Mountain Valley Watch report to Virginia, August 2018

From an Article by Laurence Hammack, Roanoke Times, October 16, 2020

The on-again, off-again pace of building the Mountain Valley Pipeline is off again. A temporary administrative stay of stream-crossing permits was issued Friday by the 4th U.S. Circuit Court of Appeals.

In a brief order, the court said the delay — which was requested Thursday by conservation groups concerned about environmental damage from the massive natural gas pipeline — will remain in effect until it has time to consider a full stay that was sought earlier.

“Our streams and wetlands get at least a temporary reprieve from MVP’s destruction,” said David Sligh of Wild Virginia, one of eight environmental groups fighting the pipeline in court.

After the U.S. Army Corps of Engineers reissued the NWP 12 permits Sept. 25 and a stop-work order was lifted last week, Mountain Valley said it would resume construction “in the coming days.”

While burrowing the 42-inch diameter pipe under nearly 1,000 streams and wetlands is now back on hold, it was unclear whether Mountain Valley is free to resume clearing the right of way and digging trenches to bury the pipe in upland areas.

Asked Friday whether any such work had begun, Mountain Valley spokeswoman Natalie Cox did not answer directly. “With MVP’s upland construction now scheduled to begin, and as we receive additional information” about other areas being cleared for work, “MVP will continue to evaluate its current construction plans, budget and schedule,” Cox wrote in an email.

Observers have not seen any heavy equipment being moved back to construction zones, according to Russell Chisholm, co-chair of the anti-pipeline Protect Our Water, Heritage, Rights coalition.

The most recent report filed with the Federal Energy Regulatory Commission by environmental monitors, which covered the week of Sept. 27 through Oct. 3, did not list any construction in its “Summary of Activities” section.

Although Mountain Valley has regained two of three sets of key permits that were set aside by legal challenges, continued delays raise questions about whether it will meet its often-stated goal of completing the 303-mile pipeline by early next year.

In a weekly report released Monday, an investment banking firm that has been tracking the project said that if a stay was not granted, it expected work to be finished by mid-2021. “If the opponents successfully secure a stay, this timing could slip” to the third quarter, Height Capital Markets stated.

On Oct. 9, FERC allowed work to begin again on all but a 25-mile segment of the pipeline that includes the Jefferson National Forest.

In 2018, the 4th Circuit threw out a permit that allowed the pipeline to pass through 3.5 miles of the forest, citing concerns with erosion and sedimentation. The U.S. Forest Service is not expected to reissue the permit before year’s end.

But Mountain Valley this week asked FERC to allow it to resume construction in much of a buffer zone established around the forest. New sedimentation studies showed no danger to federal woodlands, it said. FERC had not responded by late Friday.

In her email, Cox said Mountain Valley is disappointed that the 4th Circuit stayed the stream-crossing permits temporarily. But, she added, “we respect the court’s request for additional time to thoroughly consider the Motion for Stay and look forward to a resolution of this matter.”

To obtain a more lasting stay, Wild Virginia and other environmental groups would have to show that they have a good chance of winning their legal challenge, and that they would be “irreparably injured” if construction were allowed to proceed.

Derek Teaney, the attorney for the groups, said in court papers that the Army Corps failed to adequately consider the pipeline’s impact on endangered species, including the Roanoke logperch and the candy darter.

In a statement Friday, POWHR said it was “both heartened and guardedly optimistic” that the court will rule in favor of the project’s opponents.

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See also: Threats-to-Water-Quality-from-Mountain-Valley-Pipeline-and-Atlantic-Coast-Pipeline-Water-Crossings-in-Virginia, Downstream Strategies, February 6, 2018

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See also: Mountain Valley Watch Analysis & Report,
Comments to State Water Control Board, August 19, 2018

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

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.

42 inch Mountain Valley Pipeline is larger than previous pipelines, probably too large for the steep terrain and many stream crossings

From an Article by Laurence Hammack, Roanoke Times, April 24, 2020

The Mountain Valley Pipeline is still targeting a completion date of late this year, a spokeswoman said Friday, despite reports of the suspension of a nationwide program needed to grant a key permit it lacks.

Last week, a federal judge in Montana vacated a permit for the Keystone XL pipeline to cross streams and wetlands in a decision that also applied to other projects, including the controversial natural gas pipeline being built through Southwest Virginia.

The Associated Press reported Thursday that the U.S. Army Corps of Engineers — which approves the permits on a general basis for pipelines, utility lines and other construction work that must cross a water body — has suspended the process in light of the court ruling.

Mountain Valley spokeswoman Natalie Cox said the company was aware of comments from the Corps about its so-called Nationwide Permit 12, which the AP attributed in part to emails it had obtained.

“We are awaiting further developments on the Montana federal court case … to understand any potential impacts on the MVP project,” Cox wrote in an email, adding that the company still was aiming to complete work on the 303-mile pipeline by the end of the year.

Mountain Valley was originally slated to be done by late 2018, and delays caused by legal challenges from environmental groups have in large part caused its estimated price to soar from $3.7 billion to as much as $5.5 billion.

“Continued delays will further erode the case for completing the MVP,” said Thomas Hadwin, a retired gas and electric utility executive from Waynesboro who is opposed to the project.

While Mountain Valley officials have said the pipeline is 90% done, “this is probably one of the biggest outstanding issues for them,” he said.

Hadwin said it was difficult to say whether the joint venture of five energy companies would abandon the project at this late stage, as opponents hope.

“The more money they put in, the harder it is to say, I’m going to give up,” he said. “I think that most board members would say, we’re so far in, let’s keep going.”

Larry Liebesman, a senior adviser for the water resources consulting firm Dawson & Associates in Washington, D.C., said he was not surprised to learn of the Corp’s suspension of its permitting process for stream and wetland crossings.

“My read of it is they felt it was important to abide by the court order, which in effect was a nationwide injunction against use of the Nationwide Permit,” he said.

It was not clear Friday how long the suspension might last. A spokesman for the Army Corps referred questions to a counterpart at the U.S. Justice Department, who had not responded by 6 p.m. Friday.

Environmentalists have long decried the Nationwide Permit process, which takes a blanket approach for projects the Corps determines will not cause significant harm to natural resources. An individual analysis of each stream crossing is needed to fully evaluate a pipeline’s effects, they say.

“Permit applications for projects like MVP would — and should — fail if project-wide impacts were more thoroughly examined,” said Russell Chisholm, co-chair of the anti-pipeline group Protect Our Water, Heritage, Rights.

Over the past two years, Mountain Valley has been cited repeatedly by regulators in Virginia and West Virginia for noncompliance with required measures to control erosion and sedimentation. Muddy runoff from construction sites along steep mountain slopes has carried sediment into nearby streams.

Mountain Valley has blamed much of the problem on heavy rainfall in 2018, and says it is working to have three sets of suspended permits — including the one to cross more than 1,000 streams and wetlands — restored in time to resume work by the late spring or summer.

An original water-crossing permit granted to Mountain Valley more than two years ago was set aside by the 4th U.S. Circuit Court of Appeals. The company had applied for a new approval and was waiting on a decision when the recent court decision came down.

Because the Nationwide Permit is also used by power lines and other utility work, critics say the ruling by U.S. District Court Judge Brian Morris goes too far.

The Justice Department is likely to ask the judge to narrow the scope of his ruling, and to then appeal if he does not, according to Height Capital Markets, an investment banking firm that has followed Mountain Valley. “The universe of the kind of projects that would be affected is incredibly broad,” Liebesman said.

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See also: Dominion Energy: Significant new natural gas generation not viable, NBC News 29, April 8, 2020

RICHMOND, Va. (AP) — Dominion Energy Virginia recently told state regulators “significant build-out” of natural gas-fired power plants is no longer viable because of renewable energy legislation lawmakers passed earlier this year.

The disclosure came in a filing with the State Corporation Commission several weeks before Dominion has to file its integrated resource plan, or IRP, a long-range planning document that describes how the utility will generate power to comply with regulations and meet customer needs.

The company’s critics called it the latest development to raise questions about why the Atlantic Coast Pipeline, the approximately $8 billion multistate natural gas pipeline the utility’s parent company is spearheading, is needed.

When Dominion proposed the pipeline in 2014, it was planning to build several thousand megawatts of additional natural gas generation in Virginia, said Will Cleveland, an attorney with the Southern Environmental Law Center.

WV-DEP and Army Corps of Engineers neglecting their responsibilities

From an Article by Kate Mishkin, Charleston Gazette Mail, November 22, 2018

Atlantic Coast Pipeline developers can’t cross any stream or river along the pipeline’s 600-mile-long path to build the project, the U.S. Army Corps of Engineers decided this week.

The Corps districts in Pittsburgh; Norfolk, Virginia; and Wilmington, North Carolina; each wrote nearly identical letters to Atlantic Coast Pipeline LLC in Richmond on Tuesday to temporarily suspend work on streams and rivers in each district.

The suspension by the Corps of Engineers follows a November 7th order from the 4th U.S. Circuit Court of Appeals that ordered a temporary halt to the ACP’s “Nationwide Permit 12” in the Corps’ Huntington District of West Virginia.

In that case, lawyers for environmental and citizen groups argued that ACP shouldn’t have that Nationwide Permit 12 because the project would violate two conditions, added to the permit by the West Virginia Department of Environmental Protection. One condition stipulates stream crossings must be finished within 72 hours. The other says structures authorized by the permit cannot impede fish from swimming upstream or downstream.

The method that ACP developers plan to use to build the pipeline across streams and rivers would violate both conditions, the lawyers said.

A panel of judges issued the two-page order, telling ACP to pause construction in the Corps’ Huntington district.

“Because of that order, it is uncertain whether NWP 12 will ultimately be available to authorize work for ACP in West Virginia,” the letters to ACP from the Norfolk and Pittsburgh districts say. The letter from the Wilmington district, instead, questions whether work can continue in North Carolina.

The pipeline is expected to run 600 miles long Northern West Virginia into North Carolina. It’s one of the several pipelines being built in the region to tap into the Marcellus Shale formation.

Several environmental groups consider the Corps’ decision this week a win.

“This signals that when the public is watching, the Army Corps realizes it can’t buck its own rules,” Angie Rosser, executive director of the West Virginia Rivers Coalition, said in a statement. “Now we’ll see if they agree to changing those rules to accommodate building this pipeline as fast as possible, instead of considering its cumulative impacts on our water.”

In August, a joint examination by the Gazette-Mail and the nonprofit journalism organization ProPublica showed that state and federal regulators were changing their rules to speed pipeline approval and construction when legal issues were raised about the projects.

Jen Kostyniuk, a spokeswoman for the ACP project, said the suspension allows time to resolve permit questions and that it wouldn’t affect the project’s schedule.

“This voluntary suspension only reinforces the incredibly high standard that is being applied to the project,” she said in an email. “To put this in perspective, our voluntary suspension affects less than 15 percent of the project (or approximately 86 miles across the entire project route).”

In each district’s letter, the Corps told ACP to take measures to stabilize work in progress but to stop any construction that’s authorized under NWP 12. The suspension remains in effect until the Corps decides to reinstate, change or pull the permit altogether.