The United States Army has suspended the permit which the Atlantic Coast Pipeline needs to cross any of the 1556 streams and wetlands in West Virginia, Virginia, and North Carolina which the project had anticipated going over or through.
The problem is the Pipeline’s reliance upon what is known as a Nationwide Permit 12. Under the federal Clean Water Act, a permit would be required to cross streams or wetlands. A developer could do individual plans for each crossing, plans which would be reviewed individually.
As an alternative, the developer could rely upon a Nationwide Permit. Nationwide Permits are issued for large classes of activities. They are appropriate for projects with minimal individual and cumulative environmental impacts. It is a one size fits all approach for lots of nearly identical activities that have small impacts. Nationwide Permit 12 is the one that covers pipelines.
The developers of the Atlantic Coast Pipeline have always sought to qualify under Nationwide Permit 12. Their application to qualify under Nationwide Permit 12 was originally approved.
Then came the litigation, litigation which made the Corps of Engineers think it may have been too hasty in approving use of Nationwide Permit 12. (Decisions of the United States Court of Appeals for the Fourth Circuit helped it clarify its thinking.) This most recent action is the Corps way of saying that maybe we should stop, take a breath, and have another look at these stream crossings.
The hang up is the conditions that West Virginia placed on the use of Nationwide Permit 12. When NWP 12 (the one that covers pipelines) was renewed in 2017, West Virginia imposed some conditions. NWP 12 covers the whole country. The conditions that West Virginia and other states imposed are supposed to take into account local conditions.
The most troublesome (from the Atlantic Coast Pipeline’s perspective) of the conditions is the one that says any construction on any crossing had to be completed within 72 hours. The Atlantic Coast Pipeline plans to cross some substantial rivers. The construction it would like to use would take more than 72 hours; this means it cannot qualify to proceed under NWP 12.
As things stand now, the Atlantic Coast Pipeline cannot qualify under Nationwide Permit 12 for stream and wetlands crossings as it had planned to do them. It has two choices. It could go back to the drawing board and come up with a way to cross rivers in a way that complies with the conditions. This might be difficult to do technically since the rivers are substantial and there might not be a way to build a crossing and have it completed in 72 hours.
The other choice is to seek approval of each of its stream and wetland crossings individually.
Another way to address this problem is to change the conditions. Since the conditions that now vex the Atlantic Coast Pipeline were imposed by West Virginia, the West Virginia Department of Environmental Protection (DEP) now wishes to change them. If the DEP can do that, then this one of the developer’s problems goes away. For more about this, including why many people think DEP cannot abolish the conditions, see the October, 2018, issue of The Highlands Voice.
The order by the Corps of Engineers only suspends stream and wetlands crossings. It does not suspend construction on dry land, the parts where the pipeline would not cross any streams or wetlands. Suspending construction on the entire pipeline would take an order of the Federal Energy Regulatory Commission. Several groups, including the West Virginia Highlands Conservancy, have asked for such an order.
In asking for an order suspending construction, the groups make several arguments. First, they quote the original approval. It says that pipeline construction may begin only after its developers have submitted “documentation that it has received all applicable authorizations required under federal law.” The Clean Water Act approvals which have been suspended are included in the documentation that must be submitted.
Second, the Corps of Engineers has just sent the Atlantic Coast Pipeline back to the drawing board. The result may or may not include crossings at the same places as the current plan. If there has been construction based upon the previously proposed crossings, that construction (and the damage done) would be for nothing.
Finally, the groups argue that allowing construction to continue unfairly constrains the Corps of Engineers in making the right decision about where to allow crossings. If the pipeline has been built right up to the river bank, the Corps will feel obliged to approve crossing at that spot whether that was the best place to cross or not.
At press time the Federal Energy Regulatory Commission had not responded to the request.