WV DEP, its chief challenged on pipeline approval

DEP Secretary Austin Caperton

Five local, state and national citizen groups have asked a federal appeals court to overturn the West Virginia Department of Environmental Protection’s approval of a state authorization for the Mountain Valley Pipeline.

Lawyers for the groups filed their petition for review Friday afternoon with the 4th Circuit Court of Appeals in Richmond, Virginia.

Last month, DEP Secretary Austin Caperton refused to grant a hearing to environmental groups and citizens who filed an appeal after his agency approved a Clean Water Act certification for the MVP project.

In a two-paragraph letter, dated May 10, Caperton did not state a reason for his denial. The DEP did not publicly announce that decision, and agency spokesman Jake Glance did not respond to a request for an explanation or comment on Caperton’s decision.

The natural gas pipeline would run about 300 miles, from Northwestern West Virginia to Southern Virginia. It is a joint project of EQT Midstream Partners LP, Next-Era US Gas Assets LLC, WGL Midstream and Vega Midstream MVP LLC.

According to the DEP, the pipeline originates in Wetzel County and goes though Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Greenbrier, Fayette, Summers and Monroe counties before entering Virginia.

The permit in question is a certification under Section 401 of the Clean Water Act that the pipeline activity will not violate the state’s water quality standards or stream designated uses.

In appealing the DEP’s approval to Caperton, citizens and organizations said the agency did not have enough information to draw such a conclusion.

“With the MVP proposing to cross streams more than 600 times in West Virginia alone, it’s startling the bar was set so low on information required from the applicant,” said Angie Rosser, executive director of the West Virginia Rivers Coalition, one of the groups that filed the 4th Circuit petition. “Especially for a project of this magnitude, we expect a lot more detail. Without the complete information and analysis, there’s no way that West Virginians can be assured their rivers and streams won’t pay a price.”

Unlike many other permitting decisions, an appeal of a DEP 401 certification does not go to a board like the state Environmental Quality Board, but to the agency secretary. Under the DEP’s own rules, the secretary has discretion on whether to even hold a hearing on such an appeal.

When it initially approved the pipeline’s 401 certification, the DEP issued a news release about the action and pointed members of the news media to the MVP developer’s website for “information about the potential economic benefit” of the project.

Groups filing the appeal of Caperton’s decision with the 4th Circuit include the Sierra Club, the West Virginia Rivers Coalition, the Indian Creek Watershed Association, Appalachian Voices and the Chesapeake Climate Action Network. The groups are represented by attorneys with Appalachian Mountain Advocates.

“This pipeline threatens to do irreparable harm to Appalachia’s treasured streams and forested hillsides, and it is crucial that the state thoroughly examine these impacts rather than rubber-stamping a project that is bad for our communities and the environment,” said Deb Self, senior campaign representative for the Sierra Club’s Beyond Dirty Fuels campaign.

“State environmental regulators need to start taking their duties seriously,” said Peter Anderson, a program manager for Appalachian Voices. “They must rigorously analyze impacts on water, soil and forests, rather than taking the industry view that the permitting process is an annoying bump in the road. These agencies are public health institutions at their heart, so they should act like it.”

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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