subject matter. The State Agencies in the current appeal used

their resources to issue the Upland Certification to fill an information gap regarding the

impact of upland activities, which were not typically covered under prior CWA

certifications.    The State Agencies properly made a unique contribution instead of

duplicating the efforts of other regulatory bodies as petitioners’ request. See Sierra Club,

898 F.3d at 407.

                                            13
       Second, State Agencies have broad discretion when developing the criteria for

their Section 401 Certification. The only requirement imposed by the regulations is that

States must establish procedures for public notice when there are applications for

certification, and to the extent deemed appropriate, procedures for public hearings in

connection with specific applications. 33 U.S.C. § 1341(a)(1). Nonetheless, nothing in

Section 401 restricts states to a single certificate proceeding, and Section 401 does not

require states to undertake a single cumulative review of all possible impacts in a single

certification.

       Petitioners’ rely on two federal regulations in arguing that a cumulative review is

required, 40 C.F.R. § 230.7(a) and 40 C.F.R. § 230.11(g)(1), but those regulations impose

duties—including a duty to make factual determinations and consider cumulative

effects—on the Army Corps under Section 404, not on states under Section 401.

Moreover, petitioners contend that two cases require State Agencies to take into account

combined effects lest their decisions be rendered arbitrary and capricious. See Klamath-

Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 993 (9th Cir. 2004); Idaho Rivers United

v. Probert, Case No.: 3:16-102, 2016 U.S. Dist. LEXIS 63767, at *32-34. Furthermore,

petitioners invoke the Supreme Court’s decision in Motor Vehicles Manufacturers

Association v. State Farm Mutual Automobile Ins. Co., to argue that all “relevant data”

must be considered. 463 U.S. 29, 43 (1983). We conclude, however, that both the

Klamath-Siskiyou Wildlands and Idaho Rivers United cases are distinguishable and

unpersuasive because in those cases the Bureau of Land Management and the Forest

Service, respectively, faced violations under NEPA, not the CWA. Klamath-Siskiyou

                                           14
Wildlands Ctr., 387 F.3d at 993–94; Idaho Rivers United, 2016 U.S. Dist. LEXIS 63767,

at *33. Unlike the CWA, NEPA requires a cumulative effects analysis, and thus cases

decided under NEPA are not dispositive authority here. Furthermore, Motor Vehicle

Manufacturers Association, which deals with the National Highway Traffic Safety

Administration, does not mention cumulative effects or the CWA, and thus the case does

not stand for the proposition that the CWA should be broadened to encompass a

combined impact analysis.

         Finally, the State Agencies’ failure to explicitly consider the combined effects of

multiple areas of construction within individual watersheds such as the Chesapeake Bay

watershed and the Chesapeake Bay Total Maximum Daily Load (“Bay TMDL”) did not

render their decision arbitrary and capricious. 2 As an initial matter, despite petitioners’

preferences, there are no express regulations that require the State Agencies to consider

the combined effects of individual watersheds.         In addition, the Ninth Circuit has

explained that TMDLs like the Chesapeake Bay TMDL are “primarily informational

tools that allow states to proceed from the identification of water requiring additional

planning to the required plans.” Pronsolino v. Nastri, 291 F. 3d 1123, 1129 (9th Cir.

2002).       Moreover, TMDLs do not give rise to an independent legal obligation.

Pronsolino, 291 F.3d 1123, 1140. Consequently, the Chesapeake TMDL does not

constitute a regulatory mandate that the State Agencies were required to address before

issuing the Section 401 Upland Certification. Furthermore, protection measures for the

         2
        The Bay TMDL is a federal-state partnership that monitors the water quality
standards in the Chesapeake Bay and its related tributaries. J.A. 888.

                                             15
Chesapeake Bay TMDL are offered through other tools such as the FERC EIS and the

Storm Water Prevention Plan. J.A. 664-665; 1138-1140.

       The State Agencies more than satisfied their obligations by reviewing upland

activities as well as stream and wetland crossings.          The Board’s decisions are not

rendered arbitrary and capricious because it did not conduct an independent review of the

cumulative effects on water quality within individual watersheds, even if this was

petitioners’ preference. To deem an agency action arbitrary and capricious their decision

must be “so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.” State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. The lack

of an explicit combined effect analysis in the Section 401 Upland Certification does not

rise to this level, especially given that there are other regulatory tools that were utilized to

consider those impacts.

                                              C.

                                               1.

       Turning to petitioners’ third argument, we do not find that the State Agencies’

reasonable assurance determination to be arbitrary and capricious simply because they

relied on existing Virginia water quality standards and regulations to effectively address

concerns regarding water quality deterioration.

       Under the CWA, “states have the primary role in promulgating water quality

standards.” Piney Run Preservation Ass’n v. County Comm’rs of Carroll Cty., 268 F.3d

255, 265 n.9 (4th Cir. 2001). States must initially classify the uses for which their water

is to be protected and then determine the necessary level of water quality for their

                                              16
preferred uses. See NRDC v. EPA, 16 F.3d 1395, 1400 (4th Cir. 1993). Virginia’s water-

quality policy is relevant in two respects: its narrative water-quality criterion and its anti-

degradation policy.

       Virginia’s water-quality criterion mandates that “State waters . . . shall be free

from substances attributable to . . . waste in concentrations, amounts, or combinations

which contravene established standards or interfere directly or indirectly with designated

uses of such water or which are inimical or harmful to human, animal, plant, or aquatic

life.” 9 Va. Admin. Code § 25-260-20(A). The regulation explains that any substance

“that produce[s] . . . turbidity” is a substance to be controlled.       Id.   The regulation

provides examples of “turbidity” such as floating debris, oil, and other materials that are

suspended solids in a body of water.

       In addition, Virginia’s antidegradation policy shall be applied whenever any

activity is proposed that has the potential to affect existing surface water quality. 9 Va.

Admin. Code § 25-260-30(A). The antidegradation policy classifies Virginia’s water into

three tiers and provides differing levels of protection based on the water’s tier. See 9 Va.

Admin. Code § 25-260-30(A).

       The Policy defines Tier 3 waters as “exceptional”; these waters “shall be

maintained and protected to prevent permanent or long-term degradation or impairment.”

9 Va. Admin. Code § 25-260-30(A)(3)(b)(1). The policy specifically provides that “[n]o

new, additional, or increased discharge of sewage, industrial wastes or other pollution

into [Tier 3 waters] shall be allowed.” 9 Va. Admin. Code § 25-260-30(A)(3)(b)(2).

Nonetheless, “[a]ctivities causing temporary sources of pollution may be allowed in [Tier

                                              17
3 waters] even if degradation may be expected to temporarily occur provided that after a

minimal period of time the waters are returned or restored to conditions equal to or better

than those existing just prior to the temporary source of pollution.” 9 Va. Admin. Code

§ 25-260-30(A)(3)(b)(3).

       The Policy defines Tier 2 waters as those that “exceed water quality standards.” 9

Va. Admin. Code § 25-260-30(A)(2). The protection for these waters and their quality

are lower and the regulation states that the quality of Tier 2 waters “shall be maintained

and protected unless the board finds . . . that allowing lower water quality is necessary to

accommodate important economic or social development in the area in which the waters

are located.” 9 Va. Admin. Code § 25-260-30(A)(2).

       Last, Tier 1 waters constitute all Virginia waters that are not designated Tier 2 or

Tier 3.   The regulation classifying the level of protection for these waters’ states,

“existing in-stream water uses and the level of water quality necessary to protect the

existing uses shall be maintained and protected.” 9 Va. Admin. Code § 25-260-30(A)(1).

       In Virginia a project may be permitted under a Construction General Permit. 9

Va. Admin. Code § 25-880-70 Part II. The Construction General Permit incorporates the

requirements of two other state laws, the Virginia Storm Water Management (“VSM”)

Law, Va. Code § 62.1-44.15:24 et seq., and the Virginia Erosion and Sediment Control

(“VESC”) Law, Va. Code § 62.1-44.15:51, et seq.

       The CWA has an exemption for natural gas pipeline construction projects and

therefore Virginia’s regulatory scheme diverges from the federal environmental

protections. See 33 U.S.C. § 1342(I)(2). Consequently, Virginia still regulates natural

                                            18
gas pipeline projects through its Annual Standards and Specifications (“AS&S”)

Program. See Va. Code § 62.1-44.15:55(D). The AS&S program requires a project

developer to submit annual standards and specifications for DEQ’s review and approval.

See 9 Va. Admin. Code § 25-870-170(A). Through this program Virginia ensures that

projects will meet the same requirements imposed on other projects subject to the

Virginia Construction General Permit.     See 9 Va. Admin. Code § 25-870-170(A).

Nonetheless, once DEQ approves a developer’s annual standards and specifications as

satisfying the requirements of the VSM and VESC, the entity generally need not submit

site-specific VSM and VESC plans to DEQ for approval.           See Va. Code § 62.1-

44.15:55(D). This allows the projects to become more self-regulating.

      Typically, ensuring an activity’s compliance with water quality standards requires

an antidegradation review. See Nat. Res. Def. Council, Inc. v. EPA, 16 F.3d 1395, 1400

(4th Cir. 1993); see also 40 C.F.R. § 131.12 (requiring states to develop and adopt a

statewide antidegradation policy). The CWA’s antidegradation policy requires that state

standards be “sufficient to maintain existing beneficial uses of navigable waters,

preventing further degradation.” 33 U.S.C. § 1313(d). State antidegradation policies

must be consistent with 40 C.F.R. § 131.12(a), and must protect existing uses, maintain

the existing quality of high-quality waters unless degradation is justified by important

socioeconomic development, and prohibit degradation of national resource waters. Id.

§ 131.12(a).




                                          19
                                            2.

       We do not find that the State Agencies’ failure to conduct a separate

antidegradation review before issuing its Upland Certification renders their decision

arbitrary and capricious for two reasons.

       First, in Virginia, the AS&S program requires a project developer to submit annual

standards and specifications for DEQ’s review and approval, thereby ensuring that

projects will meet the same requirements that would apply were they covered by the

Virginia Construction General Permit. See 9 Va. Admin. Code § 25-870-170(A). The

AS&S also incorporate all the requirements of EPA’s Construction General Permit. J.A.

1124-1125. The AS&S in this case were developed over eighteen months and represent a

thorough process of development, revision and refinement to ensure that the ACP meet

the technical and legal requirements for Virginia. J.A. 1087. Both federal and state

regulators have concluded that application of technical requirements like those in the

AS&S “will not result in a lowering of water quality,” which renders the individualized

review the petitioners suggest “unnecessary.” J.A. 11. There is no indication that these

AS&S fail to protect water quality in Virginia. To the contrary, these regulations have

been found as a matter of law to protect water quality in Virginia.       See Kelble v.

Commonwealth, Case No. CL 14-762, at 4-5 (Richmond Cir. Ct. Apr. 10, 2017).

       Second, State Agencies did not have to conduct a separate antidegradation review

because the impact on sediment on the water would only be temporary. Under FERC’s

final EIS, it was determined that any water quality impacts stemming from construction

would be temporary. J.A. 623. Even with respect to Tier 3 waters, the policy states that

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“[a]ctivities causing temporary sources of pollution may be allowed in [Tier 3] waters . . .

even if degradation may be expected to occur provided that after a minimal period of

time the waters are returned or restored to conditions equal to or better that those existing

just prior to the temporary source of pollution.”            9 Va. Admin. Code 25-260-

30A(3)(b)(3).   Even in the most protected state waters, Virginia does not consider

temporary sources of pollution, such as the construction of the ACP, to violate

antidegradation policies.

       Thus, nothing was arbitrary and capricious about the State Agencies’ decision not

to conduct a separate antidegradation review.

                                             D.

       Turning to the final challenge raised by petitioners, we find that the State

Agencies’ treatment of karst terrain was not arbitrary or capricious because of the

conditions imposed on the Section 401 Upland Certification.

       Karst geology refers to geological formations of soluble limestone bedrock that

creates underground water flow systems where the rocks have dissolved and created

sinkholes, caves and underground springs and rivers. J.A. 669. The constitution of these

areas presents additional environmental considerations for pipeline construction

including,   sinkhole   collapse,   sinkhole      flooding   and   associated   groundwater

contamination. J.A. 904-905.

       The record demonstrates that the State Agencies took petitioners’ concerns

regarding karst geology into consideration. J.A. 31. Virginia’s Section 401 Upland

Certification contains five specific requirements concerning the protection of karst

                                             21
terrain. J.A. 31-32. First, Atlantic must provide the State an addendum to a 51-page

Karst Survey Report prior to any land disturbing activities. J.A. 212-237; J.A. 31.

Second, Atlantic must follow the Karst Terrain Assessment, Construction, Monitoring,

and Mitigation Plan. J.A. 31. This plan allows for route adjustments to avoid karst

terrain.   J.A. 1001.    Third, based on the conditions in the Section 401 Upland

Certification, Atlantic must conduct contingency planning in order to address any

accidental spills or releases during construction on karst terrain. Fourth, water surveys

regarding drinkable water in karst regions are required under the Section 401 Upland

Certification. J.A. 31. Finally, Atlantic has a liability of five million dollars to cover the

cost of any impacts to private water supplies, which encompasses karst regions. J.A. 32.

       Reliance on these conditions, even the prospective ones, does not render the State

Agencies’ issuance of the Section 401 Upland Certification arbitrary and capricious. See

Port of Seattle v. Pollution Control Hearings Bd., 90 P.3d 659, 677 (Wash. 2004)

(holding regulators did not act arbitrarily or capriciously by basing reasonable assurance

“on future submissions of revised plans, reports, and studies, so long as their

implementation and anticipated outcome meet the reasonable assurance test”).

       Moreover, the mere existence of risk to karst geology does not render the State

Agencies’ decision to issue the Section 401 Upland Certification arbitrary and capricious.

Based on the information in the record, this Court finds that the State Agencies had

reasonable assurance that karst regions would be protected given the conditions imposed

on the Section 401 Upland Certification.        We “see no purpose we would serve by

stepping in and second-guessing the analytical methods Virginia deemed appropriate to

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provide it with reasonable assurance that its water quality would be protected.” Sierra

Club., 898 F.3d at 407.



                                          VIII.

       Governmental agencies can always take additional steps to increase the protection

of the environment. But that is not the applicable legal standard this Court utilizes when

reviewing a state agency’s issuance of a Section 401 Certification. We must determine

“whether the agency considered the relevant factors and whether a clear error of

judgment was made.”       Ohio Valley Envtl. Coal., 556 F.3d 177, 192.       There is no

indication that the State Agencies did not consider relevant factors or that they clearly

made an error of judgment. In conclusion, because we find that the State Agencies did

not act arbitrarily and capriciously in issuing the Section 401 Upland Certification, we

deny the petition for review.



                                                      PETITION FOR REVIEW DENIED




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