WV Rivers Coalition Replies to WV-DEP on Nationwide 12 Permits

To: WV Department of Environmental Protection, Division of Water and Waste Management, 601 57th Street South East, Charleston, WV 25304

Re: 401 Water Quality Certification Program Submitted via: WQSComments@wv.gov

West Virginia Rivers Coalition, on behalf of our members and the 19 organizations signed below, respectfully submit the following comments on the proposed modifications to the West Virginia 401 Water Quality Certification for U.S. Army Corps of Engineers (USACE) Nationwide Permits. We oppose the proposed changes to the standard and special conditions, which weaken protections for West Virginia’s rivers and streams.

The public notice of the proposed modifications was inadequate. The public must receive adequate notice of the DEP’s proposed modifications. With the September 2018 NWP 401 Certification proposed modification, the DEP posted the public comment period on the DEP Public Information Office’s news webpage. The January 2019 proposal was not listed on the Public Information Office’s news webpage. Furthermore, there was no record of the public notice posted to the DEP Public Notice Mailing List. The notice was placed on DEP’s 401 Water Quality Certification webpage, but that does not satisfy the public notice requirements.

The modifications may weaken or eliminate protections for every Nationwide Permit as applied in West Virginia. We are adamantly opposed to the proposed revisions to Standard Condition 22, which allows DEP to waive any of the standard or special conditions of the State 401 Water Quality Certification applicable to Nationwide Permits.

This modification is overly broad and vague. It applies to every nationwide permit. It does not provide any specifics regarding guidelines as to when waiving a condition is appropriate. And it does not specify what public process, if any, will be undertaken to ensure that waivers of standard or special conditions will undergo public notice, scrutiny, and comment.

The modification cites Section 401(a) of the Federal Water Pollution Control Act [33 U.S.C. § 1341(a)]; however, this section of the Act grants the State the authority to waive a certification if not acted on within a year. It does not give the State the authority to waive special or standard conditions within the certification.

The modifications allows for waivers of Individual 401 Certification under Nationwide Permit 12. We are adamantly opposed to the proposed changes to Nationwide Permit 12 West Virginia 401 Water Quality Certification Special Conditions, appearing under 12.A.

The relevant underlined added language reads:
“The Secretary of the West Virginia Department of Environmental Protection, in the Secretary’s sole discretion, reserves the right to require an individual water quality certification for any of the following facilities or impacts:”

This added language changed from the original language:
“Individual State Water Quality Certification is required:”

By making this change DEP opens the door to allow waivers of the Individual 401 Certification. This could be done without any public scrutiny or input, which is unacceptable. The change would cut the public out of any decision making processes.

The Individual 401 Certifications on NWP 12 were subjected to public notice and comment, and stakeholders had the opportunity to seek administrative and judicial review of them. The proposed change enables the state to unilaterally waive those requirements for an individual permit now and deprives stakeholders of the opportunity for public participation or to seek administrative or judicial review.

Moreover, because the special conditions on NWP 12 are now conditions of the nationwide permit itself, DEP does not have the authority under federal or state law to unilaterally waive those requirements for an individual 401 permit.

Exempting dry ditch crossing methods and large rivers from the 72-hour requirement does not consider impacts on aquatic life. The proposed change to the Special Condition C under Nationwide 12 allows for the exemption of the 72-hour crossing time restriction for dry crossing methods and large navigable river crossings. The longer crossing time does not consider the effects on aquatic life. The effect of dewatering the stream bed for prolonged periods on aquatic life was not taken into consideration when proposing this modification.

In its biological opinion for the Atlantic Coast Pipeline, the US Fish and Wildlife Service lists dewatering of mussel beds and increased sedimentation as two of the threats leading to the decline of Clubshell mussels. Clubshell mussels are also listed as species of concern for three water crossings on the Mountain Valley Pipeline. Candy Darters are also known to inhabit the Greenbrier and Gauley River Watersheds and were just recently listed under the Endangered Species Act with designated habitat where the Mountain Valley Pipeline proposes to cross the Gauley River and the Atlantic Coast Pipeline proposes to cross the Greenbrier River. The impacts of dewatering the streambed for prolonged periods on species of concern, such as Candy Darters and Clubshell mussels, must be taken into consideration prior to removing the 72-hour requirement.

The change to the 72-hour requirement affects other agency decisions. DEP relied on the 72- hour stream crossing condition when issuing the State General Water Pollution Control Permit for the Atlantic Coast and Mountain Valley Pipelines. On both projects in its response to comments for why an anti-degradation review is not needed, DEP states, “The Stormwater Pollution Prevention Plan (SWPPP) for this project requires that additional protective measures will be employed at crossings of and in proximity to Tier 3 and trout streams. The additional measures include… stream crossings in these areas will be completed within 72 hours once the crossing has begun…” By exempting large rivers and dry crossing methods from the 72-hour stream crossing condition, DEP would also invalidate the protections afforded streams under the General Stormwater Construction Permit and undermine its own rationale of why an anti-degradation review is unnecessary.

Other state agencies rely on the special conditions included within the Nationwide Permits. WVDNR refers to the condition requiring crossings to be completed in 72 hours in its spawning waiver approvals, and assumes when issuing those waivers that the applicant will comply with the 72-hour restriction. Allowing an exemption to this condition would therefore undermine WVDNR’s spawning waiver approvals. Changing this condition to allow longer crossing durations during which the stream bed is dewatered for prolonged periods would have detrimental effects on aquatic life, especially in areas where WVDNR relied on this rule to allow construction during the spawning season.

Modifications would allow structures that prevent fish movement between upstream and downstream for an undetermined length of time, as long as the structure is not permanent. The proposed modification to Special Condition L under Nationwide 12 would allow temporary structures that prevent fish passage. There is no specific timeframe for how long fish movement can be prevented as long as it is eventually restored. This change could have detrimental effects on fish species, including sensitive species such as the native brook trout and the endangered candy darters.

Fish movement ranges from short daily movements to seasonal migrations. The degree of fish movement depends on water levels, river flows and temperature. Fish need unimpeded movement in a waterway to access seasonal food sources, breeding areas, various habitat types and drought refuges. Structures that prevent fish movement may impact the fish’s ability to find adequate food, escape poor habitat conditions, or reach spawning grounds. Severing the connectivity of aquatic habitat for prolonged periods can prevent fish from migrating to various areas in the stream that are used during their different life stages. Migration barriers have the potential to restrict available habitats, interrupt seasonal movement patterns, and lead to individual losses due to isolation events. Structures preventing fish movement for long periods of time can alter the biology of the stream. These structures may also exacerbate flooding issues during high flow events.

Modifications undermine the Secretary’s position that NWP 12 Special Conditions are needed to prevent impacts. In the Secretary’s letter to staff regarding the Mountain Valley Pipeline 401 Waiver, he endorses the conditions put in place by the agency when certifying the 404 permit by stating:

“That 401 Certification had several conditions to ensure that temporary impacts to West Virginia’s waters would be minimized, and mitigation would be provided for permanent impacts. Importantly, during the same period of time that the WVDEP was working on this MVP individual certification, it was also developing special conditions for the reissuance of the USACE nationwide permit… The special conditions West Virginia included in it is certification on the newly reissued Nationwide 12 permit (in April 2017) largely mirrored the conditions that West Virginia had previously placed (in March 2017) on the MVP’s 401 Individual Certification… Because the newly issued Nationwide 12 permit included updated state conditions that were similar to those contained in MVP’s previous individual 401 Certification, WVDEP determined it was unnecessary to repeat them in an Individual Certification. As a result, it waived the 401 Certification…To be clear – by waiving the 401 Individual Certification, we are not abandoning our duty to protect the water quality of West Virginia. In fact, the new Nationwide 12 permit is 401 certified by West Virginia and includes state specific conditions relative to pipelines. Combined with the state Construction Stormwater Permit, we are in a stronger position to effectively regulate all pipeline construction in West Virginia.”

The DEP has previously relied on and endorsed the conditions under the 401 Certification for nationwide permits. It is problematic for DEP to change its course now in what appears to be a move to accommodate non-compliant plans and permits of certain projects.

Proposed modifications do not maintain the water’s designated use as required by law. State water quality standards are the basis for controlling pollutants in West Virginia’s water resources. The standards consist of designated beneficial uses, water quality numeric and narrative criteria, an anti-degradation policy, and other general policies on implementation. The water quality standards and criteria ensure that the beneficial uses are maintained and protected. DEP is mandated by the Requirements Governing Water Quality Standards Rule – Title 47CRS2 to maintain the rivers designated use; including public water supply and recreation. The proposed modifications do not ensure that the waterbodies’ designated uses will be maintained.

The Mountain Valley Pipeline proposes to cross the Gauley and Greenbrier Rivers, and the Atlantic Coast Pipeline proposes to cross the Buckhannon River, rivers that also serve as the source water for public water supplies directly downstream of the crossing locations. Exempting these river crossings from the Special Condition C would put undue hardships on the water treatment facilities by requiring the facilities to filter excess sediment in the source water for a duration of approximately 4 to 6 weeks or longer. The rivers’ designated use would not be maintained as a public drinking water source. Exemptions to the 72-hour condition do not ensure that the beneficial uses will be maintained and protected as required under the Clean Water Act.

The Greenbrier, Gauley, Buckhannon and Elk Rivers are popular recreational destinations for boating, swimming and fishing. The proposed modifications to Special Conditions C and L would impact the recreational use of these rivers. Allowing pipeline construction for an unrestricted duration coupled with impoundments that impede the flow will have detrimental effects on the recreational use of the impacted sections of these rivers. No recreation can occur during construction and the construction could last the majority of the popular recreational season. DEP’s proposed modifications to the special conditions do not maintain the rivers’ designated use for recreation.

The proposed modifications are untimely, unlawful and unnecessary. The DEP issued its recertification of the 401 for nationwide permits in 2017. Nationwide recertification is only necessary every five years. These modifications must wait until the 2022 recertification period. Opening the recertification process prematurely sets a precedent and disrupts the regulatory framework that industry, environmental organizations, state regulatory agencies, and other stakeholders rely on for continuity, transparency and certainty.

DEP has provided no justification for the proposed modifications to ensure that projects will still be able meet the state’s water quality standards. Likewise, the proposed modifications do not protect the rivers’ and streams’ designated uses. DEP cannot lawfully modify regulations without justification simply because the companies are not able to comply.

These modifications are not necessary for DEP to enable a company to use the most environmentally protective methods available. The agency has the authority now to deny large construction projects coverage under nationwide permits and require individual 401 Water Quality Certifications. Instead of following through with the proposed modifications, DEP should use individual 401 Water Quality Certifications to provide stream and wetland protections tailored to each project.

>>> Signed, Angie Rosser, West Virginia Rivers Coalition, plus 19 other organizations

Tagged as: ACE 401 Certification, ACP, MVP, Nationwide 12, natural gas, pipelines, rivers, streams, wetlands, WV Rivers Coalition, WV-DEP