The U.S. Army Corps of Engineers (USACE) is accepting public comment on proposed modifications to West Virginia’s 401 water quality certification. Before we get into the details here’s a quick explanation of some pretty complicated laws (feel free to reach out to us if you still need more clarification!).
The U.S. Army Corps of Engineers (USACE) is responsible for issuing permits for dredged or filled material into water of the US (this includes pipeline crossings) called Section 404 Permits. For projects impacting waters of a state (which anytime you have a 404 you expect it would), the State has the opportunity to review the project and issue a 401 certification (they can also waive that right if they don't issue a certification within a certain period of time—this is what happened with the Rover Pipeline FYI). USACE relies on the State's 401 certification to some degree in its review and can incorporate the 401 into its own 404 by reference.
USACE is operating under federal districts (Huntington and Pittsburgh offices were at issue here in the request). But West Virginia is asking for USACE to incorporate its new 401 processes into USACE's own 404 permitting for West Virginia, and depending on where the project is, different USACE districts may be the one doing the review. So only projects in West Virginia would be impacted, but it still is a change to USACE protocol.
On April 24th, 2019 West Virginia modified its Section 401 water quality certification and requested that the USACE accept its modifications into the nationwide permit program. West Virginia’s modifications contain questionable changes to Special Conditions A, C, and L of Nationwide Permit 12, which authorizes utility line activities. These modifications, if they aren’t rejected, would put the waters and people of West Virginia at risk for increased discharge of pollution, resulting in harm to human and environmental health.
Modification of Special Condition A
Special Condition A contains seven characteristics that, if exist, require a 401 water quality certification.
if a pipeline is 36 inches in diameter or greater
if the pipeline crosses specific rivers
if the pipeline is transporting hazardous material
if a utility would use pesticides on the right-of-way
if there would be permanent impacts greater than 200 linear feet on one side of a stream
if there is cumulation of permanent impacts on any perennial or intermittent stream totaling greater than 300 linear feet
if the pipeline carries separated natural gas liquids, unless certain systems are in place.
West Virginia’s modification keeps the characteristics the same. However, rather than mandating a certification if one of the conditions exists, it places sole discretion on the West Virginia Department of Environmental Protection Secretary to require a certification, or not, for any project. By placing sole discretion in the hands of the Secretary, it both diminishes the public’s ability to participate in the certification process and allows decisions to be made about compliance with West Virginia’s water quality standards without a record of potential impacts being properly produced or evaluated. In short, placing discretion for certification with the Secretary cuts the public out of the process and does not allow for disclosure of potential impacts of pipelines to West Virginia’s water quality.
Modification of Special Condition C
Special Condition C of Nationwide Permit 12 contains construction requirements if pipeline construction would cross a waterway. Currently, the Special Condition requires that a stream crossing be completed in a continuous, progressive manner and within 72 hours. There are several rivers that are exceptions to the 72-hour requirement.
The proposed modification to Nationwide Permit 12 would narrow the streams subject to this condition to those where the pipeline company uses wet or open-cut methods that do not isolate the excavation area. West Virginia’s proposal excludes stream crossings performed using the dry ditch method and all Section 10 rivers from the 72-hour requirement. This modification allows the dry ditch method to have more time for completion and will deter construction of the wet and open-cut methods that would need to be completed more quickly. This modification makes it easier for pipelines to cross waterways, increasing the chances of harm.
Modification of Special Condition L
Special Condition L contains the requirement that the structure cannot impede or prevent fish movement upstream or downstream. The modification, rather than a categorical exclusion, would allow impeding or prevention of fish movement, as long as it is not permanent. The Supreme Court declared that states cannot allow activity which would partially or completely eliminate any existing use. Likewise, in West Virginia’s own Water Quality Standards, which were recently renewed, declares that mixing zones, areas that are not required to meet the same standards of quality, still must not kill or preclude the free passage of fish or other aquatic life.
While under different context and not regarding the movement of fish, courts in West Virginia have indicated that state agencies are allowed to temporarily exempt projects from the water quality standards. Therefore, despite federal and state policy disallowing the preclusion of fish movement, West Virginia could temporarily exempt projects from those policies. Despite the modification only allowing for temporary impediment, this would impact the fish populations in the West Virginia waterways.
While the structure would not be permanent, it could have permanent and devastating impacts on the fish by preventing their natural movement. The Fourth Circuit Appeals Court, the appeals court who reviews West Virginia federal cases, also indicated the water needs to be restored to pre-construction conditions once the structure is removed. If the temporary structure caused permanent effects to aquatic life, then West Virginia likely could not exempt a project from the above policies.
These modifications, though slight in wording, would have huge impacts for the waterways and people of West Virginia, and throughout the Ohio River Valley region.
The U.S. Army Corps of Engineers is looking for the public to express its views on whether the above modification should be incorporated into the nationwide permit program or not. It is accepting comments until July 27, 2019.
Comments can be addressed to Ms. Suzanne Chubb at Suzanne.L.Chubb@usace.army.mil and must include the notice number: 2019-01-LRD.
Feel free to use our comment as you wish. Just make sure to submit to the Army Corps of Engineers to tell them you don't agree.