By John McFerrin

            In planning the Mountain Valley Pipeline and getting the permits needed, its developers face a fundamental challenge:  the pipeline, as proposed, must cross 591 streams in West Virginia, not including the ones it must cross in Virginia.  Each of these requires approval from a regulatory agency.  There have been twists and turns along the way to getting this approval, bringing us to where we are now.

            This approval is just what is necessary to make sure the developers have a workable plan and that there is a reasonable assurance that the law will be complied with and water will be protected.  What actually happens on the ground is another matter; more on that below.

Background

            In seeking approval for the part of the pipeline that crosses waterways, developers have two choices: (1) Get an individual permit for each crossing; (2) qualify under a general permit (called a Nationwide Permit, or NWP) that applies to all crossings.  The general permit route is easier and cheaper; it is the one that the developers of the Mountain Valley Pipeline first chose.

Nationwide Permits are issued for large classes of activities. The United States Army Corps of Engineers issues nationwide permits for categories of activities that are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. 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. 

Many in West Virginia have long thought that the Mountain Valley Pipeline was inappropriate for a general permit.  With all the different, difficult terrain that it would cross a one size fits all didn’t seem to fit the Mountain Valley Pipeline.

            Its developers had no such hesitations.  They went ahead with its plans to qualify under the general permit that covers pipelines, known as Nationwide Permit 12. 

            There were snags.

            The first big snag was when a court in Montana vacated Nationwide Permit 12.  The court ruled that when the Corps of Engineers issued Nationwide Permit12 it should have asked the Fish and Wildlife Service about the effect NWP 12 would have on endangered species.  Since it didn’t do that, NWP 12 was void and could not be relied upon as authorization for stream crossings.

            The second snag comes from conditions placed upon NWP 12 by the West Virginia Department of Environmental Protection.  Even though nationwide permits apply to the whole country, states can add conditions that apply within that state.  Before it became clear that the Mountain Valley Pipeline would try to qualify under NWP 12, West Virginia added conditions about how long construction of a stream crossing may take.  On the major waterways that it crosses, the Mountain Valley Pipeline‘s plan does not meet the conditions.

            Litigation over the pipeline’s stream crossings added a small wrinkle when the United States Court of Appeals for the Fourth Circuit ruled that it did not have jurisdiction to do what the court in Montana had done.  This meant that the Mountain Valley Pipeline had made at least some progress in overcoming the first snag.  The second snag remains, however.  The pipeline still may not rely upon NWP 12 for its stream crossings.

Now what’s happening

            With these difficulties standing in its way, the Mountain Valley Pipeline has now applied for individual permits for its water crossings.  The applications include different methods for crossing water bodies, including plans to bore under four of the water bodies.

            The Army Corps of Engineers is currently reviewing the applications.  As part of the review it will publish the applications and accept comments from the public.

            The review may or may not include the active participation by the United States Environmental Protection Agency.  Review of a permit application under the relevant section of the Clean Water Act is the responsibility of the Corps of Engineers.  The Environmental Protection Agency will be informed of the applications and may choose to become actively involved.  It even has the authority to veto the decision of the Corps of Engineers if it believes that granting the permit will cause violations of the Clean Water Act.  The EPA has not yet said whether it intends to take an active role in the review.

Meanwhile, out there on the ground

            The Mountain Valley Pipeline may not have its permits to cross waterways but there are a lot of stretches where it the pipeline does not cross waterways.  Construction has begun on those and it has been a mess.

            In response to the lax construction practices and the resulting damage to state waters, the West Virginia Department of Environmental Protection has taken several enforcement actions, including issuing multiple notices of violation.  The Department then resolves the notices of violation with a consent order.  In the consent order, the company promises to pay a fine and try to do better in the future (the jargon is make a “corrective plan”).

            Consent orders are made available for public comment before they become final.  They are published as drafts, the public has a chance to comment, and then they are final.  The draft consent order for the Mountain Valley Pipeline proposed a fine of $303,000 and a promise to do better in the future.  When offered the chance to comment, the West Virginia Highlands Conservancy and the West Virginia Rivers Coalition, joining together, had a lot to say.

            If this were a dialogue between the groups and the Department of Environmental Protection, it would go like this:

            Groups: What you are doing is not working.

            DEP:  We’re doing things the way we have always done them.

            Groups:  If what you have always done is not working, it is time to do something different.

            As an indication of the present system not working, the comments point to the way water quality violations in pipeline construction keep happening.  In the past six years, there have been nine consent orders issued for repeated violations by pipeline construction companies, including a previous consent order for the Mountain Valley Pipeline.  Each consent order represents numerous violations, a fine, and a corrective plan.  The most recent one issued to the Mountain Valley Pipeline covers twenty nine violations; it comes on the heels of an earlier consent order covering a similar number of violations.   In spite of this, the violations keep happening.  From this, the groups conclude that the penalties are not sufficient to deter future violations.  They are also a lot less than the $2.15 million that the Virginia Department of Environmental Quality fined the Mountain Valley Pipeline for similar erosion control deficiencies.

            In considering the appropriateness of the fine, the size of the project is relevant.  A fine of $303,000 is substantial but this is a six billion dollar project.  The fine is five one thousandths of one per cent of the cost of the project.

            Fines on projects such as this one are based on a formula.  It begins with a base amount which is then enhanced according to the extent of the violator’s negligence, violator’s performance history, harm to the public, harm to the environment, economic benefit to the violator, etc.  The groups’ comments detail how each of these factors would justify increasing the fine levied.