West Virginia environmental regulators have changed some state-imposed conditions to a federal permit issued for stream crossings for natural gas pipelines approved by the U.S. Army Corps of Engineers.
The changes include the removal of a 72-hour time restriction for construction of interstate natural gas pipelines under waterways in certain cases.
To cross under streams, rivers and wetlands, major pipeline projects need a permit from the Army Corps under Section 404 of the Clean Water Act. The permits detail how much sediment or debris can end up in waterways during construction of interstate pipelines, but also dams, levees and major highway projects.
The Nationwide Permit 12 is one Section 404 permit. It is used to authorize utility line construction as well as to authorize the building of natural gas pipelines.
The WVDEP previously required interstate pipelines must be built under major rivers within 72 hours.
This caused problems for the 303-mile Mountain Valley Pipeline. Last year, a federal court threw out the project’s Section 404 permit after environmental groups argued pipeline developers’ own planning documents showed they couldn’t meet that 72-hour waterway crossing deadline. Currently, the project is awaiting new Section 404 permits and can’t do construction under waterways.
The new modifications clarify that stream crossing methods that are done when streams are flowing must be completed within 72 hours, but that stream crossings where waterways are damned, also called the “dry ditch” method, are exempt from the 72-hour requirement.
Construction and access bridges and crossings on Section 10 rivers are also exempt from the 72-hour requirements, the letter states.
Pipeline activist group, Appalachians Against Pipelines, launched a demonstration due in-part to the changes to the permitting scheme.
Last Thursday, 22-year-old Holden Dometrius locked himself to welding equipment at a Mountain Valley Pipeline construction site near Lindside, which caused work to stop, the group said in a news release.
A representative for the group said the action and signs Dometrius held, which read “To hell with your permits” and “No borders, no prisons, no pipelines on stolen land” were in reference to disapproval with all permits issued to the project, including WVDEP’s recent changes to the Section 401 Water Quality Certification.
The changes are subject to review by both the Army Corps and U.S. EPA.
Clarification: This story was updated on 5/1/2019 to clarify that the changes made by the WVDEP were only made to the Nationwide Permit 12.
A federal appeals court has denied a request by the developers of the Atlantic Coast Pipeline to rehear a case over the legality of permits that allow the multibillion dollar natural gas pipeline to cross under national forest lands, including the Appalachian Trail.
The 4th U.S. Circuit Court of Appeals on Monday declined pipeline developer Dominion Energy’s request for the case to be reheard in front of the full bench. The company says it intends to appeal to the U.S. Supreme Court within 90 days.
In December, a three-judge panel of the 4th Circuit ruled the U.S. Forest Service violated two cornerstone environmental laws — the National Forest Management Act and the National Environmental Policy Act — and thus failed to protect federal land when it issued approvals to allow the 600-mile Atlantic Coast Pipeline to cross the George Washington National Forest, Monongahela National Forest and the Appalachian Trail.
In her 60-page opinion, 4th U.S. Circuit Court of Appeals Judge Stephanie Thacker cited Dr. Seuss’ “The Lorax.”
“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues,'” Thacker wrote. “A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”
The court’s decision not to rehear the case “en banc” or in front of the full court is another blow to the 600-mile interstate natural gas pipeline that would run from West Virginia to eastern North Carolina. Construction is currently halted along its entire route.
In a statement, Dominion spokesman Karl Neddenien said project developers intend to appeal to the U.S. Supreme Court within the next 90 days. The company is also pursuing legislative and administrative options.
The company said despite the myriad of delays, it is confident “at least partial construction will recommence in the third quarter of 2019” and the entire pipeline will be completed.
In a statement, the Southern Environmental Law Center and the Sierra Club, two environmental groups challenging the project, said the 4th Circuit’s decision not to rehear the case “sends the Atlantic Coast Pipeline back to the drawing board.”
Federal regulators have approved parts of the Mountain Valley Pipeline’s plan to stabilize areas of the pipeline’s route that are under construction and ensure that work already in progress does not become an environmental liability.
The document, mandated by the Federal Energy Regulatory Commission after it halted all construction of the 303-mile pipeline earlier this month, drew criticism from environmental groups that said the plan effectively greenlights continued pipeline construction.
FERC stopped all construction of the Mountain Valley Pipeline on Aug. 3 following a ruling by the 4th U.S. Circuit Court of Appeals, except in cases where it might be necessary to stabilize areas with ongoing construction such as right of ways.
The plan, released Thursday, lays out a variety of actions the pipeline intends to take to comply with environmental standards. They include filling some dug trenches with dirt and seeding steep slopes to temporarily stabilize some areas already under construction.
In a letter issued Friday evening, Terry Turpin, director of FERC’s Office of Energy Projects, told pipeline developers to move forward with the approved measures.
“As indicated in your plan, the shutdown presents challenges for stabilization and restoration, and we agree that there are some clear advantages to allowing some limited construction activities to proceed to prevent potential safety and environmental impacts,” the letter stated.
The majority of the plan’s suggestions were accepted. Most of the “pending” measures are related to how to stabilize steep slopes.
The Sierra Club and other environmental groups say the pipeline’s stabilization plan effectively allows the developers to complete construction across a total of 45 miles of its route.
“Bless their hearts, but not in a million years,” Sierra Club Virginia chapter director Kate Addleson said in a statement.
According to the document, developers said they intend to install the pipeline and close the trench for 26 miles of the MVP’s route where trench has already been dug and pipe is ready to go. FERC approved this measure.
In a letter submitted to the agency, the Indian Creek Watershed Association also expressed concerns with the pipeline’s stabilization plan and urged the agency to reject it.
“This is a ploy by MVP/EQT that has little to do with environmental protection and much to do with convenience and economic benefit to the company,” the Union, W. Va.-based group wrote. “MVP seeks to install 45 miles of pipe during an official “stop work” period — more than four times the 11 miles of pipe
MVP spokeswoman Natalie Cox said in an emailed statement that the project’s priorities have always been to construct the pipeline in the “safest manner possible and ensure “the highest levesl of enviromental protections.
“We are pleased that the FERC appreciates MVP’s desire to uphold our environmental responsibilities by allowing the project to stabilize the right-of-way and to take certain measures to minimize unnecessary erosion and sedimentation occurrences as we work with the agencies to resolve the issues related to the August 3, 2018 stop work order,” she wrote.
08/10/18: This story was updated at 9:15 p.m. to include a statement from the Mountain Valley Pipeline and reflect FERC’s decision to approve parts of the project’s stabilization plan.
Seventy-five-year-old farmer Curtis Johnson doesn’t object to pipelines, but does take issue with some of their construction practices.
Johnson sold easements to the nearly completed 713-mile Rover Pipeline, which originates in the Ohio Valley and is designed to transport 3.25 billion cubic feet of natural gas to Michigan and Canada.
In May, he submitted a letter to the Federal Energy Regulatory Commission (FERC), the federal agency in charge of approving interstate natural gas pipelines. In his comments he described problems he encountered during pipeline construction where good topsoil got mixed up with sub-soils like clay on his Ohio farm.
“I do not think the pipeline should be given certificates to proceed without all the land owners knowing and agreeing to what is going to happen with the installation process,” he said in his letter.
For Johnson, his farm, which was settled by his great-great-grandfather and has remained in the family since, is a major part of his identity. He invited FERC to come to his farm and meet with farmers.
“Some people just think it’s dirt out there. But to me it’s in my heart,” he said in a subsequent interview. “I’m not a vacationer guy. I spend my time on my back porch now the crops are growing. Some people like to be at the lake and watch the waves and stuff out there. But I can watch the waves here with my grain.”
Johnson is one of more than 600 people and organizations that have submitted comments to FERC since April when the agency began asking for input on its policies related to natural gas pipeline approvals.
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Pipe laydown yard on Route 19, near I-79 in Sutton, West Virginia on February 2, 2018. Thousands of miles of new natural gas pipeline are coming out of Appalachia.
A Call for Input
In a 58-page notice, FERC asked for suggestions on how to determine if a pipeline is needed, how to consider the use of eminent domain, how to evaluate environmental issues, and advice on “specific changes” to improve “efficiency and effectiveness.”
The extent to which federal regulators scrutinize new natural gas pipeline projects is an especially potent issue in Appalachia where thousands of miles of new natural gas pipelines are going in the ground.
Now, federal regulators are in the final days of taking comment on policies evaluating and approving new natural gas pipelines. FERC will collect public input through July 25.
In a review of comments so far, a few key themes have emerged. Industry supporters tend to suggest few policy changes, but urged FERC to speed up new pipeline approvals. Some commenters called for FERC to take a more programmatic approach, including looking at both environmental impacts and end-use public need for new pipeline projects across a region.
More than 400 of the responses were generated by individual members of industry-sponsored Texans for Natural Gas. “I support a fair and robust permitting process, not a bureaucratic mess that prevents critical infrastructure from being built,” each wrote by way of a form letter.
Another comment was a handwritten note from a Nevada man asking for that climate change to be taken is taken into account when considering new pipelines.
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Earlier this year protesters sitting in trees held off work on the Mountain Valley Pipeline near the the Appalachian Trail. Crews from Allegheny Surveys survey the location of the tree sitters in the Jefferson National Forest and along the right of way for the Mountain Valley Pipeline just a few hundred feet from the Appalachian Trail.
Determining Need
The Appalachian Trail Conservancy, which represents the 30 clubs that take care of the Appalachian National Scenic Trail, took notice of the pipeline expansion.
Laura Belleville, the organization’s vice president of conservation and trail programs said at one point staff members at her organization were reviewing upwards of 10 different pipeline proposals that planned to cross the Appalachian Trail.
The increase in pipeline proposals caused the staff to question how many of these pipelines were really needed to sustain the energy resources in demand.
Currently FERC determines and justifies the “public need” only by determining if companies are willing to sign up to use the pipeline. These pledges, called ‘precedent agreements,’ can essentially be from the pipeline company itself in the form of affiliate companies.
The agency’s current process for determining “public need” also does not factor in where the gas might be going — whether it’s heating homes in the U.S. or fueling a factory in China.
“Should the United States be sacrificing its own public land and in some cases private lands for energy needs overseas?” Belleville wondered. “That’s a much bigger picture question that I think the American public has the right to to weigh in on.”.
It’s not just the number of pipelines that concern Belleville, it’s the size too. New pipelines can be 42 inches in diameter (big enough to fit a refrigerator inside). Belleville worries about this large pipe safely traversing steep Appalachian slopes.
Faster, faster…
Comments from industry perspectives generally call for FERC’s policies to stay the same, but move faster.
“The current FERC process does work,” Atlantic Coast Pipeline spokesperson Aaron Ruby said in a recent interview. The 604-mile long Atlantic Coast Pipeline was publicly announced in 2014, and is in now FERC-approved and in construction phases.
Ruby said the ACP was able to navigate the multi-layered federal permitting process, but he thinks more interagency coordination could speed up the process.
“There are aspects of the process that could be done in a more reasonable timeframe,” Ruby said. “I think a lot of that has to do with interagency coordination. This may not even be an issue that the FERC is able to resolve in the policy statement.”
“It’s more an issue where you have more than a dozen state and federal agencies and if one of those agencies is not making decisions in a reasonable timeframe,” he added, “you get into a situation where you’ve got essentially regulatory inertia that’s not in anyone’s interest.”
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Glenn Koch, Vice President of Engineering & Construction at Williams, explained during a Q&A at a recent Pittsburgh petrochemical conference: “I think resolving that issue where individual states can unilaterally decide to allow infrastructure or not allow infrastructure is something that we’d like to address.” Williams has seen construction on its 125-mile Constitution Pipeline stopped because it failed to get a key water permit from the state of New York. Williams is still appealing the decision.
Glenn Koch, vice president of engineering and construction at Williams Companies, Inc., an Oklahoma-based energy infrastructure company, would take it a step further.
“In a highly charged political environment states are in a position to essentially decide from a political perspective not to allow pipeline because they have control over one of the permits associated with that project,” Koch asserted at a recent Pittsburgh petrochemical conference.
“I think resolving that issue where individual states can unilaterally decide to allow infrastructure or not allow infrastructure is something that we’d like to address,” he said.
Williams has seen construction on its 125-mile Constitution Pipeline stopped because it failed to get a key water permit from the state of New York. The company is appealing the decision, and so far has had little success.
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Robert and Anne Stack say they have put their retirement dreams on hold because of the thus-far unbuilt Constitution Pipeline. The company used eminent domain to get an an easement to their property where they had staked out their dream home near Davenport, New York. The couple filed a four-page letter with FERC, urging the commission to change its evaluation process. “The Commission’s current certificate process does NOT adequately take landowner interests into account.”
Eminent Domain
In West Virginia, Robert Mark Jarrell’s Pence Springs property is being taken by Mountain Valley Pipeline through eminent domain. MVP, a 303-mile line stretching from northern West Virginia to southern Virginia, received its certificate from FERC in October of 2017 and is currently in construction phases. Jarrell is among thousands who’ve been sued in eminent domain condemnation suits in past several years.
In his letter to FERC Jarrell advises, the agency “should wield their power of eminent domain as seriously as a judge in a death penalty case.”
He said he and his neighbors have deep ties to their land, dating back to the Revolutionary War.
“I myself have at least seven ancestors who fought the Revolutionary War within 25 miles of my property. And I know they would be rolling over in their graves to think the government they helped establish had such little regard for private property rights,” he wrote. “Eminent domain for private gain is wrong.”
Finding Information
Mixed in with broader policy questions FERC also asked for specific examples how to improve the pipeline approval process.
Sara S. Gronim submitted six letters giving detailed comments on specific processes based on her experience was researching the Northeast Supply Enhancement Project in New York.
The retired history professor, she said the FERC system “was so hard to use.”
“For most people this is just a barricade,” she said. “ It’s really, really, really hard to go in and find out what someone wants to do in your backyard.”
Finding information is key.
“People can’t persuasively go into hearings or write letters and just wave their arms in the air,” she said rattling off hard-to-find examples of environmental impacts from toxins on harbor floor, whale migration pattern disruptions, and methane gas releases.
“If you can’t find those details how are you going to make your arguments?”
Better Analysis
Ryan Emanuel, a member of the Lumbee Tribe in North Carolina, offered comment about how the agency needs to collect better data in order to adequately analyze the impacts pipelines may have for environmental justice. He’s written articles on the subject.
“Something like 93 percent of all federal environmental impact statements find no environmental justice concerns,” the college professor said in an interview. “So, that tells me one of two things – either project proponents are really good at designing projects that don’t impact vulnerable communities or we’re all using tests and analyses that give false negatives.”
Similarly, some commenters suggested the agency do more outreach in the communities affected by proposed natural gas pipelines.
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Belinda Joyner went door-to-door in Garysburg, North Carolina to educate residents about the Atlantic Coast Pipeline and the compressor station planned for the county. Joyner says her county, and the majority African American communities around Garysburg are used as a “dumping ground.”
North Carolina activist Belinda Joyner went door-to-door in her home of Northampton County to tell people about Atlantic Coast Pipelines plans. She said the agency should develop a citizens advisory board.
“Listen, and even sometime you have to come out from those offices and just look for yourself to see what’s going on,” she said in an interview.
Accepting Change
ACP’s Ruby said in any regulatory process it is impossible to satisfy everyone, but he said it’s important that process remain divorced from desired outcomes, of which there are many.
“Just because you are disappointed with the outcome of a process does not mean that the process is inherently flawed and it does not mean that the process is insufficient,” he said. “It just means that the agency came to a different conclusion than you did.”
Many commenters called on FERC to hold public meetings on the policy change. There are none scheduled. Many are also skeptical there will be any policy shifts.
For Jarrell who is still fighting to keep his land, it’s important to keep trying.
“If you don’t try you are never going to effect any change,” he said.
To comment to FERC by mail: (Be sure to reference docket PL18, FERC’s Notice of Inquiry)
Federal Energy Regulatory Commission,
Secretary of the Commission,
888 First Street, NE, Washington, DC 20426
Nancy Andrews is a Pittsburgh based journalist and 2018 Alicia Patterson Foundation Fellow studying natural gas pipelines in Appalachia. Follow her on Twitter @NancyAndrews or @NancyAndrews on Instagram.
Environmental advocates asked a federal court Tuesday to review a federal permit for the 600-mile Atlantic Coast Pipeline.
Appalachian Mountain Advocates, a law firm representing a coalition of environmental and citizen groups, filed a petition with the 4th U.S. Circuit Court of Appeals.
The groups, which include the Sierra Club, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Appalachian Voices and the Chesapeake Climate Action Network, are asking the court to review a federal permit issued by the Army Corps of Engineers.
The Nationwide Permit 12, which falls under Section 404 of the federal Clean Water Act, sets out how the Atlantic Coast Pipeline (ACP) must be built through streams and wetlands in West Virginia.
In a letter sent last month to Army Corps’ Huntington District, the groups argue the pipeline developer has admitted it cannot cross parts of the Greenbrier, West Fork and Buckhannon rivers in the 72-hour time frame mandated by the permit, and thus its Nationwide Permit 12 should be revoked.
The request comes days after the 4th Circuit stayed the same permit issued to the Mountain Valley Pipeline for failing to complete construction quickly enough.
Once completed, the 600-mile, 42-inch ACP pipeline will bring natural gas from West Virginia through Virginia to North Carolina. The ACP is being jointly developed by Dominion Energy, Duke Energy, Piedmont Natural Gas and Southern Company Gas.
A spokesperson for the ACP could not be reached for comment.
The West Virginia Department of Environmental Protection has created a new webpage designed to help the public navigate maps and information about the five major natural gas pipelines in West Virginia that have been proposed or are under construction.
In a news release Monday, WV DEP said the site includes, “detailed maps, transcripts, (and) permit information” on a single webpage.
The five pipelines that are the focus of the webpage are the Atlantic Coast Pipeline, Mountain Valley Pipeline, the Mountaineer Gas Company Eastern Panhandle Expansion Project, Mountaineer Xpress Pipeline, and the Rover Pipeline.
The webpage connects detailed maps of the proposed routes and DEP’s searchable online database with information about inspections and enforcement actions and any permit modifications.
The site also links to find public hearing transcripts, responses to comments received at public hearings, and press releases about the pipelines. The DEP says the page will be updated as more information becomes available.
The page also has a place to submit reports of possible permit violations.
