MVP clears regulatory hurdle with new Army Corps action on water crossings

Washington — In a step forward for the Mountain Valley Pipeline, the US Army Corps of Engineers has reissued stream crossing authorizations for the natural gas pipeline project.

The action comes as MVP also has recently sought Federal Energy Regulatory Commission approval to resume work, after the project regained another important authorization — an Endangered Species Act biological opinion from the US Fish and Wildlife Service.

The 303-mile, 2 Bcf/d project in Virginia and West Virginia would connect Appalachian Share gas to Mid-Atlantic demand centers. Some sections of work have been stalled amid litigation over endangered species, stream crossings and permissions to cross national forest land.

In an action that held up project construction along stream crossings, the 4th US Circuit Court of Appeals in October 2018 vacated the US Army Corps of Engineers' verification of stream crossing authorization for MVP in West Virginia. That led other Army Corps districts to suspend their authorizations as well.

On Friday, the Army Corps' Huntington, Norfolk and Pittsburgh districts reinstated verifications under Nationwide Permit 12 for the project. The Norfolk district also allowed MVP to restart work in its territory.

To support its case for work to resume at FERC, MVP also also submitted to the commission a new draft supplemental environmental impact statement issued by the US Forest Service addressing the project's right-of-way through the Jefferson National Forest.

Analysts with Height, in a note to clients Sept. 28, expected FERC will likely allow construction to resume. MVP on Sept. 22 asked FERC to lift its hold on construction by Sept. 25 to maximize restoration and construction by the onset of winter. MVP has said it aims to complete the project by early 2021.

Continued legal challenges

Environmentalists, however, are continuing legal challenges.

A coalition of environmental groups Sept. 25 filed a request for an administrative stay of the stream crossing authorizations with the US Department of Justice. They also filed petitions for review with the 4th Circuit related to the Huntington and Norfolk district authorizations, and planned to seek stays pending judicial review.

In a letter to DOJ, Appalachian Mountain Advocates contended that all of the Army Corps reinstated verifications violated the Endangered Species Act, with the 2017 Nationwide Permit 12 reissuance. Further, the groups contended the reinstated Huntington and Pittsburgh district verifications rely on a legally defective attempt to modify conditions.

With MVP's pitch to get back to work pending, FERC has asked MVP for detailed justification about its plans to reduce a 25-mile exclusion zone covering a watershed around the Jefferson National Forest.

Sierra Club Sept. 25 wrote to raise concern, contending the 4th Circuit has made clear that proceeding with construction absent all federal authorizations would violate FERC's certificate order, and noting that FERC staff previously restricted work in the exclusion zone because MVP lacks permits to cross federally owned lands.

Sedimentation

The Indian Creek Watershed Association also objected, arguing land immediately adjacent to the national forest border on Peters Mountain is comprised of extremely steep slopes reaching into a complex karst system at the base of the mountain. "Until MVP is in possession of a valid permit from the USFS and [Bureau of Land Management] approved by the 4th Circuit, MVP should not be allowed to conduct any construction south of Wilson Mill Road, Monroe County, West Virginia," the group argued.

Erosion and sedimentation factored into the court's prior invalidation of the authorizations to cross national forest land. The 4th Circuit found the Forest Service failed to explain why it adopted findings in FERC's environmental impact statement even though the service had previously disputed the percent efficacy of erosion barriers. Further, it found fault with changes to the forest management plan made to accommodate the right-of-way.