By John McFerrin

The United States Court of Appeals for the Fourth Circuit has temporarily suspended all stream and wetland crossings in West Virginia by the proposed Mountain Valley Pipeline.  The suspension will last at least until further court proceedings scheduled for September.

Background

To go from its beginning in Wetzel County, West Virginia, to its end in Virginia, the Mountain Valley Pipeline must cross 591 streams or wetlands, ranging from substantial rivers to minor streams. Before it may undertake these crossings, the federal Clean Water Act requires that it have permits for the crossings.  These permits are issued by the United States Army Corps of Engineers.

One approach to the necessity of permitting is to apply for a permit for each crossing.  This would require that each crossing be evaluated and approved individually.  This would mean that, for each crossing, a permit would be issued that has conditions specific to that crossing and requirements that would protect the waters at that crossing.

The alternative approach would be to operate under what is called a Nationwide Permit or a General Permit.  The Corps of Engineers has the authority to issue permits for wide categories of activities that have minimal impact.  The idea is that, for some types of activity, if you’ve seen one you’ve seen them all.  There is no need for individual permits for small impacts that are all the same.  A general permit is adequate when the alternative would be multiple, identical permits for small, identical impacts.

The Corps of Engineers has issued a General Permit, known as Nationwide Permit 12 (NWP 12) for pipelines.  It sets out conditions and standards that all pipelines seeking to operate under it must meet.  Because it is a General Permit, the result is that the conditions and standards are the same for every crossing.  One of these conditions is that the crossing must be constructed within no more than 72 hours.

The Mountain Valley Pipeline anticipated operating under Nationwide Permit 12.  It had been approved by the Corps of Engineers to do so.

What happened

The developers’ plans to operate under Nationwide Permit 12 soon began to unravel.  Several citizen and environmental groups (represented by the attorneys at Appalachian Mountain Advocates) challenged the decision by the Corps of Engineers to allow construction pursuant to Nationwide Permit 12 in the United States Court of Appeals for the Fourth Circuit.

The groups argued, in general, that NWP 12 was inappropriate for such a large number of crossings over such difficult terrain.  The one size fits all approach that NWP implies might work where land is flat and soils are uniform.  It would not work in West Virginia where the land is steep and varied.

The groups also focused on four river crossings in West Virginia (Elk, Gauley, Greenbrier and Meadow Rivers).  There is a specific condition in NWP 12 that says that it can only be used when the construction will be completed within 72 hours.   Crossing these rivers would require that the river be diverted while a trench was dug and the pipeline laid.  It would take four to six weeks.

In addition to action in the Court of Appeals, the groups, through their lawyers, wrote the Corps of Engineers asking it to suspend the MVP’s reliance upon NWP 12 and prohibit construction.  As reported in the June issue of The Highlands Voice, the Corps responded by saying, more or less, “oops” and suspended construction on the four river crossings that are obviously not allowed under NWP 12.

Now the Court of Appeals has gone farther.  It has suspended construction on all 591 stream crossings in West Virginia. The suspension is not permanent.  It only lasts until September when further court proceedings could result in making the suspension permanent.

The groups maintain that NWP 12 may not be used for part of a project.  They rely upon federal regulations which say that. It is clear to everyone that the four river crossings could not be constructed using NWP 12.  If NWP 12 cannot be used for those crossings, then it is inappropriate to use it for the project as a whole.  As the lawyers put it in their arguments to the Court, “When it comes to NWP 12, one bad apple spoils the bunch,” simultaneously making their point and demonstrating that lawyers are not the dull and humorless bunch they are stereotyped to be.

The Court’s order only applies to portions of the MVP within West Virginia.  The lawyers have written the Corps of Engineers office that is in charge in Virginia and asked that it take the same action and suspend construction on the part of the line that is in Virginia.