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    Federal appeals court throws out Jefferson National Forest crossing approval for Mountain Valley Pipeline


    January 26, 2022 - Mike Tony, The Charleston Gazette-Mail, W.Va.

     

      Jan. 26—The 4th U.S. Circuit Court of Appeals has invalidated federal approvals for the Mountain Valley Pipeline to cross through the Jefferson National Forest, dealing the pipeline project a significant setback.

      The court on Tuesday threw out U.S. Forest Service and Bureau of Land Management decisions to allow the natural gas pipeline to cross 3.5 miles of the forest in Monroe County in West Virginia, and Giles and Montgomery counties in Virginia.

      It was the three-member panel's second invalidation of Forest Service and Bureau of Land Management decisions green-lighting pipeline construction through the forest since 2018.

      Circuit Judge Stephanie Thacker wrote in a unanimous decision that the Forest Service and Bureau of Land Management insufficiently considered sedimentation and erosion impacts of the pipeline, prematurely approved the use of a conventional bore method to construct stream crossings, and failed to comply with a Forest Service rule governing forest plan amendments.

      The Forest Service and the Bureau of Land Management "erroneously failed to account for real-world data suggesting increased sedimentation" along the route of the pipeline planned to transport natural gas across 11 counties in West Virginia before crossing into Virginia.

      Equitrans Midstream Corp. spokeswoman Natalie Cox said last month that total project work was nearly 94% complete, with 55% of the right-of-way fully restored.

      But the now-$6.2 billion pipeline project originally was scheduled for completion by the end of 2018 at a cost of just $3.5 billion.

      The pipeline's primary interest owner, Canonsburg, Pennsylvania-based Equitrans Midstream Corp. announced a targeted summer 2022 in-service date in May, pushing the date back from the end of 2021.

      The summer 2022 in-service date was based on receiving all water-crossing approvals and the lifting of a remaining exclusion zone around the Jefferson National Forest by the end of 2021.

      "We are thoroughly reviewing the Court's decision regarding MVP's crossing permit for the Jefferson National Forest and will be expeditiously evaluating the project's next steps and timing considerations," Cox said in an emailed statement Tuesday.

      The decision resulted from legal challenges filed by environmental groups to the Forest Service and Bureau of Land Management moves to approve the pipeline passing through Jefferson National Forest.

      The ruling returns the permit to the Forest Service and Bureau of Land Management for reconsideration.

      "Finally the facts have caught up with MVP's unrealistic claims and unjustifiable assault on Peters Mountain, the Appalachian Trail and other public treasures within the Jefferson National Forest," Howdy Henritz of the Indian Creek Watershed Association and Save Monroe said in a statement Tuesday.

      Joining those two groups in challenging the proposed crossing through Jefferson National Forest were Wild Virginia, the Sierra Club, Appalachian Voices, the Wilderness Society and Preserve Craig.

      The 4th Circuit Court also instructed the Forest Service and Bureau of Land Management to reevaluate facets of the 42-inch-diameter pipeline's potential environmental impact in a 2018 ruling that set back the project after a challenge from the same environmental groups.

      "Once again, the court has found that the Forest Service and BLM neglected their duties to look after the public and our precious natural treasures," David Sligh, conservation director for Wild Virginia, said in a statement Tuesday. "We have to ask, when will these agencies put the wider interests before those of profit-making corporations? This is yet another demonstration of the reasons MVP should never be completed."

      The court's ruling comes just under a month after the West Virginia Department of Environmental Protection granted a key water permit to Mountain Valley Pipeline LLC, the joint venture that owns the pipeline, after determining that project upland and water crossing activities would avoid lowering water quality from sediment pollution and thus comply with state water quality requirements.

      Pending before the U.S. Army Corps of Engineers is an application from Mountain Valley Pipeline LLC for a permit that would allow for discharging dredged and fill material into some waterbodies.

      The project's proposed trenchless crossing method also needs final approval from the Federal Energy Regulatory Commission.

      The water quality certification granted by West Virginia and Virginia regulators last month was required for discharges from such dredge-and-fill activities.

      The Environmental Protection Agency has defined fill material to include rock, soil, clay, construction debris.

      Opponents of the project have highlighted erosion impacts appearing to stem from the pipeline.

      Suzanne Vance of Weston, on whose farm road Mountain Valley has a temporary road easement at Second Big Run in Lewis County, submitted photos to the Federal Energy Regulatory Commission last week documenting what she said were damages from a Jan. 2 flood.

      Vance said Second Big Run has been bottlenecked for four years with deteriorating iron pipes placed by Mountain Valley which have caused significant damage to her farm, with the road washing out more with each rain event. Poor drainage, deforestation and mountain removal at Second Big Run's headwaters resulted in a trenching area being flooded out twice in the past seven months, Vance reported to federal regulators.

      The Department of Environmental Protection released a consent order last year requiring Mountain Valley to pay a $303,000 fine for violating permits by failing to control erosion and sediment-laden water.

      That penalty followed a $266,000 fine from the state in 2019 for similar erosion and water contamination issues.

      The Virginia Department of Environmental Quality fined Mountain Valley $2.15 million in 2019, resolving a lawsuit the department and state Attorney General Mark Herring had filed alleging the company violated a previously issued water quality certification by not controlling sediment and stormwater runoff.

      The Mountain Valley Pipeline is slated to run from Northern West Virginia to Southern Virginia, crossing Wetzel, Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Greenbrier, Fayette, Summers and Monroe counties in the Mountain State.

      The pipeline is projected to provide up to 2 billion cubic feet per day of natural gas from the Marcellus and Utica shale formations to markets in the mid-Atlantic and Southeastern regions of the U.S.

      Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or mtony@hdmediallc.com. Follow @Mike__Tony on Twitter.

      ___

      (c)2022 The Charleston Gazette (Charleston, W.Va.)

      Visit The Charleston Gazette (Charleston, W.Va.) at www.wvgazette.com

      Distributed by Tribune Content Agency, LLC.

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