Appeals court grants request for WVDEP to start over on disputed pipeline review

By Kyla Asbury | Oct 19, 2017

CHARLESTON – The U.S. Court of Appeals for the Fourth Circuit has granted a request by the West Virginia Department of Environmental Protection to throw out the DEP’s approval of the Mountain Valley Pipeline and let them start over.

CHARLESTON – The U.S. Court of Appeals for the Fourth Circuit has granted a request by the West Virginia Department of Environmental Protection to throw out the DEP’s approval of the Mountain Valley Pipeline and let them start over.

Under section 401 of the Clean Water Act, states must certify that proposed pipelines will not violate state water quality standards before construction can begin. The DEP has the responsibility to determine whether or not to issue that certification for West Virginia. Although the MVP received FERC approval last week, pipeline construction cannot proceed until DEP issues a new decision.

On Sept. 13, the DEP filed a consent motion for voluntary remand with vacatur, requesting that the court vacate the water quality certification on judicial review in the case and grant the remand. Counsel for WVDEP conferred with counsel from the petitioners and the intervenor respondent and all parties consented to the relief requested in the motion.

On March 23, WVDEP issued a water quality certification under Section 401 of the Clean Water Act to Mountain Valley Pipeline for the proposed Mountain Valley Pipeline project.

On June 9, after their request for a hearing on the certification was denied, Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Appalachian Voices and Chesapeake Climate Action Network filed a timely petition for review in the court under Section 19(d)(1) of the Natural Gas Act.

During its review of the filings in the judicial review proceeding, WVDEP determined that the information used to issue the Section 401 certification needed to be further evaluated and possibly enhanced, according to the motion.

“Among the issues raised by Sierra Club is the requirement that certification under Section 401 of the CWA examine compliance with all water quality standards, including a state’s antidegradation policy,” the motion stated. “In light of that requirement, WVDEP recognizes that it needs to reconsider its antidegradation analysis in the Section 401 certification and commits to doing so as expeditiously as possible.”

On Oct. 17, the court granted the motion.

“We are pleased to see the court is giving West Virginia’s Department of Environmental Protection the chance to fulfill its responsibility and conduct a comprehensive and adequate review of the threats posed to our water quality by the Mountain Valley Pipeline,” said Sierra Club West Virginia Chapter Gas Committee Chair Justin Raines.

Raines said West Virginians, like all Americans, deserve access to clean, healthy water and DEP would fail at its most basic duty if it doesn’t protect West Virginians from fracked gas pipelines.

“This dirty, dangerous pipeline needlessly endangers West Virginia’s waterways, wilderness, and communities, and it should be rejected,” Raines said.

Anne Havemann, general counsel for the Chesapeake Climate Action Network said with Oct. 17’s action, the court has given the DEP a second shot at truly protecting hundreds of West Virginia streams and rivers from the impacts of the massive Mountain Valley Pipeline.

“We expect that DEP will take its responsibility seriously and do everything within its extensive power under section 401 of the Clean Water Act to ensure West Virginians have safe, clean water,” Havemann said. “Anything less would be an abdication of its duty.”

Angie Rosser, executive director of the West Virginia Rivers Coalition said it is assuring that the DEP is taking its obligations under the Clean Water Act seriously, especially on a project that is likely the largest the agency has ever reviewed under Section 401.

“The agency could have simply thrown up its hands and waived its authority, but it didn’t,” Rosser said. “It is up to this task. When FERC issued its certification of MVP last Friday, it expressly said that DEP still has the opportunity through this process to protect water quality. After investing considerable taxpayer resources in this process, if DEP were to waive its authority now and forego that opportunity, it would be an inexcusable breach of the public trust.”

Rosser said citizens of West Virginia must rely on thorough efforts of the DEP to make sure the over 600 streams impacted by this pipeline are not adversely affected.

“MVP has charted a brutally challenging and destructive route across 200 miles of West Virginia mountains, forests and farmlands,” said Judy Azulay, president of Indian Creek Watershed Association. “It is clear in its order that FERC is relying on DEP to fill the holes that the FERC certificate does not address.”

Azulay said citizens will look to DEP to now make a close and careful analysis of the effects of pipeline construction on every stream crossed, as well as the critically important impacts of upland disturbances and “ridgetop removal.”

“If DEP abdicates its responsibility and rubber stamps MVP’s faulty application, how can our landowners and communities trust them to enforce any permit conditions to protect our water and the health of our citizens?” she asked. 

Peter Anderson, Virginia Program Manager for Appalachian Voices said the federal government has recently indicated it will not protect communities from the harsh environmental and public health impacts of a gas pipeline-building bonanza.

“Fortunately, states still have the power and the obligation under the Clean Water Act to ensure that projects like the Mountain Valley Pipeline will not violate water quality standards,” Anderson said. “We are confident that the West Virginia DEP will take its duty seriously and use this opportunity to thoroughly evaluate all of the impacts this project will have on its citizens.”

WVDEP did not return requests for comment.

U.S. Court of Appeals for the Fourth Circuit case number: 17-1714

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