4th US Circuit invalidates West Virginia water permit for Mountain Valley gas project

In a decision that could slow the completion of the Mountain Valley Pipeline, the US Court of Appeals for the 4th Circuit struck the water quality certification that West Virginia regulators issued for the natural gas project.

The 304-mile, 2 Bcf/d project, connecting Appalachian Basin gas to downstream markets, is partially constructed but has been long-delayed amid multiple legal challenges to its federal authorizations and repeated adverse rulings by the federal appeals court.

The West Virginia certification under the Clean Water Act is an important element of the project's outstanding permits, feeding into the pending US Army Corps of Engineers' CWA Section 404 water crossing permitting decision. The pipeline extends about 197 miles in West Virginia and would cross multiple aquatic resources in the state, according to the ruling.

But the three-judge panel of the 4th Circuit agreed with landowners and environmentalist petitioners April 3 on several allegations of shortcomings in the water quality certificate issued by the West Virginia Department of Environmental Protection Dec. 30, 2021. The panel agreed to vacate the permit.

Appalachian Mountain Advocates filed the litigation on behalf of the Sierra Club, Appalachian Voices, Chesapeake Climate Action Network, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, and Indian Creek Watershed Association (Sierra Club v. West Virginia DEP, 22-1008).

"Although the [DEP] acknowledged MVP's violation history, it failed to dispel the tension between MVP's checkered past and its confidence in MVP's future compliance," said the ruling, penned by Chief Judge Roger Gregory. "None of the department's explanations either in this litigation or—more importantly—in the certification itself reflect its reasonable assurance that MVP's past violations will not be an impediment to its compliance with state water quality standards."

The ruling recalled that the project had violated the state oil and gas construction general permit 139 times and narrative water quality standards 46 times. It was not swayed by DEP arguments that the narrative criteria can only be violated if there were significant harm to aquatic ecosystems.

Environmentalists in the case argued the DEP fell short in protecting waterways from sedimentation, following recurrences of runoff from construction, according to a Sierra Club statement.

The court ruling faulted the DEP for failing to include conditions in its certification requiring compliance with a state oil and gas construction general permit as well as with stormwater plans.

And it said the department erred by relying on standards the US Environmental Protection Agency has approved for upland construction to ensure that in-stream activities meet state water quality rules.

Finally, it found that the regulator's explanation for its decision to forgo a water quality anti-degradation review that was location-specific constituted a violation of the state's regulations.

"[I]t relied upon MVP's obedience to permitting programs it left out of its conditions on certification instead of [an] antidegradation review," the court said.

MVP 'disappointed,' but still committed

Mountain Valley, in an emailed statement April 3, said it was continuing to review the court's decision, but was "disappointed that MVP's West Virginia 401 Water Quality Certification has once again been vacated."

Nonetheless, spokeswoman Natalie Cox said the company retains its late 2023 targeted in-service target and "remains committed to working collaboratively with state and federal regulators to finish the remaining work" and ensure access to domestic energy, according to the email.

Wild Virginia, one of the groups that has challenged the pipeline in multiple venues, called on Mountain Valley to abandon the project.

"We've said for eight years that this project cannot be built in compliance with our bedrock environmental laws," the group said in a statement. "With each bad agency decision rejected by the courts, that prediction is again supported."

Gary Kruse of ArboIQ said there are several pathways forward for the water certification, the quickest of which would be for West Virginia to waive its review, potentially allowing the project to be completed in 2024, he said.

If MVP instead seeks a rewrite of the permit, he said it was unclear whether the court would accept the revisions the next time as well, given how little deference it has given to the West Virginia regulators. Another possibility would be to refile for the certification, and potentially assert the state review to be waived if the state had not acted after a year, he said.

In addition to the outstanding Army Corps permit, the project still needs federal permission to cross the Jefferson National Forest. It recently received its biological opinion on species impacts from the US Fish and Wildlife Service.