By John McFerrin
The West Virginia Department of Environmental Protection (DEP) is trying to change the conditions that are placed on permits for stream and wetland crossings for natural gas pipelines. The West Virginia Highlands Conservancy has joined with Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Appalachian Voices, Chesapeake Climate Action Network, and Appalachian Mountain Advocates to object to this.
Under the federal and state Clean Water Acts, anybody who wants to cross a stream or a wetland must have a permit. It has a choice of either getting an individual permit for each crossing or proceed under what is called a General Permit, often referred to as a Nationwide Permit.
Nationwide Permits are issued for large classes of activities. They are appropriate for projects with minimal individual and cumulative environmental impacts. It is a one size fits all approach for lots of nearly identical activities that have small impacts. Individual permits are site specific; developers would submit an individual plan for each crossing and regulators would look at each one individually.
There is a Nationwide Permit, known as NWP 12, that covers utilities. Anywhere in the country that someone wants todo “[a]activities required for the construction, maintenance, repair, and removal of utility lines” can apply to do it under NWP 12. “Utility lines” is defined in such a way that it includes natural gas pipelines.
If the project meets the requirements of the Nationwide Permit (minimal individual and cumulative environmental impacts) then the pipeline builder, etc. does not have to get approval for individual crossings. NWP 12 covers the whole project.
These Nationwide Permits are issued, or renewed, every five years. When they are, states can, and often do, attach conditions to these permits.
What’s going on
In 2017, when NWP 12 (the one that covers pipelines) was renewed, West Virginia imposed some conditions. NWP 12 covers the whole country. The conditions that West Virginia and other states imposed are supposed to take into account local conditions.
Now West Virginia has decided that it does not like those conditions. It wants to change them. The groups are opposing the changes.
Why this is a big deal
Both the Mountain Valley Pipeline and the Atlantic Coast Pipeline want to be able to cross streams and wetlands under NWP 12. It is easier to get approval for the whole pipeline (or at least the part in West Virginia; parts in Virginia and North Carolina would have to be approved separately) than have to make plans for each crossing and get them approved individually.
One barrier to either pipeline being able to use NWP 12 is the conditions that West Virginia put on it when that Nationwide Permit was renewed in 2017. One of the conditions was that any construction on any crossing had to be completed within 72 hours. Both the ACP and the MVP plan to cross some substantial rivers. The construction they would like to use would take more than 72 hours; this means they cannot qualify to proceed under NWP 12. Now that the conditions which West Virginia put on use of NWP in West Virginia are proving troublesome, West Virginia Department of Environmental Protection is trying to change them.
What the groups say
First, the groups argue that the Department of Environmental Protection (DEP) does not have the authority to make the changes. It is a basic principle of law that agencies (such as the DEP) can only do what they are authorized by statute to do. The statute which the DEP operates under allows it to issue permits and place conditions upon them. It does not have the authority to make changes.
Even if state law allowed DEP to make changes, the federal Clean Water Act prohibits such changes.
Even if DEP had the authority to make the changes, the groups oppose them because they would be a bad idea or, more specifically, illegally cause a violation of water quality standards.
To install the pipelines, MVP and ACP want to dry up (or “dewater” as they say) the rivers for weeks at a time. While the rivers are dry, they can dig a trench and lay the pipe across the dry riverbed.
Water quality standards are designed to maintain uses of the streams, including benthic communities. Allowing pipeline construction to dewater parts of a river for weeks at a time would not do that. The groups contend that changing the conditions on NWP 12 to do that would make it less protective of water quality.