Waters remain muddy for Mountain Valley Pipeline's stream crossings

As part of a rewriting of a federal permitting process, the Virginia Department of Environmental Quality said last month that it would deny future water quality certifications for pipelines more than 36 inches in diameter under the so-called Nationwide Permit 12.

That could possibly apply to Mountain Valley Pipeline, which is currently building a 42-inch diameter pipeline that would pass through the New River and Roanoke valleys.

But the proposed change in state regulations would not immediately affect the company, which is currently embroiled in a separate legal challenge to its stream-crossing permits brought by environmental groups. Mountain Valley has said it may bypass the Nationwide Permit 12 process by pursuing other options.

“I don’t think that we can necessarily trust that the new certification would have any impact on MVP,” said David Sligh, conservation director of Wild Virginia, one of the groups fighting Mountain Valley in court.

Last September, the U.S. Army Corps of Engineers issued new stream-crossing permits for the pipeline, after the original ones were struck down in 2018 by a federal appeals court. The same environmental groups that filed the first challenge then brought a second legal attack.

The 4th U.S. Circuit Court of Appeals stayed the Nationwide Permits in November, barring most stream crossings until it could rule on the latest claim that the approvals were fatally flawed by procedural errors.

If the court were to uphold the permits, Mountain Valley would not be bound by DEQ’s proposed restriction on the size of pipelines allowed. That condition applies to a new permitting process that has yet to be approved by the Army Corps.

Although the Army Corps makes the final call on Nationwide Permits, states are allowed to impose conditions on water quality certifications, which they must grant or waive before Corps approval.

The Nationwide Permit 12 is a general approval for oil and gas pipelines and other projects that would cross water bodies, issued when no major environmental impact is expected. Critics say Mountain Valley should not be given such a blanket approval, and that a stream-by-stream analysis is needed under individual permits.

Every five years, the Army Corps reviews the process and adjusts the rules. States are asked if they want to impose any conditions, like the one Virginia is now proposing that would limit the Nationwide Permit 12 to smaller pipelines.

The permits were not due for renewal until 2022, but the current administration — which critics say favors industry over environmental protection — is trying to have them approved before President Donald Trump leaves office Jan. 20.

“DEQ supports the issuance and use of NWPs to expedite the processing of permits while safeguarding Virginia’s environment,” Melanie Davenport, director of the agency’s water permitting division, wrote in a Dec. 21 letter to the Army Corps.

However, the speed at which the process is moving gives states little time to respond to changes in federal rulemaking, Davenport wrote in the letter, which informed the Army Corps of the condition Virginia is seeking.

DEQ’s newly added condition is consistent with a state law, passed in 2018, that prohibits water quality certifications under Nationwide Permit 12 to pipelines greater than 36 inches in diameter, according to spokeswoman Ann Regn.

“DEQ can’t speculate what, if any, impact the Corps’ actions will have on the MVP project,” Regn wrote in an email.

Asked Tuesday about the process, Mountain Valley spokeswoman Natalie Cox said the company “remains confident in achieving its targeted in-service date of late 2021.”

DEQ’s revised regulations apply to future projects, she said. Nonetheless, Mountain Valley is currently assessing “available pathways for completion of stream and wetland crossings” that would not involve a Nationwide Permit 12, Cox wrote in an email.

That could be accomplished by gaining approval from the Federal Energy Regulatory Commission to bore under streams, rather than use a trenching process approved for the project by the commission in 2017.

FERC has already approved nine Mountain Valley requests to bore under water bodies, and other applications are pending.

Mountain Valley could also seek individual permits from the Army Corps for stream crossings. No such applications have been filed, Corps spokeswoman Breeana Harris said Tuesday.

Of the approximately 950 crossings of streams, rivers and wetlands in Virginia and West Virginia, Mountain Valley has completed about a third, Cox has said.

When the joint venture of energy companies building the pipeline first gained FERC approval in 2017, the plan was to cross nearly all the water bodies by using an open-trench method. That entails temporarily damming streams, digging trenches along the exposed bottom, burying the pipe and then restoring the water flow.

After that method was called into question by the legal challenges of the Nationwide Permits, Mountain Valley began to explore more costly and time-consuming methods, such as seeking individual permits.

Height Capital Markets, an investment banking firm that has been following the project, wrote in an update Tuesday that it believes the 4th Circuit’s stay means that “NWP 12 is off the table and that the project needs to apply for individual permits sooner rather than later.”

Doing so would likely push the pipeline’s completion back to 2022, it said.

Jessica Sims, Virginia field coordinator for Appalachian Voices, said it’s unclear how Virginia’s proposed restriction on larger pipelines using the Nationwide Permit 12 will impact Mountain Valley.

“But to me, this is still a big moment,” Sims said.

“This is DEQ publicly going on record to say that a blanket permit is wholly insufficient for a pipeline of this size.”