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Court orders temporary halt of W.Va. water crossing authorizations for ACP pipeline project

Houston — Atlantic Coast Pipeline faced another legal setback as a federal appeals court stayed a US Army Corps of Engineers' permit allowing West Virginia water crossings for the natural gas project pending a legal review.

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The 600-mile, 1.5 Bcf /d pipeline, stretching from Harrison County, West Virginia, to Virginia and North Carolina, is one of several projects totaling 6.5 Bcf/d that would send Appalachian gas to downstream Mid-Atlantic markets.

Construction periodically has been held up as a result of legal challenges to federal permits in the 4th US Circuit Court of Appeals by environmental groups. Permitting snags already have fed into ACP's recent decision to postpone its targeted in-service to mid-2020 for portions of the project, while a late-2019 target remains for some segments intended to meet peak winter demand.

ACP said it is temporarily suspending waterbody crossings in the Huntington District until the case is resolved.

GENERAL PERMIT

At issue in this instance are environmentalists' challenges to use of a general permit, known as Nationwide 12, intended for projects that will cause only minimal cumulative adverse effects. The Huntington District permit includes 153 crossings within the district boundaries, according to the Corps.

ACP recently had its West Virginia stream crossing authorizations reinstated by the Corps after a voluntary suspension ACP had sought following 4th Circuit action favorable to environmentalists in another case involving use of NWP 12 for the neighboring Mountain Valley Pipeline.

Environmentalists are now fighting that reinstated ACP permit in the 4th Circuit. They asked the 4th Circuit for an administrative stay for the Huntington District crossings (Sierra Club v. US Army Corps of Engineers; 18-2273).

Sierra Club and other groups contend that one of the river crossings authorized, the Greenbrier River, cannot meet two special conditions set by West Virginia regulators in order to be eligible for NWP 12.

4th Circuit Chief Judge Roger Gregory, with the concurrence of Judge James Wynn and Judge Stephanie Thacker, granted the stay pending review Wednesday.

To show they are likely to succeed on the merits, environmentalists argued that ACP's plan to dam the entire width of the Greenbrier River violates a condition barring in-stream structures that impede or prevent fish movement upstream or downstream. In addition, environmentalists contended a bridge to be used for the construction will be in place for six months, violating a condition that a crossing be completed in 72 hours. ACP argued that both the West Virginia Department of Environmental Protection and the Corps have found the Greenbrier Crossing will meet those conditions. "Those determinations, especially the Corps' reasoned reliance on WVDEP's interpretation of its own requirements, are entitled to deference," it argued.

ACP said petitioners "conflate a temporary equipment bridge with the pipeline crossing itself," while neither the WVDEP or Corps interpret the condition to apply to a bridge to be used during construction. On the question of blocking fish movement, ACP contended petitioners conflate a temporary water bladder with the crossing of the pipeline. According to the Corps, ACP submitted a revised plan proposing to construct the Greenbrier River using a dry-cut dam-and-pump method that entails installation of a water dam or bladder.

The Corps in court filings found that the proposed crossing method protects water quality and the aquatic environment and "is the least environmentally damaging practicable construction method."

CONSTRUCTION SCHEDULE

As to the impact of the stay, Aaron Ruby, a spokesman for the project, said, "We don't believe this will cause any significant delay because it only impacts crossings in the Huntington District. It has no impact on any other construction activity in West Virginia, Virginia or North Carolina," he added.

In its November 5 court filing, the company said any delays in construction put at significant risk its ability to complete construction within designated construction windows to meet contractual deadlines. It made reference to a November 2019 in-service date.

"We're committed to meeting all conditions of the permit, and the Army Corps has confirmed that our plans are fully in compliance," said Ruby. "We stand behind the Army Corps' approval, and we'll vigorously defend it in the courts," he said. -- Maya Weber, maya.weber@spglobal.com

-- Edited by Richard Rubin, newsdesk@spglobal.com