Stream Crossing Permits Here and There

Stream Crossing Permits Here and There

By Cindy Rank

West Virginia Highlands Conservancy has once again linked arms with folks challenging the validity of the Keystone XL Pipeline permit for stream crossings of the Yellowstone and Cheyenne Rivers in Montana.


Simply put, what happens in Montana doesn’t just stay in Montana.

Earlier this year a United States District Court Judge in Montana ruled that Nationwide Permit 12 (NWP 12) is invalid because it was issued without following requirements of the Endangered Species Act. Even though this took place in Montana, it could have dramatic implications for the Mountain Valley Pipeline as well as other pipelines in West Virginia and elsewhere.

It matters here because the judge did not just prohibit the stream crossings in Montana. He vacated Nationwide Permit 12 itself. Both the Mountain Valley Pipeline and the now-cancelled Atlantic Coast Pipeline relied on NWP 12 for authorization to cross hundreds of streams and wetlands in West Virginia and Virginia. Without NWP 12, they have no permission to cross those streams and wetlands.

Articles by John McFerrin in both the May and June 2020 issues of the Highlands Voice outlined in some detail the issues involved with the Keystone XL pipeline and its reliance on Army Corps of Engineers’ Nationwide Permit 12 to allow stream crossings along the route of the pipeline.

John explained a bit of the history of NWP 12 development and the Montana District Court ruling in the Northern Plains Resource Council legal complaint that Keystone XL pipeline could not rely on NWP 12 because the permit itself was improperly issued due to inadequate Endangered Species Act considerations.

In its order, the Montana District Court gave the Corps of Engineers the option to reconsider Nationwide Permit 12, this time complying with the Endangered Species Act by asking for guidance from the Fish and Wildlife Service. Instead of doing that, the Corps decided to appeal the District Court decision to the United States Court of Appeals for the Ninth Circuit.

As part of its appeal, the Corps asked the Court to “stay” the effectiveness of the Montana court order while the appeal was pending. Had the Court granted the request, NWP 12 would have remained in effect while the appeal was pending and the Corps could have continued using it to authorize stream crossings for Keystone and other pipelines.

The stay, however, was denied. Months have passed, and now the Court of Appeals is prepared to consider the merits of the Corps’ appeal of the District Court ruling.

Recognizing the importance of the Nationwide Permit issues as applied to pipelines cutting through the state, the West Virginia Highlands Conservancy has joined Defenders of Wildlife, Virginia Wilderness Committee, and the West Virginia Rivers Coalition as amici curiae (friends of the court) in support of the Montana District Court ruling that vacated NWP 12.

Of primary concern is that proposed gas pipelines like the Mountain Valley Pipeline and the now-cancelled Atlantic Coast Pipeline can have a compounding effect on protected species – a matter which the Corps has unlawfully overlooked.

We maintain that to comply with the Endangered Species Act, Section 7 consultation over Nationwide Permit 12 must, to quote the U.S. Army Corps of Engineers, “take into account the combined effects of other NWP 12- authorized activities.” The Endangered Species Act requires federal agencies to consider “all consequences” of their actions “as a whole.” This case is about whether the Corps has lived up to that standard.

As stated in our amici documents we contend that the Endangered Species Act requires the Corps of Engineers to directly consult with the US Fish and Wildlife Service and to consider more than just the site-specific impacts of NWP on one pipeline or another, but rather what overall impact NWP 12 will have when utilized to permit multiple pipelines in an area.

In support of our involvement, we cite concrete examples from West Virginia and Virginia of how NWP 12 in its current form has illegally authorized broad impacts not permissible by Corps authority via the Clean Water Act nor by the Endangered Species Act.

e.g., “Consideration of rare and endangered species such as Roanoke logperch, Candy Darter, Indiana bat, and clubshell mussel. Two Nationwide Permit 12 pipelines authorized in 2017 in Virginia and West Virginia would have collectively impacted four of the eight remaining populations of logperch, a freshwater fish. At least three Appalachian Nationwide Permit 12 pipelines would adversely affect the Indiana bat. Multiple Nationwide Permit 12 pipelines would adversely affect the clubshell. Yet the Corps has never considered the additive impacts of these projects on the species under the Endangered Species Act.”

Bottom line: permitted projects have repeatedly affected the same threatened and endangered species but the Corps has never accounted for the aggregate effect of those projects. Piece by piece, pipelines have destroyed species and their habitats without the Corps putting the pieces together to see the full picture of the damage done.

For these and other reasons explained in our court filings, we maintain the Montana district court’s order must be affirmed.

(We are being represented by lawyers with Southern Environmental Law Center (SELC) from Charlottesville VA. (Anyone following stories about the ACP and MVP pipelines will recognize SELC as an effective and dedicated legal group similar to our friends at APPALMAD.)