By John McFerrin
If, as their developers hope, the Mountain Valley Pipeline or the Atlantic Coast Pipeline are constructed, they will have to cross hundreds streams and wetlands as they make their way through West Virginia, Virginia, and North Carolina. Those states are thick with streams and wetlands; crossing them is inevitable.
Stream and wetlands crossings bring the pipelines within the jurisdiction of the federal Clean Water Act which requires a permit for the crossings. Such permits are issued by the United States Army Corps of Engineers.
There are two types of permits. One is called a “general permit.” It is for actions that are similar and will have minor effects upon the waters of the United States. It usually takes the form of a nationwide permit that authorizes a category of activities throughout the nation and is valid only if the conditions applicable to the permit are met.
To operate under this general permit, a company only has to inform the Corps of Engineers that it intends to operate under the general permit. The Corps then determines whether the proposed operation qualifies to be covered by the general permit. If the Corps decides that it does, then Corps scrutiny is largely over.
The second is an individual permit which requires site specific data on what actions are proposed. The Corps of Engineers would then review that data and determine whether or not the pipeline, as proposed, could be constructed without damage to the waters of the United States.
The developers of both the Mountain Valley Pipeline and the Atlantic Coast Pipeline sought to have their projects approved under the general permit that applies to utilities, including pipelines.
The Corps of Engineers has not yet decided what it will do. All indications are that it will eventually allow both pipelines to proceed under the General Permit instead of getting individual permits for each crossing. This decision may depend upon what states do in their review.
Regardless of what the Corps of Engineers does, states still have a role to play, a role that could prevent the pipelines from being built. Even with the approval of the United States Army Corps of Engineers, the projects still have to have the approval of the states where the projects would be located. The states’ duty is to examine both the crossings themselves and the water quality impacts outside the crossings. Before the pipelines could go forward, those states had to certify that the projects would not degrade the waters of that state or cause a violation of state water quality standards. These certifications are commonly referred to as 401 Certifications after Section 401 of the federal Clean Water Act which contains the requirement.
Because the pipelines cross three states, three state regulatory agencies are involved. None of the three states has made a final certification. Each state has proceedings going on.
Initially, West Virginia plunged ahead with its certification of the Mountain Valley Pipeline. In March, 2017, it issued its Certification that the Mountain Valley Pipeline would not damage West Virginia streams and wetlands. As proposed, the pipeline would cross 631 streams and 424 wetlands. For most, if not all, of these crossings the contractors would divert the streams to dry up the stream bed and bury the pipe across the dry bed. The West Virginia Department of Environmental Protection (DEP) had studied these crossings and determined that they would not damage West Virginia waters.
In response to that Certification, several groups asked for an administrative appeal, within the Department of Environmental Protection. They were summarily denied.
In September, 2017, however, the West Virginia Department of Environmental Protection abruptly reversed itself. In a two sentence letter, it announced that it was withdrawing its Certification. It did not say why, just noting that it wanted to “reevaluate the complete application.”
The Department did not say why it changed its mind. It may have had a Road to Damascus moment, looked at what data it had again, or slept on its decision for a few nights.
A more plausible explanation is that it saw the handwriting on the wall. When the Department issued the Certification and would not allow any appeal, several groups filed petitioned the United States Court of Appeals for the Fourth Circuit, challenging the Certification decision. Faced with the possibility of defending the indefensible, the Department may have decided that it would revisit its Certification decision now rather than wait for the Court to tell it that it had to.
The petitioners to the Fourth Circuit had what they believed were some compelling arguments. One focused on the Department of Environmental Protection’s approach to karst topography. Karst terrain is usually characterized by rocky ground, caves, sinkholes, underground rivers, and the absence of surface streams and lakes. Because of its characteristics, it requires special consideration in approval of a pipeline across it. The DEP had said in its Certification that the Mountain Valley Pipeline did not have to submit a construction plan now but could wait until it was ready to begin construction. As a result of this, neither the DEP nor any member of the public has ever seen the construction plan. This approach is inconsistent with the legal approach of having all plans submitted and available for public comment before the Certification decision. The petitioners also argued that the karst terrain was so unstable that it the pipeline should not cross it under any conditions.
The petitioners also argued that West Virginia had failed to perform an antidegradation review. It is state policy to refuse to allow activities which would degrade its waters. There is a process for reviewing a proposed activity and determining if it will degrade the state’s waters. In reviewing the request for Certification, West Virginia did not follow this process.
If the handwriting on the wall explanation is true, West Virginia DEP also found these arguments compelling. In announcing that it was going to revisit its Certification decision, West Virginia said that it needed to do an antidegradation review. It is currently reviewing the request for Certification once again.
So far as the Atlantic Coast Pipeline is concerned, the West Virginia Department of Environmental Protection (DEP) is currently reviewing the request for Certification. It held public hearings on July 31 and August 1, 2017, and is presumably considering the request.
On both the Atlantic Coast Pipeline and the Mountain Valley Pipeline, Virginia’s approach has been confused. It first announced that it would be conducting individual examinations of the crossings anticipated by the projects. Then it reversed course and said that it would rely upon the Corps of Engineers and whatever review it did in determining if the pipelines could proceed under the General Permit for all stream and wetland crossings.
Many sharply disagreed. The Southern Environmental Law Center, Shenandoah Valley Network, Virginia Conservation Network and more than 75 other environmental, conservation, and public advocacy groups that represent tens of thousands of Virginians signed on to a letter urging Virginia to require individual 401 Certification review for wetland and stream crossings in the paths of the Mountain Valley and Atlantic Coast pipelines.
It has issued a draft Certification and held holding public hearings on these draft Certifications. The last public hearing was August 22, 2017.
There are ongoing problems with the hearings and the overall review of the requests for Certifications. The Virginia Department of Environmental Quality has not been entirely open with relevant information and has indicated an inclination to proceed with Certification whether it has all the relevant information or not.
The Dominion Pipeline Monitoring Coalition (West Virginia Highlands Conservancy is a member) assembled a panel of thirteen experts to evaluate the requests for Certification. Those scientists and engineers submitted reports to the Virginia Department of Environmental Quality (DEQ) on August 22, 2017, finding that DEQ has failed in its duty to properly analyze and protect against the water quality damages the Mountain Valley Pipeline and Atlantic Coast Pipeline would cause to Virginia’s waters. In the reports, one issued for each of the pipelines, the authors wrote that they had reviewed the information Department of Environmental Quality (DEQ) relied upon in its draft Water Quality Certifications (WQCs) and made their own independent assessments. The experts’ conclusion in each case:
DEQ’s draft WQC, which asserts that there is a “reasonable assurance” that Water Quality Standards (WQS) will be met with the conditions contained in that draft, cannot be supported by the evidence in the record and pertinent scientific authorities and knowledge. Such a finding in the Department’s recommendation to the State Water Control Board (SWCB) would be professionally incompetent and would fail to meet minimum standards of scientific proof.
In considering its decision on Certification, Virginia may be able to learn from West Virginia’s experience. The Certifications that Virginia is considering making contain flaws that are similar to those in West Virginia.
The Mountain Valley Pipeline does not reach North Carolina; for North Carolina, there is nothing to certify on it.
The Atlantic Coast Pipeline does pass through North Carolina, crossing over 320 streams and hundreds of acres of wetlands. North Carolina had been considering a Certification and was approaching a deadline for making a decision when it abruptly stopped the process. In a four page letter to the developers, it asked for a lot of more specific information. It had the tone of an agency that might have been drifting along, ready to issue a Certification based upon whatever the developers sent in, but has now decided to roll up its sleeves and do a serious review. The developers now have 30 days to reply to the request; North Carolina will either approve or deny the request for Certification 60 days after that.
The North Carolina Division of Water Resources had received over 9,000 comments. Eighty-five per cent of the comments requested that the Division deny the Certification.