Last week the Mountain Valley Pipeline project, being built by Equitrans Midstream, got a boost from the West Virginia Dept. of Environmental Protection (WVDEP). WVDEP has submitted a revised stream/river crossing permit previously rejected by a federal court. The reworked permit means construction will once again resume in some areas where it’s currently stalled, maybe by mid-year.
This is a complex issue–tough to understand, and tough to try and make simple to understand for others. We’ll give it a shot. The bottom line, that we’ll post right here at the beginning, is that MVP work at hundreds of stream crossings in both West Virginia and Virginia will be able to restart soon. The entire project is now, according to Equitrans officials earlier this week, 80% complete (see Equitrans “Hopes” to Complete MVP This Year, but Says “Unlikely”). One of the major holdups has been a revoked federal stream/river crossing permit.
Equitrans’ 303-mile MVP project runs from Wetzel County, WV to the Transco Pipeline in Pittsylvania County, VA. Although pipelines like MVP are approved by the Federal Energy Regulatory Commission (FERC), they must also obtain permits in each state where they run, a permit to cross rivers, streams and wetlands. It is actually a federal permit issued under the Clean Water Act, called a “401 certificate” (for section 401 of the CWA). The CWA law delegates power to the individual states to review pipelines (and electric transmission lines, etc.) to give states a say on where, not if, a pipeline, transmission line, etc. can run in the state. New York and other rogue states have abused that power which resulted in a recent Executive Order from President Trump (see Trump Signs Executive Order Making it Harder to Block Pipes). But we digress. Back to MVP.
In WV’s case, the state decided to forgo issuing a 401 certificate and instead allow the U.S. Army Corps of Engineers to issue the equivalent, called a Nationwide Permit 12 (NWP 12). Essentially the same thing. Although WV ceded its right to issue a 401, in delegating its responsibility to the Army Corp, WV imposed certain conditions and restrictions.
Armies of lawyers for Big Green groups culled through the paperwork from WVDEP to the Army Corps and found a contradiction. One of the conditions imposed by WV on the NWP 12 permit is that all work for stream/river crossings must be completed within 72 hours of starting. In the case of four WV rivers, Equitrans plans to use a crossing method (called a “dry cut”) that is far better for, and safer for, the environment. But the catch is, a dry cut takes up to six weeks, not 72 hours as allowed in the permit conditions. Big Green lawyers pounced, filing a lawsuit that says the work that will be done for those four rivers violates the permit, ergo the entire permit should be null and void.
And wouldn’t you know it? The clown judges of the federal Fourth Circuit Court of Appeals bought Big Green’s argument and overturned the NWP 12 permit (see 4th Circuit Court Cancels Mountain Valley Pipe Nationwide Permit). The court said the Army Corps essentially allowed a substitution of methods under the law that’s not allowed, and so the entire permit, covering 591 streams, rivers and wetlands, is now vacated.
The Army Corps, WVDEP and MVP reworked the conditions for the permit, held required hearings and a public comment period, and last week the WVDEP filed the final/new version of their conditions for NWP 12 with the Army Corps.
We pick up the story there, with news coverage:
A state regulation that delayed a key part of work on the Mountain Valley Pipeline — the crossings of more than 1,000 streams and wetlands in the two Virginias — has been revised in a way likely to benefit the project.
The West Virginia Department of Environmental Protection wrote in a letter Wednesday to federal regulators that it has modified about 50 conditions to permits issued by the U.S. Army Corps of Engineers.
One of the conditions was that the pipeline needed to be built across four major rivers in West Virginia within 72 hours. The Army Corps improperly bypassed that rule when it issued what’s called a Nationwide Permit 12 to the natural gas project, the 4th U.S. Circuit Court of Appeals ruled in throwing out the authorization in October.
Although several more steps need to be taken before water body crossings can resume, a revised condition doing away with the time restriction in certain cases was seen as a victory for Mountain Valley. (1)
It appears NWP 12 not only covers West Virginia, but also Virginia, which is new news for us. At any rate, rather it’s just for WV or for both WV and VA, it’s great news for the project.
When will the permit get “certified” and go into effect, allowing MVP to restart construction at these river/stream crossings? Equitrans says sometime by the end of June, but they can’t guarantee it.
In October, the 4th Circuit Court of Appeals vacated the project’s Nationwide Permit 12 from the U.S. Army Corps of Engineers, saying regulators lacked legal authority to “substitute” one kind of construction standard for another.
West Virginia proposed to modify that 401 certification. Last week, the Department of Environmental Protection sent more than 50 changes to the state’s conditions to federal regulators and responded to public comments. Among them, the DEP suggested removing a condition that would have required pipelines to be constructed in less than 72 hours, which the Mountain Valley Pipeline initially could not comply with. Those are awaiting approval by the EPA.
“Sadly, but not unexpectedly, the WV DEP has modified West Virginia Section 401 Certification of 404 Nationwide Permits. This is yet another agency capitulation to industry and Mountain Valley Pipeline by an agency whose job is to protect citizens and the environment,” Maury Johnson, who lives along the pipeline’s path in Monroe County, wrote in an email.
The project should get its permit certified in the first half of 2019, developers said in the Equitrans Midstream’s filings.
“However, the MVP Joint Venture cannot guarantee that the EPA or the U.S. Army Corps Districts will act promptly or be deemed to have acted properly if challenged, in which case reverification may be delayed past the first half of 2019,” the report [Equitrans Form 10-Q] states. (2)
This is a copy of the reworked conditions WVDEP sent to the Army Corps, so the Army Corps can resubmit its NWP 12 for certification and get construction going again:
The WVDEP responded to comments that came in during the public comment period, comments about their proposed reworks of the conditions for the permit. Reading through it is kind of funny. Read the comments sent in by Big Green groups, and then read the WVDEP responses, ripping their comments/objections to shreds:
Aside from the NWP 12 permit, there are other hurdles for the project:
Developers also are waiting on permission to build the project through the Jefferson National Forest, after a federal appeals court found that the U.S. Forest Service and Bureau of land Management had skirted environmental protections when they approved the project’s permits. After that, the Federal Energy Regulatory Commission ordered a halt to the project before slowly rolling that back.
Developers still can’t build about 4 miles through the national forest. (2)
With the reworked NWP 12, we believe the vast majority of the project currently not yet built will get completed. This year. Yes, there’s the matter of crossing Jefferson National Forest (4 miles of it), and crossing the Appalachian Trail, but that lawsuit should get resolved soon. A re-certified NWP 12 is the big prize.
(1) Roanoke (VA) Times (Apr 25, 2019) – Mountain Valley Pipeline gets good and bad news on court challenges
(2) Charleston (WV) Gazette-Mail (May 1, 2019) – Developers: Mountain Valley Pipeline might not meet end-2019 deadline
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