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Mountain Valley Pipeline foes file challenge to reissued stream-crossing permits

Mountain Valley Pipeline foes file challenge to reissued stream-crossing permits

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Foes of the Mountain Valley Pipeline were back in court Monday, before idled construction workers could return to the long-delayed and deeply divisive project.

In a petition filed with the 4th U.S. Circuit Court of Appeals, the Sierra Club and seven other environmental groups challenged permits reissued last week to allow Mountain Valley to cross nearly 1,000 streams and wetlands along its 303-mile path.

The joint venture of five energy companies has been barred from active construction of the natural gas pipeline for nearly a year. But after legal logjams began to clear, with two key sets of federal permits being restored, Mountain Valley asked the Federal Energy Regulatory Commission last week to lift its stop-work order.

Before that could happen, the environmental groups requested that the U.S. Army Corps of Engineers stay its new permits for waterbody crossings, pending another legal challenge.

That came Monday, when senior attorney Derek Teaney with the nonprofit law firm Appalachian Mountain Advocates filed a petition on behalf of the Sierra Club, the Center for Biological Diversity, Wild Virginia, Appalachian Voices, the Chesapeake Climate Action Network, the West Virginia Rivers Coalition, the West Virginia Highlands Conservancy and the Indian Creek Watershed Association.

At issue is Mountain Valley’s plan to cross streams and rivers by one of two ways: either by boring under them or using dams and pumping systems to temporarily divert water, dig trenches along dry beds, bury the 42-inch diameter pipe some 6 feet deep and then restore the current to its original flow.

Mountain Valley says there is a public need for the 2 billion cubic feet of natural gas a day to be pumped at high pressure through the pipeline, which will run from northern West Virginia, through Southwest Virginia, and connect with an existing pipeline near the North Carolina line.

But the project is two years behind schedule, in large part because of litigation from those who say it is polluting a scenic part of the country.

“The Corps has gone ahead and authorized MVP to dig and blast through our streams despite its full knowledge that it has not met its legal obligations or done what’s necessary to protect some of our most valuable and sensitive species,” David Sligh, Wild Virginia’s conservation director, said in an email.

“That’s deplorable.”

In a letter to the Army Corps, Teaney outlined a two-pronged challenge of the stream-crossing approvals, which were handled through a general process known as a Nationwide Permit 12.

The first is that the Army Corps did not take into account the impact on endangered species when it rewrote the process in 2017 — a flaw that “fatally infects” the permits the agency later gave to Mountain Valley in three of its districts through which the pipeline passes, Teaney wrote.

In a second line of attack, the environmental groups contend that the Army Corps failed to properly correct a problem with the first set of permits, an error the 4th Circuit cited when it threw them out in 2018.

The Army Corps overlooked a state requirement in West Virginia that four major river crossings be completed within 72 hours to limit environmental harm, despite knowing it would take Mountain Valley much longer, the 4th Circuit found.

A spokesman for the agency said Monday that it could not comment because of the litigation. No decision on a request for an administrative stay had been recorded on FERC’s online docket by the end of the day.

The stream crossing approval was the second of three permits needed by Mountain Valley if it is to meet its goal of completing the $5.7 billion project by early next year. On Sept. 4, the U.S. Fish and Wildlife Service determined that the pipeline is not likely to jeopardize endangered or threatened species.

A decision on a third permit, for the pipeline to pass through the Jefferson National Forest, is expected by the end of the year.

With construction stalled for the past year, welders and other skilled workers have been drawing unemployment or picking up small jobs as they wait for the stop-work order to be lifted, said David Butterworth, a business agent for the Pipeliners Local 798 Union.

“All we are is people who are trying to make a living,” Butterworth said.

They may not have to wait much longer, according to Height Capital Markets, an investment banking firm that has been following the process.

“We expect FERC will likely allow construction to resume” this week, now that Mountain Valley has two of its revoked permits restored, Height stated Monday in its weekly update on pipeline construction.

That would put the company on track to finish the pipeline by the middle of next year, the report said, “although upcoming permit litigation will likely lead to volatility.”

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Laurence Hammack covers environmental issues, including the Mountain Valley Pipeline, and business and enterprise stories. He has been a reporter for The Roanoke Times for more than three decades.

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