West Virginia DEP Proposes Changes to Stream Crossing Permit

Aug 9, 2018

The West Virginia Department of Environmental Protection is reconsidering how it permits stream crossings for natural gas pipelines and other federal projects approved by the U.S. Army Corps of Engineers.

In a notice published this week, the agency announced a set of proposed changes to West Virginia’s 401 Water Quality Certification specifically for federal water permits issued by the Army Corps, which accounts for the majority of certification requests.

 

The 401 certification contains state-specific conditions that must be met in order to meet the state’s water quality standards before a permit or license is issued by the federal agency.

Under federal law, sediment or debris cannot be released into streams, rivers or wetlands, unless the Army Corps issues a permit under Section 404 of the Clean Water Act. These permits are required for dam, levee, and highway constructions, as well as mining projects and other large developments that require federal approvals to discharge fill material into waterways.  

 

Interstate natural gas pipelines, such as the Mountain Valley and Atlantic Coast pipelines being developed through parts of West Virginia, also require permitting by the Army Corps.

WV DEP’s proposed changes to its water quality certification include striking a provision that requires water crossings, or construction that goes under or disturbs stream, rivers or wetlands to be completed within 72 hours.

That requirement was at the heart of a recent ruling made by the 4th U.S. Circuit Court of Appeals. The court in June sided with a coalition of conservation groups who argued the federal Section 404 permit granted to the Mountain Valley Pipeline (MVP) should be invalidated because the pipeline developers’ planning documents showed it could not complete some water crossings in the 72-hour time frame required by the state.

The federal appeals court agreed and stayed water crossings by the MVP in West Virginia on June 21. Since then, all construction of the 303-mile pipeline has been halted following a July 27 ruling by the 4th Circuit to invalidate two federal permits related to the pipeline route through Jefferson National Forest.

Other proposed changes in the 17-page order include a provision that would allow a stream crossing method that is more environmentally protective than currently allowed.

The order also gives the head of DEP the power to “waive, change, or eliminate” any of the conditions set out under the 401 Water Quality Certification if the project can provide proof “that it will employ a method or plan that will be more environmentally protective.”

The DEP is currently accepting comments on the proposed changes.