Mountain Valley Pipeline (MVP) Seeks A New NATIONWIDE PERMIT (NWP 12) for Stream Crossings

by admin on July 18, 2020

This 42 inch pipeline creates pollution problems at stream crossings, on steep terrain, etc.

Why has it taken so long for MVP to get a new permit?

Commentary by Jacob Hileman, Roanoke Times, July 12, 2020

On Oct. 2, 2018, the U.S. Court of Appeals for the Fourth Circuit vacated Nationwide Permit (NWP) 12 for the Mountain Valley Pipeline (MVP). Upon losing this permit from the U.S. Army Corps of Engineers, MVP was forced to cease construction at all stream and wetland crossings in Virginia and West Virginia, leaving hundreds of crossings outstanding. That the Corps has been unable to reinstate NWP 12 for twenty-one months, and counting, is truly incredible.

Why has the Corps delayed reissuing NWP 12 to MVP for so long?

It is likely the Corps has not been able to find a way to reinstate the permit that will withstand legal scrutiny. Since beginning construction in early 2018, MVP has lost numerous permits as a result of opponents’ successful legal challenges. In a number of these cases, the courts thoroughly rebuked the implicated agencies for failing to justify their issuance of permits for the MVP. For example, authorization from the U.S. Forest Service was deemed “silent acquiescence.” The Corps has assuredly seen the writing on the wall.

The magnitude of the delay in reissuing NWP 12 to MVP is a stark indication the Corps never should have granted the permit in the first place.

If reinstating NWP 12 was simply a case of dotting i’s and crossing t’s — a purely procedural matter — the Corps would have reissued the permit to MVP within weeks. Instead, the Corps finds itself facing the absolutely monumental task of rewriting a fatally flawed permit. This was confirmed by the April 15 ruling against the Keystone XL pipeline, which found the Corps acted “arbitrarily and capriciously” when it reauthorized the NWP 12 program in 2017.

While the U.S. Supreme Court recently issued a partial stay of the lower court’s ruling — allowing pipelines other than Keystone XL to continue using NWP 12 during the appeal process — it does not solve the underlying permit issues for the MVP.

Can the Corps refuse to reissue NWP 12 for the MVP?

Yes. And while unlikely, it absolutely should. The text of the Corps’ suspension letter to MVP makes it clear the Corp has the authority to “reinstate, modify, or revoke the authorizations.” Without NWP 12 in place, MVP is not allowed to impact waterways during construction, yet failed sediment and erosion control devices have been the source of dozens of water quality violations in Virginia and West Virginia. These violations have resulted in more than $2 million in fines for MVP, and the Virginia Department of Environmental Quality recently announced more fines are on the way.

The timing of the Corp’s reissuance of NWP 12 to MVP will communicate far more information than the text of the permit.

One year after MVP lost NWP 12, the U.S. Court of Appeals for the Fourth Circuit granted a stay of the Biological Opinion issued by the U.S. Fish and Wildlife Service. This action effectively halted new construction along the entirety of the 303-mile-long MVP, leaving the project belly-up as it contends with the fact it is $2 billion over budget and two years behind schedule. Even if the Corps is able to reissue NWP 12 in the near future, until the stop work order is lifted all forward construction remains at a standstill.

However, the concurrent suspension of both NWP 12 and the Biological Opinion may actually prove to be a boon to MVP. Assuming both permits are reissued simultaneously, the largest barriers to project-wide construction will immediately evaporate. This leaves the public and courts little time to scrutinize the revised permit conditions before MVP embarks on a frenzy of new construction, knowing the project’s very existence may depend on it. MVP surely recognizes this opportunity.

Since December, MVP and the U.S. Fish and Wildlife Service have slow-walked the consultation process on the Biological Opinion, extending the process by one- and two-month increments while NWP 12 remained in limbo. Although the consultation process was completed last month, the Biological Opinion still has yet to be reissued.

Ultimately, regardless of how the Corps rewrites NWP 12 for the MVP, the permit conditions will have little to no effect on the ground. There is simply no way the damages wrought by the MVP can be contained. Any reissuance of NWP 12 is antithetical to the core function of the permit as a regulatory tool, and must be seen for what it is: a free license for MVP to pollute, damage, and desecrate any and all waterways in its path.

>>> Jacob Hileman is an environmental hydrologist with a Ph.D. from the University of California, Davis. He was raised in the Catawba Valley of Virginia, and is presently a researcher at Stockholm University working on global water sustainability issues.

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