Several citizen and environmental groups, including the West Virginia Highlands Conservancy, have asked that construction of the Atlantic Coast Pipeline be halted because it does not have the proper permit to cross streams and wetlands. The groups took two actions. First, they filed a petition for review with the Court of Appeals for the Fourth Circuit. Second, they formally asked the United States Army Corps of Engineers to stay the stream construction permit during litigation.
In earlier episodes
The July issue of The Highlands Voice reported that construction of the Mountain Valley Pipeline was blocked because its developers had relied upon the wrong kind of permit for stream and wetland crossings. The Clean Water Act requires that all pipelines that cross streams or wetlands have a permit. Developers may either seek an individual permit for each crossing or seek to qualify under 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 for lots of nearly identical activities that have small impacts. Individual permits are site specific; developers would submit an individual plan for each crossing and regulators would look at each one individually.
Developers of the Mountain Valley Pipeline chose to operate under the Nationwide Permit. Initially, the United States Army Corps of Engineers approved of this. Then several citizen and environmental groups, through their lawyers at Appalachian Mountain Advocates, pointed out some flaws in this approval. More specifically, they pointed out that Nationwide Permit 12, upon which the MVP relied, did not allow the kind of stream crossings that planned for the MVP.
Two things happened. First, the Corps of Engineers suspended construction at four river crossings. Second, the United States Court of Appeals for the Fourth Circuit suspended all stream and wetland crossings in West Virginia until it could hold additional proceedings, now scheduled for September.
Now what happened
Now several citizen and environmental groups have made a similar request for suspension of construction of the Atlantic Coast Pipeline.
The argument is largely the same. Nationwide Permits are appropriate for several small but similar projects that, either individually or collectively, have a small impact. With pipelines, this type of permit is appropriate for a single pipeline crossing a single stream. With both the MVP and the ACP, they’re crossing hundreds and hundreds of these small headwater steams without considering the overall impact on the watersheds.
The MVP tried to use this shortcut as a way to avoid having to get an individual permit for each crossing. When the groups questioned this assertion, the Court agreed (at least preliminarily).
The Atlantic Coast Pipeline is trying to take the same shortcut. The groups now say, as they said with the Mountain Valley Pipeline, that the Atlantic Coast Pipeline is too big and the terrain it crosses is too varied to be covered by a Nationwide Permit. It should be stopped until its developers get site specific permits for each crossing.
There has been some small (and possibly temporary) progress in preventing the ACP from using the Nationwide Permit shortcut. The Corps of Engineers has temporarily prohibited the developers of the ACP from relying upon this shortcut for stream crossings in West Virginia. This effectively halts all streams crossings by the ACP in West Virginia, at least for the time being.
The Corps of Engineers has given the developers of the ACP an opportunity to submit additional information, seeking to justify its eligibility for the Nationwide Permit shortcut. If the developers are able to convince the Corps that the Nationwide Permit shortcut is appropriate, the Corps will probably allow the ACP to go ahead, using the shortcut. This would be subject to court challenge or approval.
We will see if the Court agrees with the citizen and environmental groups that using the Nationwide Permit shortcut in such difficult terrain is appropriate.