Protesting MVP has been serious every day for over two years

From an Article by Scott DiSavino, Reuters News Service, September 8, 2020

U.S. pipeline company Equitrans Midstream Corp said on Tuesday it remains on track to complete the $5.4-$5.7 billion Mountain Valley natural gas pipeline from West Virginia to Virginia early next year.

That comment follows a decision by the U.S. Fish and Wildlife Service (FWS) to issue a new Biological Opinion on Sept. 4, which the project needs to resume construction.

Mountain Valley is one of several U.S. oil and gas pipelines delayed by regulatory and legal fights with environmental and local groups that found problems with federal permits issued by the Trump administration.

In February 2018 when Equitrans started construction of the 303-mile (488-km) pipeline designed to deliver 2 billion cubic feet per day of gas from the Marcellus and Utica shale, it estimated Mountain Valley would cost about $3.5 billion and be completed by the end of 2018.

“We look forward to resolving the few remaining permitting issues, resuming forward construction,” Equitrans said.

Equitrans has said it expects to receive new approvals soon from the U.S. Federal Energy Regulatory Commission (FERC) and the U.S. Army Corps of Engineers that will enable it to finish building the last 8% of the project.

Analysts at Height Capital Markets said they expect FERC will lift its stop-work order in “coming days” and the Army Corps will reauthorize the project’s Nationwide Permit 12 to allow stream crossing “shortly thereafter.”

“We expect environmentalists and other opponents will challenge each of these permit decisions … within 1-2 weeks of issuance,” Height Capital Markets said, noting “FERC and FWS have had nearly a year to review the permit, so it should be relatively insulated from legal challenges.”

Other projects similarly held up include TC Energy Corp’s $8 billion Keystone XL and Energy Transfer LP’s Dakota Access crude pipelines, which are still involved in court battles.

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See also: Tree sitters mark two-year anniversary of pipeline protest, Joe Dashiell, WHSV News 3, Harrisonburg, VA, September 4, 2020

Dominion cancels Atlantic Coast Pipeline, sells natural gas transmission business

ACP pipeline right of way trees cut at highly sensitive location

PHOTO: Pipeline scene at Wintergreen — A path had been cleared for the Atlantic Coast Pipeline on this Blue Ridge Mountain slope at the entrance to Wintergreen resort, just below the project’s planned crossing beneath the Appalachian Trail.

The Atlantic Coast Pipeline is dead, abandoned by Dominion Energy and its partner, Duke Energy, ending a 600-mile natural gas project that would have cost at least $8 billion to complete.

Dominion and Duke announced Sunday that they have canceled the project in the face of mounting regulatory uncertainty caused by a federal court ruling in Montana that overturned the nationwide federal water quality permit the project relied upon to cross rivers, creeks and other waterbodies.

“We regret that we will be unable to complete the Atlantic Coast Pipeline,” Tom Farrell, chairman, president and CEO of Richmond-based Dominion, said in a bombshell announcement.

Dominion also announced that it is selling its natural gas transmission and storage business to Berkshire Hathaway Energy for $10 billion.

“For almost six years, we have worked diligently and invested billions of dollars to complete the project and deliver the much needed infrastructure, to our customers and communities,” Farrell said.

However, he concluded, “This announcement reflects the increasing legal uncertainty that overhands large-scenergy and industrial infrastructure development in the United States. Until these issues are resolved, the ability to satisfy the country’s energy needs will be significantly challenged.”

For opponents, the abandonment of the project represents vindication of grass-roots opposition that arose along the pipeline’s path.

“It’s all about the people,” said Nancy Sorrells, who helped form the Augusta County Alliance against the project in 2014 and represents the county in the Alliance of the Shenandoah Valley. “They knew it was wrong from start to finish and just never gave up.”

Rick Webb, a retired environmental scientist who helped lead the Dominion Pipeline Monitoring Coalition from his home in Highland County, said of Dominion, “They should have known better. It was a bad idea from the beginning. Dominion, with its ill-conceived project, has done a lot to strengthen the environmental community in the region,” Webb said. “Thank goodness for that.”

The grass-roots opposition also drove an aggressive legal strategy led by the Southern Environmental Law Center in Charlottesville and Appalachian Mountain Advocates, which foiled the project by persuading the 4th U.S. Circuit Court of Appeals in Richmond to throw out numerous federal and state permits needed to complete the project.

Greg Buppert, who helped lead a wide-ranging legal battle against the project as senior attorney for the Southern Environment Law Center, was stunned by the announcement. “Wow!” Buppert said Sunday. “Wow.”

The law center, based in Charlottesville, won a series of victories against federal and state permits for the Atlantic Coast Pipeline in the 4th U.S. Circuit Court of Appeals, but lost a pivotal fight in the U.S. Supreme Court last month over a permit for the pipeline to cross the Appalachian Trail in the Blue Ridge Mountains between Augusta and Nelson counties.

Dominion announced separately on Sunday that it is selling its natural gas transmission and storage business to Berkshire Hathaway by the end of the year.

Berkshire will take on $5.7 billion in debt from Dominion’s transmission and storage business — which does not reflect the parent company’s investment in the pipeline — and pay the company $4 billion, which will allow it to buy back stock to stabilize its earnings.

The sale includes more than 7,700 miles of gas pipelines and 900 billion cubic feet of gas storage. Dominion will keep a 50% interest in the Cove Point liquefied natural gas terminal on the Chesapeake Bay, but Berkshire will receive a 25% interest in the facility and operate it.

Farrell said the deal would allow the company to focus on its electric utilities in Virginia, North Carolina and South Carolina, as well as local gas distribution companies in the Carolinas, West Virginia, Ohio and Utah.

He said the company plans to invest $55 billion over the next 15 years in technologies to reduce emission of carbon dioxide and other greenhouse gases linked to global warming, retire fossil fuel power plants, and develop sources of renewable natural gas, including animal waste.

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See also: Atlantic Coast Pipeline faces doubts — As the cost of the Atlantic Coast Pipeline soars, renewable energy is the better option for NC, Ned Barnett, Raleigh News & Observer, March 16, 2020

WB XPress stream crossing with failed sediment controls. WV-DEP

From an Article by the West Virginia Rivers Coalition, June 17, 2020

Hundreds of rivers and streams throughout the two Virginia’s have been crossed or are proposed to be crossed by natural gas pipelines. The construction of these pipelines across steep terrain with highly erodible soil has been problematic for our waters in the valleys below.

Through our Citizen Oversight and Regulatory Advisory Program, WV Rivers and Trout Unlimited (TU) have documented numerous instances of water quality impacts from pipelines.

Understanding the impacts, permitting process, crossing methods, and ways to minimize impacts can get confusing so, with TU, we’ve published a new report, “Reducing Impacts of Pipelines Crossing Rivers and Streams.”

In the report, we take a closer look at the affects pipeline construction has on rivers and streams by breaking down the construction impacts into two categories: water quality impacts and habitat and aquatic life impacts.

The report takes a deep dive into the various methods pipeline companies use to cross rivers and streams, from trenching though to boring under, and examines the advantages and disadvantages of each of those crossing methods.

We explain the current legal status of the stream crossing permit, called the Nationwide 12, required for the pipelines to proceed with construction, and we offer specific recommendations that can reduce and avoid impacts of pipeline construction.

By conducting additional studies and analysis in the design and permitting phase, pipeline companies and regulatory agencies can avoid unnecessary degradation of our rivers and streams. Read the full report here.

Comments filed to WV-DEP by 20 organizations on March 4, 2019

Re: 401 Water Quality Certification Program Submitted via: WQSComments@wv.gov

West Virginia Rivers Coalition, on behalf of our members and the 19 organizations signed below, respectfully submit the following comments on the proposed modifications to the West Virginia 401 Water Quality Certification for U.S. Army Corps of Engineers (USACE) Nationwide Permits. We oppose the proposed changes to the standard and special conditions, which weaken protections for West Virginia’s rivers and streams.

The public notice of the proposed modifications was inadequate. The public must receive adequate notice of the DEP’s proposed modifications. With the September 2018 NWP 401 Certification proposed modification, the DEP posted the public comment period on the DEP Public Information Office’s news webpage. The January 2019 proposal was not listed on the Public Information Office’s news webpage. Furthermore, there was no record of the public notice posted to the DEP Public Notice Mailing List. The notice was placed on DEP’s 401 Water Quality Certification webpage, but that does not satisfy the public notice requirements.

The modifications may weaken or eliminate protections for every Nationwide Permit as applied in West Virginia. We are adamantly opposed to the proposed revisions to Standard Condition 22, which allows DEP to waive any of the standard or special conditions of the State 401 Water Quality Certification applicable to Nationwide Permits.

This modification is overly broad and vague. It applies to every nationwide permit. It does not provide any specifics regarding guidelines as to when waiving a condition is appropriate. And it does not specify what public process, if any, will be undertaken to ensure that waivers of standard or special conditions will undergo public notice, scrutiny, and comment.

The modification cites Section 401(a) of the Federal Water Pollution Control Act [33 U.S.C. § 1341(a)]; however, this section of the Act grants the State the authority to waive a certification if not acted on within a year. It does not give the State the authority to waive special or standard conditions within the certification.

The modifications allows for waivers of Individual 401 Certification under Nationwide Permit 12. We are adamantly opposed to the proposed changes to Nationwide Permit 12 West Virginia 401 Water Quality Certification Special Conditions, appearing under 12.A.

The relevant underlined added language reads:
“The Secretary of the West Virginia Department of Environmental Protection, in the Secretary’s sole discretion, reserves the right to require an individual water quality certification for any of the following facilities or impacts:”

This added language changed from the original language:
“Individual State Water Quality Certification is required:”

By making this change DEP opens the door to allow waivers of the Individual 401 Certification. This could be done without any public scrutiny or input, which is unacceptable. The change would cut the public out of any decision making processes.

The Individual 401 Certifications on NWP 12 were subjected to public notice and comment, and stakeholders had the opportunity to seek administrative and judicial review of them. The proposed change enables the state to unilaterally waive those requirements for an individual permit now and deprives stakeholders of the opportunity for public participation or to seek administrative or judicial review.

Moreover, because the special conditions on NWP 12 are now conditions of the nationwide permit itself, DEP does not have the authority under federal or state law to unilaterally waive those requirements for an individual 401 permit.

Exempting dry ditch crossing methods and large rivers from the 72-hour requirement does not consider impacts on aquatic life. The proposed change to the Special Condition C under Nationwide 12 allows for the exemption of the 72-hour crossing time restriction for dry crossing methods and large navigable river crossings. The longer crossing time does not consider the effects on aquatic life. The effect of dewatering the stream bed for prolonged periods on aquatic life was not taken into consideration when proposing this modification.

In its biological opinion for the Atlantic Coast Pipeline, the US Fish and Wildlife Service lists dewatering of mussel beds and increased sedimentation as two of the threats leading to the decline of Clubshell mussels. Clubshell mussels are also listed as species of concern for three water crossings on the Mountain Valley Pipeline. Candy Darters are also known to inhabit the Greenbrier and Gauley River Watersheds and were just recently listed under the Endangered Species Act with designated habitat where the Mountain Valley Pipeline proposes to cross the Gauley River and the Atlantic Coast Pipeline proposes to cross the Greenbrier River. The impacts of dewatering the streambed for prolonged periods on species of concern, such as Candy Darters and Clubshell mussels, must be taken into consideration prior to removing the 72-hour requirement.

The change to the 72-hour requirement affects other agency decisions. DEP relied on the 72- hour stream crossing condition when issuing the State General Water Pollution Control Permit for the Atlantic Coast and Mountain Valley Pipelines. On both projects in its response to comments for why an anti-degradation review is not needed, DEP states, “The Stormwater Pollution Prevention Plan (SWPPP) for this project requires that additional protective measures will be employed at crossings of and in proximity to Tier 3 and trout streams. The additional measures include… stream crossings in these areas will be completed within 72 hours once the crossing has begun…” By exempting large rivers and dry crossing methods from the 72-hour stream crossing condition, DEP would also invalidate the protections afforded streams under the General Stormwater Construction Permit and undermine its own rationale of why an anti-degradation review is unnecessary.

Other state agencies rely on the special conditions included within the Nationwide Permits. WVDNR refers to the condition requiring crossings to be completed in 72 hours in its spawning waiver approvals, and assumes when issuing those waivers that the applicant will comply with the 72-hour restriction. Allowing an exemption to this condition would therefore undermine WVDNR’s spawning waiver approvals. Changing this condition to allow longer crossing durations during which the stream bed is dewatered for prolonged periods would have detrimental effects on aquatic life, especially in areas where WVDNR relied on this rule to allow construction during the spawning season.

Modifications would allow structures that prevent fish movement between upstream and downstream for an undetermined length of time, as long as the structure is not permanent. The proposed modification to Special Condition L under Nationwide 12 would allow temporary structures that prevent fish passage. There is no specific timeframe for how long fish movement can be prevented as long as it is eventually restored. This change could have detrimental effects on fish species, including sensitive species such as the native brook trout and the endangered candy darters.

Fish movement ranges from short daily movements to seasonal migrations. The degree of fish movement depends on water levels, river flows and temperature. Fish need unimpeded movement in a waterway to access seasonal food sources, breeding areas, various habitat types and drought refuges. Structures that prevent fish movement may impact the fish’s ability to find adequate food, escape poor habitat conditions, or reach spawning grounds. Severing the connectivity of aquatic habitat for prolonged periods can prevent fish from migrating to various areas in the stream that are used during their different life stages. Migration barriers have the potential to restrict available habitats, interrupt seasonal movement patterns, and lead to individual losses due to isolation events. Structures preventing fish movement for long periods of time can alter the biology of the stream. These structures may also exacerbate flooding issues during high flow events.

Modifications undermine the Secretary’s position that NWP 12 Special Conditions are needed to prevent impacts. In the Secretary’s letter to staff regarding the Mountain Valley Pipeline 401 Waiver, he endorses the conditions put in place by the agency when certifying the 404 permit by stating:

“That 401 Certification had several conditions to ensure that temporary impacts to West Virginia’s waters would be minimized, and mitigation would be provided for permanent impacts. Importantly, during the same period of time that the WVDEP was working on this MVP individual certification, it was also developing special conditions for the reissuance of the USACE nationwide permit… The special conditions West Virginia included in it is certification on the newly reissued Nationwide 12 permit (in April 2017) largely mirrored the conditions that West Virginia had previously placed (in March 2017) on the MVP’s 401 Individual Certification… Because the newly issued Nationwide 12 permit included updated state conditions that were similar to those contained in MVP’s previous individual 401 Certification, WVDEP determined it was unnecessary to repeat them in an Individual Certification. As a result, it waived the 401 Certification…To be clear – by waiving the 401 Individual Certification, we are not abandoning our duty to protect the water quality of West Virginia. In fact, the new Nationwide 12 permit is 401 certified by West Virginia and includes state specific conditions relative to pipelines. Combined with the state Construction Stormwater Permit, we are in a stronger position to effectively regulate all pipeline construction in West Virginia.”

The DEP has previously relied on and endorsed the conditions under the 401 Certification for nationwide permits. It is problematic for DEP to change its course now in what appears to be a move to accommodate non-compliant plans and permits of certain projects.

Proposed modifications do not maintain the water’s designated use as required by law. State water quality standards are the basis for controlling pollutants in West Virginia’s water resources. The standards consist of designated beneficial uses, water quality numeric and narrative criteria, an anti-degradation policy, and other general policies on implementation. The water quality standards and criteria ensure that the beneficial uses are maintained and protected. DEP is mandated by the Requirements Governing Water Quality Standards Rule – Title 47CRS2 to maintain the rivers designated use; including public water supply and recreation. The proposed modifications do not ensure that the waterbodies’ designated uses will be maintained.

The Mountain Valley Pipeline proposes to cross the Gauley and Greenbrier Rivers, and the Atlantic Coast Pipeline proposes to cross the Buckhannon River, rivers that also serve as the source water for public water supplies directly downstream of the crossing locations. Exempting these river crossings from the Special Condition C would put undue hardships on the water treatment facilities by requiring the facilities to filter excess sediment in the source water for a duration of approximately 4 to 6 weeks or longer. The rivers’ designated use would not be maintained as a public drinking water source. Exemptions to the 72-hour condition do not ensure that the beneficial uses will be maintained and protected as required under the Clean Water Act.

The Greenbrier, Gauley, Buckhannon and Elk Rivers are popular recreational destinations for boating, swimming and fishing. The proposed modifications to Special Conditions C and L would impact the recreational use of these rivers. Allowing pipeline construction for an unrestricted duration coupled with impoundments that impede the flow will have detrimental effects on the recreational use of the impacted sections of these rivers. No recreation can occur during construction and the construction could last the majority of the popular recreational season. DEP’s proposed modifications to the special conditions do not maintain the rivers’ designated use for recreation.

The proposed modifications are untimely, unlawful and unnecessary. The DEP issued its recertification of the 401 for nationwide permits in 2017. Nationwide recertification is only necessary every five years. These modifications must wait until the 2022 recertification period. Opening the recertification process prematurely sets a precedent and disrupts the regulatory framework that industry, environmental organizations, state regulatory agencies, and other stakeholders rely on for continuity, transparency and certainty.

DEP has provided no justification for the proposed modifications to ensure that projects will still be able meet the state’s water quality standards. Likewise, the proposed modifications do not protect the rivers’ and streams’ designated uses. DEP cannot lawfully modify regulations without justification simply because the companies are not able to comply.

These modifications are not necessary for DEP to enable a company to use the most environmentally protective methods available. The agency has the authority now to deny large construction projects coverage under nationwide permits and require individual 401 Water Quality Certifications. Instead of following through with the proposed modifications, DEP should use individual 401 Water Quality Certifications to provide stream and wetland protections tailored to each project.

>>> Signed, Angie Rosser, West Virginia Rivers Coalition, plus 19 other organizations

Stream & wetlands disturbances are severe and long lasting

Prepared by the West Virginia Rivers Coalition, Fact Sheet, 2/19

Background Information Summary

The WV Department of Environmental Protection (WV-DEP) agreed to permit the construction of the Mountain Valley Pipeline and Atlantic Coast Pipeline through streams and wetlands according to a Nationwide 12 permit issued by the U.S. Army Corps of Engineers. In 2017, WV-DEP established certain special conditions that must be followed for projects subject to a Nationwide 12 permit to protect the environment. Now, WV-DEP is proposing to change those conditions and are accepting public comment on proposed modifications through March 4, 2019. Comment here.

Key Revisions Proposed by the WV-DEP

The following proposed modifications raise concerns for our rivers and streams:

>>> Allowing exemptions to the 72-hour stream crossing restriction. This condition helps to minimize impacts to water quality and aquatic life. Prolonged dewatering of streambeds can have severe impacts to the life in a stream. Agencies like WV Division of Natural Resources rely on this 72-hour restriction to determine if construction during fish spawning seasons will have ill-effects on fish populations.

>>> Allowing temporary impediments to fish passage. This condition helps to minimize impacts to fish species by preventing structures that impede fish passage. WV-DEP is changing this condition to allow structures to impede fish passage as long as they are not permanent; however the length of time that fish passage will be prevented is not defined.

>>> Waiving the requirement for an individual water quality certification for large pipelines. This condition is in place to assure that stream and wetland crossings for large-scale pipelines (over 36” in diameter) get the careful analysis and individualized plans required to better ensure protection of water quality.

>>> Allowing for the removal of any permit conditions with no public scrutiny. Standard and special permit conditions are in place to make sure that when a nationwide permit is used there is a baseline of protections that will be enforced. These conditions become meaningless if the regulatory agency is allowed to remove or waive them, especially without any requirement for public notice and comment.

The WV-DEP states the modifications are necessary so that companies are not prevented from using more environmentally protective methods. This simply is not true. WV-DEP currently has the authority to reject coverage of large-scale projects under a one-size-fits-all Nationwide permit, and can instead come up with protective methods customized to the needs of the project through an individual permit.

How to Comment to the WV Department of Environmental Protection

Comments can be submitted online here, via email at WQSComments@wv.gov, or by mail to:

401 Water Quality Certification Program
ATTN: Nancy Dickson, WV-DEP
601 57th Street SE
Charleston, WV 25304-2345

Stream Crossing Rules in Revision in West Virginia. — Public Input Solicited

From the Appalachian Blue Ridge Alliance, Update 213, January 17, 2019

Modifications to the West Virginia regulations covering stream crossings for pipelines and similar projects have been proposed by the state’s Department of Environmental Protection. The modifications address the issue of the state’s existing requirement governing the timeframe within which stream crossing must be completed within 72 hours. Public comments on the proposal must be submitted by March 4, 2019. For further details on the proposal, click here.

Mountain Valley Pipeline starts the new year with new complications — The Roanoke Times – 1/16/19

West Virginia has reopened a public comment period for modifications to a combined state and federal permitting process that Mountain Valley must complete before it can dig trenches through streams and wetlands.

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FERC Approves Atlantic Coast Pipeline (ACP) Stabilization Measures

A plan for stabilization measures on the Atlantic Coast Pipeline route during cessation of construction activity on the project was approved January 10 by the Federal Energy Regulatory Commission. The plan had been submitted to the agency in the wake of the Fourth Circuit Court of Appeals December 7 decision to stay the U.S. Fish and Wildlife’s Biological Opinion and Incidental Take Statement for the project. The Southern Environmental Law Center, Appalachian Mountain Advocates and Chesapeake Bay Foundation had written FERC on December 21 asking that the agency to require the company to remove strung pipe from the right-of-way rather than allow it to continue to install pipe along a route that is not authorized by law, but the request was ignored.

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The Myth of ‘Clean’ Natural Gas – - Environmental Working Group – 1/15/19
https://www.ewg.org/news-and-analysis/2019/01/myth-clean-natural-gas

. . . . . . . . . . . . . . . . . . . . . .

Immediate fossil fuel phaseout could arrest climate change — The Guardian – 1/15/19

https://www.theguardian.com/environment/2019/jan/15/immediate-fossil-fuel-phaseout-could-arrest- climate-change-study

Scientists say it may still technically be possible to limit warming to 1.5C if drastic action is taken now.

Large pipelines create severe disturbances in steep/rough terrain

From an Article by the MetroNews Staff, June 22, 2018

CHARLESTON, W.Va. — A federal court issued a stay Thursday on a streamlined river crossing permit related to the Mountain Valley Pipeline.

The U.S. Court of Appeals for the Fourth Circuit put a hold on a permit from the U.S. Army Corps of Engineers. The permit included a provision stating crossings of the Elk, Gauley, Greenbrier and Meadow rivers had to be completed within 72 hours. The project’s developers said it would take between four and six weeks for work to be completed.

The 304-mile pipeline will deliver natural gas from Wetzel County to market in Virginia.

Sierra Club Beyond Dirty Fuels Campaign Director Kelly Martin said the related permit, “nationwide permit 12,” was not the best option.

“Today’s decision shows once again that the Nationwide Permit 12 cannot be used as a one size fits all approach for dirty and dangerous pipelines that pose serious threats to our communities and clean water,” she said. “Construction on the Mountain Valley Pipeline must be halted immediately as the case to protect our water and communities proceeds.”

West Virginia Rivers Coalition Executive Director Angie Rosser said the stay brings a “sense of relief.”

“What we’re seeing is that short-cuts and easy-outs just won’t work for this massive project. Already with MVP, we’re seeing its early construction causing problems for our waters,” she said. “It’s encouraging that the court agrees a more intensive review of this permit is required before risking any further damage.”

Gov. Jim Justice issued a statement Thursday night, saying his office will continue to monitor related proceedings.

“This project represents thousands of jobs and millions of dollars being spent to benefit this state, not to mention the long-term stability and boost the energy economy of this country will see as a result of this project’s completion,” he said.

Photo in the Article shows a stick in the ground which designates the proposed path of the Mountain Valley Pipeline across the property owned by Mark Jarrell in Summers County.

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US 4th Circuit Issues Stay on MVP Stream Crossings in WV

From an Update by POWHR, Protect Our Water, Heritage & Rights, June 21, 2018

The U.S. 4th Circuit Court of Appeals granted a motion for stay on all stream crossing construction in the Huntington District of West Virginia June 21. The order was issued as part of the challenge to the use of the Army Corps of Engineers Nationwide 12 Permit along the Mountain Valley Pipeline. The original Motion for Stay was filed May 22.

In the lawsuit, environmental organizations — specifically Sierra Club, Appalachian Voices, Chesapeake Climate Action Network, and West Virginia Rivers Coalition — are asserting that the Army Corps Nationwide 12 permit cannot be applied to the Elk, Greenbrier, Gauley, and Meadow Rivers in West Virginia because the pipeline cannot cross those streams within the WV required limit of 72 hours. The Corps conceded that fact and partially suspended the permit for just those four crossings.

Attorneys with Appalachian Mountain Advocates, who are working on behalf of the environmental groups, are arguing that because the permit cannot be applied to four crossings along the route, the entire permit must be suspended until the court reviews it.

“Today’s decision shows once again that the Nationwide Permit 12 cannot be used as a one size fits all approach for dirty and dangerous pipelines that pose serious threats to our communities and clean water,” the Sierra Club’s Beyond Dirty Fuels Campaign Director Kelly Martin said in a press statement. “Construction on the Mountain Valley Pipeline must be halted immediately as the case to protect our water and communities proceeds.”

“Today’s decision by the 4th Circuit of the US Court of Appeals is very welcome,” Maury Johnson of Preserve Monroe and POWHR said. “I believe that the US Army Corp of Engineers made grievous errors in issuing their NWP 12 Certification for this disastrous project. I hope my neighbors in Virginia, namely the VA DEQ and the VA State Water Control Board, will not make the same mistake.”

“It brings a sense of relief to see this pause button hit,” WV Rivers Coalition Executive Director Angie Rosser said in a press statement. “What we’re seeing is that short-cuts and easy-outs just won’t work for this massive project. Already with MVP, we’re seeing its early construction causing problems for our waters. It’s encouraging that the court agrees a more intensive review of this permit is required before risking any further damage.”

Secretary Caperton’s Letter to WVDEP Staff Regarding the Mountain Valley Pipeline (11/13/2017)

CHARLESTON, W.Va. – West Virginia Department of Environmental Protection (WVDEP) Cabinet Secretary Austin Caperton sent the following letter to all staff this morning explaining the agency’s decision on the Mountain Valley Pipeline.

“Good morning:

“There’s been a lot of news coverage recently of the WVDEP’s decision regarding the Mountain Valley Pipeline. Many of you have been asked questions by friends or family about exactly what this agency did, what we didn’t do, and how we arrived at our decision.

“I’d like to explain how this agency is protecting water quality with its permits.

“First, it is important to understand Section 401 Certifications and Section 404 permits. Section 401 of the federal Clean Water Act allows states an opportunity to ensure federal permitting actions will comply with a state’s water quality standards. The US Army Corps of Engineers (USACE) issues Clean Water Act Section 404 stream crossing and wetland permits, allowing fill to be placed in streams and wetlands. This permit is not for upland activities. The USACE can issue either an individual 404 permit for a particular activity or a general permit known as a Nationwide Permit. Nationwide Permits are used for common activities like highway construction or utility line construction. The USACE reissues Nationwide Permits every 5 years and likewise states are given an opportunity to issue 401 Certifications for these permits every 5 years.

“The timeline is important to understand WVDEP’s actions. WVDEP issued a 401 individual water quality certification for the Mountain Valley Pipeline project on March 23, 2017.

“That 401 Certification had several conditions to ensure that temporary impacts to West Virginia’s waters would be minimized, and mitigation would be provided for permanent impacts. Importantly, during the same period of time that the WVDEP was working on this MVP individual certification, it was also developing special conditions for the reissuance of the USACE nationwide permit. This permit is called the Nationwide 12 permit. It is typically used by the USACE for utility line construction (including pipeline stream crossings). The special conditions West Virginia included in it is certification on the newly reissued Nationwide 12 permit (in April 2017) largely mirrored the conditions that West Virginia had previously placed (in March 2017) on the MVP’s 401 Individual Certification.

“An appeal was filed on Aug. 15, 2017 against WVDEP in the Fourth Circuit Court of Appeals, raising the issues of antidegradation, karst, and the response to public comments. The WVDEP vacated and remanded the 401 Certification to re-evaluate the complete application. During this re-evaluation it was determined that, while the agency could defend against the arguments raised in the appeal, some of the issues raised were better addressed in the state Oil and Gas Construction Stormwater Permit (WV0116815).

“This state permit was issued nearly five years ago to cover oil and gas construction activity. Those activities were otherwise exempt from needing a federal National Pollutant Discharge Elimination System (NPDES) permit. Based on West Virginia’s experiences, it had become obvious that oil and gas construction activity needed to be permitted to protect water quality in our state. West Virginia is unique among its surrounding states in that it has this specific state permit to cover oil and gas pipeline construction activity.

“Because the newly issued Nationwide 12 permit included updated state conditions that were similar to those contained in MVP’s previous individual 401 Certification, WVDEP determined it was unnecessary to repeat them in an Individual Certification. As a result, it waived the 401 Certification. Through its use of the Construction Stormwater Permit, WVDEP will now take full control of the inspection and enforcement of this entire project – in both upland areas and at stream and wetland crossings.

“To be clear – by waiving the 401 Individual Certification, we are not abandoning our duty to protect the water quality of West Virginia. In fact, the new Nationwide 12 permit is 401 certified by West Virginia and includes state specific conditions relative to pipelines. Combined with the state Construction Stormwater Permit, we are in a stronger position to effectively regulate all pipeline construction in West Virginia.

“I take our duty to protect the environment seriously, and will use all of our resources to make sure this project, and any other project, adheres to the conditions of its permit.”

>>> Signed, Austin Caperton, WVDEP Cabinet Secretary

Contact: Jake Glance, (304) 926-0499 ext. 1335, Jacob.P.Glance@wv.gov