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Waiver aside, WV regulators express confidence in pipeline oversight

CHARLESTON, W.Va. — West Virginia environmental regulators drew scrutiny this month by waiving the state’s option to tailor its own requirements within a federal permit for the enormous and controversial Mountain Valley Pipeline.

Trying to better explain their rationale, the state’s regulators say they weren’t giving up their say-so but instead were opting for a different form of oversight.

Observers with environmental groups have said they need to do more homework to determine if what the Division of Environmental Protection is saying holds water. Others contend DEP’s decision is really a way to deflect criticism while capitulating to the pipeline developers.

It’s a complicated but important discussion as the state prepares for the likelihood of the Mountain Valley Pipeline, which would cross Greenbrier, Monroe, Nicholas, Summers, Braxton, Harrison, Lewis, Webster and Wetzel counties.

The $3.5 billion Mountain Valley Pipeline would extend 42-inch diameter natural gas pipeline over 303 miles  to transport West Virginia natural gas into southern Virginia.

West Virginia oversight decisions

West Virginia regulators say the path they’ve chosen will provide necessary oversight. They describe a two-pronged approach.

They say that during the past months they have strengthened the state’s particular requirements in a nationwide U.S. Army Corps of Engineers permit that is reissued every five years. In regulatory lingo, this is sometimes called a 404.

They also intend to rely on state regulation through a West Virginia stormwater discharge permit that would cover the entire length of the pipeline. The state stormwater discharge permit, they say, would allow for direct state enforcement, rather than having to rely on federal authority.

Through the enforcement tools of both means, they said, there’s enough leverage to assure water quality along the entire length of pipeline construction — and for the state to be able to waive its option to provide West Virginia-focused regulatory requirements for an Army Corps of Engineers permit known as a 401.

Austin Caperton

“We aren’t delegating any rights from the government,” state Division of Environmental Protection Secretary Austin Caperton said last week during a lengthy interview about the state’s permitting decisions at his office in Charleston.

“The Corps of Engineers can still come in and enforce under this, but we can enforce under our policy the minute we see something wrong — stream crossings, upland — doesn’t make any difference; we’ve got the enforcement power. So we keep the enforcement to ourselves and don’t, in fact, delegate it to the federal government. I’m almost starting to sound like a preacher here.”

Concerned community groups

Angie Rosser

The day after the Division of Environmental Protection announced its approach, Angie Rosser of the West Virginia Rivers Coalition called the agency with alarm and curiosity.

“This was surprising. This was an about face of what we thought the direction this was going,” said Rosser, who is the executive director of the clean water advocacy organization. “I can say I’m really glad that they’re accessible and answering any questions we may have.”

Rosser gained access for her own sit-down explanation at DEP. She’s withholding judgement but has continued to ask for more information to verify whether DEP really has the equivalent enforcement tools compared to what it waived.

“We’re looking for ‘What did we lose with this 401 waiver?'” Rosser said in a telephone interview. “DEP claims ‘All is well and we’ve got it covered with these other permits.’ This is unprecedented with such a large project to waive a 401 water quality certification.”

Citizens groups, through an earlier appeal in federal court, had asked for greater assurances on questions of public participation, water degradation and how the pipeline construction would manage the unique, porous karst terrain of Summers and Monroe counties.

“I think they think they even have stronger enforcement power taking this route,” Rosser said. “We’re doing our fact-checking exercise right now. We want to listen to their approach and take back the documents and see if it lines up. I don’t think I’ll be convinced that waiving the 401 was a good idea. Why not do it all just to be sure?”

The regulatory timetable

Timing was a major factor in DEP’s decisions, regulators said.

DEP originally issued an individual, 401 permit for Mountain Valley Pipeline in March. That was a year after the pipeline developers had applied for their permit and signified a deadline. Without action on the permit by the one-year mark, regulators said, an automatic waiver would have kicked in.

After that, in May, the Corps of Engineers completed its 5-year reissue of the nationwide permit.

The review state regulators completed in preparing for the individual Mountain Valley Pipeline permit prompted them to include many of the same requirements as West Virginia-based aspects of the nationwide permit, the regulators said.

“We hadn’t done a lot of large pipelines like this,” said Scott Mandirola, director of DEP’s Division of Water and Waste Management. “We realized when we were going through that individual certification that we need to put a lot of these conditions into this nationwide because this is becoming a very big activity.

“We knew ACP was coming. We’ve got Mountaineer Express. Transcanada Pipeline. There’s Rover out there. There’s all kinds of pipeline activity so we realized that.”

The situation and timeline changed because of action in the appeals court system.

This fall, environmental groups appealed and took the state to task over aspects of the Mountain Valley Permit having to do with water degradation and management of construction in the karst terrain.

During the appeal, the state asked for its permitting to be remanded for further evaluation. The environmental groups took that to mean the state was agreeing it needed to toughen up the Mountain Valley Pipeline permit while continuing on the path already established.

But with the reset, regulators decided instead to waive the individual permit and rely on the national requirements they’d just revised along with the state stormwater permit.

More questions

Derek Teaney, senior staff attorney for Appalachian Mountain Advocates, contends DEP is being disingenuous when it provides that explanation.

“DEP’s response is a smokescreen to disguise its capitulation to the pipeline company,” Teaney said in an emailed response to questions about DEP’s rationale.

“DEP is also disingenuous to say that the stormwater permit addresses the issues raised in the federal appeal.  West Virginians have been demanding from the beginning that DEP require the pipeline to ‘show its work,’ calculate the amount of sediment that will flow from the pipeline corridor, and take a hard look at each individual affected stream. The stormwater permit simply does not do that.”

Teaney, whose organization was active with the earlier federal appeal, says DEP should have continued down the path of strengthening the 401 permit, rather than waiving it. He believes the state stormwater permit is no substitute.

“As for the ‘unique oversight’ of the stormwater permit, if DEP thinks that it is an adequate substitute for Section 401 of the Clean Water Act, then DEP doesn’t understand its own laws,” he said. “Section 401 requires a state to look comprehensively at all of a project’s discharges into streams; the stormwater permit looks only at one aspect.

“Section 401 also allows states to have a voice in federal projects within their borders by allowing them to place conditions on the federal permit. It’s amazing to me that DEP would forego that opportunity to have the final say on how the Mountain Valley Pipeline will affect West Virginia waters.”

The state response

The DEP’s Caperton contends the stormwater permit allows state regulators to cover the full length of affected streams, rather than just crossings. He also emphasizes it as a tool for state oversight, rather than federal.

“The biggest difference between the two is this (404) only covers stream crossings,” he said. “If you go from this valley to that valley, this crossing is covered and that crossing is covered but nothing in between. But our stormwater permitting covers everything in between.

“Every single thing that’s disturbed, they have to account for the runoff from that particular disturbance. So actually, it’s much stricter than the 404 in its scope.”

Oversight responsibility

Rosser says DEP has a lot of work to do to convince citizens who live along the pipeline route that the agency is exerting its authority. DEP can provide greater assurance, she said, by demonstrating it intends to hold the pipeline developers accountable.

“We need to see a real investment in monitoring and enforcement within the DEP,” she said. “It’s possible we could have three major pipelines: MVP, Atlantic Coast and Mountaineer Express all being constructed at the same time.”

DEP’s regulators say they agree with that assessment.

They say there’s talk of expanding the number of inspectors available for the projects. Right now there are seven members of the agency’s statewide stormwater construction enforcement crew. Additional hires could be dedicated to daily on-site observation of MVP’s construction.

“That’s where the rubber meets the road,” Mandirola said.

“They can agree to do everything that’s required in the permit, and we believe that will keep sediment from getting into the stream. The next step is to make sure they’re doing it. On a daily basis when it’s under construction to have inspectors there and for them to know that they’re going to be seeing inspectors all the time, such that they follow all the requirements on their permit.”

Pat Campbell, deputy director for DEP’s Water and Waste Management division, said there will be oversight from federal inspectors, from state inspectors, from citizens and from the company itself.

“There’s a lot of eyes on this,” Campbell said. “FERC has environmental inspectors on these interstate lines that will be there on construction. The company has their own environmental inspectors that will be on site. We typically fly these lines with helicopters.

“And on top of that there’s a lot of citizens mobilized. We will get calls from them if they see something that’s wrong. This is going to get a lot of attention. When something goes wrong, we’ll hear about it.”

What’s ahead

Caperton said he feels comfortable enough with the regulatory options DEP has chosen to take the same path for projects such as the Atlantic Coast Pipeline or the Mountaineer Express.

“Now that we have the West Virginia permits in here, we’re very comfortable with going with the nationwide permit with the West Virginia conditions combined with our stormwater permit,” he said.

“We’re very comfortable with the nationwide permit with the West Virginia conditions and we’ll want to focus our efforts on the state permit, which gives us the enforcement capability and covers the entire line instead as opposed to just the stream crossings.”

Rosser says she’s willing to consider that, but she’s still looking for proof.

“We take a careful look at this stuff,” she said. “We don’t want to have a kneejerk reaction, but I can tell you from a public perception of people along these pipeline routes they feel betrayed and believe that this move is some sort of signal that they’re not going to protect property and water.

“It’s a signal to the politics that might be involved in this, a question of compelling the agency to do what’s needed through court actions. For us that’s the last resort. It just, on its surface, looks like they’re bailing on a responsibility they have to the citizens of this state. No other state has done this on a pipeline project of this scale.  Now what DEP will say is ‘We’re unique in that we have this state stormwater permit.'”

Caperton says the agency also needs to be held to a high standard. He promised during an appearance on MetroNews’ “Talkline” that there would be zero environmental impact from the pipeline construction. He walked that back a bit during the interview at his office, but still said zero environmental impact should be the goal.

“I do think we as an agency want to strive for zero ultimate impact,” he said. “In other words we want all the water that goes past any of these activities to come out the same way it went in from above.

“And I do believe over the course of time that will be the case — that we will get as close to zero as you can possibly get, taking into account we still have to do some economic development in our state and we still have to issue permits to valid activities.”

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