The Rubber Stamp Allowing Pipelines to Pollute Clean Water

Polluted stream at the bottom of a steep slope where there is pipeline construction

Polluted stream at the bottom of a steep pipeline slope

Credit: Courtesy Image

NRDC is concerned about the construction and operation of oil and gas pipelines because the climate emissions associated with massive new fossil fuel pipelines are unacceptable if we want to meet the goals needed to protect the planet. Additionally, the damage to farms, homes, wildlife habitat, health, and drinking water sources are unconscionable when we have cleaner alternatives. Exporting dirty energy to other countries is equally disturbing.

This blog post focuses on a particular risk: the threats pipeline construction poses to rivers, streams, creeks, wetlands, lakes, and ponds. These waters provide drinking water to families, farms, and wildlife. They are vital habitat for aquatic species. They are beloved sites for recreation and essential for subsistence living in some communities. They filter pollution and prevent flooding. And they are a priceless part of our natural ecosystems.

Yet pipeline construction has been harming water bodies around the country, as explained in my last blog post.

The Clean Water Act (CWA) is designed to protect our surface waters from pollution. The law is strong, but its implementation has fallen short of where it needs to be when it comes to CWA permits for pipelines.

CWA prohibits the discharge of any pollutant into waters of the United States unless it is authorized by a permit. Section 404 of the CWA, which the Army Corps of Engineers oversees day-to-day, regulates the discharge of what’s known as “dredged material” or “fill” into surface waters. The dredged material or fill can be dirt, rock, tree parts, and other materials (other sections of the law regulate chemicals, waste, and other pollutants).  A pipeline typically needs a CWA Section 404 permit for construction to proceed (along with other permits), because building a pipeline involves discharging solid material into the streams and wetlands it crosses.

Section 404 permits cannot be issued if “(1) a practicable alternative exists that is less damaging to the aquatic environment or (2) the nation’s waters would be significantly degraded.” In addition, the project cannot cause or contribute to the violation of applicable state or Federal laws, including water quality standards.

Under Section 404, there are two types of permits:

  1. General permits: A project that will have “only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment,” can apply for use of a streamlined permit known as a “general permit.” In the case of pipelines, the Army Corps has issued a general permit called Nationwide Permit 12 (NWP12). This is a short-cut around thorough environmental review, usually without public notice or public comment on the particular project. If it’s a gas pipeline, it will go through the environmental review process under the National Environmental Policy Act (NEPA), but because of the way our federal laws are organized, oil pipelines do not always have to go through the NEPA process if they are approved to use NWP12.
  2. Individual permit: Any pipeline that is expected to have more than minimal environmental effects—individually or cumulatively—is required to get an individual Clean Water Act permit. The individual permit process requires a review of environmental and socioeconomic impacts in compliance with the NEPA and a public notice and comment process.  Even for gas pipelines, the individual permit review process is much more robust when compared to NWP12.

I think most of us would be shocked to learn that some major pipelines are approved under NWP 12. For example, the Byhalia pipeline would be built across a pristine drinking water aquifer, near water wells that provide drinking water to more than one million people in Tennessee and Mississippi, and would cut through several Black communities in Memphis that already suffer from concentrated environmental burdens.

These pipelines undeniably have more than minimal adverse environmental effects and contribute to legal violations. Mountain Valley has already agreed to pay more than $2 million in penalties for more than 350 water quality violations cited by Virginia and West Virginia while under construction under NWP12, and it’s not even close to being completed (Mountain Valley originally received NWP12 approval but its owners have since withdrawn due to legal issues and applied for an individual permit).

To add insult to injury, the Trump administration weakened Clean Water Act regulations such that millions of miles of streams and millions of acres of wetlands are being denied protection under the law. This means that pipelines won’t even have to follow the weak requirements of NWP12 (which the Trump administration irresponsibly rolled back) when they cross certain kinds of water bodies.  

But the Biden administration can act to reverse the dangerous pipeline permit decisions of the prior administration. In addition to Mountain Valley, for example, Mariner East 2 is not yet finished but is linked to contamination of drinking water sources for dozens of families and farms, as well as 320 spills.

Line 3 would traverse pristine lakes and wetlands, cross Minnesota’s shallowest aquifers, and violate the treaty rights of the Anishinaabe people by endangering critical natural and cultural resources.

Line 5 would cross the Straits of Mackinac that link Lake Michigan and Lake Huron, an ecologically sensitive part of the Great Lakes ecosystem that supports healthy fisheries, provides drinking water to thousands of people, and anchors a thriving economy.

PennEast would cut through one of the most environmentally sensitive regions in the Delaware River watershed and some of the cleanest streams in New Jersey and Pennsylvania.

The Pacific Connector would cross nearly 500 water bodies, including five major rivers and the Coos Bay Estuary, threatening aquatic species, including the sources of fish for members of the Klamath tribes.

And the Dakota Access pipeline travels under both the Missouri River as well as Lake Oahe, a reservoir that is the primary water source for the Standing Rock Reservation, posing an imminent threat to the safety of the Standing Rock Sioux tribe.

There is still time to withdraw approval for each of these and instead use thorough environmental review—based on the best available science—to protect clean water, the climate, and other natural resources. To ensure full consistency with the Clean Water Act, no pipelines should be approved where a practicable alternative exists that is less damaging to the aquatic environment, the nation’s waters would be significantly degraded, or the project would cause or contribute to the violation of applicable state or Federal laws.

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