By Cindy Rank
We’ve seen it before with coal and now it’s happening with gas.
On the coal front we have seen third parties contracted to reclaim forfeited coal mine sites, suggest they must mine more coal to reclaim those sites. ‘Mining incidental to reclamation’ it’s called.
But, what? Solve an existing problem by creating more of the same problems?
While some amount of mining can be legit and necessary to produce enough material to do the reclamation, companies have been known to do more than necessary thereby causing more discharge and more pollution from those mine sites they are hired to ‘fix’.
Enter Mountain Valley Pipeline (MVP) developers who apparently think the way to solve the sediment problems they’ve already created is to dig under or through more streams and wetlands.
(Brings to mind a different version an old saw: If its broken, break it some more?)
401 State Certification
Fined hundreds of thousands of dollars both in West Virginia and Virginia for allowing inordinate amounts of sediment to clog and otherwise damage streams, MVP wants to muck around in more streams.
First the company proposed to treat all the mucking around as if every stream crossing is the same and applied for a general nationwide Clean Water Act permit from the Army Corps of Engineers (ACOE).
When successfully challenged by WV Highlands Conservancy and other organizations, the courts said, no, a nationwide permit is not sufficient. You really have to address the impacts of the actions in more detail determined by quality and characteristics of the streams and wetlands to be impacted.
Failing to receive approval for the general permit, MVP applied for an individual permit which requires not only Corps approval, but also state certification that the proposed action will not violate state water quality standards.
Enter WV Department of Environmental Protection (WVDEP).
In December 2021 WVDEP said, OK. No problem… go right ahead. We certify your actions as sufficient to meet state requirements to protect our state water resources – streams, rivers, wetlands.
404 Army Corps Permit
With WVDEP’s blessing the Corps is now free to act on the 404 Clean Water Act permit which would allow MVP’s proposed work in and through those waterbodies.
Having presented reems of documents in opposition to MVPs proposed stream work, WV Highlands Conservancy joined with other state and regional groups in filing an appeal to the 4th Circuit to review (and overturn) WVDEP’s actions.
Opponents have also filed for a stay/delay while litigation on the merits proceeds.
Forest Service and BLM
These Clean Water Act permit actions follow a recent win for the same conservation organizations, where the Fourth Circuit ruled to vacate Forest Service and Bureau of Land Management decisions allowing the pipeline to cross the Jefferson National Forest. The courts determined MVP failed to consider sedimentation and erosion impacts to the Jefferson which is located in both West Virginia and Virginia. The Court put it this way, “In sum, we conclude that the Forest Service and the BLM 1) inadequately considered the actual sedimentation and erosion impacts of the Pipeline; 2) prematurely authorized the use of the conventional bore method to construct stream crossings; and 3) failed to comply with the Forest Service’s 2012 Planning Rule. “
Still pending are other court decisions about the validity of permits also challenged by plaintiffs including WV Highlands Conservancy, contend have not considered the impact of MVP stream work on Endangered Species, e.g., the Candy Darter.