West Virginia Department of Environmental Protection Gives Away Chance to Protect State’s Waters

West Virginia has waived its opportunity to review the Mountain Valley Pipeline to determine whether it will cause a violation of West Virginia’s water quality standards.

Under Section 401 of the federal Clean Water Act, federal agencies cannot authorize projects in a state unless that state certifies (called a 401 Certification) that the project will not violate state water quality standards.  With the Mountain Valley Pipeline, West Virginia could have refused the 401 Certification.  If it did now want to refuse the 401 Certification outright, it could have conditioned its approval on the pipeline developers taking certain steps to protect water quality.  Because of this power, the 401 Certification process is an excellent tool for imposing whatever conditions were necessary to protect West Virginia water.

Through this process, West Virginia could have prevented the Federal Energy Regulatory Commission from finally approving he pipeline as well as the United States Army Corps of Engineers from approving the stream crossings, etc. that the pipeline will entail until we had assurance that West Virginia’s water would not be damaged.

Instead, West Virginia punted, waiving its opportunity to review the project.

West Virginia’s water quality standards specify the designated use of a stream or pollutant limits necessary to protect the designated use and policies to ensure that existing water uses will not be degraded by pollutant discharges.

A little history

Initially, West Virginia plunged ahead with its 401 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 insisting on some additional monitoring and reporting requirements. 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.  In its press release announcing that it had issued a 401 Certification, the Department of Environmental Protection, the DEP referred readers to the Mountain Valley Pipeline for information about the “potential economic benefit” of the pipeline.

In response to that Certification, several groups asked for an administrative appeal, within the Department of Environmental Protection.  They were summarily denied.

The groups then sought review of the decision in the United States Court of Appeals for the Fourth Circuit.  After initially defending its 401 Certification decision, the West Virginia Department of Environmental Protection agreed that it may have been hasty and that the Certification decision needed more work.

Much of the case in the Court of Appeals focused on West Virginia’s anti-degradation policy.  Under that policy, the Department of Environmental Protection must assure that the existing uses of all waterways will be protected, make sure there is no degradation of particularly high-quality and significant streams, and if some waterways might be significantly harmed, perform a cost-benefit analysis of the socioeconomic impacts of that damage.

In conceding that the 401 Certification needed more work, the Department of Environmental Protection specifically mentioned the antidegredation requirement.  In asking that the Court send the Certification back to the Department, the attorney for the DEP said that it recognizes that it needs to consider its anti-degradation analysis and committed to doing so as expeditiously as possible.






In a move consistent with what it had told the Court of Appeals about the 401 Certification needing more review, the West Virginia Department of Environmental Protection announced that it was withdrawing its Certification.  It did not say why, just noting that it wanted to “reevaluate the complete application.”

This announcement in September filled many West Virginians with hope.  It gave people a reason to believe that West Virginia DEP would step forward, do a serious review of the project, and protect the waters of West Virginia.  Angie Rosser, Executive Director of of the West Virginia Rivers Coalition, said, “The agency could have simply thrown up its hands and waived its authority, but it didn’t. It is up to this task.”

What just happened

September’s hope proved false, however.  On November 1, 2017, the West Virginia Department of Environmental Protection announced that it was waiving its authority to review the project and issue, or not issue, the 401 Certification.  Instead of stepping forward with a serious review of the project and protection of the waters of West Virginia, it stepped backward.

What’s left to protect the water?

The decision by the Department of Natural Resources does not move us back to the wild West where there is no regulation.  What remains is a stormwater permit from DEP and a Nationwide 12 permit from the Army Corps of Engineers.  Nationwide 12 permit is a general permit; it is not site specific but rather requires the MVP pipeline to follow construction practices used by utilities all over the country.  Both are less stringent than the 404 (Corps) and 401 Certification (state) process provided by the Clean Water Act.

Meanwhile, Over in North Carolina

The North Carolina Department of Environmental Quality is continuing its review of the Atlantic Coast Pipeline, including whether it will issue (or not issue) a 401 Certification.  According to the Raleigh News and Observer, “The N.C. Department of Environmental Quality on Wednesday sent the pipeline’s developers a fourth round of questions about the economic benefits and environmental risks of the project. The unusual repeat request gives pipeline officials 30 days to respond and gives the agency 60 days to review their response.”

According to the News and Observer, the pipeline “requires a water quality permit to allow the underground pipeline to cross several hundred streams, creeks and other bodies of water. This permit hinges on the Atlantic Coast Pipeline’s responses to the fourth set of questions. The agency is asking for information previously requested but not adequately answered by the Atlantic Coast Pipeline.”

Although we did break off from Virginia, maybe North Carolina could adopt us, at least for the purpose of pipeline review.