SIERRA CLUB; APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK; WILD VIRGINIA, Petitioners,
STATE WATER CONTROL BOARD; ROBERT DUNN, Chair of the State Water Control Board; HEATHER WOOD, Vice-Chair of the State Water Control Board; LOU ANN JESSE-WALLACE, Member of the State Water Control Board; TIMOTHY G. HAYES, Member of the State Water Control Board; ROBERTA A. KELLAM, Member of the State Water Control Board; G. NISSA DEAN, Member of the State Water Control Board; ROBERT WAYLAND, III, Member of the State Water Control Board; DEPARTMENT OF ENVIRONMENTAL QUALITY; DAVID K. PAYLOR, Director, Department of Environmental Quality; MELANIE D. DAVENPORT, Director, Water Permitting Division, Department of Environmental Quality, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor. CHESAPEAKE BAY FOUNDATION, INC., Amicus Supporting Petitioner. DEL. SAM RASOUL; PRESERVE CRAIG, INC.; DOE CREEK FARM, INC.; GEORGIA HAVERTY; FOUR CORNERS FARM, LLC; DAVID J. WERNER; BETTY B. WERNER; IAN ELLIOTT REILLY; CAROLYN ELIZABETH REILLY; ROBERT M. JONES; DONNA T. JONES; BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE; PRESERVE BENT MOUNTAIN; PRESERVE FLOYD; PRESERVE FRANKLIN; PITTSYLVANIA PRIDE, Petitioners,
STATE WATER CONTROL BOARD; ROBERT DUNN, Chair of the State Water Control Board; HEATHER WOOD, Vice-Chair of the State Water Control Board; LOU ANN JESSE-WALLACE, Member of the State Water Control Board; TIMOTHY GEORGE HAYES, Member of the State Water Control Board; ROBERTA A. KELLAM, Member of the State Water Control Board; G. NISSA DEAN, Member of the State Water Control Board; ROBERT WAYLAND, III, Member of the State Water Control Board; DEPARTMENT OF ENVIRONMENTAL QUALITY; DAVID K. PAYLOR, Director, Department of Environmental Quality; MELANIE D. DAVENPORT, Director, Water Permitting Division, Department of Environmental Quality, Respondents, MOUNTAIN VALLEY PIPELINE, LLC, Intervenor. CHESAPEAKE BAY FOUNDATION, INCORPORATED, Amicus Supporting Petitioner.
Argued: May 8, 2018
Petition for Review of a Decision of the Virginia Department
of Environmental Quality. (FERC Docket No. CP16-10-000)
Benjamin Alan Luckett, APPALACHIAN MOUNTAIN ADVOCATES, INC.,
Lewisburg, West Virginia, for Petitioners.
Jay Heytens, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Respondents.
Peter Sibley, III, HUNTON ANDREWS KURTH LLP, Richmond,
Virginia, for Intervenor.
M. Lovett, Derek O. Teaney, APPALACHIAN MOUNTAIN ADVOCATES,
INC., Lewisburg, West Virginia, for Petitioner Sierra Club,
et al. Tammy L. Belinsky, Copper Hill, Virginia, for
Petitioner Del. Sam Rasoul, et al. Mark R. Herring, Attorney
General, J. Duncan Pitchford, Assistant Attorney General,
David C. Grandis, Assistant Attorney General, Matthew R.
McGuire, Deputy Solicitor General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Respondents.
S. Elliker, Richmond, Virginia, Deidre G. Duncan, HUNTON
ANDREWS KURTH LLP, Washington, D.C.; Christopher D. Pomeroy,
Justin Curtis, AQUALAW PLC, Richmond, Virginia, for
Mueller, CHESAPEAKE BAY FOUNDATION, INC., Annapolis,
Maryland, for Amicus Curiae.
GREGORY, Chief Judge, TRAXLER, and THACKER, Circuit Judges.
TRAXLER, CIRCUIT JUDGE.
certified under Section 401 of the Clean Water Act that it
had reasonable assurance that certain activities regarding
the construction of a natural gas pipeline would not degrade
the state's water. Several environmental groups,
individuals, and other entities petition for review.
Concluding that Virginia's issuance of the certification
was not arbitrary and capricious, we deny the petition for
Mountain Valley Pipeline Project (the "Project") is
a proposed interstate natural gas transmission pipeline that
will be approximately 303 miles long and 42 inches in
diameter and will transport natural gas from Wetzel County,
West Virginia, to Pittsylvania County, Virginia. Much of the
Project crosses topography with steep slopes and areas that
are susceptible to landslides. Approximately 106 miles of the
pipeline will be located in Virginia, and constructing the
pipeline requires 385 stream crossings and 144 wetland
crossings in the Commonwealth.
Valley Pipeline, LLC ("MVP") proposes to construct
and operate the pipeline in Virginia and West
Virginia. MVP generally would use a 125-foot-wide
construction right-of-way in uplands and a 75-foot-wide
right-of-way through wetlands. MVP would retain a 50-foot
right-of-way permanently to operate the pipeline. For
overland construction, MVP would generally need to clear the
land of trees and vegetation, then dig a trench of up to nine
feet in depth, fracturing and blasting rock where necessary.
Waterbody crossings would be dry open-cut crossings; MVP
would temporarily divert the water from the construction area
and bury the pipeline two to four feet below the streambed.
Federal Statutes and Agencies
Natural Gas Act ("NGA") requires that a party
seeking to build or operate a natural gas pipeline must
obtain authorization from the Federal Energy Regulatory
Commission ("FERC") in the form of a
"certificate of public convenience and necessity."
The NGA and its implementing regulations set out the process
for obtaining such a certificate. See 15 U.S.C.
§ 717 et seq.; 18 C.F.R. § 157.1 et
seq.; see generally East Tenn. Nat. Gas. Co. v.
Sage, 361 F.3d 808, 818 (4th Cir. 2004).
FERC receives an application for a certificate of public
convenience and necessity, it undertakes review of the
environmental impacts of the proposed project under the NGA
and under the National Environmental Policy Act
("NEPA"), 42 U.S.C. §§ 4321 et
seq., usually by accepting input from the public and
producing an environmental impact statement
("EIS"). FERC serves as the "lead
agency," coordinating the needed governmental
authorizations, see 15 U.S.C. § 717n(b),
including the one central to this case, Virginia's state
water-quality certification under the Clean Water Act
sets out the procedures FERC must employ in considering the
environmental impacts of agency actions. See Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). Council on Environmental Quality regulations require
FERC to draft an EIS in stages, first preparing a draft and
inviting public comment thereon, then considering the
comments and responding to them, possibly by modifying its
analysis. See 40 C.F.R. §§ 1503.1(a),
1503.4(a). In this way, the draft and the receipt of comments
serve as a "springboard for public comment."
National Comm. for the New River, Inc. v. FERC, 373
F.3d 1323, 1328 (D.C. Cir. 2004) (internal quotation marks
construction of the Project would involve discharge of
dredged and fill materials into wetlands and waterways, MVP
needed not only a certificate of public convenience and
necessity from FERC, but also approval from the U.S. Army
Corps of Engineers (the "Corps") under Section 404
of the CWA. See 33 U.S.C. § 1344(a); AES
Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721, 724
(4th Cir. 2009). Section 404 approval from the Corps may come
in the form of an issuance of individual permits or the
Corps' verification of the coverage "within the
scope of an existing general permit, which acts as a standing
authorization for developers to undertake an entire category
of activities deemed to create only minimal environmental
impact." Crutchfield v. County of Hanover, Va.,
325 F.3d 211, 214 (4th Cir. 2003) (citing 33 U.S.C. §
1344(e); 33 C.F.R. §§ 320.1,
largely preempts environmental regulation of interstate
natural gas pipelines by states. See AES Sparrows Point
LNG, LLC v. Smith, 527 F.3d 120, 125-26 (4th Cir. 2008).
However, it does "allow states to participate in
environmental regulation of [pipelines] under three federal
statutes: the Clean Air Act, the Coastal Zone Management Act,
and the Clean Water Act." Delaware Riverkeeper
Network v. Secretary Pa. Dep't of Envtl. Prot., 833
F.3d 360, 368 (3d Cir. 2016) (citing 15 U.S.C. §
state action challenged in the petition before us was taken
pursuant to Section 401 of the Clean Water Act. The relevant
language provides that "[a]ny applicant for a Federal
license or permit to conduct any activity . . . which may
result in any discharge into the navigable waters" must
seek "a certification from the State in which the
discharge originates . . . that any such discharge will
comply with the applicable provisions" of the CWA. 33
U.S.C. § 1341(a)(1). It provides that "[n]o license
or permit shall be granted if certification has been
denied by the State," but, if a state
"fails or refuses to act on a request for
certification, within a reasonable period of time (which
shall not exceed one year) after receipt of such request, the
certification requirements of this subsection shall be
waived." Id. (emphasis added). Under the
CWA's implementing regulations, the State also has the
option of granting the certification based on certain
conditions. See 33 U.S.C. § 1341(d); 40 C.F.R.
§ 121.2(a)(4); PUD No. 1 of Jefferson Cty.
v. Washington Dep't of Ecology, 511 U.S. 700, 712
(1994). Accordingly, a state receiving a Section 401
application has four options in total: it may grant a
certificate without imposing any additional conditions; grant
it with additional conditions; deny it; or waive its right to
participate in the process. See Delaware Riverkeeper
Network, 833 F.3d at 376 (noting states' options to
deny certificate or to waive right to participate);
see also S.D. Warren Co. v. Maine Bd. of Envtl.
Prot., 547 U.S. 370, 380 (2006) ("Section 401 . . .
was meant to continue the authority of the State to act to
deny a permit and thereby prevent a Federal license or permit
from issuing to a discharge source within such State."
(alterations and internal quotation marks omitted)). If the
state grants the certificate - whether with or without
conditions - the certification must contain "[a]
statement that there is a reasonable assurance that the
activity will be conducted in a manner which will
not violate applicable water quality standards." 40
C.F.R. § 121.2(a)(3) (emphasis added); see PUD No. 1
of Jefferson Cty., 511 U.S. at 712.
appellate review of such a state certificate, § 717r of
the NGA provides:
The United States Court of Appeals for the circuit in which a
facility subject to . . . [15 U.S.C. § 717f] is proposed
to be constructed, expanded, or operated shall have original
and exclusive jurisdiction over any civil action for the
review of an order or action of a . . . State administrative
agency acting pursuant to Federal law to issue, condition, or
deny any permit, license, concurrence, or approval . . .
required under Federal law.
15 U.S.C. § 717r(d)(1). It is undisputed here that the
Project is subject to 15 U.S.C. § 717f.
Virginia Agencies and Virginia Law Regarding Issuance of
Section 401 Certificates
Virginia law, the State Water Control Board (the
"Board") possesses broad authority concerning
permitting and regulatory matters that affect water quality
in Virginia, including authority over Section 401
certifications. See Va. Code § 62.1-44.15.
During the events in question, Virginia law provided that,
"[i]ssuance of a Virginia Water Protection Permit shall
constitute the certification required under § 401 of the
Clean Water Act." Va. Code §
62.1-44.15:20(D). Pursuant to the Virginia Water Protection
Program (the "VWP Program"), the Board, after
consulting with appropriate agencies and accepting and
considering public comment, may issue a VWP permit "if
it has determined that the proposed activity is consistent
with the provisions of the Clean Water Act and the State
Water Control Law and will protect instream beneficial
uses." Va. Code § 62.1-44.15:20(B). And the Board
may certify a nationwide Corps permit as meeting these
requirements so long as the permit meets specified
criteria. See 9 Va. Admin. Code
Virginia Department of Environmental Quality
("DEQ") serves as the Board's staff, and the
Board may assign DEQ tasks and delegate DEQ the authority to
make decisions. See Va. Code § 62.1-44.14. We
will refer to the Board and DEQ together as "the State
recently, it was only through the above-described process
that DEQ issued its water-quality certificates for linear
utility projects, including pipeline projects. However, in
May 2017, as a result of comments from interested parties
concerning the Project, DEQ came to the conclusion that there
was an analytical gap in the Rule 401 certification process.
Namely, while VWP Permit coverage addresses the impacts
caused to wetlands and streams by activities conducted in
wetlands and streams, see Ohio Valley Envtl. Coal. v.
Aracoma Coal Co., 556 F.3d 177, 194 (4th Cir. 2009), it
does not account for activities occurring in upland areas
that could also result in discharges into state waters or
otherwise affect Virginia's water quality. See
J.A. 100 ("The permits issued by the VWP program and the
permits issued by the Corps only address the impacts caused
to wetlands and streams by excavating in a wetland, draining
or significantly altering wetland acreage or function,
filling or dumping in a stream or wetland, or permanently
flooding or impounding a wetland area or stream. However, the
conditions and requirements of these permits do not cover
activities in upland areas, outside of wetlands and streams,
which may result in a discharge to state waters or otherwise
cause or contribute to an exceedance of Virginia's Water
recognition of this gap, DEQ recently issued its "2017
Guidance Document," establishing a process by which, as
part of the 401 certification process, DEQ can review these
potential effects from upland activities involved in a
natural gas infrastructure project. See Va.
Dep't of Envtl. Quality, Guidance Memo No. GM17-2003,
Interstate Natural Gas Infrastructure Projects - Procedures
for Evaluating and Developing Additional Conditions for
Section 401 Water Quality Certification Pursuant to 33 USC
§ 1341 (May 19, 2017). It provides that DEQ may decide
to seek additional information from pipeline applicants
concerning upland activity that "may have the potential
to affect water quality." Id. at 3. And it
states that DEQ may recommend to the Board the imposition of
conditions on upland activities that are in addition to the
conditions already imposed by or through the VWP Permit
Program, the Corps, or FERC. See id.
Virginia's Water Quality Standards and Water-Protection
the CWA, states have the primary role in promulgating water
quality standards." Piney Run Preservation Ass'n
v. County Comm'rs of Carroll Cty., 268 F.3d 255, 265
n.9 (4th Cir. 2001). To do so, a state begins by identifying
the uses for which the water will be protected; then, the
state determines the level of water quality needed to protect
the water for those uses. See NRDC v. EPA, 16 F.3d
1395, 1400 (4th Cir. 1993). Two aspects of Virginia's
water-quality policy are relevant here: its general narrative
water-quality criterion and its antidegradation policy.
water-quality criterion requires that "State waters . .
. shall be free from substances attributable to . . . waste
in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly
with designated uses of such water or which are inimical or
harmful to human, animal, plant, or aquatic life." 9 Va.
Admin. Code § 25-260-20(A). The criteria specify that
any substance "that produce[s] . . . turbidity" is
a substance to be controlled. Id.
"Turbidity" refers to a measure of suspended solids
in a water body, such as sediment.
terms, Virginia's antidegradation policy "shall be
applied whenever any activity is proposed that has the
potential to affect existing surface water
quality." 9 Va. Admin. Code § 25-260-30(A). The
policy divides the state's waters into three tiers and
provides different levels of protection for each tier.
See 9 Va. Admin. Code § 25-260-30(A). Tier 3
encompasses waters designated as "exceptional";
these waters "shall be maintained and protected to
prevent permanent or long-term degradation or
impairment." 9 Va. Admin. Code §
25-260-30(A)(3)(b)(1). The policy specifically provides that
"[n]o new, additional, or increased discharge of sewage,
industrial wastes or other pollution into [Tier 3 waters]
shall be allowed." 9 Va. Admin. Code §
25-260-30(A)(3)(b)(2). However, "[a]ctivities causing
temporary sources of pollution may be allowed in [Tier 3
waters] even if degradation may be expected to temporarily
occur provided that after a minimal period of time the waters
are returned or restored to conditions equal to or better
than those existing just prior to the temporary source of
pollution." 9 Va. Admin. Code §
encompasses waters that "exceed water quality
standards." 9 Va. Admin. Code § 25-260-30(A)(2).
The quality of such waters "shall be maintained and
protected unless the board finds . . . that allowing lower
water quality is necessary to accommodate important economic
or social development in the area in which the waters are
located." 9 Va. Admin. Code § 25-260-30(A)(2).
Tier 1 encompasses all waters that do not qualify as Tier 3
or Tier 2. For those waters, "existing instream water
uses and the level of water quality necessary to protect the
existing uses shall be maintained and protected." 9 Va.
Admin. Code § 25-260-30(A)(1).
generally protects its water from impacts from upland
construction-related activities through the National
Pollutant Discharge Elimination System ("NPDES")
permits issued by Virginia under CWA section 402.
See 33 U.S.C. § 1342. In particular, it
utilizes its Virginia Pollutant Discharge Elimination System
("VPDES") Program and, more specifically, its
General VPDES Permit for Discharges of Stormwater from
Construction Activities (the "Construction General
Permit"). 9 Va. Admin. Code § 25-880-70 Part II.
That permit, in turn, incorporates the requirements of two
other state laws, the Virginia Stormwater Management
("VSM") Law, Va. Code § 62.1-44.15:24 et
seq., and the Virginia Erosion and Sediment Control
("VESC") Law, Va. Code § 62.1-44.15:51, et
seq., which we will discuss in more detail ahead.
regulatory scheme is a little different when the construction
project in question is a natural gas pipeline. That is
because the CWA exempts natural gas pipeline construction
projects from regulation. See 33 U.S.C. §
1342(l)(2). Still, Virginia is able to impose the
same substantive requirements on natural gas pipeline
projects through its Annual Standards and Specifications
("AS&S") Program. See Va. Code §
62.1- 44.15:55(D). That program requires the project
developer to submit annual standards and specifications for
DEQ's review and approval, thereby ensuring that projects
will meet the same requirements that would apply were they
covered by the Virginia Construction General Permit.
See 9 Va. Admin. Code § 25-870-170(A). However,
once DEQ has approved a developer's annual standards and
specifications as satisfying the requirements of the VSM and
VESC, the entity generally need not submit site-specific VSM
and VESC plans to DEQ for approval. See Va. Code
§ 62.1-44.15:55(D). In this way, projects become more
filed its application for a certificate of public convenience
and necessity with FERC on October 23, 2015.
NGA required, see 15 U.S.C. § 717n(b), FERC
acted as the lead agency in preparing an EIS for the Project.
FERC first issued a draft EIS in September 2016. Then during
the 90-day period that followed, FERC conducted seven public
meetings and received 1, 237 written comments (many of which
were from DEQ). Some of DEQ's suggestions included
adjusting the Project route, requiring a revised Karst
Mitigation Plan, creating an Acid Soil Mitigation Plan,
revising the Blasting Plan, and adopting various measures to
reduce erosion and the introduction of sediment into the
water. FERC's final EIS, issued in June 2017,
incorporated many of the suggestions DEQ had offered.
recognized that many aspects of the Project created the
potential to negatively impact affected waters. With regard
to upland construction activities, the EIS observed:
The clearing and grading of stream banks could expose soil to
erosional forces and would reduce riparian vegetation along
the cleared section of the waterbody. The use of heavy
equipment for construction could cause compaction of
near-surface soils, an effect that could result in increased
runoff into surface waters in the immediate vicinity of the
proposed construction right-of-way. Increased surface runoff
could transport sediment into surface waters, resulting in
increased turbidity levels and increased sedimentation rates
in the receiving waterbody. Disturbances to stream channels
and stream banks could also increase the likelihood of scour
J.A. 771. The EIS stated that "[i]n order to limit
impacts on riparian zones, the Applicants would follow
measures outlined in its ...