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WV DEP waives Clean Water Act authority over Atlantic Coast Pipeline

By KEN WARD JR.

Charleston Gazette-Mail

CHARLESTON, W.Va. — The West Virginia Department of Environmental Protection on Wednesday waived the state’s authority under the federal Clean Water Act to determine if another major natural gas pipeline proposal would harm rivers and streams.

The DEP announced in a news release that the agency had waived its legal authority to decide if the Atlantic Coast Pipeline would violate West Virginia’s water quality standards. Agency officials also released copies of letters to the Federal Energy Regulatory Commission and the U.S. Army Corps of Engineers informing those agencies of the DEP’s waiver decision.

The announcement is the second time in a little more than a month that the Gov. Jim Justice administration has waived the state’s authority to certify — or refuse to certify or add conditions — that a natural gas pipeline proposal would comply with the state’s water quality standards. On Nov. 1, the DEP announced a similar waiver decisionregarding the Mountain Valley Pipeline.
The Mountain Valley project would run from Wetzel County, West Virginia, to Pittsylvania County, Virginia.

The Atlantic Coast Pipeline would run from Harrison County to southeast North Carolina. The two projects are among a collection of pipelines that are proposed or under construction across the region that are meant to take advantage of the Marcellus Shale gas boom, but they are drawing opposition from residents and from national environmental groups.

Under Section 401 of the Clean Water Act, states are given authority to certify whether any activity needing a federal permit — such as a natural gas pipeline — would comply with that state’s water quality standards.

States may waive that authority, either voluntarily or involuntarily. Involuntary waivers occur when states don’t act on a project’s request for Section 401 certification within a year. The Section 401 authority is not only an up-or-down approval of a project given its water quality effects, it also can be used by state regulators, like the DEP, to specify additional steps a developer must take to protect rivers and streams.

Legal experts have said the DEP’s decision to waive its 401 authority is at odds with the state’s long-standing complaint that too many environmental policy decisions are made on the federal level, rather than being left to state regulators.

The DEP announced the Atlantic Coast Pipeline 401 waiver in a news release that focused on the agency scheduling two public hearings later this month on the ACP project’s application for a construction stormwater permit from the state. The hearings will be held Dec. 18, at Buckhannon-Upshur High School, and Dec. 21, at Pocahontas County High School. Both hearings will start at 6 p.m.

In its news release, the DEP said the construction stormwater permit, along with state conditions added to a Corps of Engineers “dredge-and-fill” permit for the pipeline, will provide state officials with “broader” inspection and enforcement authority than surrounding states that don’t have a similar construction stormwater permitting program or permit conditions.

The DEP decisions to waive its 401 authority over the two pipelines follows a legal challenge before the 4th U.S. Circuit Court of Appeals over West Virginia’s initial determination that the Mountain Valley Pipeline would not violate state water quality standards.

The citizen group legal challenge prompted the DEP to concede that the MVP water quality certification needed to be re-evaluated. The DEP told the 4th Circuit that it planned such a re-evaluation, but then decided to instead waive its 401 authority. Generally, that waiver can’t be appealed to a federal court.

When the MVP waiver was announced, DEP Secretary Austin Caperton said in a West Virginia MetroNews radio interview, “We feel very comfortable that this pipeline can be installed in an environmentally sound manner and that the environmental impacts ultimately will be zero.”

Reach Ken Ward Jr. at [email protected], 304-348-1702 or follow @kenwardjr on Twitter.

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