By John McFerrin

As reported in the May, 2019, issue of The Highlands Voice, the West Virginia Department of Environmental Protection (DEP) has changed the conditions that are placed on permits for stream and wetland crossings for natural gas pipelines.

Under the federal and state Clean Water Acts, anybody who wants to cross a stream or a wetland must have a permit.  The changes that the Department of Natural Resources made would make it easier for both the Atlantic Coast Pipeline and the Mountain Valley Pipeline to get that approval.

The changes are not, however, the end of the story.  The United States Army Corps of Engineers must still decide whether it will use the changed conditions in its evaluation of the two pipelines.  The West Virginia Highlands Conservancy has joined with Sierra Club, the West Virginia Rivers Coalition, the Indian Creek Watershed Association, Appalachian Voices, the Chesapeake Climate Action Network, and Appalachian Mountain Advocates in a request that the Corps not use the changed conditions in evaluating the proposed pipelines.

The groups argue to the Corps that its use of the changed conditions would violate Corps regulations.

In measured and lawyerly tones, the groups are also calling the West Virginia Department of Environmental protection out.  This matter has already been considered by the United States Court of Appeals for the Fourth Circuit.  That Court ruled that the Mountain Valley Pipeline could not be constructed in the way its developers wished under the rules that existed at the time.  Now the West Virginia Department of Environmental Protection wants to change its rules so as to avoid that ruling.

The applicable regulations allow changes of conditions when there are “concerns for the aquatic environment under the Clean Water Act section 404(6) (1) Guidelines or for any factor of the public interest.”  The Department of Environmental Protection does not articulate any concern for the aquatic environment in making the changes.  Instead, West Virginia speaks through Governor Justice, who made this statement:

While the WVDEP is not a party to this lawsuit we can say that [the Mountain Valley Pipeline] project is extremely important to West Virginia …. We will continue to monitor these proceedings closely to determine what role the state may play in expediting the construction of this pipeline.

Less than seven weeks later, the West Virginia Department of Environmental Protection made the Governor‘s words come true.  It changed the rules to accommodate the pipelines. The groups ask that this not be allowed.