SIERRA CLUB; WEST VIRGINIA RIVERS COALITION; INDIAN CREEK WATERSHED ASSOCIATION; APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK, Petitioners,
UNITED STATES ARMY CORPS OF ENGINEERS; MARK T. ESPER, in his official capacity as Secretary of the U.S. Army; TODD T. SEMONITE, in his official capacity as U.S. Army Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers; PHILIP M. SECRIST, in his official capacity as District Commander of the U.S. Army Corps of Engineers, Huntington District; MICHAEL E. HATTEN, in his official capacity as Chief, Regulatory Branch, U.S. Army Corps of Engineers, Huntington District, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor. SIERRA CLUB; WEST VIRGINIA RIVERS COALITION; INDIAN CREEK WATERSHED ASSOCIATION; APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK, Petitioners,
UNITED STATES ARMY CORPS OF ENGINEERS; MARK T. ESPER, in his official capacity as Secretary of the U.S. Army; TODD T. SEMONITE, in his official capacity as U.S. Army Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers; PHILIP M. SECRIST, in his official capacity as District Commander of the U.S. Army Corps of Engineers, Huntington District; MICHAEL E. HATTEN, in his official capacity as Chief, Regulatory Branch, U.S. Army Corps of Engineers, Huntington District, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor.
Argued: September 28, 2018
Petitions for Review of Actions by the U.S. Army Corps of
O. Teaney, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West
Virginia, for Petitioners.
David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondents.
Peter Sibley, HUNTON ANDREWS KURTH, LLP, Richmond, Virginia,
D. Johns, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg,
West Virginia, for Petitioners.
Jeffrey H. Wood, Acting Assistant Attorney General, Eric
Grant, Deputy Assistant Attorney General, Emily A. Polachek,
Environment & Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.
S. Elliker, Richmond, Virginia, Deidre G. Duncan, Brian R.
Levey, HUNTON ANDREWS KURTH LLP, Washington, D.C.; Robert
McLusky, Douglas J. Crouse, JACKSON KELLY PLLC, Charleston,
West Virginia, for Intervenor.
GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.
Sierra Club, West Virginia Rivers Coalition, Indian Creek
Watershed Association, Appalachian Voices, and Chesapeake
Climate Action Network ("Petitioners") ask this
Court to set aside Respondent U.S. Army Corps of
Engineers' (the "Corps") December 22, 2017,
verification ("Verification") and July 3, 2018,
reinstated verification ("Reinstatement") that
construction of the Mountain Valley Pipeline (the
"Pipeline") can proceed under the terms and
conditions of Clean Water Act Nationwide Permit 12 ("NWP
12"), rather than an individual permit. For the reasons
that follow, we hold that the Corps lacked statutory
authority to substitute its own special condition "in
lieu of" a different special condition imposed by West
Virginia as part of its certification of NWP 12.
further conclude that, absent completion of the
notice-and-comment procedures required by the Clean Water
Act, a state cannot waive a special condition previously
imposed as part of its certification of a nationwide permit.
Because West Virginia did not follow its federally mandated
notice-and-comment procedures in waiving another special
condition the state imposed as part of its certification of
NWP 12, that condition remains a required-but, in this case,
unsatisfied-condition of the nationwide permit. Accordingly,
we vacate, in their entirety, the Corps' December 22,
2017, Verification and July 3, 2018, Reinstatement
authorizing the Pipeline's compliance with NWP 12.
42-inch diameter natural gas Pipeline proposes to run 304
miles through parts of Virginia and West Virginia, crossing
the Corps' Pittsburgh, Norfolk, and Huntington Districts.
In the Corps' Huntington District, the Pipeline and
related access roads propose to cross 591 federal water
bodies, including four major rivers (the Elk, Gauley,
Greenbrier, and Meadow), three of which are navigable-in-fact
rivers regulated by Section 10 of the Rivers and Harbors Act
of 1899 (the Elk, Gauley, and Greenbrier). 33 U.S.C. §
403. Following extensive administrative proceedings,
Intervenor Mountain Valley Pipeline, LLC ("Mountain
Valley") obtained a certificate from the Federal Energy
Regulatory Commission ("FERC") to construct and
operate the Pipeline. Because construction of the Pipeline
will involve the discharge of fill material into federal
waters, the Clean Water Act requires that Mountain Valley
obtain clearance from the Corps before beginning
construction. 33 U.S.C. § 1344(a).
Corps has established, by regulation, two methods to obtain a
permit to discharge fill material into federal waters.
See Crutchfield v. Cty. of Hanover, Va., 325 F.3d
211, 214 (4th Cir. 2003). First, the Corps "can issue
individual permits on a case-by-case basis," through a
"resource-intensive review" requiring
"extensive site-specific research and documentation,
promulgation of public notice, opportunity for public
comment, consultation with other federal agencies, and a
formal analysis justifying the ultimate decision to issue or
refuse the permit." Id. (citing 33 C.F.R.
§§ 320.4, 325.1- 325.3). Alternatively,
"interested parties can try to fit their proposed
activity within the scope of an existing general
permit," in this case NWP 12, "which acts as a
standing authorization for developers to undertake an entire
category of activities deemed to create only minimal
environmental impact." Id. (citing 33 U.S.C.
§ 1344(e); 33 C.F.R. §§ 320.1(c),
330.1(b)-(c)). Potential permittees "must satisfy
all terms and conditions of an NWP for a valid
authorization to occur." 33 C.F.R. § 330.4(a)
(emphasis added). Mountain Valley elected to pursue the
general permit approach to obtain the Corps' clearance to
discharge fill as part of Pipeline construction.
reissued most recently in 2017, 82 Fed. Reg. 1860 (Jan. 6,
2017), authorizes the discharge of dredged or fill material
into federal waters attributable to "the construction,
maintenance, repair, and removal of utility lines and
associated facilities in waters of the United States."
J.A. 40. NWP 12 includes several General Conditions designed
to ensure that activities falling under NWP 12 minimally
impact water quality, the aquatic environment and adjacent
land, and water bodies managed by the Corps. See,
e.g., J.A. 45-46 (establishing conditions related to
"adverse effects from impoundments," "soil
erosion and sediment controls," and "removal of
temporary fills."). General Condition 7 provides that,
"No activity may occur in the proximity of a public
water supply intake, except where the activity is for the
repair or improvement of public water supply intake
structures or adjacent bank stabilization." J.A. 46.
any other federal Clean Water Act permit, an applicant for a
Section 1344(a) permit, like Mountain Valley, "shall
provide the [Corps] a certification from the State in which
the discharge originates or will originate," unless the
state waives, either explicitly or by inaction, its right to
independently certify the project. 33 U.S.C. §
1341(a)(1); see also 33 C.F.R. §
325.2(b)(1)(ii). Section 1344(a)(1)'s state certification
requirement also applies to "general" permits, like
NWP 12. 33 C.F.R. § 330.4(c)(1). When, as is the case
with NWP 12, a state's certification of the general
permit imposes additional "special conditions," the
Corps must "make these special conditions regional
conditions of the NWP for activities which may result in a
discharge into waters of the United States in that state,
unless [the Corps] determines that such conditions do not
comply with the provisions of 33 C.F.R. § 325.4."
Id. § 330.4(c)(2).
to its authority under 33 U.S.C. § 1341(a)(1), West
Virginia imposed, after providing public notice and receiving
public comment, several additional "Special
Conditions" as part of its certification of NWP 12.
Relevant to this case are Special Conditions A and C. Special
Condition A, in relevant part, provides that:
State Water Quality Certification is required for
i. Pipelines equal to, or greater than 36 inches in diameter;
ii. Pipelines crossing a Section 10 river (unless the bore is
greater than 100 feet below the stream bed on the Ohio River
mainstem, or greater than 50 feet below the stream bed on the
Ohio River mainstem, or greater than 50 feet below the stream
bed on all other Section 10 waters);
J.A. 43. And Special Condition C provides that:
Individual stream crossings must be completed in a
continuous, progressive manner and within 72 hours during
seasonal normal or below normal stream flow conditions.
Crossings on the Ohio River, Kanawha River, New River,
Monongahela River, and the Little Kanawha River, below the
confluence with Hughes Rivers, are exempt from the 72-hour
requirements. All stream activities shall be completed as
rapidly as possible.
J.A. 43-44. Accordingly, under Special Conditions A and C,
NWP 12 in West Virginia requires certain pipelines to obtain
an individual Section 401 certification (Special Condition A)
and limit construction of stream crossings to a 72-hour
window, except for certain rivers not at issue in the instant
case (Special Condition C). NWP 12 also requires the
submission of a pre-construction notification to the Corps if
any of seven criteria are met. Given the nature and scope of
the Pipeline project, it satisfies several of these
conditions. On February 25, 2016, Mountain Valley submitted
an NWP 12 pre-construction notification for the
Pipeline's 591 water crossings in the Huntington
To comply with Special Condition A, Mountain Valley applied
to the West Virginia Department of Environmental Protection
(the "State Department") for an individual water
quality certification. On March 23, 2017, the State
Department issued a conditional grant of the certification,
subject to certain special conditions and the standard 401
conditions. Petitioner Sierra Club timely petitioned this
Court for review of the Department's individual
certification. Sierra Club v. W.Va. Dep't of Envtl.
Prot., No. 17-1714, ECF No. 3 (4th Cir. June 9, 2017).
The State Department then sought voluntary remand with
vacatur of its verification with this Court, contending that
"the information used to issue the Section 401
Certification needs to be further evaluated and possibly
enhanced" and that it "needs to reconsider its
antidegradation analysis in the Section 401
Certification." Id., ECF No. 42 (4th Cir. Sept.
13, 2017). On October 17, 2017, we granted the motion,
vacated the Pipeline's individual water quality
certification, and remanded to the State Department pursuant
to 15 U.S.C. § 717r(d)(3). Id., ECF No. 45 (4th
Cir. Oct. 17, 2017). On remand, the State Department
purported to waive its requirement that Mountain Valley
obtain an Individual 401 Water Quality Certification.
Accordingly, Mountain Valley does not have an individual
state water quality certification under Section 401 of the
Clean Water Act.
December 22, 2017, the Corps issued the Verification
concluding that the Pipeline project meets the criteria of
NWP 12, provided Mountain Valley "compl[ies] with all
terms and conditions of the enclosed material and the
enclosed special conditions." J.A. 1-2. The Verification
recognized that Mountain Valley's expected construction
timeframe of these crossings would "take a total of 4-6
weeks to complete, 1-3 weeks for each side of the
crossings." J.A. 86. Based on consultation with FERC,
Mountain Valley plans to use a "dry open cut"
method to construct the Pipeline through four major,
Corps-managed rivers (the Elk, Gauley, Greenbrier, and
Meadow), which requires installing cofferdams directing water
away from a riverbed construction area to minimize
sedimentation and ...