Virginia Lawyers Weekly VA Lawyers Weekly
Based on thorough analysis by Virginia’s Department of Environmental Quality, the state Water Control Board had a sufficient basis to certify reasonable assurance that the Mountain Valley Pipeline Project – and the restrictions and protective measures it included – would not violate anti-degradation requirements for the state’s waterways.
Background
The Mountain Valley Pipeline Project involves the construction of 106 miles of pipeline in Virginia, with 385 stream crossings and 144 wetland crossings. The Project is proceeding under authorization from the Federal Energy Regulatory Commission and, because the project will involve discharges into wetlands and waterways, the U.S. Army Corps of Engineers. Although environmental regulation of interstate natural gas pipelines is largely pre-empted, the Clean Water Act contemplates states’ participation in such regulation.
Under Virginia law, the State Water Control Board has broad authority over permitting and regulatory matters that affect water quality in Virginia, including authority over certifications granted pursuant to § 401 of the Act. The Board may issue permits for proposed activities it has determined to protect instream beneficial uses and to be consistent with the provisions of the Act and the State Water Control Law.
Virginia’s Department of Environmental Quality, which serves as the Board’s staff, recently updated its process for
§ 401 review of potential effects from upland activities involved in a natural gas infrastructure project. Although the Act exempts natural gas pipeline construction projects from regulation, Virginia imposes the same substantive permitting requirements on natural gas pipeline projects through its Annual Standards and Specifications Program. However, once the Department has approved a developer’s annual standards and specifications, the entity generally need not submit site-specific plans for further Department approval. At that point, projects become more self-regulating.
Mountain Valley Pipeline first submitted its standards and specifications to the Department in February 2016. For more than a year, the Department engaged in several written and in-person exchanges with Pipeline representatives before finally approving the standards and specifications for the Project in June 2017. They identify the measures Mountain Valley Pipeline will take to meet both substantive state-law and Commission requirements. The Department also required Mountain Valley Pipeline to submit site-specific plans for approval before commencing land-disturbing activities. The plans had to be posted on the Department’s website for public comment.
In July 2017, the Department issued a draft § 401 certification that included 14 new conditions. The Department received more than 8,000 comments on the draft and also held two public hearings, which led it to substantially revise the draft. The Department also contracted with the U.S. Geological Service to monitor water quality during construction. The Board granted § 401 certification in December 2017.
The Petitioners (several environmental groups, individuals, and other entities) seek review of the December § 401 certification.
Petitioners have standing
As in Townes v. Jarvis, 577 F.3d 543 (4th Cir. 2009), the Petitioners challenge an allegedly improper administrative decision that they’d expected to be more favorable. They seek immediate relief as a necessary antecedent to the ultimate relief they seek from an administrative agency.
Here, the December § 401 certification ended the Petitioners’ opportunity to seek more stringent requirements. Thus, they have properly asserted injury-in-fact fairly traceable to the decision they challenge. And were they to prevail on the merits, the court could immediately undo the administrative decision that caused their injury.
Therefore, there is a realistic possibility that the Petitioners will obtain the ultimate relief they desire. The Commission may well be amenable to the state agencies’ attempts to re-issue its § 401 certification with more stringent restrictions, and in any event it has general authority to issue supplemental orders. If the state agencies determined that additional conditions were needed for reasonable assurance that their water quality would be protected, they would have strong arguments that the Commission should not stand in their way.
Accordingly, the Petitioners have standing to challenge the certification.
Reasonable assurance
The Department had a sufficient basis to be reasonably assured that the types of measures, restrictions, and programs in place to prevent excess sediment from entering state waters would be effective to satisfy the requirements of Virginia’s anti-degradation policy.
The state agencies undertook to protect their waters with methods developed for the purpose of large constructions projects such as this one. The Pipeline’s Standards and Specifications incorporate the very same substantive protections as in the Virginia Construction General Permit. The state agencies justifiably drew confidence in these protections from the EPA’s judgment regarding their effectiveness in preventing negative impact on water quality. A state circuit court likewise concluded that the General Permit was sufficient to prevent any negative impacts. The Petitioners do not suggest any reason why it was arbitrary for the state agencies to assume the same methods used for years to prevent large construction projects from harming water quality would not continue to be effective on an even larger scale.
It was reasonable for the state agencies to conclude that the Department, like the EPA, would be able to use the tools at its disposal to adjust to any unexpected contingencies that may lead to sampling results that exceed the applicable water quality criteria in the a short-term. The Act’s statutory framework plainly contemplates water monitoring as a basis for the state’s reasonable assurance certification. While the Petitioners argue that allowing any additional discharge of sediment (no matter how small or temporary) would violate the Department’s duty to protect water quality, the state agencies do not construe their anti-degradation policy so rigidly. Their view instead is that they can protect water quality despite momentary exceedances so long as they can quickly detect them and promptly respond with appropriate changes to prevent significant degradation.
Relying on the EPA’s judgment as to general effectiveness, rather than taking a site-specific approach, also was not arbitrary. The state agencies’ approach appropriately blended site-specific and non-site-specific analysis. While government agencies could always undertake more in-depth analysis, in this case it wasn’t arbitrary for the state agencies to rely significantly on the effectiveness of its “tried and true” methods. The agencies vigorously participated at every stage of the decision-making process and didn’t issue their final § 401 certificate until they’d added all the protections they concluded were needed for state water quality protection. This is exactly how the system was designed to work.
The Petitioners essentially contend that, having chosen to participate in the process, Virginia could not then place significant reliance on the judgment of federal agencies regarding the general effectiveness of protections and was limited in the types of evidence on which it could base its reasonable-assurance certification. But the court would serve no purpose by stepping in to second-guess the analytical methods Virginia deemed appropriate.
Combined-effect analysis
The court also finds unfounded the Petitioners’ argument that the state agencies erred in not including the impact of activities covered by Nationwide Permit 12 separately from the impacts from upland activities.
The Department didn’t review the Pipeline Project’s potential upland impacts in a vacuum. Indeed, it explained its intention that the § 401 certification for the activities covered by Nationwide Permit 12 and the additional proposed
§ 401 certification regarding upland activities together would constitute Virginia’s § 401 certification for the Pipeline Project. It found reasonable assurance that allowing upland activities would not reduce water quality, with full awareness and consideration of the fact that the activities covered by Nationwide Permit 12 would also be occurring. Finally, the incorporated monitoring plan protected against the Project’s degradation of water quality without regard to what particular activities (or combination) was the cause.
Accordingly, the state agencies’ segmented approach to the December § 401 certification, even if unorthodox, was not arbitrary and capricious.
Petitioner denied.
Sierra Club v. State Water Control Bd., Case No. 17-2406, Aug. 1, 2018. 4th Cir. (Traxler), from Va. Dep’t of Env. Quality. Benjamin Alan Luckett for Petitioners; Toby Jay Heytens for Respondents. VLW No. 018-2-162, 47 pp.
