The West Virginia Department of Environmental Protection (WVDEP) said Wednesday it will waive its Clean Water Act (CWA) Section 401 water quality certification permit for the Mountain Valley Pipeline (MVP), an apparent about-face that comes less than two months after the agency said it would withdraw and reevaluate its review.
WVDEP told FERC Wednesday that it no longer plans to require MVP to obtain the permit before construction begins in West Virginia, a major boon to the 303-mile, 2 million Dth/d natural gas pipeline, which previously seemed at risk of a prolonged state-level review amid legal pressure from opposition groups. WVDEP also reinstated MVP's state stormwater permit, which it previously suspended to "properly respond to all public comments received."
The reinstated stormwater permit, combined with state-specific provisions in the U.S. Army Corps of Engineers' Nationwide 12 permit for MVP, "will allow for better enforcement capabilities and enhanced protection for the state's waters,” state regulators said.
"This is a case where the public review and comment system worked especially well," said WVDEP Secretary Austin Caperton, who formerly worked as a consultant for the coal industry. "This summer, after months of diligent work, WVDEP put forth for public review and comment a draft certification and permit for the MVP pipeline. As a result of some of the issues that were included in those public comments, our agency developed a revised strategy that will better utilize the state stormwater permit to provide significantly stronger safeguards for the waters of West Virginia."
WVDEP said its stormwater permit program is specific to oil and gas activities and "was purposely designed to provide protection from the impact of large-scale projects like the MVP that are otherwise exempt from federal National Pollutant Discharge Elimination System permit conditions."
WVDEP’s decision “reinforces West Virginia's commitment to protecting the state's waterbodies," MVP spokeswoman Natalie Cox told NGI. "Reinstatement of the stormwater permit requires enhanced management best practices and increases the degree of assurance that MVP construction activities will be conducted in a manner that will preserve and protect water bodies along the route. The MVP project team is committed to complying with the permit, and this decision by the WVDEP will not impact MVP's currently filed timeline, which targets an in-service for late 2018."
In September, WVDEP, facing a court challenge, said it would withdraw its CWA 401 certification for MVP "out of an abundance of caution, and to ensure that all aspects of the potential environmental impact of MVP are considered," according to an agency spokesman. The U.S. Court of Appeals for the Fourth Circuit then granted WVDEP's motion to scrap its review.
The withdrawal had appeared to indicate that WVDEP would issue a new CWA 401 certificate to address concerns, not bypass the permit altogether, and opposition groups voiced their displeasure following the agency's announcement Wednesday.
Appalachian Mountain Advocates, representing the Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Appalachian Voice and the Chesapeake Climate Action Network, had petitioned the federal appeals court to strike down WVDEP's CWA 401 certificate as "arbitrary and capricious," criticizing the "brevity" of the agency's review. Those groups said they are now exploring their legal options, calling the waiver a "dereliction of duty."
"This is an outrageous and unprecedented dereliction of duty by DEP,” said attorney Derek Teaney of the Appalachian Mountain Advocates. “After assuring a federal court that it was committed to reconsidering whether the MVP would degrade the hundreds of streams that it would impact, DEP has thrown up its hands and admitted that it is not up to the task of protecting West Virginia’s environment. This action suggests that DEP does not believe in the laws -- including the antidegradation policy -- that it is charged with enforcing. It also makes you wonder whether DEP intends to give the Atlantic Coast Pipeline...the same free pass it has just given to MVP."
Judy Azulay of the Indian Creek Watershed Association called WVDEP's decision "incomprehensible."
"Instead of issuing enforceable conditions for the 401 permit, WVDEP allows MVP to pen its own free pass to pollute. Instead of overseeing this unprecedented construction project, WVDEP turns a blind eye to the evidence documented in annotated maps and reports submitted by Indian Creek and other organizations and West Virginians identifying specific areas where the MVP would cause unacceptable degradation of our water," Azulay said. "How can our governor and his appointees allow WVDEP to abandon its mission and turn its back on the people and our natural resources?"
Last week, a coalition of environmental groups had urged West Virginia Gov. Jim Justice to "apply ample resources" to the CWA 401 review for MVP.
The state CWA 401 permitting process has gained traction as an avenue for opposing pipeline projects since New York regulators denied a water permit for the Constitution Pipeline in 2016, effectively stalling that project, even though it had secured Federal Energy Regulatory Commission approval.
MVP received federal certification last month in a rare split decision at FERC. Democratic Commissioner Cheryl LaFleur cited the cumulative impacts and similarities between MVP and the Atlantic Coast Pipeline (ACP) in her decision to withhold approval for the projects as currently proposed.
Opposition groups, aided in part by LaFleur's dissenting opinion, have turned to state regulators in West Virginia, Virginia and, in the case of ACP, North Carolina, to try to frustrate progress on the projects, which would both cross through sensitive and largely undeveloped terrain along the West Virginia/Virginia border.
ACP and MVP would connect gas to markets in the Southeast and mid-Atlantic. Both projects expect to begin construction this year, with MVP targeting a late 2018 start-up and ACP planning to enter service in the second half of 2019.
MVP is a joint venture between EQT Midstream Partners LP, NextEra US Gas Assets LLC, Con Edison Transmission Inc., WGL Midstream and RGC Midstream LLC.