Sierra Club v. West Virginia DEP, 64 F.4th 487

Background

Mountain Valley Pipeline (MVP) sought to build a ~304-mile, 42-inch natural gas pipeline, ~197 miles in West Virginia, requiring numerous waterbody crossings.
MVP proposed a mix of trenchless (boring) and open-cut (in‑stream dewatering/trenching) crossings; open‑cut crossings involve excavation, dewatering, and backfilling and carry sedimentation and turbidity risks.
MVP initially relied on Army Corps NWP 12 verifications, but Fourth Circuit decisions (Sierra Club I/II) and changes in plans led MVP to seek an individual CWA §404 permit and a West Virginia §401 water‑quality certification.
The West Virginia Department of Environmental Protection issued a §401 certification on Dec. 30, 2021, subject to 31 conditions; it relied on compliance with the state O&G Construction General Permit (O&G CGP), MVP’s SWPPP, enhanced BMPs, inspections, and a Mitigation Framework—but did not make O&G CGP or SWPPP compliance express conditions.
Record showed widespread prior MVP violations during earlier open‑cut work (numerous permit violations, 46 narrative water‑quality violations, and ~$569,678 in penalties), raising concerns about future compliance.
Petitioners (landowners and environmental groups) challenged the §401 certification; the Fourth Circuit found the certification arbitrary and capricious and vacated it.

Issues

Issue	Petitioners' Argument	Department/MVP Argument	Held
Jurisdiction/finality of §401 letter	Certification not final while administrative hearing request window remained; court lacked jurisdiction	State regs provide an administrative appeal but Secretary has discretion to hold hearing; petition premature	Certification was final on issuance; discretionary hearing possibility did not defeat federal review jurisdiction
Whether Department ignored MVP’s violation history	MVP’s prior repeated permit and water‑quality violations show it cannot provide reasonable assurance of future compliance	Violations were infrequent/minor; Department inspections and MVP’s corrective steps make future compliance likely	Department failed to meaningfully justify why past violations won’t recur; reliance on compliance without explanation was arbitrary and capricious
Whether Department should have required compliance with O&G CGP & SWPPP as certification conditions	O&G CGP and SWPPP are central to Department’s assurance and must be imposed as conditions	Department can enforce state rules independently; including them would be redundant	Because the Department relied on those permits in its assurance, omitting them as binding certification conditions was arbitrary
Whether Department misapplied West Virginia BMP Manual / drainage-area guidance	MVP’s shift away from trenchless methods and crossings in larger drainage areas violate BMP preferences and require site‑specific verification	Department may rely on applicant’s site‑by‑site alternatives analysis and discussions with Army Corps; BMPs permit alternatives and dry‑ditch measures	Department’s evaluation of MVP’s compliance with BMP Manual was adequate; it permissibly relied on MVP’s submissions and interagency dialogue
Whether Department improperly relied on EPA upland CGP for in‑stream work	EPA’s CGP governs upland stormwater and can’t be analogized to in‑stream construction controls	EPA CGP provides guidance on BMP effectiveness and Department reasonably compared its O&G CGP to EPA’s CGP	Department’s footnoted reliance on EPA’s upland CGP for in‑stream activities was unsupported; more reasoned analysis was required
Whether Department failed to perform location‑specific antidegradation review	Department skipped site‑specific Tier 2/3 antidegradation review, relying on permits left out of its conditions	Antidegradation review unnecessary if permits/SWPPP and controls prevent lowering of water quality	Forgoing location‑specific antidegradation review based on non‑incorporated permits was arbitrary given MVP’s violation history

Key Cases Cited

Sierra Club v. U.S. Army Corps of Eng’rs, 909 F.3d 635 (4th Cir. 2018) (NWP 12 verification vacated where required state §401 certification was not properly in place)
Sierra Club v. U.S. Army Corps of Eng’rs, 981 F.3d 251 (4th Cir. 2020) (stay and further review of NWP 12 verifications)
Mountain Valley Pipeline, LLC v. N.C. Dep’t of Envtl. Quality, 990 F.3d 818 (4th Cir. 2021) (states retain §401 authority despite NGA preemption in other respects)
Bennett v. Spear, 520 U.S. 154 (1997) (final agency action factors for reviewability)
Sackett v. EPA, 566 U.S. 120 (2012) (possibility of agency reconsideration does not necessarily defeat finality)
United States Army Corps of Eng’rs v. Hawkes Co., Inc., 578 U.S. 590 (2016) (agency action can be ‘‘definitive’’ even if later reconsideration is possible)
Appalachian Voices v. State Water Control Bd., 912 F.3d 746 (4th Cir. 2019) (review standard for state §401 certifications)
Friends of Buckingham v. State Air Pollution Control Bd., 947 F.3d 68 (4th Cir. 2020) (agency must reconcile record evidence with conclusions)
PUD No. 1 of Jefferson Cnty v. Wash. Dept. of Ecology, 511 U.S. 700 (1994) (antidegradation policy purpose)
Defenders of Wildlife v. Dep’t of the Interior, 931 F.3d 339 (4th Cir. 2019) (arbitrary-and-capricious review principles)