By John McFerrin

            The Federal Energy Regulatory Commission (FERC) has approved a change in the construction method that the Mountain Valley Pipeline (MVP) will use to cross many of the streams and wetlands in its path.

            The change is from what is called “open trench” to “trenchless” crossings.  This means that MVP had planned to cross streams and wetlands by digging a ditch across the stream or wetland, putting in the pipe, and covering it up.  In most, if not all, of the streams this would require temporarily damming the stream while digging the ditch, etc.

            In the new plan, MVP would dig holes on both side of the stream or wetland.  They would be big enough to accommodate the drilling equipment and deep enough to get below the stream bed.  It would then drill horizontally under the stream or wetland.  How deep the holes would be would depend upon the terrain on either side of the stream or wetland.

            FERC concluded that the newly proposed method would be “environmentally preferable” and, because of this, had little hesitation in approving the change.

            The switch in crossing method would involve 183 stream bodies at 120 locations.  There would also be a slight shift in the route to avoid one wetland and one waterbody.

            Much of the decision was taken up with swatting away objections.  There were about seventy five individuals and groups that had intervened in the proceedings before FERC.  Some wanted to talk about climate change; some wanted to talk about the route; some wanted to talk about whether a big pipeline was needed or not.

            FERC’s response to such objections was that it had already decided those questions.  It had approved the route; this proceeding was just about crossing methods.  It had decided the pipeline was needed.  It found that the carbon emissions for the new method would be greater but decided that the increase would be so tiny that it would not be a basis for denying permission for the proposed change.  

FERC did recognize that the MVP had had problems complying with various environmental laws and that both Virginia and West Virginia had taken enforcement action, imposed fines, etc.  FERC said that those problems were between the MVP and the state agencies and were none of FERC’s business.

The Order addressed some concerns that were unique to the trenchless method.  It acknowledged that the drilling would be noisy; since the average drilling would only take eighteen days it didn’t consider the temporary noise to be significant.  Holes dug on each side of the stream to accommodate the drilling would often encounter groundwater which would have to be pumped out to accommodate the drilling equipment.  Water pumped out would have to be pumped to some spot well away from the stream and sediment control methods would have to be used.  Any dewatering of any aquifer by pumping out the hole would be temporary.

The change in crossing method does solve some legal problems that had plagued the MVP.  So long as it was working in the stream or wetland, it would be within the jurisdiction of the United States Army Corps of Engineers.  It has jurisdiction to enforce the Clean Water Act, including granting permits.  If the MVP is drilling under the streams and wetlands, it is no longer within the jurisdiction of the Corps of Engineers, at least on these crossings.  The MVP had had difficulty being approved, not because of the Corps of Engineers but because of various court actions.  The new crossing method addresses that problem.

The change also eliminates the possibility that states could object to the crossings.  Even though the Corps of Engineers approves permits, the Clean Water Act gives Virginia and West Virginia the opportunity to object, saying that the projects did not protect water quality.  With no Corps of Engineers permit, there is on opportunity to object.  Last time Virginia had an opportunity to object it did so, pointing out how the pipeline construction would affect water quality.  The last time West Virginia had that opportunity, it waived the right.  

While this decision represents a step forward for the MVP, a happy dance by its developers would be premature.  It still has not gotten approval of how it plans to accommodate endangered species.  Neither does it have permission to cross Jefferson National Forest.  There are also some stream and wetland crossings that it plans to make by the open trench method.  Those must be finally approved.