ELR Citation: 53 ELR 20058
No(s). 22-1008 (4th Cir. Apr 3, 2023)

The Fourth Circuit vacated the West Virginia Department of Environmental Protection's CWA §401 certification for a proposed pipeline that would transport natural gas from West Virginia to southern Virginia. Landowners and environmental groups petitioned for review of the certification, arguing the decision ignored the pipeline's history of violating state water regulations and failed to make compliance with the oil and gas construction general permit (O&G CGP) and stormwater pollution prevention plan (SWPPP) a condition of certification; that the pipeline's plans did not comport with West Virginia's best management practices, contrary to the Department's conclusions; that the Department misconstrued EPA upland construction standards and misapplied those standards in its evaluation of the pipeline's in-stream construction plans; and that the Department did not conduct location-specific antidegradation review as required by state regulations. The court found the Department failed to sufficiently address the violation history, failed to include conditions requiring compliance with the O&G CGP and SWPPP, failed to provide a reasoned basis for relying on EPA's upland CGP, and failed to articulate an adequate explanation for forgoing location-specific antidegradation review. It granted the petition and vacated the certification.