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WV DEP concedes MVP permit needs to be ‘further evaluated’

DEP Secretary Austin Caperton

State regulators conceded on Wednesday that a state-issued permit for the Mountain Valley Pipeline should have undergone more extensive review to determine whether the controversial project would degrade the water quality in rivers and streams along its 300-mile route through nearly a dozen West Virginia counties.

The state Department of Environmental Protection described the need for further review in a court filing in which it asked the 4th U.S. Circuit Court of Appeals, which is hearing a legal challenge to DEP’s approval of the pipeline, to send the state’s water quality certification for MVP back to DEP.

DEP lawyer Jason Wandling said in the court filing that the agency had “determined that the information used to issue” the certification “needs to be further evaluated and possibly enhanced.”

Wandling specifically noted that the legal challenge — filed by the Sierra Club, the West Virginia Rivers Coalition and other groups — questioned a requirement that DEP, before issuing the permit, “examine compliance with all water quality standards, including a state’s anti-degradation policy.”

Wandling told the court that “in light of that requirement” the DEP “recognizes that it needs to consider its antidegradation analysis” in the MVP permit and “commits to doing so as expeditiously as possible.” Lawyers for MVP and for the citizen groups agreed to DEP’s motion, Wandling told the court.

The DEP court filing comes after the agency late last week quietly informed the U.S. Army Corps of Engineers that it was going to “vacate and remand” the MVP permit.

Wandling had faced a Thursday deadline to file a response to the citizen group legal challenge. The 4th Circuit did not immediately rule on DEP’s request to remand the permit to the state agency, but did approve a short order suspending the deadline for Wandling to file his legal defense of the agency’s permit approval.

“We’re pleased that DEP recognized its 401 certification was defective,” said Derek Teaney, senior attorney at Appalachian Mountain Advocates, who represented the citizen groups. “But it’s a shame that it took a lawsuit to get DEP to do its job.”

The Mountain Valley Pipeline would run about 300 miles from Northwestern West Virginia to Southern Virginia. It is a joint project of EQT Midstream Partners LP; NextEra US Gas Assets LLC; WGL Midstream; and Vega Midstream MVP LLC. The pipeline originates in Wetzel County and goes though Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Greenbrier, Fayette, Summers and Monroe counties before entering Virginia.

Earlier this year, DEP Secretary Austin Caperton refused a request by the citizen groups for a hearing on their administrative appeal of his agency’s approval of the water quality permit for the MVP project. Caperton did not explain his reasons for that decision. The Sierra Club, the West Virginia Rivers Coalition and other groups then filed a court challenge against Caperton and the DEP.

Jake Glance, communications director for DEP, did not respond to questions about the agency’s handling of the pipeline permit.

Natalie Cox, a spokeswoman for MVP, said in an email that the pipeline developer “shares” the DEP’s interest in “protecting the environment along this important project’s proposed route” and looks “forward to continuing to work with the department and other stakeholders to ensure the state’s Section 401 Water Quality Certification complies with federal requirements.”

The MVP project is 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 are drawing opposition from local citizens and from national environmental groups.

In their legal challenge of the DEP permit, the citizen groups among other things specifically challenged the DEP for not fully reviewing the potential for the MVP project to degrade streams, as required by the state’s Clean Water Act anti-degradation rule.

More than 15 years ago, the DEP had sought to exempt projects that receive certain types of permits — such as the Clean Water Act general dredge-and-fill permit that MVP obtained from the federal Army Corps of Engineers — from undergoing a complete anti-degradation review. But in a 2003 decision, U.S. District Judge Joseph R. Goodwin threw out the U.S. Environmental Protection Agency’s approval of that part of the DEP’s water quality rules.

Citizen group lawyers noted that ruling by Goodwin in their brief to the 4th Circuit and commented that water quality standards that haven’t been approved by EPA “are not operative,” meaning that DEP could not use the rule Goodwin threw out to avoid anti-degradation review of MVP.

“We’re glad DEP is acting on what we’ve said all along — consideration of MVP requires much more thorough information and review,” said West Virginia Rivers Coalition Executive Director Angie Rosser. “With DEP recently citing several pipeline projects for damaging our streams, it’s impossible to imagine that this massive pipeline will not impact water quality. They’ve got to get this right.”

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

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