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Fourth Circuit Upholds Flawed DEQ 401 Process

The US Fourth Circuit Court of Appeals ruled Wednesday, August 1 against environmental groups, landowners, and community advocates in a legal challenge to Virginia’s Section 401 Certification granted to the Mountain Valley Pipeline by the Department of Environmental Quality and the State Water Control Board.

Roberta Bondurant and Russell Chisholm, Co-Chairs for the POWHR Coalition

“Despite hearing an abundance of evidence of the failures of Virginia’s Department of Environmental Quality and State Water Control Board in certifying a 401 permit for Mountain Valley Pipeline, the Fourth Circuit appellate judges determined the agencies did not act arbitrarily or capriciously when turning Virginia’s water safety over to self-regulation by the project managers.

“These regulatory schemes have allowed DEQ to prioritize corporations over communities and act as a permitting agency for the gas industry as opposed to an environmental overseer. We will continue to fight tenaciously for protection of the environment and the people who are dependent on it in the face of failing agencies. We are ever appreciative to the attorneys, activists, concerned communities, and impacted landowners as they continue to challenge flawed regulatory processes and their manipulation by the gas industry.

“Citizen monitors have been working tirelessly to report ongoing issues with erosion and sediment controls to DEQ, and the response from the agency has been underwhelming. We have little confidence that DEQ staff will hold MVP accountable for repeated problems as documented by citizen volunteers.

“Given the ample evidence presented both in the courtroom and in the field through citizen monitoring efforts, we now call on the State Water Control Board to issue a Stop Work Order immediately to prevent further damage and reconsider the permit in order to protect water resources in the Commonwealth and beyond.”

Bruce Coffey, Representative for Preserve Bent Mountain

“Citizens witnessed, in two separate hearings for MVP and ACP December 2017, the same board members ask the same questions — namely, “How can we keep control over and supervise stream and wetland crossings?” and “Is the general permit protective enough, or at all?”

“That’s a question that the State Water Control Board has asked, and has yet to answer. That’s why we’re asking for a stop work — now.

“But that question is also at the heart of the Fourth Circuit’s rationale in protecting MVP’s route through the national forest — how can we protect sensitive places in our environment with particularity?  Does a general permit “capitulate” the duty to protect? It’s disappointing to say the least to see the Fourth Circuit’s incongruity in rationale from one opinion to the other.

“Sensitive ecosystems and waters abound all along the route of MVP. The perched water table atop Bent Mountain — residents’ sole source of water — is one of those places. We hate to think that Justice won’t know what she’s lost until it’s irretrievable.”

Bonnie Law, Representative for Preserve Franklin

“VA DEQ hoodwinked the State Water Control Board into believing they and MVP would have proper controls in place to prevent erosion and sediment problems, and now it has been proven both do not, with repeated failures and destruction over and over again in Franklin County, VA since May 2018.

“The US 4th Circuit Court of Appeals bought this hoodwinking hook, line, and sinker. Unfortunately they don’t know the Matt Strickler and David Paylor VA DEQ we now know.”

Sandy Schlaudecker and Lynda Majors, Chair and Co-Chair for Preserve Montgomery County, VA

“The Fourth Circuit appellate judges have ignored scientific evidence instead believing that DEQ and MVP can control erosion and sedimentation.  These photos show that the scientists were right. This court ruling will allow the destruction to continue.”

Before MVP Construction
After MVP Construction Began


Fourth Circuit Ruling on DEQ 401 Challenge, Issued 8/1/18

Fourth Circuit Opinion on DEQ 401 Challenge, Issued 8/1/18


Appeals court upholds Virginia’s review of water quality impact of Mountain Valley Pipeline [Roanoke Times]