By Cindy Rank
Developers (Dominion) of the previously canceled Atlantic Coast Pipeline (ACP) are currently considering how to reclaim the abandoned areas of its now defunct plans for its giant gas pipeline that would have run through WV, VA and North Carolina – i.e., whether or not to leave the already-buried pipe in the ground, to leave or clear away the trees already cut down along portions of the right-of-way, and to work with landowners to decide what to do about easements [the Highlands Voice, August 2021].
On a somewhat parallel path a bit to the south Equitrans Midstream continues its quest for permit approval of the Mountain Valley Pipeline (MVP) – the big 42” pipeline planned to run nearly 200 miles from Wetzel County through Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Fayette, Greenbrier, Summers and Monroe in West Virginia and on through 6 Virginia counties for another 107 miles.
Having received fines for water quality violations of nearly $600,000 in WV (so far) and over $2 Million in VA, as well as being denied an extension into North Carolina and facing legal challenges by concerned citizens at every turn, one wonders what is keeping this monster afloat.
But that is a question and discussion for another time.
The focus of this update is to explain where things stand with the water permitting puzzle that has kept MVP at bay so far. Steep slopes, heavy rains, sediment flows, and ill-conceived stream crossings continue to plague the project as the various agencies chime in with requirements specific to each of their individual programs.
Federal Energy Regulatory Commission (FERC)
Before FERC can approve the overall plan for MVP, the company needs a permit from the United States Army Corps of Engineers (Corps) to cross streams and wetlands. MVP had hoped that its hundreds of stream crossings could qualify for approval under what is called a Nationwide Permit. This is a one size fits all approach to permitting all stream or wetlands crossings. MVP ran into difficulties with this approach (see The Highlands Voice, May, 2020; June, 2020; October, 2020; December, 2020; January, 2021; April, 2021, June, 2021) and has since decided, instead, to propose different construction methods to tunnel under the streams. This revised approach is what FERC has been examining.
On August 13, 2021 FERC staff issued an Environmental Assessment (EA) which concluded that although MVP’s change in construction methods would result in more emissions and more noise, the impacts would be temporary, short-term, and ‘not significant.’
Should the EA stand, it would allow for FERC approval of the MVP project once Equitrans was given its 404 permit authorization from the Corps. Comments on the Assessment are due September 13th. Needless to say, there will be many.
HOWEVR, AS MENTIONED, MVP must first obtain that 404 Clean Water Act permit for crossing streams and wetlands from the Army Corps of Engineers.
U.S. Army Corps of Engineers (Corps)
While the Corps of Engineers is authorized to make a decision to approve a 404 permit, the Environmental Protection Agency (EPA) reviews the permit application and can make recommendations. The Corps must also entertain comments from the public, and receive the blessing of the state via its 401 Certification process to ensure the project will not violate state water quality standards or special conditions the state requires. This certification also requires public input.
In a letter to the Corps dated May 27, 2021 (and obtained via a Freedom of Information request by Appalachian Mountain Advocates – Appalmad) EPA recommended the permit be denied – at least in its current form.
The EPA set forth its concerns in detail and drew the following conclusion:
“… it appears that the project, as proposed, may not comply with the [404b1] Guidelines. It is not apparent that all impacts have been minimized nor is it evident that the direct, secondary, and cumulative impacts have been thoroughly evaluated and mitigated so that the proposed project will not cause or contribute to significant degradation of the waters of the United States.
…EPA recommends modifications to the permit application and project be undertaken to address the detailed comments identified in the attached enclosures. EPA also requests the opportunity to meet with the Corps and others to work collaboratively to address EPA comments. At this time EPA recommends that the permit not be issued until modifications described in the attachment, including the recommended special conditions, have been addressed and incorporated into the project.”
It remains to be seen how the developers of the Mountain Valley Pipeline and the Corps of Engineers respond. [The Highlands Voice, August, 2021]
State 401 Certification
Virginia has just issued a draft water quality certification for the pipeline indicating the Virginia Department of Environmental Quality (VADEQ) is reasonably assured that the permit will not violate applicable water quality standards or contribute significant impairment of state waters in the 107 miles of the pipeline that crosses Virginia.
Public comments will be received until October 27th. Final decision is due December 31, 2021.
West Virginia received comments on its proposed 40 1 Certification on June 22, 2021 and the final decision is expected November 29th.
In each of these stages WV Highlands Conservancy joined several state groups in comments submitted by WV Rivers Coalition and with a number of regional groups in more legally focused lengthy comments submitted by Appalmad.
So, there we have it. The pieces of the puzzle are out on the table. It remains to be seen just how, or if, they will all fit together and just what the final picture might be.