WV DEP waives water review authority, paving way for Mountain Valley Pipeline

By KEN WARD JR.

Charleston Gazette-Mail

CHARLESTON, W.Va. — The Justice administration on Thursday moved to pave the way for the controversial Mountain Valley Pipeline, reissuing a permit covering the pipeline construction’s stormwater pollution and also giving up the state’s broad legal authority to determine if the $3.7 billion project would harm West Virginia’s rivers and streams.

The state Department of Environmental Protection informed the Federal Energy Regulatory Commission and the U.S. Army Corps of Engineers that the DEP was waiving its key authority under the federal Clean Water Act to determine if the MVP project would violate West Virginia’s water quality standards. FERC has already issued a certificate of “public convenience and necessity” for MVP, while the Corps continues to review the project’s application for a stream “dredge-and-fill” permit.

The DEP’s action — announced in a press release and a talk radio appearance by agency Secretary Austin Caperton — focused on the state lifting a previous suspension of MVP’s approval under a state permit that covers “stormwater associated with oil and gas related construction activities.”

“We feel very comfortable that this pipeline can be installed in an environmentally sound manner and that the environmental impacts ultimately will be zero,” Caperton said on the West Virginia MetroNews program “Talkline.”

Citizen groups and environmental organizations, though, said the most significant move by the DEP was its waiver of state authority under Section 401 of the Clean Water Act to decide if the pipeline, as approved by FERC and under review by the Corps, would violate state water quality rules.

“[The] DEP is a taxpayer-supported agency whose job it is to protect public health and the environment,” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “But when it came to one of the biggest projects DEP needed to review to protect water quality, the agency quit on the citizens of the state.”

The DEP’s decision to waive its water quality certification authority came less than two months after the agency conceded— when challenged by a citizen group lawsuit — that the MVP water quality certification that the state had issued in March needed to be re-evaluated.

“This is an outrageous and unprecedented dereliction of duty by [the] DEP,” said Appalachian Mountain Advocates senior attorney Derek Teaney. “After assuring a federal court that it was committed to reconsidering whether the MVP would degrade the hundreds of streams that it would impact, [the] DEP has thrown up its hands and admitted that it is not up to the task of protecting West Virginia’s environment.”

Outside legal experts said the so-called “401 waiver” by the DEP was especially unusual coming from a state government that spends a lot of time and energy asserting that federal agencies should leave environmental protection decisions to the states.

“That’s definitely schizophrenic,” said Pat Parenteau, environmental law professor at Vermont Law School. “It’s certainly inconsistent.”

The MVP project is one of a collection of pipelines proposed across the region as part of the boom in natural gas drilling in the Marcellus and Utica shale formations. MVP, a joint venture between EQT Midstream Partners LP; NextEra US Gas Assets, LLC; Con Edison Transmission, Inc.; WGL Midstream; and RGC Midstream, would run about 300 miles from Wetzel County, West Virginia, to Pittsylvania County, Virginia.

The 42-inch-diameter pipeline involves a 125-foot-wide construction corridor and a 50-foot-wide permanent right of way. Construction would disturb nearly 4,300 acres of land in West Virginia, and require more than 600 stream crossings and more than 400 wetlands crossings.

MVP needs several permits from different state and federal agencies with authority over separate, but often related, issues.

For example, while FERC and the Corps of Engineers handle review of certain aspects of the pipeline, Section 401 of the federal Clean Water Act makes those permits subject to state authority to certifiy whether the activities under those federal permits would comply with the state’s water quality standards. States may waive that authority, but it’s very rare for the DEP to do so.

Earlier this year, the DEP issued a water quality certification for MVP after holding multiple public hearings and receiving hundreds of public comments. Just days before agency lawyers were due to respond to a citizen group legal challenge of that certification, the agency pulled back both the certification and the project’s construction stormwater permit, promising additional evaluation of the project.

The DEP has never publicly explained how exactly it was going to re-evaluate the MVP water quality certification application, and just last week a coalition of citizen groups wrote to Gov. Jim Justice asking him to ensure the state agency had adequate resources for the reevaluation. Neither the governor’s office nor the DEP responded to questions about the citizen group letter.

In its press release on Wednesday morning, the DEP downplayed the water quality certification waiver, and instead touted “permit adjustments” that it said “will allow for better enforcement capabilities and enhanced protection for the state’s waters.”

Caperton said in the press release that his agency had “developed a revised strategy that will better utilize” the state’s stormwater permit “to provide significantly stronger safeguards for the waters of West Virginia.” The press release did not explain the revised strategy or specify any of the “permit adjustments,” and DEP spokesman Jake Glance did not respond to a request for an interview with Caperton about the MVP project.

Natalie Cox, a spokeswoman for MVP, said that the reinstated stormwater permit “requires enhanced best management practices and increases the degree of assurance that MVP construction activities will be conducted in a manner that will preserve and protect waterbodies along the route.” Cox also did not provide any examples of these changes in the stormwater permit.

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