Background

The WV Department of Environmental Protection (DEP) agreed to permit the construction of the Mountain Valley Pipeline and Atlantic Coast Pipeline through streams and wetlands according to a Nationwide 12 permit issued by the U.S. Army Corps of Engineers. In 2017, DEP established certain special conditions that must be followed for projects subject to a Nationwide 12 permit to protect the environment. Now, DEP is proposing to change those conditions.

Key Revisions

The following proposed modifications raise concerns for our rivers and streams:

• Allowing exemptions to the 72-hour stream crossing restriction. This condition helps to minimize impacts to water quality and aquatic life. Prolonged dewatering of streambeds can have severe impacts to the life in a stream. Agencies like WV Division of Natural Resources rely on this 72-hour restriction to determine if construction during fish spawning seasons will have ill-effects on fish populations.
• Allowing temporary impediments to fish passage. This condition helps to minimize impacts to fish species by preventing structures that impede fish passage. DEP is changing this condition to allow structures to impede fish passage as long as they are not permanent; however the length of time that fish passage will be prevented is not defined.
• Waiving the requirement for an individual water quality certification for large pipelines. This condition is in place to assure that stream and wetland crossings for large-scale pipelines (over 36” in diameter) get the careful analysis and individualized plans required to better ensure protection of water quality.
• Allowing for the removal of any permit conditions with no public scrutiny. Standard and special permit conditions are in place to make sure that when a nationwide permit is used there is a baseline of protections that will be enforced. These conditions become meaningless if the regulatory agency is allowed to remove or waive them, especially without any requirement for public notice and comment.

DEP states the modifications are necessary so that companies are not prevented from using more environmentally protective methods. This simply is not true. DEP currently has the authority to reject coverage of large-scale projects under a one-size-fits-all Nationwide permit, and can instead come up with protective methods customized to the needs of the project through an individual permit.