US Court of Appeals Rejects M.V.P. Water Quality Permit From WV-DEP

US Court of Appeals Issues Unanimous Decision to Protect Streams

Press Release from Jessica Sims, Appalachian Voices, April 3, 2023

RICHMOND, Va. — Today, a unanimous panel of the U.S. Court of Appeals for the 4th Circuit vacated the West Virginia Department of Environmental Protection’s Clean Water Act § 401 certification for the Mountain Valley Pipeline, finding that the agency’s justification behind its conclusion that the pipeline would not violate the state’s water quality standards was deficient.

The 401 certification is a critical permit that MVP needs in order to resume construction through rivers and wetlands in West Virginia, including 193 remaining water crossings in the state. This decision comes days after the same court upheld a § 401 water quality certification granted in Virginia.

Mountain Valley Pipeline has devastated water resources in West Virginia, receiving citations for scores of violations of water quality standards and racking up at least $550,000 in fines for failing to timely and adequately control runoff along the construction route.

The court identified multiple failures by West Virginia in issuing the certificate. Specifically, the West Virginia Department of Environmental Protection did not sufficiently address the history of MVP’s water quality violations, did not include a condition requiring MVP to comply with the construction stormwater protection permit, and did not adequately explain why they waived review of location-specific antidegradation policy.

Without a § 401 water quality certification from West Virginia, the U.S. Army Corps of Engineers cannot issue the related Clean Water Act § 404 water quality permit that MVP needs for its stream and wetland crossings. In addition, MVP still has not received authorization to cross the Jefferson National Forest. Now that the developers behind the MVP will have to reapply for a 401 water quality certification in West Virginia, the timetable for the project is even more uncertain.

In this case, Appalachian Mountain Advocates represented Sierra Club, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Indian Creek Watershed Association, Appalachian Voices and Chesapeake Climate Action Network.

“Today’s ruling uplifts the tireless efforts of every single coalition member and volunteer fighting to protect land, water and people,” said Russell Chisholm, managing director for the Protect Our Water, Heritage, Rights Coalition. “Mountain Valley Pipeline’s assurances don’t match the facts as documented in violation after violation. MVP should abandon their ill-fated project because we will defend every stream and river crossing that can still be saved from permanent harm.”

“West Virginia communities have endured Mountain Valley Pipeline’s damage to their water resources and environment for far too long,” said Jessica Sims, Virginia field coordinator for Appalachian Voices. “The WVDEP’s insufficient safeguards have been exposed, and this ruinous project must be canceled.”

“West Virginia has been ground zero for the MVP and this ruling today makes clear that communities from West Virginia to North Carolina have worked together to protect the water,” said Dr. Crystal Cavalier-Keck, co-founder of 7 Directions of Service. “People need investment in clean, fossil-fuel free, non-extractive energy — not the MVP — and developers should cancel the project.”