Water-Related Challenges to WV Department of Environmental Protection (WVDEP) MVP Pipeline Decisions

Breaking News! WVDEP Withdraws and Suspends Two Permits (See below)

WVDEP has the responsibility and authority to ensure the quality of the waters of West Virginia. Three authorizations were required for the MVP pipeline in West Virginia: 1) the 401 Water Quality Certification, 2) the Oil and Gas Construction Stormwater Permit and 3) the WV Natural Streams Preservation Act Permit for crossing the Greenbrier River. Despite substantive evidence provided by professionals, organizations and individuals, the WVDEP decided in favor of MVP on all three applications.

As a watershed association committed to the protection of Monroe County’s water, ICWA submitted several comments during the WVDEP’s Public Comment period that documented significant risks to water resources in the county and along the route. ICWA has also joined with other environmental organizations and affected landowners to challenge the permits that WVDEP has issued.

1. 401 Water Quality Certification (WQC-16-0005). Section 401 of the federal Clean Water Act requires that WV ensure that federal agencies will not issue permits or licenses that violate the water quality standards of a state through a process known as water quality certification.

On March 23, 2017, the WVDEP issued a 401 Certificate for the MVP project just four days after the public comment period closed on March 19.

On April 7, 2017, ICWA joined West Virginia Rivers Coalition, the Sierra Club and other environmental groups and 14 landowners from Monroe, Summers and Harrison Counties to request a hearing on the decision. The request was denied by WVDEP Secretary Austin Caperton.
• View the request to WVDEP here.
WV DEP Chief Caperton refuses hearing on MVP pipeline appeal, May 16, 2017 (Charleston Gazette-Mail)

On June 9, 2017, a challenge was filed in the U.S. Fourth Circuit Court in Richmond, VA. The groups are represented by Appalachian Mountain Advocates attorney Derek Teaney. The brief was filed on August 16. A trial date has not been announced, but is not expected before October 2017.
View the opening brief here.
WV DEP Ignored Water quality in MVP permit, court filing argues, August 16, 2017 (Charleston Gazette-Mail)

BREAKING NEWS On September 13, 2017 the WVDEP officially “vacated” its water quality certification (401 permit) for the MVP in a motion to the U.S. Court of Appeals, 4th Circuit! The fight is not over, but this is an important win for DEP to acknowledge that MVP’s 401 application was inadequate.Earlier, on September 7, 2017 the WVDEP sent a letter to the US Army Corps of Engineers and MVP informing them that DEP “hereby vacates and remands” its water quality certification (401 permit) for the MVP.

2. Oil and Gas Construction Stormwater General Permit (WVR310667). The WVDEP created this permit “to regulate the discharge of stormwater runoff associated with oil and gas related construction activities,” which includes transmission pipelines and facilities. According to the WVDEP site: “Stormwater runoff from construction activities can have a significant impact on water quality. As stormwater flows over a construction site, it picks up pollutants like sediment, debris and chemicals. Polluted stormwater runoff can harm or kill fish and other wildlife. Sedimentation can destroy aquatic habitat and high volumes of runoff can cause stream bank erosion.”

On July 14, 2017, WVDEP issued a Stormwater Permit to MVP. During the comment period that preceded the granting of the permit, ICWA submitted 5 detailed and extensive comments and WV Rivers Coalition submitted a very extensive comment signed by 27 organizations. When DEP issued the permit they were required respond to all comments, deliver the response to everyone who commented, and inform everyone who commented that they have 30 days to appeal the permit. However, ICWA, WV Rivers Coalition were never notified that the permit was issued, nor did DEP respond to their comments.

On August 17, WV Rivers and ICWA initiated an inquiry with WVDEP about what happened to comments we had submitted, and why our groups (and potentially many others) had not received notice of the permit.

On August 23, 2017, WVDEP informed us that although comments by ICWA and the WV Rivers Coalition were filed correctly and on time, the comments were not considered because they failed to reach the DEP permit writer.

BREAKING NEWS On September 8, 2017, WVDEP suspended the Stormwater permit “to allow for proper consideration and response to all comments received,” according to the Charleston Gazette-Mail.

3. WV Natural Streams Preservation Act Permit for crossing the Greenbrier River (NSP-17-0001). The Greenbrier River—recognized as the longest free-flowing river east of the Mississippi—is protected by the WV Natural Streams Preservation Act as “an enduring resource of free-flowing streams possessing outstanding scenic, recreational, geological, fish and wildlife, botanical, historical, archeological or other scientific or cultural values” (§22-13-2).

On July 21, 2017, WVDEP granted a permit to MVP to cross the Greenbrier River at Pence Springs.

On August 18, 2017, with the Greenbrier River Watershed Association as lead appellant, ICWA became party to an appeal filed with the West Virginia Environmental Quality Board. The appeal asserts that, “Without effective limits on sedimentation and the resulting turbidity, the permit as issued is not protective of water quality standards and violates the West Virginia Pollution Control Act as well as the federal Clean Water Act.” Counsel for the appellants are Anna Ziegler and Elise Keaton, Ziegler & Ziegler, LC in Hinton, WV; and Kevin Thompson and David Barney, Thompson Barney Law Firm in Charleston, WV.
View a copy of the Notice of Appeal of DEP Natural Streams Permit for MVP

 

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