Preserving Natural Streams Should be the Business of the WV-DEP

by Duane Nichols on November 6, 2018

There are diverse views of the Greenbrier River over its long length

It’s the Greenbrier River; Not the Greenbrier Ditch

From the Indian Creek Watershed Association, November 4, 2018

Mountain Valley Pipeline’s plan to cross the Greenbrier River at Pence Springs has been in the news recently, and in the courtroom. On Tuesday, October 23rd, arguments were heard by Judge Robert A. Irons in the Summers County Courthouse about whether the WV Environmental Quality Board (EQB) erred in upholding WVDEP’s approval of a West Virginia Natural Streams Preservation Permit for MVP to cross the GreenbrierRiver. No ruling was made at the hearing.

In August 2017 Indian Creek Watershed Association (ICWA) joined the Greenbrier River Watershed Association (GRWA) and three landowners as a party to this appeal. ICWA is writing now to update our members and friends on the case and to explain why we think it’s important.

As ICWA members and other local residents sat in the courtroom last Tuesday, we realized that this case is really about three questions: 1) What defines the “natural character” of a river? 2) Did WV-DEP fail to do its job? and 3) Is MVP being granted undue entitlement not only to blast ditches through private land seized through eminent domain, but to treat the Greenbrier River like just another ditch?

1: What defines the “natural character” of a river?

The West Virginia Legislature clearly expresses its intent in establishing the West Virginia Natural Streams Preservation Act: “In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not impound, flood or divert all streams within the State of West Virginia, leaving no streams designated for preservation and protection in their natural condition, it is hereby declared to be the public policy of this state to secure for the citizens of West Virginia of present and future generations the benefits of an enduring resource of free-flowing streams possessing outstanding scenic, recreational, geological, fish and wildlife, botanical, historical, archeological or other scientific or cultural values.”
WV Code §22-13-2.

In another section it says: “these [protected streams] shall be administered for the use and enjoyment of the citizens of West Virginia in such manner as will leave them unimpaired for future use and enjoyment as free-flowing streams, and so as to provide for the protection and the preservation of these streams in their natural character.”
WV Code §22-13-4.

In the Summers County courtroom on Tuesday, MVP’s attorney tried to limit the focus narrowly to whether the pipeline construction would impound, divert or flood the stream. However, if those were the only characteristics of a natural stream under protection, there would be little difference between a river and a ditch.

The Greenbrier River is not only the longest free-flowing stream east of the Mississippi. It is teeming with aquatic and botanical life and rich in so many treasured qualities that make up its “natural character”. If the bedrock of the Greenbrier is split open and trenched from riverbank to riverbank, the physical integrity of the streambed will be forever impaired and so will the Greenbrier’s condition as a natural stream.

2: Did the WV-DEP fail to do its job?

By not requiring MVP to conduct the tests and studies needed to determine the possible impacts that pipeline construction would have on the Greenbrier’s “natural character” — or even the safety of MVP’s proposed method — DEP failed to uphold the Natural Streams Preservation Act.

Despite strong requests and comments from many experts, individuals and groups, including ICWA, WV-DEP never required MVP to conduct studies such as sedimentation and turbidity analyses, borings and core samples, accurate velocity and scour calculations, or aquatic life and nutrient assessments, all important to understand the natural characteristics of the Greenbrier and determine the likely impacts of MVP construction.

Beyond those studies, what happens when the Greenbrier floods suddenly in the middle of construction while half of the river is blocked by MVP’s “cofferdam”? What happens when huge steel pipes tear loose and float (or race) downstream, crashing into structures and backing up the river when they lodge against a bridge or other obstruction? What happens when increased sediment and scour carves away the already-too-narrow bank that supports Route 12/3?

WV-DEP imposed two “special conditions” on this permit: 1) Boat passage must be maintained at all times during construction. 2) In case of severe weather which may induce flooding all materials must be removed from the river until flooding subsides.

What are MVP’s calculations and approved plans to anticipate and deal with the safety of boats at all times and the all-too-likely scenario of a fast-rising flood due to an unpredicted high-intensity precipitation event like June 23, 2016? Such storms are becoming more frequent, more intense, and more unpredictable.

As the GRWA attorney contends, the intact streambed is the natural character of the Greenbrier. “The obvious way to maintain the natural character of the streambed is for [MVP] to spend a little bit more … to do the studies they were supposed to do.” There are other options available to MVP, he emphasized, including boring under the river or finding a different route.

3: Is MVP being granted undue entitlement?

It was clear at the EQB hearing in Charleston in February that even members of the EQB thought that more studies should have been done. The EQB chairman asked the WV-DEP attorney to explain “why the DEP did not take those actions if indeed those actions should have been taken. … Why did the DEP not assume that role?”

WV-DEP’s excuse was that the studies were not specified in the statute. But, it is not the job of the Legislature itself to dictate exactly what studies should be required. They leave that up to DEP as the GRWA attorney argued persuasively: “The fact that there are no rules is not a reason to cut corners. The fact that this statute exists shows the Legislature wants to do everything you can to make sure that the natural characteristics of this stream are preserved.”

In the end, the EQB ducked responsibility, almost sheepishly finding in favor of DEP and MVP, and explaining that they felt EQB’s “purview” was limited to whether DEP’s actions adhered to the statutory requirements.

Now MVP appears on track not only to blast trenches across land seized through eminent domain, but to arrogantly extend that entitlement to treat the Greenbrier River like just another ditch. The fact that the MVP attorney did all the talking for DEP on Tuesday spoke volumes. A DEP lawyer was present but silent, even when asked if he had anything to add.

One ray of light: MVP’s pattern of assumed entitlement — of calling the shots — is starting to be noticed. In late July 2018, the Fourth Circuit Court of Appeals in Richmond vacated the permits issued by the US Forest Service and the US Bureau of Land Management for MVP to cross the Jefferson National Forest. In early October 2018, the Fourth Circuit Court vacated the permit granted by the U.S. Army Corps of Engineers for MVP to cross streams and wetlands in West Virginia.

In both of these cases, the Fourth Circuit judges expressed interest and concern about why these agencies seemed to be bending their actions to accommodate MVP.

What’s Next for the Mountain Valley Pipeline?

Right now, no MVP construction is allowed in West Virginia or Virginia streams and wetlands following the ruling that canceled the Army Corps of Engineers permit in West Virginia. Unfortunately, the FERC has not halted other construction, even though it remains possible that MVP may not be able to complete the project along their projected route.

In Hinton last week, the GRWA attorney requested that the Circuit Court send the Natural Streams Preservation Act case back to the EQB with instructions to consider the river’s natural characteristics and alternative options like a conventional bore. The MVP attorney asked for the permit to be upheld as is. Both attorneys acknowledged that there was no time pressure for an answer from the judge, in part because of the status of the Army Corps permit, but also because MVP would not be able to begin in-river construction until next summer because of water levels.

This permit and this case will have a lasting impact. MVP’s crossing of the Greenbrier River is the first river crossing permit issued under the Natural Streams Preservation Act. Whatever is decided will set precedent for future cases, whether on the Greenbrier or any of the other four protected natural streams.

ICWA believes that the Greenbrier is a river worthy of the fullest protection offered under West Virginia’s Natural Streams Preservation Act. The DEP and EQB should not be allowed to shirk their responsibility, and MVP should not feel entitled to treat the GreenbrierRiver like a lifeless ditch.

>>> Indian Creek Watershed Association,

NOTE: ICWA is a 501c3 non-profit organization. Contributions are tax-deductible. To support the Indian Creek Watershed Association send a check: Please make your check payable to Indian Creek Watershed Association or ICWA. Mail to: Indian Creek Watershed Association, P.O. Box 711, Union, WV 24983.

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