Unusually large 42 inch pipe with coating exposed to extensive weathering

SOURCE ~ WV DEP COMPLAINT # 266 Indian Creek 11-24-23

Thank you for your prompt attention to this matter. I appreciate the conversation with Jason Liddle yesterday afternoon and the explanation that MVP working in the stream is not contrary to the MVP Construction plan to open cut the stream, but that the release of sediment downstream is a saturation that may not be allowable. I look forward to learning more about this after a site visit by WV DEP..

>>> This was the original email sent yesterday, 11-24-23:

TO WV DEP and Others Whom It May Concern:

I have a special attachment to this particular place in Indian Creek because it is where I was baptized in the early 80′s and to see an excavator sitting at the exact spot where that occurred was somewhat sacrilegious to me.

All season plunges into Indian Creek are not uncommon

Maury Johnson,
3227 Ellison Ridge,
Greenville, WV 24945

United Nations reports on risks to living species

By The Editorial Board, New York Times, May 11, 2019
•
Our planet has suffered five mass extinctions, the last of which occurred about 66 million years ago, when a giant asteroid believed to have landed near the Yucatán Peninsula set off a chain reaction that wiped out the dinosaurs and roughly three-quarters of the other species on earth. A few years ago, in a book called “The Sixth Extinction,” the writer Elizabeth Kolbert warned of a devastating sequel, with plant and animal species on land and sea already disappearing at a ferocious clip, their habitats destroyed or diminished by human activities.

This time, she made clear, the asteroid is us — and we will pay heavily for our folly.

Humanity’s culpability in what many scientists believe to be a planetary emergency has now been reaffirmed by a detailed and depressing report compiled by hundreds of international experts and based on thousands of scientific studies. A summary was released last Monday in Paris, and the full 1,500-page report will be available later in the year. Its findings are grim. “Biodiversity” — a word encompassing all living flora and fauna — “is declining faster than at any time in human history,” it says, estimating that “around 1 million species already face extinction, many within decades,” unless the world takes transformative action to save natural systems. The at-risk population includes a half-million land-based species and one-third of marine mammals and corals.

Most of the causes of this carnage seem familiar: logging, poaching, overfishing by large industrial fleets, pollution, invasive species, the spread of roads and cities to accommodate an exploding global population, now seven billion and rising. If there is one alpha culprit, it is the clearing of forests and wetlands for farms to feed all those people (and, perversely, to help them get to work: The destruction of Indonesia’s valuable rain forests, and their replacement with palm oil plantations, has been driven in part by Europe’s boundless appetite for biodiesel fuels.)

Add to all this a relatively new threat: Global warming, driven largely by the burning of fossil fuels, is expected to compound the damage. “While climate change has not been the dominant driver of biodiversity loss to date in most parts of the world, it is projected to become as or more important,” said Sir Robert Watson, chairman of the biodiversity panel and former chairman of the United Nations Intergovernmental Panel on Climate Change, whose most recent alarming report on global warming has given that issue new currency in American politics. Rising seas and increased extreme weather events propelled in part by climate change — fire, floods, droughts — have already harmed many species. The most obvious victim is the world’s coral reefs, which have suffered grievously from ocean waters that have grown warmer and more acidic as a result of all the carbon dioxide they’ve been asked to absorb.

As The Times’s Brad Plumer recently noted, many ecologists insist that species are worth saving on their own, that it’s simply morally wrong to drive any living creature to extinction. The new report deliberately adds a powerful practical motive to the spiritual one: Biodiversity loss, it says, is an urgent issue for human well-being, providing billions and billions of dollars in what experts call “ecosystem services.” Wetlands clean and purify water. Coral reefs nourish vast fish populations that feed the world. Organic matter in the soil nourishes crops. Bees and other threatened insects pollinate fruits and vegetables. Mangroves protect us from floods made worse by rising seas.

“Most of nature’s contributions are not fully replaceable,” the report says. But humans can stop or at least limit the damage. One critical task is to protect (and if possible to enlarge) the world’s natural forests, which, according to a recent paper by eminent ecologists in Science Advance, are home to fully two-thirds of the world’s species. Intact forests also absorb and store enormous amounts of carbon, so preserving them assists not only the species that live there but also the struggle against climate change. Conversely, cutting trees to make way for farming and other purposes — as Brazil’s president, Jair Bolsonaro, is determined to do in the Amazon — is a disaster for both the species and the climate; recent estimates suggest that deforestation accounts for slightly over 10 percent of worldwide greenhouse gas emissions, much smaller than the emissions from vehicles and power plants, but significant (and avoidable) nonetheless.

To Professor Watson and many other scientists, there are two important parallel approaches to the interconnected climate and species crises. One is to transform agricultural practices, the other is to enlarge the world’s supply of legally protected landscapes that cannot be touched for any commercial purpose. As to the first, farmers could figure out how to produce more food on fewer acres, and in ways that help the soil retain carbon; consumers could help by making smarter food choices, like eating more locally sourced food, and cutting back on meat and dairy products that require immense amounts of land for livestock.

Second, governments should mandate a significant increase in protected areas, both on land and at sea. Partly as a result of the Convention on Biological Diversity, a treaty agreed upon in 1992 in Rio de Janeiro along with a landmark agreement on climate change, nations have set aside about 15 percent of the world’s land and 7 percent of its oceans by setting up wilderness areas and nature preserves. Because this is only a fraction of the areas needed to protect biodiversity, the authors of the paper in Science Advance recommend a twofold increase in the protected land area and a fourfold increase in marine reserves over the next decade. If rigorously policed (which many parks are not today), that would effectively quarantine about 30 percent of the world’s land and oceans.

This proposal, which its authors call a Global Deal for Nature (echoing the Democrats’ Green New Deal on climate), will be further refined before the next meeting of the parties to the Convention on Biological Diversity in 2020 in China. Though it always sends a delegation to these meetings, the United States has never ratified the treaty; President Bill Clinton signed it in 1993, but the Republican Senate failed to ratify it for various reasons, including unfounded fears that the treaty threatened American patent and intellectual property rights.

It is hard to believe that the Trump administration and the current Senate will be any more enthusiastic about preserving biodiversity than the Senate was then. This is an administration, after all, that has proposed to shrink national monuments and reduce protections for the imperiled sage grouse in order to accommodate the oil, gas and coal industries; that is moving to open up the species-rich coastal plain of the Arctic National Wildlife Refuge to drilling; that plans to make available now-protected waters along America’s Pacific and Atlantic coasts for the same purpose; that proposes to sacrifice parts of

Alaska’s Tongass National Forest to logging; that, most tellingly, aims to weaken the Endangered Species Act, approved in 1973 with Richard Nixon’s signature in what seems a distant era when there was fairly deep bipartisan support for environmental values.

Few of the Democratic presidential hopefuls who have spoken about climate change and jumped with varying degrees of enthusiasm on the Green New Deal bandwagon have commented on the biodiversity report, despite biodiversity’s obvious connections to climate. They should read it, and make it part of their post-2020 agenda.

https://www.nytimes.com/2019/05/11/opinion/sunday/extinction-endangered-species-biodiversity.html

WV Rivers Coalition opposes radical changes

From the West Virginia Rivers Coalition, February 28, 2019

The Environmental Protection Agency (EPA) has released a proposed rule that will dramatically reduce the scope of waters protected by the Clean Water Act. This proposal is the worst rollback of Clean Water Act protections in history. The proposal redefines what waters are federally protected, limiting Clean Water Act protections to wetlands with a “continuous surface connection” to larger lakes, streams, or rivers and removing federal protections for rain and snow dependent streams. By the EPA’s own estimate, it would remove protections from 51% of our nation’s wetlands and 18% of streams, making it easier to pollute, pave over or build on them, and states may no longer be required to clean up polluted wetlands.

The proposal also allows the agencies to adopt a far worse final rule later. For instance, the proposal invites input on whether EPA should also exclude seasonal streams from federal protection, in addition to rain-dependent ones. If the final rule also excludes intermittent streams in addition to ephemeral, that would threaten at least 70% of our nation’s stream miles, over 9 million stream miles.

With many Americans dealing with unsafe drinking water, now is not the time to cut back on clean water enforcement. We need more—not less—protection for clean water.

There are no waters that are safe to pollute. We all know wetlands flow into streams, which flow into small rivers, into bigger rivers, and ultimately the ocean. We urge you to comment in opposition to this rule, telling the Trump Administration that America needs a strong Clean Water Act that protects our drinking water and our way of life.

This is the biggest weakening of the Clean Water Act in history.

This sweeping reinterpretation of the Clean Water Act could remove federal pollution safeguards for many important streams that do not flow year-round, called ephemeral streams. By EPA’s own estimates, this accounts for 18% of streams in the United States. The proposal would also allow the agency to adopt a far worse final rule later. For instance, the proposal invites input on whether EPA should also exclude seasonal streams from federal protection, in addition to rain-dependent ones

The new proposal will mean that at least half of America’s wetlands will no longer be protected by the Clean Water Act. The proposal restricts Clean Water Act protections to wetlands with a “continuous surface connection” to larger lakes, streams or rivers. The proposal would exclude not only so-called isolated wetlands, but floodplain wetlands as well, except those floodplain wetlands that have an uninterrupted surface water connection to a perennial or seasonal waterbody. Floodplain wetlands like bottomland hardwood wetlands that are connected by periodic surface flows and shallow groundwater connections (most wetlands) would not be covered if the surface connection is severed by manmade or natural features like levees, berms, roads, etc. By EPA’s own estimate, this means that at least 51% of America’s wetlands will no longer be federally protected under the Clean Water Act.

What It Could Mean:

>>> Commercial developers would no longer need to obtain a permit before paving over or building on many wetlands — increasing flooding and damaging wildlife habitats.

>>> Oil spills or pipeline breaks into these streams or wetlands could no longer be considered violations of the Clean Water Act.

>>> Fecal matter from factory farms could overflow into unprotected streams without fear of federal consequences.

>>> Industrial facilities could discharge chemicals into unprotected streams without paying Clean Water Act fines.

>>> Water treatment plants might be able discharge partially treated sewage into streams without adhering to federal water quality standards.

>>> States may no longer be required to clean up polluted streams or wetlands;

>>> If an agency fails to take action, the public could no longer use citizens’ suits under the Clean Water Act to protect their waters.

You can and should reply and comment by April 15th here.

Muddy water carries sediment to Teel Creek, Franklin Co., VA

From an Article by Laurence Hammack, Roanoke Times, March 9, 2019

For nearly four hours, while members of the State Water Control Board huddled with their attorney behind closed doors, observers were left to wait and wonder what the board would do about the Mountain Valley Pipeline. They eventually found out what, but they’re still asking why.

At a March 1 meeting, the citizen panel charged with protecting Virginia’s water voted to withdraw its earlier decision to hold a hearing on whether to revoke a water quality certification it issued for construction of the natural gas pipeline in December 2017.

After emerging from a closed session, several members expressed concerns that the board lacked authority to revoke the certification. The state’s earlier approval was premised on a “reasonable assurance” that pipeline construction would not pollute nearby streams and wetlands; since then there have been widespread problems with erosion control measures.

Board members said they were relying on advice from an assistant attorney general. But no legal explanation of why the board was powerless to stop construction — or even try to — was provided to the public before the board’s unanimous vote.

Officials with the Virginia Department of Environmental Quality, the agency that handles the board’s administrative work and provides technical advice, were asked for details after the meeting. Several hours later, a news release quoted board chair Heather Wood as saying: “This was a unique situation that required time to ensure the proper legal process was and continues to be followed.”

But the statement, released late on a Friday afternoon, did not say why the board lacked authority to revoke its permit. Asked again on Monday, DEQ spokeswoman Ann Regn referred questions to the attorney general’s office.

Michael Kelly, a spokesman for Attorney General Mark Herring, in turn referred questions about the board’s decision to its members. “We cannot discuss attorney client/privileged legal advice,” Kelly said in an email.

The lack of an explanation frustrated pipeline opponents, who have long argued that the widespread environmental damage caused by clearing land and digging trenches for the buried pipeline was ample grounds for the board to revoke its certification.

“I am troubled by it, of course, but I don’t know what happened behind closed doors and I don’t want to question the individual mindset of the board members,” said Peter Anderson, program manager for the Virginia chapter of Appalachian Voices, one of more than 50 organizations to take a stand against the pipeline.

“But at the same time, it has the appearance of bad faith,” Anderson said. “The public is so interested in this process and this permit, and I think they deserve a much better explanation for the board’s about-face.”

There’s little question that Virginia’s Freedom of Information Act allowed the board to hold a closed session. The law permits private discussions with the board’s attorney about legal matters and issues “pertaining to actual or probable litigation.”

Environmental groups sued the water board in 2017 over its certification for so-called upland work on the Virginia portion of a 303-mile pipeline that starts in West Virginia. That legal challenge was dismissed, but the possibility of others remains.

Two members of the water board — Robert Wayland, who at first favored a revocation process, and Timothy Hayes, who did not — agreed to speak individually with The Roanoke Times following the March 1 meeting.

Neither would discuss what was said during the board’s closed session. But they offered explanations for the public statements made at the meeting, when several members questioned the panel’s authority to revoke the certification.

State law allows the board to issue, modify or revoke certifications for projects that may impact streams, rivers and other water bodies. For the pipeline, the biggest concern was whether the developer’s plans to control erosion were sufficient to prevent harmful sedimentation from being washed into nearby streams.

According to Hayes, a retired attorney with more than 40 years of experience in environmental law, the state’s certification for the pipeline is merely a condition in a federal permitting process that is governed by the Federal Energy Regulatory Commission.

After FERC’s key approval in October 2017, Mountain Valley sought and obtained the state’s certification for work on the part of the pipeline’s route that did not cross water bodies. That process was closely linked to a second permit from the U.S. Army Corps of Engineers, which applied to crossings of streams and wetlands.

Because the state’s certification alone did not authorize Mountain Valley to do anything, Hayes said, the board could not revoke it. “As a state agency, we can only do what we’re authorized to do,” he said.

More questions were raised by the U.S. Clean Water Act, which states that a federal agency can revoke a certification like the one issued to Mountain Valley, but is silent on the authority held by states.

Wayland, a former administrator with the U.S. Environmental Protection Agency, said he feared that an interpretation of what impact — if any — the state’s revocation would have on the pipeline would fall to FERC, which critics say has a cozy relationship with the pipeline industry. “I dealt a lot with FERC in my EPA career, and they’re not fundamentally an environmental agency,” Wayland said.

In a letter sent to the water board before the meeting, an attorney for Mountain Valley wrote that it was not clear what weight FERC would give to a revocation by Virginia. “Mountain Valley’s license to construct and operate the Project was validly issued by the FERC,” Todd Normane wrote. “Unilateral action by the Board at this time cannot amend or invalidate the license or otherwise block construction.”

A representative for FERC declined to say what the commission might do in the event of a state revocation. “It’s the commission’s policy not to speculate or comment on hypothetical situations,” Tamara Young-Allen said.

If the federal agency allowed work to continue in spite of a revocation by the water board, Wayland said, the state would lose its ability to enforce 16 conditions, imposed as part of its certification, that were aimed at tougher environmental protections. “I had concerns there was a possibility that we would do more harm than good with a revocation,” he said.

But why, critics ask, does the state paperwork contain this language: “This certification is subject to revocation for failure to comply with the above conditions after a proper hearing.”

Hayes said that was a “boilerplate” phrase that slipped into the certification during a two-day meeting in December 2017 that led to the board’s certification of the pipeline. The meeting was marked by confusion and some disorder by emotional spectators as DEQ officials mulled over how to best regulate the largest natural gas pipeline ever proposed for Southwest Virginia.

“Looking back, I don’t think that language should have been in the certification, because it created an expectation on the part of some folks,” Hayes said.

Rather than proceed with a revocation hearing, Wayland said, the board opted to preserve as much oversight as it could for a construction project that is now entering its second year, with large portions of the 42-inch diameter steel pipe already buried 6 to 10 feet deep along steep mountain slopes. “That train had really left the station,” he said.

Many of the arguments raised by pipeline opponents — such as Mountain Valley’s use of eminent domain to take private land for a corporate venture that will increase the country’s reliance on fossil fuels — were beyond the board’s purview.

“I know that probably sounds like hair-splitting to the people who are very upset about what is happening in their communities and on their land,” Wayland said. “But of course we can only take action pursuant to state and federal law.”

Yet there are two interpretations of the law. The other one, outlined in a 17-page letter from Wild Virginia and other conservation groups, is that the board can and should stop work on an environmentally disastrous project by rescinding its certification.

A lawsuit filed by Herring alleges more than 300 violations of environmental regulations along the project’s snake-like construction zone through Southwest Virginia. And Mountain Valley has yet to reclaim two federal permits that were thrown out by a federal appeals court last year.

As the board’s meeting in a packed hotel ballroom concluded, one pipeline opponent singled out a new member who had originally voted to hold a revocation hearing. “Shame on you, Jim Lofton,” he shouted.

A short time later, Lofton waded into the crowd. For more than 20 minutes, he spoke to distressed questioners, trying to explain his position as a cold rain fell on the gathering outside the Doubletree by Hilton in Richmond. In a video posted to the Blue Virginia political website, he can be seen expressing doubts that state revocation would stop construction. “It’s not going to happen,” he said. “FERC is not going to revoke it.”

“The board has the duty to tell the public the basis for its decision,” David Sligh, conservation director of Wild Virginia, said during the encounter. “Not you standing in the driveway, Jim. I mean up there, where everybody can hear it.”

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

The Time is Now to Contact EPA and Your Congressional Delegation

From West Virginia Rivers Coalition, Main Web-site, July 31, 2017

Headwater streams and wetlands across West Virginia like Big Run Bog in Tucker County, pictured below, are at risk to loose protection under the Clean Water Act.

The Trump Administration has begun the process to remove critical protections for wetlands and headwater streams through the repeal of the Clean Water Rule, putting drinking water for more than half (54%) of all West Virginians at greater risk for pollution.

Passed in 2015, the Clean Water Rule clarifies which water-bodies are protected under the Clean Water Act. Without the Clean Water Rule 8,390 miles of streams in West Virginia would be put at risk.

Speak up for clean water now! Let the Trump Administration know that you support a strong federal Clean Water Act and you oppose any action to repeal the Clean Water Rule.

The Clean Water Rule has strong public support. During a previous comment period, over 1 million comments were submitted, 87% of which were supportive of the Clean Water Rule, including over 2,000 comments submitted by West Virginians.

Take action NOW by sending a letter to EPA Administrator Scott Pruitt supporting the Clean Water Rule.

Click Here to Support Clean Streams

For more information contact:

>>> West Virginia Rivers Coalition
www.wvrivers.org – (304) 637-7201

Headwater stream in Tucker County, WV

West Virginia Rivers Coalition

Deadline for Public Comments on Two Projects Due by August 12^th

[Your Comments Needed by 5 pm, Tomorrow, 8/12/16]

The WVDEP is currently accepting comments on two 401 Water Quality Certification Applications. What is a 401 permit? Read our 401 fact sheet to learn more. The permit application for these large projects should be very detailed, but both lack information that WVDEP needs to certify the projects will not impact our water.

Rover Pipeline 401 Application
The proposed Rover pipeline would install approximately 60 miles of new 24 and 36-inch pipelines through Hancock, Marshall, Wetzel, Doddridge and Tyler counties to transport natural gas to markets in Ohio and Michigan. The project would impact approximately 175 streams and involve 3 crossings under the Ohio River. To submit comments to the WVDEP on Rover’s inadequate 401 application click here.

Antero 401 Application
The proposed Antero landfill and wastewater treatment facility encompasses approximately 486 acres in Doddridge and Ritchie Counties. The facility would treat fracking wastewater for re-use and dispose of the salt byproducts in the attached landfill. It is still unclear how they plan to dispose of the sludge byproduct. The project would impact 89 streams and 11 wetlands and is located 4 miles upstream of Harrisville’s drinking water intake. To submit comments to WVDEP on Antero’s insufficient 401 application click here.

Comments on each 401 application must be submitted separately. Please send your comments on these projects by 5pm, tomorrow, August 12.

>>> For more information contact West Virginia Rivers Coalition,

www.wvrivers.org – (304) 637-7201

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Notice Issued by WV Department of Environmental Protection

[Antero Project Comment Period Extended to August 23^rd]

Thursday, August 11, 2016 @ 8:35 AM

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The public comment period for a state water quality certification requested by Antero Landfill Project and Antero Treatment LLC has been extended to August 23rd.

The comment period was initially slated to end on August 12th but was extended by the West Virginia Department of Environmental Protection’s Division of Water and Waste Management due to significant public interest.

Pursuant to Section 401 of the Federal Clean Water Act, the state may either certify, certify with conditions, deny or waive certification that the proposed activity will comply with Sections 301, 302, 303, 306 and 307 of the Federal Clean Water Act and other appropriate requirements of state law.

When issuing certification, the WVDEP may consider the proposed activity’s impact on water resources, fish and wildlife, recreation, critical habitats, wetlands and other natural resources under its jurisdiction. Procedural and interpretive regulations governing the scope of the department’s certification, public comment, hearings and appeals are in Title 47, Series 5A.

The 401 permit application is connected to a project that involves construction of a non-commercial industrial solid waste disposal landfill located in Ritchie and Doddridge Counties. The landfill would accommodate salt generated from the adjacent Antero Clearwater Water Treatment and Reuse Facility. Construction of the site would include an access road between the landfill and the treatment facility.

The Water Quality Certification application is available for inspection between the hours of 9 a.m. and 4 p.m., Monday through Friday, at the following location:

WV Department of Environmental Protection
Division of Water and Waste Management
401 Certification Program
601 57th Street SE
Charleston, WV 25304

Comments and information relating to Section 401 Water Quality Certification for this activity will be considered if postmarked prior to August 23rd. All such comments and information should be mailed to the address above or emailed to dep.comments@wv.gov.

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To view past notices of open public comment periods, login at:

http://apps.dep.wv.gov//MLists2/

Marcellus/Utica region streams highly vulnerable

Study indicates gas drilling can impact rivers, streams & wetlands

From an Article by Elizabeth Krapits, Citizens Voice News, November 16, 2015

Depending on where and how it’s done, natural gas drilling does have the potential to impact Pennsylvania’s waterways, an independent study reveals.

Kenneth M. Klemow, professor of biology and environmental science and director of the Institute for Energy and Environmental Research at Wilkes University, was one of the contributors to a new study examining how natural gas development affects surface water, such as creeks, streams and rivers.

In their paper, “Stream Vulnerability to Widespread and Emergent Stressors: A Focus on Unconventional Oil and Gas,” Klemow and five colleagues look at how vulnerable the bodies of water are in the six main shale plays across the U.S., including the Marcellus Shale.

“What we’ve developed is a predictive model,” Klemow said. “We have not proven anything about whether shale gas development is affecting streams or not.”

Watersheds are areas from which all the water beneath it or on it drains into the same place, whether creek, stream, river or lake. Surface water is used for drinking water, recreation, and feeds into fisheries, Klemow said.

Despite the importance of surface water and the fact that natural gas-related activity is increasing, there were no studies on whether the activity might contaminate streams. “That was the impetus, realizing there was a gap in the knowledge,” Klemow said.

In addition to Entrekin, other principals on the paper were Kelly O. Maloney of the U.S. Geological Survey’s Northern Appalachian Research Laboratory in Wellsboro, Tioga County; Katherine E. Kapo of Waterborne Environmental Inc. in Leesburg, Virginia; Annika W. Walters of the U.S. Geological Survey’s Wyoming Cooperative Fish and Wildlife Research Unit at the University of Wyoming in Laramie; and Michelle A. Evans-White of the Department of Biological Sciences at the University of Arkansas in Fayetteville.

The scientists pooled their data; Klemow said Wilkes supplied “quite a bit” collected by the Institute for Energy and Environmental Research.

“It was an exercise in going out online and getting whatever data we could about different watershed characteristics,” Klemow said. “For every watershed within the shale plays, we got a whole bunch of data: slopes, soils, type of vegetation, then things like land use.”

The bulk of the work involved using online databases and computer modeling with a geographic information system, or GIS. Klemow said Entrekin and Maloney, the lead authors, were the “GIS gurus,” so they did the bulk of the analysis in terms of crunching the numbers. The other authors provided interpretation and commentary.

What they found

In addition to the Marcellus, the researchers studied the Bakken shale, an oil-rich shale primarily being developed in North Dakota; the Fayetteville shale, a natural-gas shale in Arkansas; the Hilliard and Mowry shales in Wyoming and the oil- and gas-rich Barnett shale in Texas.

The study notes that “The fast pace and wide extent of unconventional oil and natural gas development raises concerns about its ecological effects.”

The researchers looked at the sensitivity of watersheds in the shale regions to impacts, and discovered that, of the six different plays, the Marcellus turned out to have the lowest, Klemow said. The others are in the central or southern part of the country where they don’t get as much rainfall. What makes the Marcellus region more resistant to impact is the fact that it gets a lot more rain than the other shales. But the Marcellus does have steep slopes and fairly loose soils and sediment.

The researchers next looked at exposure, a measure of the degree to which the watersheds could be affected by proximity to potential sources of pollution such as urbanized areas, farm land, coal mining or gas drilling — especially taking into account things like well pad density and access roads.

They found that despite its low sensitivity to impact, the Marcellus Shale has high exposure where drilling is heaviest, in northeastern and western Pennsylvania, Klemow said. A lot of shale gas development has already taken place, as well as many years of agriculture and mining. In the western part of the state there is also conventional oil and gas drilling, he said.

The researchers then took the sensitivity of each shale play, multiplied it by exposure, and came up with its vulnerability score, which is the amount of risk a particular watershed has.

Klemow said Northeastern Pennsylvania has a lot of watersheds classified as being highly vulnerable, mainly because they have high exposure rates.

Where the drilling is and how close it is to streams makes a difference. If you have a gas well that’s three miles away from the nearest stream, the chance of contamination is pretty low, Klemow said. But if it’s 300 feet from a stream, it’s going to be a lot higher. In other words, as Klemow puts it, it’s a highway with a lot of traffic on it, which makes it

“Wouldn’t pipelines raise the exposure level? The answer is, absolutely yes,” Klemow said. “But we couldn’t get any good pipeline data.”

What he hopes the study will lead to is the natural gas industry using best practices — such as being careful crossing streams — and having good regulations in place. It’s like if every motorist on the road drives safely, and there is good police enforcement, there won’t be as many accidents.

“One take-home is, this is now a predictive tool that hopefully regulatory agencies will be interested in, and hopefully the industry will be interested in this,” Klemow said of the study.

See also: www.FrackCheckWV.net