By Cindy Rank
Having participated in, closely studied, and been fairly conversant with legal issues and challenges involving water law and problems caused by the coal industry – mainly centered on acid mine drainage from 1979 to 1998, then valley fills and mountaintop removal from 1998 through 2018 – I find myself flummoxed by the myriad of those same issues as they have rained down upon us with the onslaught of unconventional shale gas drilling and assembling the infrastructure of associated facilities and pipelines needed to support what I perceive is a misdirected reliance on yet another fossil fuel to carry us into the future.
WVHC efforts have for the most part focused on legal/permitting & enforcement issues, the courts, and in the instance of pipelines, the two major transmission pipelines that cross through the national forests have been our main focus.
That’s not to say the MANY other transmission, gathering, and smaller pipelines that are snaking around and crisscrossing the entire state aren’t important or aren’t negatively impacting people, property and resources.
In fact, it seems the only part of the state that is not being inundated with the massive sprawl of gas pipelines is that particular part of West Virginia where mountaintop removal and other large-scale coal mining continues to plague communities and the environment.
CASE AT HAND:
Nationwide or Individual – which Clean Water Act permits applies? And why ?
The question is all too familiar and equally frustrating for anyone who has paid any attention to Voice articles over the past 20 years. Simply stated, if you want to muck around in streams you must first have permission to do the mucking and the U.S. Army Corps of Engineers is the agency with the authority under the Clean Water Act to give you that permission and set limits to your activity and protect the waters you’re mucking.
This applies to the pipelines tearing through West Virginia, including the 300 mile- long Mountain Valley Pipeline (MVP) which is to transport gas from Wetzel County into Pittsylvania County, Virginia, and the over 600 mile-long Atlantic Coast Pipeline (ACP) (and Supply Header feeder line) from Wetzel County into North Carolina. Both continue to face multiple legal challenges.
In Richmond VA last Friday, September 28, 2018, a three-judge panel of the U.S. Court of Appeals for the 4thCircuit heard oral arguments in four cases related to the ACP and MVP. For about four hours, Chief Judge Roger L. Gregory and Judges James A. Wynn, Jr. and Stephanie D. Thacker heard oral arguments in a nearly packed courtroom.
One case returned to the issue of the adequacy of the Forest Service Special Use Permit and the abrupt reversal of the Service’s original reservations [See Lew Freeman’s article, p. 1]. Another case addressed concerns about the certification issued by Virginia Water Control Board under Section 401 of the Clean Water Act. And a third dealt with mineral property owner rights in separate eminent domain case.
My focus here is on the fourth case, a legal challenge to the Army Corps of Engineers’ determination that discharge of dredged and fill material related to construction of the Mountain Valley Pipeline meets criteria for authorization under the Clean Water Act Nationwide Permit 12 (NWP12). [18-1173]
Citizen groups including WV Highlands Conservancy have argued that NWP12 should never have been issued for either the Mountain Valley or Atlantic Coast pipelines and have challenged both.
The hearing in Richmond Friday addressed the Mountain Valley Pipeline challenge. [See the ENDNOTE to this article for a bit more regarding ACP.]
The WV Department of Environmental Protection (WVDEP) originally issued an individual 401 certification of the Corps fill permit for Mountain Valley. The permit was challenged by environmental and citizen groups which prompted the WVDEP to waive its individual state certification in November 2017, thus opening the door for the Corps to authorize the activity under the more lax general permitting process known as Nationwide Permits (#12 for “Utility Line Activities” includes gas pipeline activity).
The appeals court denied a previous motion to stay the NWP12 authorization, then later granted a motion for preliminary relief based on information that construction would take weeks rather than within the 72-hour limit as required by the WV Special Conditions for Nationwide Permit #12 that was approved in early 2017 as part of the five-year renewal process for Nationwide Permits issued by the Corps of Engineers.
During Friday’s court hearing lawyers for the Corps argued that as currently approved the proposed method for crossing streams is adequate and even more restrictive than NW12.
Appearing on behalf of plaintiff groups, Appalachian Mountain Advocates lawyer Derek Teaney argued that any process requiring more than 72 hours disqualifies it for approval under NWP12 and that furthermore, no matter the method employed, leaving streams exposed for more that 72 hours could still cause environmental harm. Nationwide permits should be scrapped and individual 404 fill permits pursued, thus allowing for more analysis, greater scrutiny and public input.
Referring to efforts underway by WVDEP to change state requirements for NWP12, the judges repeatedly asked why the Army Corps would allow WVDEP to do a rewrite out of the normal course of Corps 5-year review process. [See John McFerrin’s article right over there about WVDEP’s attempts to reverse their own previously imposed state specific special conditions approved in early 2017.]
Although oral arguments on Friday pertained to the NWP12 for the Mountain Valley Pipeline (MVP), the issue applies to the Atlantic Coast Pipeline (ACP) as well.
In the case of ACP, in its order dated August 23, 2018 the court denied our petition for a stay citing its finding that documents submitted by ACP are unclear about whether or not the company can meet the requirements of NWP12. ACP has advanced the theory that it can.
The Huntington District Corps has voluntarily suspended its NWP12 authorization for ACP. And ACP has committed to the court that it will “provide written notice to Petitioners prior to resuming any work authorized under NWP 12 so that Petitioners may review the Corps’ decision and pursue further relief from the Corps or this Court.”
As always, stay tuned.