NCDEQ Reissues Denial for MVP WQ 401 Certification

The North Carolina Department of Environmental Quality (DEQ), Division of Water Resources (DWR) has reaffirmed DWR’s previous denial of Mountain Valley Pipeline (MVP) Southgate Project’s request for a Clean Water Act 401 Water Quality Certification. DEQ first denied the request in August 2020. On MVP’s appeal of the decision, the U.S. 4th Circuit Court of Appeals found that the DEQ had not adequately explained its decision and vacated the agency’s denial.

In a news release, DEQ said that the Fourth Circuit upheld the state’s authority to determine that authorizing impacts from the Southgate extension poses unnecessary risk to North Carolina’s streams, lakes, and wetlands. The Fourth Circuit only remanded the decision back to the Division to address certain statements made by the hearing officer and to explain why the Department chose denial over conditional certification based on the uncertainty of the associated Mainline Project.

The reissued denial reaffirmed DWR’s original determination, provided context for hearing officer statements, and explain DWR’s reasons for  not conditionally approving the project pending other permit decisions. In one part of the denial letter, DWR said,

“The Hearing Officer’s Report expressed concern about whether approving the Southgate Project would be consistent with the principles of avoidance and minimization given the level of uncertainty associated with the Mainline Project. The Hearing Officer’s Report stated that ‘prior to incurring impacts to North Carolina natural resources, and to ensure that the maximum avoidance and minimization of impacts to North Carolina water and buffer resources occurs, a level of certainty regarding the completion of the MVP Mainline pipeline is required.’ At the time of the Denial, necessary federal permits had been vacated and FERC had issued a stop work order for the Mainline Project. Yet, the proposed Southgate Project would temporarily impact 12.4 acres of wetlands, 13,986 linear feet of streams and 301,994 square feet of regulated riparian buffer in critical water supply areas. Land would be clear cut of vegetation, streams would be dammed, and open trenches would be cut across streams and through wetlands and buffers in order to install the pipeline. “

According to Reuters MVP Southgate said in a response, “A conditional approval, as the state’s hearing officer recommended, would have satisfied the (DEQ’s) concerns … while meeting North Carolinians’ demand for natural gas.”

LINKS

US Court of Appeals for the Fourth Circuit Opinion
No. 20-1971 • Decided: March 11, 2021

DEQ Reissuance of Denial Letter
From S. Daniel Smith, Director DWR to Mountain Valley Pipeline, LLC • April 29, 2021

North Carolina again denies permit for Mountain Valley gas pipe extension
Reuters • Apr 30, 2021