Updates of 401 and Other MVP Permits

ICWA PERSPECTIVE: Once again, both MVP and WVDEP have opted not to do the hard work of closely examining the actual construction requirements, challenges and likely impacts of this 42-inch pipeline’s projected route and crossings across West Virginia’s streams and mountains. Maybe that’s because they know that no permit would (or should) get issued if they did.

See the following links for more complete information:
1. Petition for Review which includes attachments of WVDEP 401 Water Quality Certification of MVP as Exhibit A. The Exhibit also contains a summary of written and oral comments from the public and WVDEP’s responses to the comments (Attachment C).
2. Motion for Stay Pending Review which outlines important failings of WVDEP in approving the 401 permit.
3. January 4, 2022 Gazette-Mail article which includes statements from some of the WV environmental groups concerning WVDEP’s issuance of the 401.

STREAM-CROSSING PERMIT PROBLEMS PERSIST
Mountain Valley Pipeline’s stream-crossing permits have been making news recently, and the following is an update on where things stand now. (A version of this update appears in the Monroe Watchman.)

Despite recent announcements, MVP still is not permitted to conduct any construction activity in streams or wetlands.

First some background: MVP must receive a 404 permit from the Army Corps of Engineers if it wants to use open-cut trenching to cross any of the remaining streams and wetlands because trenching involves dredging and filling, creating sediment (mud) in these waterbodies. Army Corps approval is also required for MVP to bore under three major rivers in West Virginia – the Elk, Gauley and Greenbrier. MVP is separately seeking approval from the Federal Energy Regulatory Commission (FERC) to bore under 125 streams and wetlands in West Virginia and Virginia.

Before the Corps can issue a 404 permit, the state-level environmental protection agencies in both states must review MVP’s construction plans for every crossing in their state and issue a 401 permit (more precisely called a “401 Water Quality Certification”). In issuing this 401 permit, the West Virginia DEP and Virginia DEQ must certify that they are confident that MVP will comply with water quality standards as the pipeline cuts through streams and wetlands.

In late December 2021, both West Virginia and Virginia issued 401 permits despite extensive comments by landowners, community members and experts during the review period, and despite the repeated failures of MVP’s plans and performance so far (to the tune of more than $2.7 million in fines for violations).

In response to the permit approval, ICWA president Howdy Henritz said, “We have zero trust in WVDEP’s assurances. WVDEP simply does not have enough inspectors to monitor construction on stream and wetland crossings over the 200 miles of pipeline in West Virginia. More than 300 complaints filed by our volunteers show that MVP will be unable to prevent irreparable harm as it blasts and bores its way across our waters.”

Environmental groups in both states have filed legal cases to challenge the permits. This update focuses on the actions and issues in West Virginia.

On January 3, 2022, lawyers from Appalachian Mountain Advocates acting on behalf of ICWA, WV Rivers Coalition, WV Highlands Conservancy, the Sierra Club and other environmental groups, filed a lawsuit challenging WVDEP’s approval of the 401 permit. The “Petition Requesting Judicial Review” was filed with the US Court of Appeals for the Fourth Circuit.

On January 11, 2022, the groups filed with the same court a “Motion for Stay Pending Review”. If the Court grants the stay, MVP will not be allowed to start construction in streams or wetlands until the court’s review is completed.

The Motion for Stay identifies serious shortcomings in WVDEP’s approval.  Among the points raised:

  • Method of Crossing: MVP failed to credibly establish that trenchless crossing methods were impractical. WVDEP’s BMP [Best Management Practices] Manual specifies boring under the streambed (also called “trenchless” crossing) as the least damaging and preferred method over instream open-cut construction. However, WVDEP allowed MVP to simply reject boring crossing as “impractical” in hundreds of streams without MVP conducting an adequate analysis. As the Motion points out: “MVP lacks credibility … given its previous inconsistent statements and about-faces on that issue. Over the years, Mountain Valley has rejected as impracticable many trenchless crossings that it now proposes to construct; and has previously proposed trenchless crossings for locations that it today rejects.”
  • Water Quality: WVDEP refused to conduct site-specific anti-degradation reviews. The purpose of the anti-degradation policy is to maintain and protect existing uses and high quality water in West Virginia. The policy calls for collecting baseline water quality data and predicting the impacts of discharges on those baselines. Reviews are to be made on a location-specific basis, but WVDEP refused to conduct those location-specific reviews.
  • MVP’s History of Violations: WVDEP irresponsibly dismissed MVP’s history of noncompliance and water quality standards violations. The Motionnotes that WVDEP has cited MVP for violations of water quality standards in approximately fifty different streams. “Given MVP’s demonstrated history of water quality standards violations and improper implementation of erosion and sediment control measures, WVDEP could not rationally be assured of compliance with water quality standards or assume that MVP will flawlessly construct hundreds of open-cut crossings. Rather, WVDEP should have (and does) expect multiple violations.”
  • Additional WVDEP Requirements: WVDEP approved MVP crossing plans that do not follow WVDEP’s own Best Management Practices Manual.
    • For example, WVDEP’s BMPs for open-cut crossings are intended for streams that drain a maximum area of one square mile above the crossing, but many of MVP’s crossings exceed that (some dramatically). In a small sample, at least one has a drainage area of more than 50 square miles!)
    • The BMP Manual also clearly recommends scheduling construction during low-flow periods (summer and fall) and requires additional structural measures for construction during high-flow periods. Despite public knowledge and company announcements that MVP plans to construct this winter/spring, WVDEP did not require MVP to submit the relevant structural plans.

The Motion also addresses the irreparable harm that will be suffered if MVP is allowed to proceed with construction before the Court completes its review: “Absent a stay, MVP will complete its stream crossings before this petition’s resolution. MVP’s operator announced in November 2021 that MVP intends to “Ramp up” construction in February 2022 to complete the Pipeline by summer 2022. Those circumstances justify a stay pending review.”

In closing, the Motion makes the case that “The public has an interest in the integrity of the waters of the United States, and in seeing that administrative agencies act within their statutory authorizations and abide by their own regulations.”

ICWA Perspective: Once again, both MVP and WVDEP have opted not to do the hard work of closely examining the actual construction requirements, challenges and likely impacts of this 42-inch pipeline’s projected route and crossings across West Virginia’s streams and mountains. Maybe that’s because they know that no permit would (or should) get issued if they did.

See the following links for more complete information:
1. Petition for Review which includes attachments of WVDEP 401 Water Quality Certification of MVP as Exhibit A. The Exhibit also contains a summary of written and oral comments from the public and WVDEP’s responses to the comments (Attachment C).
2. Motion for Stay Pending Review which outlines important failings of WVDEP in approving the 401 permit.
3. January 4, 2022 Gazette-Mail article which includes statements from some of the WV environmental groups concerning WVDEP’s issuance of the 401.

OTHER PENDING MVP LEGAL CHALLENGES
ICWA is also a party to the following cases that are still in the federal appeals courts.

In the US Fourth Circuit Court of Appeals (Richmond, VA):

  • Jefferson National Forest Crossing: Challenges the Forest Service’s decision to amend the Management Plan for the Jefferson National Forest to make the Plan consistent with the harms caused by the MVP in Montgomery/Giles Counties, VA and Monroe County, WV. The case also challenges the Bureau of Land Management’s decision to grant a right-of-way for the pipeline through the JNF.
  • Endangered Species: Challenges the U.S. Fish and Wildlife Service’s finding that pipeline construction would not jeopardize endangered or threatened species (particularly the candy darter, the Roanoke logperch, and the Indiana bat).
  • 404 Stream-Crossing Permit: We anticipate that if and when the US Army Corps of Engineers issues a new 404 permit (possibly soon), this will also be challenged, especially given the failings of the 401 permits on which it would rely.

In the US Circuit Court of Appeals for the District of Columbia:

  • Federal Energy Regulatory Commission (FERC) Extension Case + Emergency Motion for Stay Case: Two separate cases, later combined, that challenge whether FERC violated the National Environmental Policy Act (NEPA) in granting MVP a 2 year extension, and whether FERC violated the Natural Gas Act (NGA) in lifting stop work orders, resuming construction and denying rehearings. An Emergency Motion for Stay was then filed, and denied by the court.

We will share updates on the status of these cases as we receive them.