PEMBROKE — The clear, cold waters of Little Stony Creek cascaded over granite bedrock as Rick Sizemore watched from the banks and wondered.
How could a natural gas pipeline run through this wild trout stream, on a piece of wooded property so sacred to Sizemore that he named it after a Bible verse and promised in court records never to develop the land?
How will the company building the pipeline, after taking his land and water, return them to their natural state?
“How do you put something back that God did?” Sizemore said.
The developers of the Mountain Valley Pipeline have a plan to part the waters — “kind of like Moses, ” in the words of a federal judge — long enough to bury a 42-inch diameter steel pipe under Little Stony Creek and more than 1,000 other streams and wetlands in the project’s path.
Or they had a plan, until the 4th U.S. Circuit Court of Appeals intervened.
In October, the court threw out a federal stream-crossing permit for the pipeline, creating what is perhaps the largest legal obstacle to face the deeply divisive project since it was proposed four years ago.
Another potential roadblock popped up unexpectedly last week, when Virginia’s State Water Control Board voted to reconsider its earlier decision to grant a water quality certification to Mountain Valley. With no action likely until next year, construction crews still have state authorization to clear land, dig trenches and bury the pipeline in earth away from water bodies.
But before it can complete the 303-mile pipeline, Mountain Valley must again obtain the approval of the U.S. Army Corps of Engineers for stream crossings.
And that may prove to be more complicated the second time around.
Under the federal Clean Water Act, the Army Corps is required to review the company’s plan to use dams and pumping systems to temporarily divert streams and rivers, dig trenches along their dry beds, bury the pipe some six feet deep and then restore the current to its original flow.
Last December, the agency issued what’s called a Nationwide Permit 12 for the pipeline, a kind of general authorization for utility construction projects that are not expected to have a major environmental impact. Critics said the one-size-fits-all approach failed to analyze each water body the pipeline will cross.
In a lawsuit against the Army Corps, the Sierra Club and four other environmental groups argued that the Nationwide Permit contained a fatal flaw: It overlooked a requirement by West Virginia regulators that pipeline stream crossings must be completed with 72 hours.
With Mountain Valley conceding that it would take four to six weeks to span four major rivers in West Virginia, a three-judge panel of the 4th Circuit vacated a permit issued by the Army Corp’s Huntington district. Two other permits in different districts — one that covered the remaining stream crossings in West Virginia and the other for those in Virginia — were then suspended.
A spokeswoman for Mountain Valley said that the company plans to apply for a new Nationwide Permit, and that it expects to receive the Army Corps’ approval in time to complete the pipeline by late next year.
But in light of the 4th Circuit’s decision, the Sierra Club and other pipeline opponents say that Mountain Valley must now seek individual permits from the Army Corps for each of the nearly 1,000 water body crossings — a much more rigorous and time-consuming review for a project that is already running over budget and behind schedule.
If the Army Corps were to require individual permits for the pipeline, “It definitely has the potential to slow it down, ” said Joan Walker, a senior representative for the Sierra Club’s Beyond Dirty Fuels Campaign.
“Whether it could stop it is up to the company and the investors, ” she said. “How much are they willing to invest in such a dangerous project?”
‘Into the wilderness’
As the pastor of Dwelling Place Christian Ministries in Christiansburg, Sizemore was looking for a new way to spread the word in 2005. He found it in the real estate listings.
A little more than 200 acres for sale in Giles County featured mountains, fields, woodlands and streams, just north of Pembroke. Little Stony Creek runs through it.
About 150,000 people drive past the property every year, on their way to a point 1 mile upstream where the creek plunges over a 69-foot cliff to form the Cascades, one of the more popular hiking destinations in Southwest Virginia.
To Sizemore, the land off Cascade Drive was perfect for a church-based retreat center.
“One of the passions in my heart was to have a piece of land where people could get into the woods and experience the reality of God, ” he said.
Sizemore and his wife bought the property, built a home there and began to make plans for a place he calls 2:14, a reference to the Old Testament passage of Hosea 2:14: “Therefore, behold, I will allure her, bring her into the wilderness and speak kindly to her.”
To preserve his piece of wilderness, Sizemore obtained conservation easements through the New River Conservancy in 2008 and 2011, ensuring there would be no development on a property that serves as a buffer between the Jefferson National Forest to the north and the New River to the south.
Three years later, Sizemore learned that a joint venture of five energy companies based in Pittsburgh planned to build a natural gas pipeline through his land. And that his conservation easement could not stop the Mountain Valley Pipeline.
“I hated to break the news to you, ” George Santucci, president of the New River Conservancy, said to Sizemore as they stood on the banks of Little Stony Creek on a frigid December afternoon.
Mountain Valley sued the two men in 2017, after they balked at the company’s offer to buy a construction easement 125 feet wide and 2,100 feet long, which it needed to run the pipeline through the land and under the creek.
Using the power of eminent domain, the company gained possession of the strip of land, along with nearly 300 other pieces of Southwest Virginia owned by people who wanted nothing to do with the pipeline.
Stephen Clarke, a Norfolk attorney who represented Sizemore in the proceedings, said a conservation easement is no defense against eminent domain, which allows the taking of private land for a public use, such as a highway or utility line.
“If it is truly a public use, and we can debate that in the context of this pipeline, then the pipeline owner gets the power to override the landowner’s wishes, ” Clarke said.
The case left Sizemore torn between following the law and taking a stand. But Mountain Valley has already cut a 125-foot-wide swath through the woods on his land — and might have started to dig through Little Stony Creek by now, had the stream-crossing permit not been suspended.
Sizemore and Santucci continue to wrangle in court with Mountain Valley over how much they should be paid after the fact for the land. But more important than that, they say, is the principle of the matter.
“It certainly does undermine the trust and faith that landowners place in us, ” Santucci said of the New River Conservancy, which has protected more than 9,000 acres of land through conservation easements in North Carolina, Virginia and West Virginia.
“We pledged to protect their property into perpetuity.”
A battle over permits
Since Mountain Valley began to clear land for its pipeline, what it once promised would be an environmentally responsible project has turned into a muddy mess.
Heavy rains that started in the spring and continued through the year have washed sediment from construction areas into nearby streams, where it can disrupt sensitive wildlife habitats and pose a threat to drinking water supplies within the drainage area.
In a Dec. 7 lawsuit filed against Mountain Valley, the Virginia Department of Environmental Quality alleged that construction crews have violated regulations meant to curb erosion and sedimentation more than 300 times.
The lawsuit does not seek a halt to work on the pipeline, which continues in areas not covered by the Army Corps permits. But pipeline opponents — who say the greatest harm is still to come when stream crossings begin in earnest — were relieved to see the part of construction involving water bodies put on hold earlier by the 4th Circuit’s ruling.
“The court’s decision validates what citizens and pipeline opponents have been saying all along: The permitting process for the Mountain Valley Pipeline was fatally flawed, allowing pipeline developers to rush into construction without regard for the devastation to water resources in West Virginia and Virginia, ” said Peter Anderson of Appalachian Voices, which joined the Sierra Club in challenging the Nationwide Permit 12.
Now that the permitting process has restarted, there’s a disagreement over what should happen next.
Natalie Cox, a spokeswoman for Mountain Valley, said the company expects to file a new application with the Army Corps and receive either a new or reissued Nationwide Permit 12 by next spring for the stretch of pipeline affected by the court ruling. That, in turn, she said, would allow the restoration of the two other permits, including the one for Southwest Virginia, that the Army Corps suspended after the court ruling to “await clarity” on the issue.
Mountain Valley’s plan is based on modifications to the permitting process that have been proposed by the West Virginia Department of Environmental Protection.
One of the changes would do away with the state’s 72-hour time limit for stream crossings in certain cases, a key factor that led to the federal permit being thrown out. State environmental agencies often work with the Army Corps on reviewing pipeline projects, and usually issue their own water quality certifications as a prerequisite for a Nationwide Permit.
In Virginia, the State Water Control Board certified the pipeline project last year, just a few weeks before the Army Corps issued its permit. But the state’s position was called into question last week, when the water board — with two new members — voted 4-3 to hold a hearing on whether the earlier approval should be revoked, based on the repeated violations of DEQ standards. No hearing has been scheduled.
Meanwhile, West Virginia officials have submitted the modifications to the Army Corps and the U.S. Environmental Protection Agency for review, according to a spokesman for the West Virginia Department of Environmental Protection.
It will be up to the Army Corps to decide whether the changes are sufficient to address the concerns raised by the 4th Circuit, and if so whether Mountain Valley can proceed with a reissued Nationwide Permit.
The Sierra Club, which maintains that the pipeline now needs individual permits for each stream crossing, would likely file a new court challenge if that were to happen. “We’re definitely keeping an eye on it, ” Walker said.
Individual permits would require a more detailed analysis of each stream and wetland crossing, consideration of alternatives such as boring and different routes, and a public comment period of at least 30 days, she said.
Mountain Valley believes a Nationwide Permit is more appropriate for the project, Cox said.
A spokesman for the Army Corps of Engineers did not respond to questions last week from The Roanoke Times about what will happen next in the process, and what kind of permit will be required.
What it means for the pipeline
When a three-judge panel of the 4th Circuit heard oral arguments in the Sierra Club’s case in September, one of the judges wanted to know why both the Army Corps and Mountain Valley seemed reluctant to use individual permits, which are generally seen as more environmentally protective.
“There’s a reason, and it may not be a pretty reason, ” Judge James Wynn said at one point, after earlier remarking that the ambitious stream-crossing plans sounded “kind of like Moses.”
“I can’t figure out why, except the notice and comment part about it [the individual permit process] opens it up a bit, and you’d rather not do that. Is that the bottom line?”
Walker believes that if more hard questions are asked, either by the public or by the government as part of a tougher regulatory process, the pipeline would be in jeopardy.
“Frankly, I think they [Mountain Valley] knew it would be very difficult to get individual certification to build the way they want to build, through the rugged terrain and sensitive ecosystems that are in the current path, ” she said.
Pipeline opponents point to a line in the 4th Circuit’s opinion that states “an individual permit will likely be necessary.”
Although Cox expressed confidence that the company will get the Nationwide Permits it needs to complete the pipeline, some concerns were raised in a quarterly report filed in October with the U.S. Securities and Exchange Commission by EQM Midstream, the leading partner in the joint venture.
The approval process is “challenging, ” and recent decisions by courts and regulatory agencies could impact the company’s ability to finish the pipeline on time “or at all, ” the report stated. The filing also said that negative public perception of the pipeline could lead to permits being “withheld, delayed or burdened by requirements” that would cut into the company’s profits.
But such language can be a standard part of warning investors of all conceivable risks, and one financial analyst monitoring Mountain Valley saw no cause for alarm.
A report from Height Capital Markets in Washington, D.C., characterized DEQ’s recent lawsuit, filed by Virginia attorney general and gubernatorial candidate Mark Herring, as “a largely political move which does not significantly affect the state of play for the pipeline.”
The suit will likely settle for $1 million to $5 million, the report predicted, which would be a pittance compared to the pipeline’s total budget of $4.6 billion.
And with environmental groups happy about the lawsuit, the analysts wrote, “the intensity of their pressure to delay or disrupt the pipeline may wane.”
The impact to streams
A bird’s-eye view of the construction to date of the Mountain Valley Pipeline shows 125-foot strips of bare and muddy land, where chainsaw crews have cut a path up and down steep mountain slopes.
But the largest natural gas pipeline ever proposed for Southwest Virginia has yet to make a major mark on the waters it will cross.
If work were to resume under a Nationwide Permit, crews would have to blast through the bedrock of Little Stony Creek — destroying its scenic status and endangering the habitat of wild trout and the candy darter, a rare and colorful fish that was recently listed as endangered species, according to a court filing from attorney Derek Teaney of Appalachian Mountain Advocates, a nonprofit law firm that represents the Sierra Club.
On Bent Mountain in Roanoke County, the filing said, digging trenches through the headwaters of Bottom Creek will threaten the only source of domestic water for at least one family.
And where the pipeline will cross the Roanoke River near Elliston in Montgomery County, the endangered Roanoke logperch and other fish could be killed, opponents say.
Sediment-laden water is also expected to enter hundreds of smaller streams, which Santucci likened to capillaries and arteries leading to the heart — rivers that supply drinking water to thousands of people.
“When you’re talking about the entire pipeline, that’s a death by a thousand cuts, ” he said.
Pipeline supporters argue that Mountain Valley’s “dry, open cut” process has been used successfully on other projects, and that it is more environmentally protective than a so-called “wet cut” method, which involves digging a trench through flowing water.
“It’s a tried-and-true method of minimizing impact and returning the streams to their natural state, ” said Toby Mack, president of the Energy Equipment and Infrastructure Alliance, which represents the shale energy supply chain.
But to Rick Sizemore, the pipeline is a threat to both Little Stony Creek and his unalienable rights.
“We invested a lot into this. It’s our life, liberty and pursuit of happiness, ” he said. “Our heart was to pursue that dream, to have a place to live in the mountains that was undisturbed.”
Some parts of the 2:14 retreat center are already in operation as a joint project of the Dwelling Place church and Sizemore’s nonprofit organization, Eagles Nest Ministries.
However, Sizemore said he would not offer programs geared toward children if the pipeline comes through.
“What parents would want to send their kids to play on a 42-inch diameter natural gas pipeline under high pressure?” he said.
Under the laws of eminent domain, a court will eventually decide how much money Sizemore should receive from Mountain Valley for the condemnation of his land.
Whatever the amount, he said, it will be meaningless.
“How do you put a price tag on a dream being scarred?”
Published correction ran on Dec. 19 – Correction – West Virginia officials are finalizing modifications to the state’s pipeline permitting process and preparing to send them to the Army Corps and the U.S. Environmental Protection Agency for review. The status of this work was incorrect in a story published Dec. 16.