Tuesday, October 15, 2019

Shale Law in the Spotlight – Mountain Valley Pipeline: Overview of Federal and State Regulatory Approval Processes (Part 1)

Written by Chloe Marie – Research Specialist

The Mountain Valley Pipeline Project consists of a proposed 303-mile interstate pipeline system designed to transport natural gas from Wetzel County in northwestern West Virginia to Pittsylvania County in southern Virginia. The pipeline will carry a capacity of approximately 2 billion cubic feet (Bcf) per day of natural gas and is expected to cross the following counties: Braxton, Doddridge, Fayette, Greenbrier, Harrison, Lewis, Monroe, Nicholas, Summers, Webster, and Wetzel in West Virginia; and Craig, Franklin, Giles, Montgomery, Pittsylvania, and Roanoke in Virginia. This project also involves the construction of three compressor stations, one each in Wetzel, Braxton, and Fayette Counties in West Virginia.

The Mountain Valley Pipeline Project is operated by Mountain Valley Pipeline, LLC, a joint venture of EQM Midstream Partners, LP; NextEra US Gas Assets, LLC; Con Edison Transmission, Inc.; WGL Midstream; and RGC Midstream, LLC. EQM Midstream Partners is the majority owner and is responsible for the operation of the pipeline.

This article and three subsequent Shale Law in the Spotlight articles to be published will review legal issues and the regulatory process associated with the Mountain Valley Pipeline Project to date.

FERC Process Timeline (Docket No. CP16-10-000)

Mountain Valley Pipeline, LLC initiated a pre-filing process with the Federal Energy Regulatory Commission (FERC) for the Mountain Valley Pipeline Project in late October 2014. On October 23, 2015, Mountain Valley Pipeline, LLC filed an application with FERC seeking a Certificate of Public Convenience and Necessity under section 7(c) of the Natural Gas Act (NGA) for the construction and operation of the Mountain Valley Pipeline Project in Virginia and West Virginia.

In June 2017, FERC released a Final Environmental Impact Statement for the Mountain Valley Pipeline Project finding that environmental impacts would be minimal with the application of proposed mitigation and protective measures. As a result, on October 13, 2017, FERC issued an Order granting a Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline Project.

United States Army Corps of Engineers Process Timeline

Because the Mountain Valley Pipeline Project would cross waters of the United States within the regulatory boundaries of the U.S. Army Corps of Engineers districts in Pittsburgh, Norfolk and Huntington, Mountain Valley Pipeline, LLC sought to obtain Nationwide Permit 12 (NWP 12) verifications. 

On December 22, 2017, the Huntington District, U.S. Army Corps of Engineers in West Virginia issued a NWP 12 verification allowing the pipeline to be built through water crossings within the Huntington District regulatory boundaries; however, on October 2, 2018, the U.S. Court of Appeals for the 4th Circuit vacated the Corps’ verification of the pipeline project’s compliance with NWP 12. 

Subsequently, on October 5, 2018, the Norfolk District, U.S. Army Corps of Engineers in Virginia made the decision to also suspend its own NWP 12 verification dated January 23, 2018. The Pittsburgh District, U.S. Army Corps of Engineers in Pennsylvania followed the same trend and ordered on October 19, 2018, a halt to all activities authorized pursuant to the NWP 12 verification issued by the District on December 19, 2017.

Virginia Process Timeline

On December 8, 2017, the Virginia State Water Control Board granted Mountain Valley Pipeline, LLC a Section 401 water quality certification for all relevant upland activities for the Mountain Valley Pipeline project within the route identified in the Environmental Impact Statement. According to the Virginia Department of Environmental Quality (DEQ), “this certification requires additional conditions to protect water quality in upland areas and address certain environmental concerns not addressed by existing laws and regulations” and “is part of the most rigorous regulatory process to which a proposed pipeline has been subjected in Virginia.”

On March 26, 2018, Virginia DEQ approved the Erosion and Sediment Control and Stormwater Management Plans for the Mountain Valley Pipeline Project as complying with the State Water Control Law and associated regulations.

Subsequently, the State Water Control Board approved on December 13, 2018 a motion to conduct a hearing to discuss the revocation of the Section 401 Water Quality Certification due to runoff and erosion issues that occurred during the pipeline construction. A special board meeting to discuss such motion was later set for March 1, 2019 in order to understand the procedure to be followed; however, a News Release specified that “the hearing referred to at the Dec. 13, 2018, Board meeting will not occur at this special meeting on March 1.” The State Water Control Board announced on March 1 that it withdrew its action concerning a potential revocation of the Water Quality Certification. It declared that “the Board extensively reviewed all available options to continue enforcement and monitoring of this project to ensure compliance with the conditions of the 401 certification and protection of water quality. Any other action today would have jeopardized the commonwealth’s oversight of the project.”

On August 2, 2019, Virginia DEQ issued a Stop Work Instruction to Mountain Valley Pipeline, LLC on a two-mile section of the project in Montgomery County. In a Press Release dated the same day, Virginia DEQ declared that, following a DEQ inspection on August 1, 2019, “the agency has determined that an imminent and substantial adverse impact to water quality is likely to occur as a result of land-disturbing activities.” Virginia DEQ added that “MVP has failed to construct and maintain erosion and sediment control or pollution prevention measures in accordance with approved site-specific plans and/or the erosion and sediment control measures that have been installed are not functioning effectively and MVP has not proposed any corrective action.”

On August 16, 2019, Virginia DEQ announced the lifting of the Stop Work Instruction issued on August 2, 2019 after corrective actions were approved and are being implemented.

West Virginia Process Timeline

In October 2015, Mountain Valley Pipeline, LLC submitted air quality permit application to West Virginia Department of Environmental Protection (DEP) for the construction of new Bradshaw, Harris, and Stallworth natural gas transmission compressor stations. West Virginia granted such approvals throughout March and April 2016.

West Virginia DEP issued Mountain Valley a Section 401 Water Quality Certification on March 28, 2017, as well as a Natural Streams Preservation Act Permit on July 21, 2017, for the crossing of the Greenbrier River. In a letter dated September 7, 2017, West Virginia DEP’s Division of Water and Waste Management Director announced the withdrawal of the Water Quality Certification and requested remand in order to “reevaluate the complete application to determine whether the State’s certification is in compliance with Section 401 of the federal Clean Water Act.”

Mountain Valley also was granted a State Oil and Gas General Water Pollution Control Permit – also referenced as the state Construction Stormwater Permit – on July 14, 2017, for the discharge of stormwater associated with the disturbance of approximately 4,214 acres of land for the construction of about 196 miles of pipeline and associated infrastructure; however, West Virginia DEP suspended this permit quickly thereafter as the agency failed to answer some raised questions during the “Response to Public Comments” meeting held on July 14, 2017. On November 1, 2017, West Virginia DEP entered Administrative Order No. 8780 lifting the suspension and stating that a response to all comments had been provided. 

On the same day, West Virginia DEP also decided to waive its authority under the Federal Clean Water Act to determine whether the Mountain Valley Pipeline Project would violate the state’s water quality standards. West Virginia DEP stated that the “Army Corps of Engineers recently reissued, with provisions that are specific to West Virginia, the Nationwide 12 permit which is used for stream crossings. These new conditions, when combined with specific requirements that are included in the state’s storm water permit, will allow for better enforcement capabilities and enhanced protection for the state’s waters.”

In a letter dated November 13, 2017, West Virginia DEP Secretary Austin Caperton provided further explanations of this decision and declared “To be clear – by waiving the 401 Individual Certification, we are not abandoning our duty to protect the water quality of West Virginia. In fact, the new Nationwide 12 permit is 401 certified by West Virginia and includes state specific conditions relative to pipelines. Combined with the state Construction Stormwater Permit, we are in a stronger position to effectively regulate all pipeline construction in West Virginia.”

On April 24, 2019, West Virginia DEP issued newly modified Section 401 Water Quality Certification standard and special conditions applying to the U.S. Army Corps of Engineers’ Section 404 Nationwide Permits in West Virginia. This modification certified that the NWPs were consistent with the State’s water quality standards to discharge dredged or fill materials into U.S. waters.

Construction of the Mountain Valley Pipeline started in February 2018, and on December 13, 2018, Mountain Valley Pipeline, LLC announced in a News Release that the project was 70% completed; thus, still on track to reach its targeted fourth quarter 2019 full in-service date.

The expected completion date, however, may be delayed as Mountain Valley Pipeline, LLC is facing numerous legal challenges filed against proposed construction activities related to the pipeline project. Our next Shale Law in the Spotlight articles will address these challenges.



U.S. Army Corps of Engineers


West Virginia

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

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