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Administrative – State can’t waive procedures for pipeline permit

The Army Corps of Engineers lacked the authority to alter a special condition imposed by West Virginia regarding the construction and operation of a natural gas pipeline.  And because West Virginia did not follow the mandated notice-and-comment procedures in waiving a separate special condition it previously imposed as part of its certification, the authorization was vacated.

Background

Following extensive administrative proceedings, Mountain Valley obtained a certificate from the Federal Energy Regulatory Commission to construct and operate a natural gas 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 Army Corps of Engineers before beginning construction.

Mountain Valley elected to fit its proposed activity within the scope of an existing general permit (NWP 12) “which acts as a standing authorization for developers to undertake an entire category of activities deemed to create only minimal environmental impact.” West Virginia imposed several additional “Special Conditions” as part of its certification of NWP 12, including Special Conditions A and C. The Corps concluded the pipeline project met the criteria of NWP 12, provided Mountain Valley “compl[ies] with all terms and conditions of the enclosed material and the enclosed special conditions.”

Thereafter petitioner Sierra Club moved the court to stay the verification on grounds that it was contrary to Special Condition C.  On that same date, the Corps suspended the verification in order to “evaluat[e] the extent of [Mountain Valley’s] compliance” with Special Condition C. The court then stayed the entire verification.

On July 3, 2018, the Corps sent the reinstatement to Mountain Valley, “reinstat[ing] with modifications” its prior verification of the pipeline project’s compliance with NWP 12. The Corps imposed several additional “special conditions” in the reinstatement, including a Special Condition 6 that was in lieu of Special Condition C. Petitioners again filed a petition with the court challenging the Corps’ reinstatement.

Analysis

Initially, the Corps’ reinstatement warrants neither Chevron nor Skidmore deference. As a result, the court reviews de novo the Corps’ construction of its authority under the Clean Water Act to replace a state-imposed condition on a nationwide permit.

The plain language of Section 1341(d) of the Clean Water Act provides that any state certification “shall become a condition on any Federal license or permit.” This language leaves no room for interpretation. “Shall” is an unambiguously mandatory term, meaning that state conditions must be conditions of the NWP—i.e., the Corps “may not alter or reject conditions imposed by the states.”

Nevertheless, the Corps argues that Section 1341(d) authorizes it to reject or alter conditions in a state certification of a nationwide permit on a project-specific basis if the condition meets the “floor for water quality protection” provided for in Special Condition C. The Corps’ argument fails for two reasons. Accordingly, we vacate the July 3, 2018, reinstatement as exceeding the Corps’ statutory authority.

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.

Finally, the Corps and Mountain Valley argue that this court need not vacate the verification and reinstatement in their entirety but should instead remand the case to the Corps to further consider whether verification is appropriate. We find that the verification and reinstatement’s conclusions as to Special Conditions A and C were legally deficient, as they exceeded the Corps’ statutory authority. The Supreme Court has recognized that Section 706(2)(A) “requires federal courts to set aside federal agency action” that is “not in accordance with law.” Accordingly, we vacate, in their entirety, the Corps’ Dec. 22, 2017, verification and July 3, 2018, reinstatement authorizing the pipeline’s compliance with NWP 12.

Vacated.

Sierra Club v. United States Army Corps of Engineers (Lawyers Weekly No. 001-165-18, 35 pp.) (Wynn, James, J.) Case No. 18-1173, Nov. 27, 2018, on petitions for review of actions by the U.S. Army Corps of Engineers. Derek O. Teaney for Petitioners, John David Gunter II for Respondents, George Peter Sibley for Intervenor.

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