CHARLESTON, W.Va. - West Virginia Department of Environmental Protection (WVDEP) Cabinet Secretary Austin Caperton sent the following letter to all staff this morning explaining the agency's decision on the Mountain Valley Pipeline.
"There’s been a lot of news coverage recently of the WVDEP’s decision regarding the Mountain Valley Pipeline. Many of you have been asked questions by friends or family about exactly what this agency did, what we didn’t do, and how we arrived at our decision.
"I’d like to explain how this agency is protecting water quality with its permits.
"First, it is important to understand Section 401 Certifications and Section 404 permits. Section 401 of the federal Clean Water Act allows states an opportunity to ensure federal permitting actions will comply with a state’s water quality standards. The US Army Corps of Engineers (USACE) issues Clean Water Act Section 404 stream crossing and wetland permits, allowing fill to be placed in streams and wetlands. This permit is not for upland activities. The USACE can issue either an individual 404 permit for a particular activity or a general permit known as a Nationwide Permit. Nationwide Permits are used for common activities like highway construction or utility line construction. The USACE reissues Nationwide Permits every 5 years and likewise states are given an opportunity to issue 401 Certifications for these permits every 5 years.
"The timeline is important to understand WVDEP’s actions. WVDEP issued a 401 individual water quality certification for the Mountain Valley Pipeline project on March 23, 2017.
"That 401 Certification had several conditions to ensure that temporary impacts to West Virginia’s waters would be minimized, and mitigation would be provided for permanent impacts. Importantly, during the same period of time that the WVDEP was working on this MVP individual certification, it was also developing special conditions for the reissuance of the USACE nationwide permit. This permit is called the Nationwide 12 permit. It is typically used by the USACE for utility line construction (including pipeline stream crossings). The special conditions West Virginia included in it is certification on the newly reissued Nationwide 12 permit (in April 2017) largely mirrored the conditions that West Virginia had previously placed (in March 2017) on the MVP’s 401 Individual Certification.
"An appeal was filed on Aug. 15, 2017 against WVDEP in the Fourth Circuit Court of Appeals, raising the issues of antidegradation, karst, and the response to public comments. The WVDEP vacated and remanded the 401 Certification to re-evaluate the complete application. During this re-evaluation it was determined that, while the agency could defend against the arguments raised in the appeal, some of the issues raised were better addressed in the state Oil and Gas Construction Stormwater Permit (WV0116815).
"This state permit was issued nearly five years ago to cover oil and gas construction activity. Those activities were otherwise exempt from needing a federal National Pollutant Discharge Elimination System (NPDES) permit. Based on West Virginia’s experiences, it had become obvious that oil and gas construction activity needed to be permitted to protect water quality in our state. West Virginia is unique among its surrounding states in that it has this specific state permit to cover oil and gas pipeline construction activity.
"Because the newly issued Nationwide 12 permit included updated state conditions that were similar to those contained in MVP’s previous individual 401 Certification, WVDEP determined it was unnecessary to repeat them in an Individual Certification. As a result, it waived the 401 Certification. Through its use of the Construction Stormwater Permit, WVDEP will now take full control of the inspection and enforcement of this entire project – in both upland areas and at stream and wetland crossings.
"To be clear – by waiving the 401 Individual Certification, we are not abandoning our duty to protect the water quality of West Virginia. In fact, the new Nationwide 12 permit is 401 certified by West Virginia and includes state specific conditions relative to pipelines. Combined with the state Construction Stormwater Permit, we are in a stronger position to effectively regulate all pipeline construction in West Virginia.
"I take our duty to protect the environment seriously, and will use all of our resources to make sure this project, and any other project, adheres to the conditions of its permit."
WVDEP Cabinet Secretary