MVP gas line revamps permitting approach after FERC, court setbacks stall efforts

Washington — Facing fresh setbacks to advance construction on the 303-mile, 2 Bcf/d natural gas project, Mountain Valley Pipeline is revamping its regulatory permitting approach, and will now seek an individual water crossing permit from the US Army Corps of Engineers and a new amendment at the Federal Energy Regulatory Commission.

The new round of permitting confirms challenges to the company's late 2021 target for bringing into service the pipeline connecting Appalachian Shale gas to Mid-Atlantic markets, several analysts suggested, although MVP asserted the new approach would instead help bolster efficiencies to meet its budget and schedule.

MVP has faced a 4th US Circuit Court of Appeals stay of its water-crossing authorizations under the general permit known as Nationwide Permit 12.

More recently, its proposed certificate amendment, which would allow the use of conventional bore methods for some water crossings along 77 miles of the route, stalled on a 2-2 vote at FERC Jan. 19. It was opposed by Democrat Richard Glick, who is now FERC chairman, and Democratic Commissioner Allison Clements.

New approach

In a Jan. 26 letter to FERC, MVP said it will withdraw its existing application for that amendment at FERC (CP21-12). Instead, it plans to seek a "comprehensive review of all outstanding water body and wetlands crossings by contemporaneously submitting new permit and certificate amendment applications to the Corps and FERC, respectively."

A new application to three Corps districts, covering the route in West Virginia and Virginia, will seek an individual permit to use open-cut methods for some water bodies and wetlands under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act.

On top of that, a new amendment application at FERC will encompass those areas not covered in the individual permit and will seek to change to trenchless, rather than open cut, crossing methods.

"Mountain Valley believes these concurrent and comprehensive submissions will allow the Corps and FERC to coordinate their respective technical and environmental reviews of the proposed project changes efficiently and avoid unnecessary duplication of effort," MVP said in the letter. It suggested timing and resources for reviews would be minimized because the submissions will entail mostly minor changes and previously considered environmental impacts.

MVP also will seek water-quality certifications under CWA Section 401 in West Virginia and Virginia.

Project timing

Josh Price, a senior analyst with Height, said the move by MVP to apply for Section 404 permits for remaining Virginia and West Virginia crossings is "in line with our [H1 20]22 in-service target for the pipeline."

"Since the election of Joe Biden and the 4th Circuit stay on the project's NWP12 authorization in November, we've maintained that individual stream-crossing permits from the ... Corps is the only viable path forward for the project," Price said in an email.

Gary Kruse of LawIQ agreed the change in course means "this year is not in the cards" for bringing the project into service, based on the time generally needed to get through the Corps districts' permitting. In addition, the states have the right to take up to a year from the time an application is submitted for a Section 401 review, potentially reaching out to February 2022, he said.

"I would be highly surprised if Virginia, in the political environment in that state, would take less time than close to one year," Kruse said. But if MVP can gain permits from the Biden administration, he said it would have a better chance in overcoming its biggest hurdle, the 4th Circuit, which proved skeptical of Trump administration permits.

MVP spokeswoman Natalie Cox said that at present, MVP has all necessary permits, with exception of NWP12, which is currently under a stay.

"With MVP's total project work roughly 92% complete, we believe this decision is the most-efficient path to satisfying objections, completing remaining work in an environmentally responsible and protective manner, and keeping within our current budget and schedule," she said in an email.

FERC obstacles

At FERC's Jan. 19 open meeting, orders supporting the commission's prior decisions allowing the project to resume construction lacked votes to advance, as did the amendment allowing alternative water crossings for 77 miles. Glick pointed to a need for a project to have all permits in hand throughout the route before returning to construction.

"The reason the commission doesn't authorize construction in the absence of a permit is that it makes no sense to enable a developer to begin digging up land and laying down the pipe when it may be that the subsequent permits are never obtained, or route changes might be required," he said at the time.

Environmental groups had argued that further study of impacts associated with conventional bore crossings was needed prior to FERC approval of the amendment.