Mountain Valley Pipeline's permit to cross streams in West Virginia faces legal challenge

A state permit that allows the Mountain Valley Pipeline to cross streams and wetlands is muddied by the company’s past violations of water quality standards, environmental groups asserted Tuesday.

In oral arguments to the 4th U.S. Circuit Court of Appeals, an attorney for the Sierra Club and other organizations asked that a certification granted last year by the West Virginia Department of Environmental Protection be struck down.

Derek Teaney told a three-judge panel of the court — which has consistently ruled against Mountain Valley in the past — that the West Virginia state agency should have taken more care to prevent a possible recurrence of muddy runoff from construction sites along the pipeline’s path.

The department’s determination that there was a reasonable assurance that future problems with erosion and sedimentation would not occur, while at the same time downplaying the nearly 140 citations it has issued against the company in the past, is “entirely implausible and internally inconsistent,” Teaney said.

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A ruling by the 4th Circuit is expected later in what is the third round of ligation involving stream crossings for the project.

The Sierra Club also has filed a lawsuit against Virginia’s State Water Control Board, which awarded a similar water quality certification for the portion of the pipeline that passes through Southwest Virginia. Oral arguments in that case are scheduled for December.

Teaney, an attorney for the nonprofit law firm Appalachian Mountain Advocates, began an 87-page filing with the following line: “West Virginia has long resisted the requirements of the Clean Water Act,” which he quoted from a 2018 opinion by the 4th Circuit.

“We would submit that this is just the latest incarnation of DEP’s resistance,” he said of the state environmental agency’s most recent decision that favored a 303-mile natural gas pipeline that begins in West Virginia.

During arguments to the Richmond-based appeals court, questions and comments from the three judges hearing the case suggested they were sympathetic to Teaney’s position, at least in some respects.

“You have to look at the past as a predictor of the future,” Judge Stephanie Thacker said of Mountain Valley’s record of environmental noncompliance since construction of the pipeline began in 2018.

The West Virginia agency has fined Mountain Valley a combined $569,000 for failing to maintain erosion and sedimentation control measures in 2019 and 2021. But in evaluating those cases in light of the company’s application for a new water quality certification, Department of Environmental Protection attorney Lindsay See said, the agency did not consider the 140-some violations surprising. An “overwhelming majority” of the infractions did not involve water quality, See said.

In Virginia, the Department of Environmental Quality has cited the company more than 350 times. Mountain Valley agreed to pay a fine of $2.15 million in 2019.

More recently, a construction site in Wetzel County, West Virginia, was written up in August by state regulators for discharging sediment-laden water that flowed downhill and into a tributary of Stout Run.

In an Oct. 14 letter to the court, Mountain Valley attorney George Sibley asked that the case not be considered. Sibley wrote that construction crews immediately corrected the deficiency, which involved the draining of a trench before a predicted heavy rainfall.

Further, Sibley wrote, the case did not involve a water body crossing and therefore does not speak to the reasonableness of DEP’s prediction that additional violations would not occur at streams or wetlands.

In her questions to Teaney, Thacker asked if the violation should be considered. “It is evidence that proves the falsity” of DEP’s reasoning in granting the certification, the attorney replied.

Mountain Valley contends that the vast majority of violations involving muddy runoff happened in 2018, a year of record rainfall.

“Its track record has improved,” Sibley told the court. “Unfortunately, we had a violation in August, but we’re driving that number down as much as possible.”

At times, Sibley found himself at odds Tuesday with the three judges as they drilled down into the details of what additional precautions were taken by the West Virginia environmental agency in response to the earlier violations, and whether they were adequate.

“I’m not trying to trap you on anything,” Judge James Wynn interjected at one point. “I’m just asking for facts.”

Construction of the pipeline in largely stalled as Mountain Valley applies for a third permit from the U.S. Army Corps of Engineers — the first two were set aside by the 4th Circuit in 2018 and 2020 — to cross streams and wetlands, either by digging a trench through them or boring under them. Water quality certifications from Virginia and West Virginia are a prerequisite for approval by the Army Corps, which has yet to act on the third application.

The buried pipeline, intended to transport 2 billion cubic feet of natural gas a day from Appalachian drilling sites to markets in the Mid-Atlantic and Southeastern regions of the county, will cross about 1,000 rivers, streams and wetlands.

Although Mountain Valley says the pipeline is about 95% completed, water crossings remain a major complication for the $6.6 billion project, which has been delayed nearly four years by legal challenges.

About 460 water bodies and 183 wetlands remained to be crossed, according to the Federal Energy Regulatory Commission.

Approval to cross streams and wetlands is not all that Mountain Valley lacks. Earlier this year, the 4th Circuit struck down a permit for the pipeline to pass through the Jefferson National Forest, and reversed a finding by the U.S. Fish and Wildlife Service that endangered species would not be jeopardized.

Mountain Valley is also seeking renewal of those two permits, and has said it hopes to have the pipeline completed by late next year.

Perhaps its biggest obstacle is the 4th Circuit, where Chief Judge Roger Gregory has joined Thacker and Wynn in about a dozen rejections of permits issued to the project by federal and state agencies.

The company has complained about what it calls an “anti-pipeline” panel, and has asked the 4th Circuit to randomly select another trio of judges to hear future cases. While judges are randomly selected to hear new appeals, it is not unusual for the same panel to be retained when similar cases are subsequently filed.

In August, the court denied without comment Mountain Valley’s request for the indiscriminate drawing of a new panel. The full 4th U.S. Circuit Court of Appeals also has declined a request by the company to rehear the most recent denials by Gregory, Thacker and Wynn.

U.S. Sen. Joe Manchin of West Virginia has proposed a package of permitting reforms that would, among other things, transfer the venue of Mountain Valley cases from the 4th Circuit to the U.S. Court of Appeals for the District of Columbia. That proposal was dropped from a budget resolution last month, but may reemerge as separate legislation.

In other pipeline news, Mountain Valley recently voluntarily dismissed eminent domain proceedings in North Carolina, where it sought to take privately owned land for an extension of the main pipeline that would run from its terminus in Pittsylvania County.

Spokesman Shawn Day said the company remains committed to the Southgate extension, but took the step as evaluations continue about its timing, design and scope. The court action allows the company to refile the lawsuits.

However, pipeline opponents were quick to add the move to Mountain Valley’s recent string of setbacks.

“This decision by MVP is yet another example of how expensive, arduous, and unnecessary this project is,” Russell Chisholm of Giles County, who coordinates a citizen’s watch group that monitors construction, said in a statement.

“The MVP should give up now and stop dragging our communities onto this near-decade long rollercoaster that is sure to end in cancellation.”

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