DEP again waives federal permitting authority for Atlantic Coast Pipeline

CHARLESTON, W.Va. — West Virginia’s Department of Environmental Protection will waive its option to tailor the state’s own requirements within a federal permit that’s specific to the Atlantic Coast Pipeline.

Instead, West Virginia intends to rely on newly-updated, state-focused requirements in a nationwide U.S. Army Corps of Engineers permit that is reissued every five years — as well as a state stormwater permit that regulators call unique compared to enforcement options in other states.

“Combining the special conditions in the USACE Nationwide permit with the broader regulatory oversight in the West Virginia pipeline construction stormwater permit will provide for a level of inspection and enforcement on this large project that is not available in any surrounding state,” DEP wrote in an announcement today.

The agency made the same decision last month with the similar but separate Mountain Valley Pipeline and drew scrutiny from environmental groups who said waiving state-focused authority is unusual and an abdication of the state’s particular oversight role.

The $5.1 billion Atlantic Coast Pipeline would span 600 miles from Harrison County and across Lewis, Upshur, Randolph and Pocahontas counties in West Virginia through Virginia and into North Carolina. It’s a project by Dominion Energy, Duke Energy, Piedmont Natural Gas and Southern Company Gas.

For the Atlantic Coast Pipeline, the agency sent letters from Scott Mandirola, director of DEP’s Division of Water and Waste Management, to both the U.S. Army Corps of Engineers and the Federal Energy Regulatory Commission.

MORE: Read the letters to the Army Corps of Engineers and to the Federal Energy Regulatory Commission.

The Division of Environmental Protection plans to have two public hearings this month about the stormwater permit for the Atlantic Coast Pipeline.

Public hearings for the pipeline construction stormwater permit have been scheduled for Dec. 18 at Buckhannon-Upshur High School and Dec. 21 at Pocahontas County High School. Both public hearings begin at 6 p.m.

“If approved, the pipeline construction stormwater permit would give WVDEP wide-ranging inspection and enforcement authority over the project,” the agency stated in a news release today.

“The pipeline construction stormwater permit is an additional environmental protection tool that surrounding states do not have.”

Responding to the earlier decision by DEP on the Mountain Valley Pipeline, Derek Teaney, senior staff attorney for Appalachian Mountain Advocates, contended the agency is being disingenuous when it waives its own regulatory authority within the federal pipeline permit, often called a 401 permit.

“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 said 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.”

In an interview last month about DEP’s approach to Mountain Valley, agency Secretary Austin 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 Xpress.

“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.”

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