West Virginia Department of Environmental Protection adjusts Mountain Valley Pipeline permits

From an Article by Charles Young, Clarksburg Telegram, November 1, 2017

CHARLESTON — The West Virginia Department of Environmental Protection has lifted the suspension of the state stormwater permit for EQT’s Mountain Valley Pipeline project, according to Cabinet Secretary Austin Caperton.

The stormwater permit was suspended in September to allow the state agency to properly respond to all public comments received.

The agency has also chosen to waive the individual 401 certification of the federal permits for the pipeline project. The Army Corps of Engineers recently reissued, with provisions that are specific to West Virginia, the nationwide 12 permit which is used for stream crossings.

These new conditions, when combined with specific requirements that are included in the state stormwater permit, will allow for better enforcement capabilities and enhanced protection of the state’s waters, Caperton said.

“This is a case where the public review and comment system worked especially well,” Caperton said. “This summer, after months of diligent work, WVDEP put forth for public review and comment a draft certification and permit for the MVP pipeline. As a result of some of the issues that were included in those public comments, our agency developed a revised strategy that will better utilize the state stormwater permit to provide significantly stronger safeguards for the waters of West Virginia.”

The Mountain Valley Pipeline, a project of EQT and several other partners, will span more than 300 miles from northwestern West Virginia to southern Virginia. The pipeline will be used to supply natural gas from Marcellus and Utica Shale production to markets in the Mid-Atlantic and South Atlantic regions.

According to information on the project’s website, the pipeline will pass through 11 West Virginia counties.

Natalie Cox, communications director for EQT, said the DEP decision reinforces West Virginia’s commitment to protecting its waterbodies.

“Reinstatement of the stormwater permit requires enhanced management best practices and increases the degree of assurance that MVP construction activities will be conducted in a manner that will preserve and protect waterbodies along the route,” she said.

The issuance of the permit will not impact the pipeline’s estimated completion date, Cox said.

“The MVP project team is committed to complying with the permit, and this decision by the WVDEP will not impact MVP’s currently filed timeline, which targets an in-service for late 2018,” she said.

Environmental advocacy groups around the state voiced their displeasure with the DEP’s decision.

“Instead of protecting West Virginia’s water, DEP has sold us down the river,” said Justin Raines, chair of the Sierra Club West Virginia Chapter’s gas committee. “They had one job to do, and they failed to do it, leaving our water in the hands of the federal government and out-of-state corporate polluters who are more interested in making money than protecting West Virginians. If we can’t trust our own state to protect our water, health and tourism, who can we trust to do it?”

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WV-DEP: Wednesday, November 1, 2017 @ 10:57 AM
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FOR IMMEDIATE RELEASE: November 1, 2017

WVDEP Announces Permit Adjustments for Mountain Valley Pipeline

“State Stormwater Permit includes enhanced inspection and enforcement, stronger environmental guidelines for project”

CHARLESTON, W.Va. – West Virginia Department of Environmental Protection (WVDEP) Cabinet Secretary Austin Caperton announced today that the agency has lifted the suspension of the Mountain Valley Pipeline (MVP) state Stormwater Permit. The suspension of the state Stormwater Permit was put in place in September to allow the agency to properly respond to all public comments received.

Additionally, the state has chosen to waive the individual 401 Certification of the federal permits for the MVP. The Army Corps of Engineers recently reissued, with provisions that are specific to West Virginia, the Nationwide 12 permit which is used for stream crossings. These new conditions, when combined with specific requirements that are included in the state’s storm water permit, will allow for better enforcement capabilities and enhanced protection for the state’s waters.

“This is a case where the public review and comment system worked especially well,” noted Secretary Caperton. “This summer, after months of diligent work, WVDEP put forth for public review and comment a draft certification and permit for the MVP pipeline. As a result of some of the issues that were included in those public comments, our agency developed a revised strategy that will better utilize the state storm water permit to provide significantly stronger safeguards for the waters of West Virginia.”

West Virginia is unique among all surrounding states in that it has a stormwater permitting program for oil and gas activities that it created nearly five years ago. The program was purposely designed to provide protection from the impact of large-scale projects like the MVP that are otherwise exempt from federal National Pollutant Discharge Elimination System (NPDES) permit conditions.

For more WV-DEP news and information, go to www.dep.wv.gov.

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Dereliction of Duty: WVDEP Abandons Water Quality Review of Fracked Gas Pipeline — State Surrenders to Fossil Fuel Industry Instead of Protecting Health of West Virginians

CHARLESTON, WV — Today, the West Virginia Department of Environmental Protection (DEP) waived its opportunity to review the water quality impacts of the fracked gas Mountain Valley Pipeline. Under section 401 of the Clean Water Act, states must certify that proposed pipelines will not violate state water quality standards before construction can begin. DEP has the responsibility to determine whether or not to issue that certification for West Virginia, but announced today they are abdicating that responsibility.

WV-DEP previously certified the MVP, but in response to a lawsuit brought by Appalachian Mountain Advocates on behalf of a coalition of environmental groups, a federal court set aside that certification and allowed DEP to start over. That coalition is now exploring legal strategies in response to today’s news.

Derek Teaney, Senior Attorney at Appalachian Mountain Advocates, issued this statement:

“This is an outrageous and unprecedented dereliction of duty by DEP. After assuring a federal court that it was committed to reconsidering whether the MVP would degrade the hundreds of streams that it would impact, DEP has thrown up its hands and admitted that it is not up to the task of protecting West Virginia’s environment. This action suggests that DEP does not believe in the laws–including the antidegradation policy–that it is charged with enforcing. It also makes you wonder whether DEP intends to give the Atlantic Coast Pipeline–the other ill-conceived pipeline project it is currently reviewing–the same free pass it has just given to MVP.”

Angie Rosser, Executive Director, West Virginia Rivers Coalition said:

“DEP is a taxpayer-supported agency whose job is to protect public health and the environment. But when it came to one of the biggest projects DEP needed to review to protect water quality, the agency quit on the citizens of the state. We often hear from our political leaders that we don’t need federal agencies to regulate, that the state can handle it. But waiving their authority to do so is no way to handle it. It appears that political favor to industry has won the day over the agency’s responsibility to do everything in its power to protect the public’s right to clean water.”

>>>>> See also the Comments on this Article

See also: www.appalmad.org

From an Article by Robert Zullo, Richmond Times-Dispatch, October 29, 2017

Three environmental organizations say the State Water Control Board cannot conclude that there is a “reasonable assurance” that the construction of a pair of highly controversial natural gas pipeline projects planned to carve through hundreds of waterways in Virginia will protect state water quality standards.

In a letter last week, the Chesapeake Bay Foundation, along with the Southern Environmental Law Center and Appalachian Mountain Advocates, wrote that the Virginia Department of Environmental Quality’s much-maligned decision to narrow its water quality review for the Atlantic Coast and Mountain Valley pipelines to “upland” areas, among numerous other shortcomings, means the board lacks the information it needs to make a legally defensible water quality certification.

“While it is the board’s decision whether to certify the Atlantic Coast and Mountain Valley pipelines under section 401 of the Clean Water Act, DEQ must provide the board with sufficient information to make that decision,” the letter says. “DEQ has not done so. As a result, the board does not have the tools it needs to do its job and approval of water quality certifications for these proposed pipelines would be vulnerable to challenge in federal court.”

Both the Dominion Energy-led 600-mile Atlantic Coast Pipeline — which would run from West Virginia through the heart of Virginia and into North Carolina, with an extension to Hampton Roads — and EQT Midstream Partners’ 300-mile Mountain Valley Pipeline from West Virginia into Pittsylvania County, have been approved by the Federal Energy Regulatory Commission.

Standing in their way, however, are state-issued water quality certifications. Under section 401 of the federal Clean Water Act, a state must have reasonable assurance that its water quality standards will not be violated before signing off on federally approved projects such as natural gas pipelines.

And though West Virginia and North Carolina have delayed their water quality certification processes, either to request more information from the pipeline developers, in the case of North Carolina, or because a legal challenge sent regulators back to the drawing board, in the case of West Virginia, Virginia’s DEQ is pressing ahead with a process opponents say is woefully deficient.

First, the agency ceded its authority to review the hundreds of places where the pipelines will actually cross waterways, instead relying on what critics contend is a less rigorous U.S. Army Corps of Engineers general permit for the crossings, which will entail blasting and trenching in streams that environmental groups fear could lead to a surge in sediment and other possible contaminants.

DEQ Director David Paylor has said the state would merely be duplicating the Corps’ work, but opponents note that the Corps’ Nationwide Permit 12 allows for impairments to existing recreational and wildlife uses of the waterways, which state regulations do not countenance.

“Virginia water quality standards require that designated and existing uses be fully protected at all times. Temporary impairments of uses are not allowed and, certainly, long-term or permanent denial of uses is never acceptable,” the letter says. “Likewise, discharges of pollutants that cause turbidity and other defined conditions in streams are prohibited.”

Next, the DEQ removed its review of erosion, sediment control and stormwater plans — which address how the pipeline developers will attempt to limit runoff as they clear trees and flatten ridgetops along the pipelines’ paths in some of the most mountainous parts of Virginia — from the water quality certification process.

Peggy Sanner, a senior attorney with the Chesapeake Bay Foundation and its assistant director for Virginia, called the decision to take the erosion, sediment and stormwater review out of the 401 process “baffling.”

“The effect of those decisions is to prevent an understanding of the cumulative impacts of these projects,” she said. “I try to not spend too much time looking at motivations. … I do think the result of that decision in our view is to allow for a significant risk to our waterways.”

That lack of a cumulative assessment, she added, is of particular concern to the foundation, started 50 years ago and focused on stemming the flow of agricultural runoff, sewage and industrial waste into the bay. The Atlantic Coast Pipeline will cut clear across the bay’s watershed, and increased sediment loads have the potential to jeopardize the bay’s fragile recovery, including underwater grasses and the crabs and fish they shelter, Sanner said.

The environmental groups also warn that the lack of an antidegradation analysis, which refers to the requirement to protect existing uses of water, makes the DEQ’s 401 review “inconsistent with federal law and invalid.” That would include baseline data from water bodies that might be affected by the pipelines and a calculation to determine the additional pollutants the pipelines could add.

“Because DEQ has not conducted an antidegradation review, the section 401 certifications for the Mountain Valley and Atlantic Coast pipelines are vulnerable to being set aside as arbitrary and capricious by federal courts,” the letter says.

The West Virginia Department of Environmental Protection last month chose to revoke its 401 certification rather than defend it in court, chiefly because of flaws in its antidegradation analysis.

The letter likewise faults the DEQ for not considering the potential effect on drinking water wells near the pipelines’ paths and for not requiring dye tracing prior to the 401 certification to map the pollution potential in the karst terrain the pipelines will cross, areas characterized by springs, sinkholes, caves and other links to groundwater. Instead, the DEQ is requiring dye tracing only prior to construction.

The DEQ intends to deliver its recommendation to approve the pipeline certifications subject to conditions the agency is still developing at the water board’s meetings in early December.

The Richmond Times-Dispatch asked the DEQ whether it has conducted an anti-degradation analysis as well as why it omitted dye tracing; drinking water analysis; water body crossings; and stormwater, erosion and sediment control plans from the 401 process.

In response, agency spokeswoman Ann Regn said the “DEQ has consistently expressed its commitment to protecting water quality if the pipeline projects move forward.”

“As for your other questions, DEQ does not believe it is appropriate to address those issues now because our staff is still working on the response to public comments that will be presented to the State Water Control Board. The questions you raise will be addressed in the DEQ responses,” she said. “When DEQ makes its recommendations to the State Water Control Board in December, they will be based on the legal requirements we must follow and on the best scientific information available.”

Subject: Announcement on ACP 401 certification application

Friends,

An urgent matter, pipeline-related, the Atlantic Coast Pipeline (ACP) has filed a “State Water Certification Application” to the West Virginia Department of Environmental Protection (WVDEP) as required by Section 401 of the nation’s Clean Water Act. The ACP will try to show that their construction will not impair water quality and quantity nor the wildlife, recreation, and potable water that depends upon high quality water. Many of us fear that the pipeline construction will significantly impair water quality.

The announcement has been in the Pocahontas Times newspaper Legal Advertisements for the past several weeks. Public comment period ends May 8, 2017 (postmarked). Comments may be made to WV Department of Environmental Protection, Division of Water and Waste Management, 401 Certification Program, 601 57th Street SE, Charleston, West Virginia 25304.

Several groups and persons, including Eight Rivers Council, are making efforts to request a local public hearing in Pocahontas County. WVDEP is not required to hold public meetings, but can do so at their option. You may make a request for a public hearing but should do so by this Friday April 28, via email at dep.comments@wv.gov

For your inspiration, in May 2016 the New York State Department of Environmental Conservation refused a 401 certification for the proposed Constitution Pipeline, which effectively ended its construction. Would West Virginia’s DEP do the same? Let them know how precious our water is and how the threat of pipeline construction sedimentation and karst disturbance could sabotage our water.

April Pierson-Keating
Mountain Lakes Preservation Alliance
www.mountainlakespreservation.org