By John McFerrin
Because of Court and Agency action, the developers of the Mountain Valley Pipeline (MVP) may not be able to use an anticipated shortcut in getting approval for its crossings of four major streams and 587 smaller streams and wetlands in West Virginia.
Activities such as filling a stream or a wetland, crossing a stream or a wetland, etc. require a permit under the Clean Water Act. Many such activities apply for and receive an individual permit. To get an individual permit, someone must submit sight specific plans. Those plans are reviewed, and an individual permit is issued for specific activity on that sight.
There are some activities for which an individual permit is not required. This comes about because the United States Army Corps of Engineers has decided that there are some activities where the effect is small, and it is the same no matter where the effect is. When this happens, the Corps issues what it calls a Nationwide Permit. Anybody who wants to do one of the activities covered by one of these Nationwide Permits just has to announce that it is going to do something covered by the Nationwide Permit. Once it is approved to operate under the Nationwide Permit, it just has to follow the requirement of the Nationwide Permit and never has to apply for an individual permit.
Much to the horror of those concerned about the effects of the Mountain Valley Pipeline, there is a Nationwide Permit (Nationwide Permit 12) for pipelines. Even though the terrain it must cross assures that there has never been a pipeline like the, the developers has announced an intention to rely upon Nationwide Permit 12. This means
that no agency will have to evaluate each stream crossing individually.
Being able to get multiple stream crossings approved without each one having to be reviewed individually is a substantial benefit to the company, a valuable shortcut.
Since the developers of the Mountain Valley Pipeline had decided to rely upon Nationwide Permit 12, they were moving merrily along without any thought of having to subject their stream crossings to the greater scrutiny that would result from having to have the crossings approved individually. This all changed when citizen and environmental groups (and their lawyers with Appalachian Mountain Advocates) noticed that the stream crossings that the Mountain Valley Pipeline anticipated did not qualify for Nationwide Permit 12.
The flaw in the MVP’s plan was that Nationwide Permit 12, with a condition that the West Virginia Department of Environmental Protection imposed, could only be used for projects that take less than 72 hours. The crossings of the Elk, Gauley, Greenbrier and Meadow Rivers will take four to six weeks. They take so long because they involve building a temporary dam that diverts the water, digging a ditch across the dry stream bed, laying pipe, and covering the pipe before releasing the stream.
The groups who were actively opposing this particular aspect of the pipeline had previously filed an action in the United States Court of Appeals for the Fourth Circuit challenging the legality of allowing the MVP developers to use Nationwide Permit 12 for any of the crossings. In that case, they asked for a temporary injunction prohibiting the use of Nationwide Permit 12. The request focused on the four river crossings.
There is not any real doubt that MVP cannot do the crossings of the Elk, Gauley, Greenbrier and Meadow Rivers under the authority of Nationwide Permit 12. The conditions attached to that permit say it may not be relied upon for operations that take more than 72 hours. There is existing correspondence from the developers and the Corps of Engineers. It makes is clear that the plan all along was to take more than 72 hours to make these crossings.
On May 22, 2018, the Corps of Engineers suspended indefinitely the authorization of the four river crossings.
These are not, however, the only water crossings that the Mountain Valley Pipeline would have to make. There is a total of 591 stream crossings that the MVP would have to make in West Virginia. There is not any suspension of authority to make the crossings of streams other than the four rivers.
There are some possible outcomes. The citizen and environmental groups do not just contend that the use of NWP 12 is prohibited at the four named river crossings. They contend that its use is prohibited at all 591 stream crossings. If that is correct then the developers would have to get individual permits for each of the crossings. One possible outcome is that the Court could rule that the pipeline developers may not rely upon NWP 12 anywhere to authorize stream crossings.
Another possible outcome is that the West Virginia Department of Environmental Protection could change the conditions that it previously placed upon NWP 12. NWP 12 is applicable to pipelines all over the country; the requirement that activities authorized by NWP 12 be completed within 72 hours is not. The law allows states to place conditions upon reliance upon NWP 12 for stream crossings within those states. One of the conditions that West Virginia imposed was the 72-hour limit. If West Virginia imposed this condition, it might unimpose it. Since there was presumably some justification for the condition, it might be difficult to explain why that justification no longer applies.
As always, stay tuned.