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Sierra Club v. United States Army Corps of Engineers

United States Court of Appeals, Fourth Circuit

November 27, 2018

SIERRA CLUB; WEST VIRGINIA RIVERS COALITION; INDIAN CREEK WATERSHED ASSOCIATION; APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK, Petitioners,
v.
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,
v.
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

          On Petitions for Review of Actions by the U.S. Army Corps of Engineers. (LRH-2015-592-GBR)

         ARGUED:

          Derek O. Teaney, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Petitioners.

          John David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

          George Peter Sibley, HUNTON ANDREWS KURTH, LLP, Richmond, Virginia, for Intervenor.

         ON BRIEF:

          Evan 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.

          Kevin 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.

          Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.

          WYNN, CIRCUIT JUDGE:

         The 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.

         We 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.

         I.

         A.

         The 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).

         The 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.

         NWP 12, 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.

         As with 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).

         Pursuant 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:

         Individual 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 District.

         B.

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.

         On 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 ...


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