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No. 18-1173
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SIERRA CLUB, WEST VIRGINIA RIVERS COALITION, INDIAN CREEK
WATERSHED ASSOCIATION, APPALACHIAN VOICES, and CHESAPEAKE
CLIMATE ACTION NETWORK,
Petitioners
v.
UNITED STATES ARMY CORPS OF ENGINEERS; and MARK T. ESPER, in
his official capacity as Secretary of the U.S. Army; TODD T. SEMONITE, in his
official capacity as U.S. Army Chief of Engineers and Commanding General of the
U.S. Army Corps of Engineers; PHILIP M. SECRIST, in his official capacity as
District Commander of the U.S. Army Corps of Engineers, Huntington District,
and MICHAEL E. HATTEN, in his official capacity as Chief, Regulatory Branch,
U.S. Army Corps of Engineers, Huntington District
Respondents
PETITIONERS’ SECOND MOTION FOR PRELIMINARY RELIEF

DEREK O. TEANEY
EVAN D. JOHNS
JOSEPH M. LOVETT
APPALACHIAN MOUNTAIN ADVOCATES, INC.
Post Office Box 507
Lewisburg, West Virginia 24901
Telephone: (304) 793-9007
E-Mail:
dteaney@appalmad.org
Counsel for Petitioners

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INTRODUCTION
Mountain Valley Pipeline, LLC’s pipeline is ineligible for the streamlined
permit at issue. Respondent United States Army Corps of Engineers (the “Corps”)
knew that, but nonetheless authorized its use. The Administrative Record reveals
that Respondent-Intervenor Mountain Valley Pipeline, LLC (“MVP”) admitted its
four major river crossings cannot satisfy an express condition of Nationwide
Permit (“NWP”) 12 in West Virginia limiting the duration of crossing
construction. Moreover, the Corps knew that to be true when it authorized MVP’s
use of NWP 12. In an epitomical arbitrary-and-capricious agency action, the Corps
determined that MVP’s project would comply with all NWP 12’s conditions
anyway. Because the four major river crossings are ineligible for the streamlined
permit, MVP may not lawfully use that permit for any of its stream crossings. 82
Fed. Reg. 1862, 1888 (Jan. 6, 2017). Nonetheless, MVP is currently constructing
its entire pipeline under color of the streamlined permit. To prevent those unlawful
actions and the resulting irreparable harm, Petitioners (hereinafter, collectively,
“Sierra Club”) file this Second Motion for Preliminary Relief. The Corps and MVP
intend to oppose the motion.1

1 On May 15, 2018, Sierra Club requested that the Corps stay the authorization
pending review, based on evidence produced with the Administrative Record.
Ex. 1. When the Corps informed Sierra Club on May 18, 2018, that it intended
to invoke the informal consultation provisions of 33 C.F.R. §330.5(d) to
determine if it should modify, suspend, or revoke MVP’s verification, Sierra
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BACKGROUND
Sierra Club seeks review of the Corps’ December 22, 2017 authorization of
the discharge of fill material into waters of the United States from the Mountain
Valley Pipeline project (the “Pipeline”) under NWP 12—a general permit issued
under Section 404(e) of the Clean Water Act (“CWA”), 33 U.S.C. §1344(e). MVP
plans to construct and operate a 304-mile gas pipeline from Wetzel County, West
Virginia, to Pittsylvania County, Virginia. Ex. 3 at AR000003. The Pipeline and its
access roads will require 591 waterbody crossings in the Corp’s Huntington
District, resulting in the discharge of fill material into 7.7 miles of streams and
nearly 19 acres of wetlands. Id. at AR000003-AR000004. The Pipeline will cross
four major rivers (the Elk, Gauley, Greenbrier, and Meadow), three of which (the
Elk, Gauley, and Greenbrier) are navigable-in-fact rivers regulated by Section 10
of the Rivers and Harbors Act. Id. at AR000007.
The Corps permits dredge-and-fill projects under Section 404 in two ways:
through individual permits tailored to specific projects, or through general,
nationwide permits (“NWPs”) for defined activities that are similar in nature and
Club asked the Corps to suspend the verification during that process under 33
C.F.R. §330.5(d)(2)(i). Ex. 2. On May 21, 2018, the Corps informed Sierra
Club that it would suspend the verification for only four of the 591 crossings at
issue and only pending its completion of informal consultation. Id. The Corps
declined to suspend the verification for the remaining crossings or for the
duration of this litigation. Id. The scope of the Corps’ forthcoming suspension
is both temporally and geographically inadequate. This Court should stay the
verification in its entirety pending resolution of this petition.
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would cause only “minimal adverse environmental effects.” 33 U.S.C. §§1344(a),
(e)(1). Many NWPs require would-be-permittees to submit certain projects to the
Corps for “verification” using a pre-construction notification (“PCN”).” 82 Fed.
Reg. at 1985.
The term of an NWP cannot exceed five years. 33 U.S.C. § 1344(e)(2). In
January 2017, the Corps reissued its suite of NWPs. See generally 82 Fed. Reg.
1860. One of those permits, NWP 12, authorizes discharges related to utility lines,
including natural gas pipelines. Id. at 1985. For projects, like the Pipeline, that
require approval under the Rivers and Harbors Act, NWP 12 requires the
submission of a PCN. 82 Fed. Reg. at 1986. “If one or more crossings of waters of
the United States for a proposed utility line do not qualify for authorization by
NWP, then the utility line would require an individual permit because of 33 C.F.R.
§330.6(d).” Id. at 1888.
NWP 12’s reissuance triggered CWA Section 401, 33 U.S.C. §1341, which
provides that federal authorizations resulting in discharges into waterbodies cannot
issue without “certification” by the affected state that the discharges will comply
with state water quality standards. States can impose special conditions in
certifications, which become conditions of the federal permit. Id. §1341(d).

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The West Virginia Department of Environmental Protection (“WVDEP”)
certified NWP 12’s reissuance under Section 401 on April 13, 2017, subject to
conditions to protect water quality. Among them is Condition C:
Individual stream crossings must be completed in a continuous,
progressive manner and within 72 hours during seasonal normal or
below normal stream flow conditions. Crossings on the Ohio River,
Kanawha River, New River, Monongahela River, and the Little
Kanawha River, below the confluence with the Hughes River, are
exempt from the 72-hour requirements. All stream activities shall be
completed as rapidly as possible.
Ex. 3 at AR000045-AR000046 (emphasis added). The Corps incorporated that
condition into NWP 12 for West Virginia pursuant to 33 U.S.C. §1341(d) and 33
C.F.R. §330.4(c)(2). Accordingly, NWP 12 in West Virginia includes an express
condition limiting in-stream construction to a 72-hour window, except in certain
streams not implicated here. Ex. 3 at AR000045-AR000046. The Corps maintains
that, aside from the condition requiring individual water quality certification for
pipelines like MVP’s, “[t]he other special conditions that West Virginia imposed
on the use of NWP 12 (in its NWP Certification) continue to apply to the
Pipeline[.]” Respondents’ Opp’n Br. at 11 n.3 (Doc. # 30).
MVP submitted an NWP 12 PCN for the Pipeline’s 591 stream and wetland
crossings in the Huntington District. Ex. 3 at AR000003-AR000004. As early as
September 2016, the Corps recognized that whether the Pipeline would qualify for
NWP 12 or would require an individual permit depended on MVP’s crossing plans
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for the Elk, Gauley, and Greenbrier Rivers. Ex. 4 at AR021940-AR21942. That is
because if even one stream crossing is ineligible for NWP 12, then MVP cannot
use that permit for any of the Pipeline’s stream crossings. 82 Fed. Reg. at 1888; 33
C.F.R. § 330.6(d). On December 18, 2017, the Corps asked MVP for an “estimate
of time required for construction of crossing the Gauley, Elk, Greenbrier, and
Meadow River[.]” Ex. 5 at AR001853. MVP responded on December 20, 2017,
with the following statement:
Overall, we are estimating that the entire construction process
associated with the crossings of the Elk, Gauley, Greenbrier, and
Meadow River crossings will take a total of 4-6 weeks to complete,
1-3 weeks for each side of the crossings. This estimation is based on
the river size, half-width construction, mobilizing to each river side,
staging equipment, pipe welding/bending/placing, installing the
portadam[2] and other BMPs, and pre- and post-construction boulder
survey/placement technique.
... Actual in stream disturbance associated with installing the
portadam will take approximately 2-3 working days. Once the
structure is properly installed, the work area is pumped dry, and
trench excavation can begin.
Id. at AR001854 (emphasis added). On December 22, 2017, the Corps issued the
verification challenged here, acknowledging MVP’s prediction that crossings of
the Elk, Gauley, Greenbrier, and Meadow Rivers would take 4-6 weeks to

2 A “Portadam is an engineered, segmental or linked system that creates a dry
workable area[,]” similar to a cofferdam. Ex. 6 at AR002149.
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complete, but nonetheless concluding that the Pipeline, “as described, complies
with all terms and conditions of [NWP 12].” Ex. 7 at AR000255, AR000268.
STANDARD OF REVIEW
Four factors govern a stay pending review:
(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
In this proceeding under Section 19(d)(1) of the Natural Gas Act (“NGA”),
15 U.S.C. §717r(d)(1), the Court should apply the Administrative Procedure Act
(“APA”). AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721, 727 (4th Cir.
2009). Under that standard, the Court must set aside any agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. §706(2)(A). An agency action is “arbitrary and capricious if the
agency has ... offered an explanation for its decision that runs counter to the
evidence before the agency.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983).

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ARGUMENT
I.

Sierra Club Is Likely To Succeed On The Merits Because The Corps
Arbitrarily and Capriciously Determined That the Pipeline Complies
With All NWP 12’s Conditions.
A. The Pipeline cannot meet NWP 12’s conditions.
The Corps’ verification of the Pipeline’s eligibility for and compliance with

NWP 12 was arbitrary and capricious because:
(1)

a condition of NWP 12 in West Virginia requires all crossings (except
for certain rivers not crossed by the Pipeline) to be completed within
72 hours (Ex. 3 at AR000045-AR000046);

(2)

the Corps actively solicited information from MVP about the time
required for crossing the Elk, Gauley, Greenbrier, and Meadow Rivers
(Ex. 5 at AR001853);

(3)

MVP provided the Corps information unequivocally establishing that
it cannot complete those river crossings within 72 hours (Id. at
AR001854); and

(4)

the Corps, nonetheless, determined the Pipeline “as described,
complies with all terms and conditions of [NWP 12]” (Ex. 7 at
AR000268).

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Because black-letter law holds an agency action that “runs counter to the evidence
before the agency” is arbitrary and capricious, Sierra Club is likely to succeed on
the merits of its petition. Motor Vehicle Mfrs. Ass’n, 463 U.S at 43.
Section D of the 2017 Nationwide Permits provides that,
[i]n reviewing the PCN for the proposed activity, the district
engineer will determine whether the activity authorized by the NWP
will result in more than minimal individual or cumulative adverse
environmental effects or may be contrary to the public interest. If a
project proponent requests authorization by a specific NWP, the
district engineer should issue the NWP verification for that activity if
it meets the terms and conditions of that NWP, unless he or she
determines, after considering mitigation, that the proposed activity
will result in more than minimal individual and cumulative adverse
effects on the aquatic environment and other aspects of the public
interest[.] For a linear project, this determination will include an
evaluation of the individual crossings of waters of the United
States to determine whether they individually satisfy the terms
and conditions of the NWP(s)[.]
82 Fed. Reg. at 2004-05 (emphasis added). Accordingly, for linear projects like gas
pipelines, a district engineer reviewing a PCN, as part of his minimal-adverseeffects determination, must determine whether each stream crossing will satisfy the
NWP’s conditions.3 The verb “will” denotes that the district engineer’s duty to
determine compliance with an NWP’s conditions is mandatory. See Hewitt v.
Helms, 459 U.S. 460, 471 (1983) (characterizing “shall,” “will,” and “must” as
“language of an unmistakable mandatory character”).

3 The Corps added the linear project obligation to the NWPs in 2012. 77 Fed.
Reg. 10,184, 10,287 (February 21, 2012).
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Under CWA Section 401(d) and 33 C.F.R. §330.4(c)(2), Condition C of
WVDEP’s Section 401 Certification of NWP 12 became an NWP 12 condition by
operation of law. Condition C’s language is unambiguous: “Individual stream
crossings must be completed ... within 72 hours.” Ex. 3 at AR000045-AR000046
(emphasis added). Again, “must” is a word of “unmistakable mandatory
character.” Hewitt, 459 U.S. at 471.
An email exchange in the Administrative Record makes clear that MVP
cannot comply with NWP 12’s 72-hour condition because the crossings of the Elk,
Gauley, Greenbrier, and Meadow Rivers will not be completed within 72 hours.
Ex. 5 at AR001853-AR001854. The Corps actively solicited an “estimate of time
required for construction of crossing the Gauley, Elk, Greenbrier and Meadow
River.” Id. at AR001853. In response, MVP informed the Corps that each crossing
“will take a total of 4-6 weeks to complete,” with Portadam installation alone
taking “2-3 working days” for each side. Id. at AR001854. In other words, MVP
could use its entire 72-hour window in those rivers just to install the Portadam on
one side of the river—with stream-trenching, pipe-laying, and riverbedreclamation occurring thereafter—before repeating the process on the other side.
Id.; Ex. 6 at AR002149. Given that it takes 2-3 days just to install the Portadam on
one side of the river, it is impossible for MVP to complete crossings of the Elk,
Gauley, Greenbrier, and Meadow Rivers in 72 hours.
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Notwithstanding that the Corps specifically solicited information about the
time required for river-crossing construction, and that the information MVP
provided shows that MVP cannot complete those crossings within 72 hours as
required by a condition of NWP 12 in West Virginia, the Corps expressly
determined that the Pipeline, “as described, complies with all terms and conditions
of [NWP 12].” Ex. 7 at AR000268 (emphasis added). That determination is the
epitome of arbitrary and capricious agency action because it is directly
contradicted by the Administrative Record. Motor Vehicle Mfrs. Ass’n, 463 U.S. at
43. Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017); Islander E. Pipeline Co.,
LLC v. Connecticut Dep’t of Envtl. Prot., 482 F.3d 79, 104 (2d Cir. 2006).
This case is readily distinguishable, legally and factually, from Snoqualmie
Valley Preservation Alliance v. U.S.A.C.O.E., 683 F.3d 1155 (9th Cir. 2012), and
its progeny. In Snowqualmie, the Ninth Circuit “decline[d] to impose a new
requirement of a full and thorough analysis of each general condition” in the face
of a challenge to the Corps’ lack of support for its “conclusory statement that the
‘[p]roject complies will all terms and conditions’” of the NWPs at issue. Id. at
1163-64. But Snoqualmie involved the 2007 NWPs and a non-linear project. Id. at
1158-59. That is significant because, with the 2012 reissuance of the NWPs, the
Corps modified Section D of the NWPs (“District Engineer’s Decision”) to impose
a specific duty on district engineers evaluating linear projects to evaluate each
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stream crossing to determine whether it individually satisfies the terms and
conditions of the NWPs at issue. 77 Fed. Reg. at 10,287. Accordingly, even if
Snoqualmie were correct about the district engineer’s obligations under the 2007
NWPs for non-linear projects, its reasoning does not apply to later-issued NWPs
for linear projects like the Pipeline.
Two federal district courts purported to apply Snoqualmie to NWP 12
verifications issued under its 2012 iteration, but neither court confronted the
language added in 2012 to the “District Engineer’s Decision” provision governing
linear projects. Standing Rock Sioux Tribe v. U.S.A.C.O.E., 255 F.Supp.3d 101,
145-47 (D.D.C. 2017); Mobile Baykeeper, Inc. v. U.S.A.C.O.E., Civ. No. 14-0032WS-M, 2014 WL 5307850, *12-*17 (S.D. Ala. Oct. 16, 2014). Accordingly, those
district courts did not fully evaluate the district engineer’s obligation to consider
satisfaction of all NWP 12’s conditions. Moreover, those two decisions involved
NWP 12 (2012). Standing Rock Sioux Tribe, 255 F.Supp.3d at 116; Mobile
Baykeeper, 2014 WL 5307850, *14. In 2017, however, the Corps added Note 8 to
NWP 12, which clarifies that “[t]he district engineer will evaluate the PCN in
accordance with Section D, ‘District Engineer’s Decision.’” 82 Fed. Reg. at 1986
(emphasis added). Once more, by using the term “will,” the Corps used “language
of an unmistakably mandatory character.” Hewitt, 459 U.S. at 471.

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Furthermore, Snoqualmie and its progeny are inapposite because, here, the
Corps actively solicited information relevant to the 72-hour requirement, MVP
provided information, and the Corps made a determination based on that
information. In contrast, in Snoqualmie, the plaintiffs challenged the Corps’
conclusory determination that the project complied with all permit conditions and
argued that the determination was unsupported by the record. 683 F.3d at 1163.
Snoqualmie did not present a case where the record directly contradicted the
Corps’ determination. Id. at 1163-64. Likewise, in Mobile Baykeeper, the plaintiffs
argued that the Corps’ determination of compliance with all permit conditions was
arbitrary and capricious because the facts on the ground—though not before the
Corps at the time of its decision—showed that the verification authorized
discharges that may have been too close to a public water intake to comply with
General Condition 7 of the NWPs. 2014 WL 5307850 at *12-*17; Mobile
Baykeeper, Inc. v. U.S.A.C.O.E., Civ. No. 14-0032-ES-M, 2014 WL 2569124 at *2
(S.D. Ala. June 9, 2014). Unlike Mobile Baykeeper, here the Corps was acutely
aware of the facts contradicting its determination that the project satisfies all NWP
12’s terms and conditions when it made its decision—indeed, it specifically
solicited those facts from MVP. Even if district engineers were not obligated to
solicit information regarding compliance with permit conditions or to make
specific findings regarding each condition, the APA and basic tenets of
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administrative law prohibit district engineers from entirely ignoring contradictory
facts in the record.
B. Sierra Club did not possess the documents necessary to establish its
likelihood of success on this claim when it filed its first Motion for
Preliminary Relief.
On May 1, 2018, Sierra Club received the 84,189-page Administrative
Record and discovered documents that unequivocally establish that MVP cannot
construct crossings of the Elk, Gauley, Greenbrier, and Meadow Rivers within the
requisite 72-hour period. Until that time, Sierra Club did not possess the clear
evidence necessary to establish a likelihood of success on the merits of the claim
presented in this motion.
The Corps’ February 28, 2018 filing of the Memorandum for Record with its
response to the first Motion for Preliminary Injunction (Doc. #30-3) marked the
first time Sierra Club learned the Corps was aware of the general timeframe for
completion of MVP’s river crossings. But the information in the Memorandum of
Record is ambiguous about whether MVP would be conducting activities in
jurisdictional waters for more than 72 hours, because the multi-week timeframe
described therein includes activities that could occur without discharges of fill
material into jurisdictional waters, such as “mobilizing to each river side, staging
equipment, pipe welding/bending[], installing ... other BMPs, and pre- and postconstruction boulder survey[.]” Id. at AR000255. Only on receipt of the
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Administrative Record did Sierra Club learn that MVP had made clear to the Corps
that it would take at least “2-3 working days” just to install the Portadams on one
side of each crossing and that trench excavation and other in-stream work would
occur after that installation. Ex. 5 at AR001854. Consequently, Sierra Club’s
Second Motion for Preliminary Relief is appropriate. See Red Star Yeast & Prod.
Co. v. La Budde, 83 F.2d 394, 396 (7th Cir. 1936) (“Denial of an application for
[preliminary relief] does not prevent another application by the same party in the
same suit, if new facts warrant it.”).
II.

Sierra Club Will Suffer Irreparable Harm Without Preliminary Relief.
Absent a stay of the Corps’ verification, MVP will complete its unlawful

crossings of the Elk, Gauley, Greenbrier, and Meadow Rivers before resolution of
this petition for review, reducing the effectiveness of any relief Sierra Club might
obtain. This petition is scheduled for the September 25-28, 2018 argument session.
Doc. # 36. Sierra Club understands that MVP expects to start constructing the four
river crossings in late August 2018. An alignment sheet that MVP submitted to
Federal Energy Regulatory Commission (“FERC”) shows that MVP must
complete construction in the Elk River by September 15, 2018, or wait until April
1, 2019. Ex. 8. In its response to the first Motion for Preliminary Relief, MVP
stated it intends to place the Pipeline “into service by December 2018.” Doc. # 31-

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2 at 9. Accordingly, MVP will complete construction in the Elk, Gauley,
Greenbrier, and Meadow Rivers before this petition is argued and resolved.
The Corps describes “the Elk, Gauley, Greenbrier, and Meadow river
systems [as] important natural resources for the state of West Virginia.” Ex. 7 at
AR000253. Those rivers “provide a source of drinking water to many
communities[,]” “support an abundance of aquatic life[,]” and “provide functions
to flora and fauna and values from recreation to aesthetic resources.” Id. at
AR000253-AR000254. The Corps further concedes “the functions and values of
[the Elk, Gauley, Greenbrier, and Meadow Rivers] would be impacted by the
removal of fish and shellfish habitat, sediment and shoreline impacts, visual
quality, and aesthetic impacts.” Id at AR000254. The Corps’ analysis also shows
that damming, excavating, and backfilling in all the affected streams—not just the
rivers—“would lead to direct and indirect effects including increased
sedimentation, increased turbidity, and decreased dissolved oxygen concentrations
during in-stream construction” and “would lead to the modification of existing
aquatic habitat within the work zone and downstream of the construction area.” Id.
at AR000251.
Bedrock is present at the proposed crossings of the Elk and Greenbrier
Rivers. Id. at AR000464, AR000491. Expert geologist Pamela Dodds explains that,
because bedrock is present at the Greenbrier crossing site, blasting is unavoidable.
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Ex. 9 at AR021890. Blasting is similarly unavoidable in the Elk River. Moreover,
the Corps believes that the Gauley River crossing may require blasting. Ex. 10 at
AR011857. FERC concluded in the Pipeline’s Final Environmental Impact
Statement (“FEIS”) that in-stream blasting could kill and injure aquatic life and
that “[c]hemical by-products from blasting materials ... could potentially
contaminate the water.” Ex. 11 at AR005236.
WVDEP conditioned the use of NWP 12 in West Virginia on completing
crossings within 72 hours to assure that water quality standards would not be
violated. 40 C.F.R. §§121.2(a)(3)-(4). By impermissibly prolonging in-river
construction in the Elk, Gauley, Greenbrier, and Meadow, MVP will
impermissibly increase turbidity duration and increase sediment loading in those
important rivers. See S.M. Reid et al., Sediment entrainment during pipeline water
crossing construction, 8 J. Envtl. Eng. Sci. 81, 87 (2004) (concluding that “longer
periods of instream activity ... increase the risk of sediment being released into the
watercourse”), cited in FEIS (Ex. 11 at AR005216).
For Sierra Club’s members, those impacts hit close to home. Sierra Club
member Tammy Capaldo owns and resides on property on the southern end of the
Greenbrier River crossing. Ex. 12 at ¶¶1, 3. The Pipeline’s construction on her
property, including the Greenbrier crossing and its water quality effects, would
diminish Ms. Capaldo’s aesthetic and recreational enjoyment of her property and
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may ultimately lead her to “abandon [her] dream” of living along the river she
“hold[s] so dear.” Id. at ¶¶4, 18, 34. She will permanently forego current uses of
her property if the Pipeline is constructed. Id. at ¶¶27, 29. Moreover, the extended
duration of construction in the Greenbrier will deprive Ms. Capaldo of river access
for an unlawful period of time. Id.at ¶9, 20.
West Virginia Rivers Coalition Board Member Paul Breuer is a long-time
rafting guide who floats and fishes the section of the Gauley River that the Pipeline
would cross every year. Ex. 13 at ¶¶2, 4, 6-8. Increased turbidity and sedimentation
from the impermissibly-long Gauley crossing will diminish Mr. Breuer’s
enjoyment of the area and “devastate the aquatic life,” including the fishery he
enjoys but fears may remain unproductive for years after pipeline construction. Id.
at ¶¶10-14. Mr. Breuer has witnessed the long-term impacts of a similar pipeline
crossing in the same section of the Gauley, including diminished aesthetic values
and hazards to navigation and rafters, and expects that similar irreparable effects
are likely from the Pipeline’s crossing. Id. Indeed, based on his decades of
experience as a commercial boater, Mr. Breuer has “no doubt that the crossing will
negatively impact boating in the immediate area,” because of unavoidable streamtopography changes and the introduction of jagged rocks into the riverbed from
blasting. Id. at ¶¶4, 13.

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West Virginia Rivers Coalition member Matthew Kearns is an avid kayaker,
who has paddled the Elk River at MVP’s proposed crossing, intends to write about
that river segment in a “packrafting” guide, and is planning to kayak that section of
the Elk this summer. Ex. 14 at ¶¶1-5. Mr. Kearns has serious concerns, based on
his education and experience, about the effects of MVP’s prolonged stream
activities in the Elk, including increased sedimentation and riverbed alterations. Id.
¶¶7-8. MVP’s planned crossing reduces Mr. Kearns’s aesthetic and recreational
enjoyment of the Elk River and makes it less likely that he will recommend it to
other boaters. Id. at ¶10.
Irreparable harm will also soon occur to waterbodies (and their users)
besides the four major rivers, from MVP’s activities under the color of an NWP for
which it is entirely ineligible. As the Corps made clear when it reissued NWP 12 in
2017, “[i]f one or more crossings of waters of the United States for a proposed
[pipeline] do not qualify for authorization by NWP then the [pipeline] would
require an individual permit because of 33 C.F.R. §330.6(d).” 82 Fed. Reg. at
1888. See also 33 C.F.R. §330.6(d) (explaining that all portions of project must
seek an individual permit when a dependent portion without independent utility
requires an individual permit). The Pipeline requires 497 waterbody crossings in
the Corp’s Huntington District aside from the major river crossings. MVP’s

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construction activities in those waters will result in imminent irreparable harm
without a stay.
The Pipeline will cross wetlands on the properties of Sierra Club members
Ashby Berkley and Jim Gore. Exs. 15 & 16. Mr. Berkley’s property includes
wetland TTWV-W-MM20, which the Corps identifies as a palustrine forested
wetland (“PFO”) and for which the Corps has required mitigation to offset the
Pipeline’s effects. Ex. 3 at AR000036. Mr. Berkley’s wetland includes “many
gorgeous, mature trees,” and, although it has not yet, MVP will soon timber any of
those trees within its rights-of-way, causing irreparable harm to those trees and Mr.
Berkley. Ex. 15 at ¶19. Mr. Gore’s property includes a 0.25-acre forested wetland
(TTWV-W-35), which the Corps acknowledges will suffer permanent impacts
from Pipeline construction. Ex. 16 at ¶7, 9, 11-12; Ex. 2 at AR000039. Although
MVP may have timbered that wetland, it has not yet bulldozed it and preventing
further damage will decrease the likelihood of long-term harm to that wetland and
Mr. Gore. Ex. 16 at ¶12.
Moreover, the FEIS identifies scores of stream-crossings in areas of shallow
bedrock. Ex. 11 at AR006323-AR006437. Hydrologist Dodds predicts that blasting
is likely in all areas “less than 10 feet to bedrock,” Ex. 9 at AR021905-AR21906,
which would include those stream crossings in shallow bedrock. Such blasting will
cause irreparable harm to the streams. Ex. 11 at AR005236.
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One Monroe County stream located in shallow bedrock is TTWV-S-108, or
the Narrows of Hans Creek. Ex. 11 at AR006396. Sierra Club member Maury
Johnson has visited the Narrows of Hans Creek multiple times a year throughout
his lifetime. Ex. 17 at ¶21. But Mr. Johnson will be forced to abandon permanently
his aesthetic and recreational use of that “very special place and its unique
ecosystem” because, among other reasons, “the pipeline right-of-way would create
an intolerable eyesore.” Id. Moreover, Indian Creek—where Mr. Johnson was
baptized—also lies in shallow bedrock. Ex. 11 at AR006394. Stream disturbance at
that crossing will cause irreparable damage to that stream, its aesthetics, and Mr.
Johnson’s enjoyment of it. Ex. 17 at ¶20. The Pipeline will also cross streams on
Mr. Johnson’s organic farm. Id. at ¶¶7-8. Those tributaries of Hans Creek
(designated as S-Z4 and S-Z5) are also in shallow bedrock. Ex. 11 at AR006395.
His domestic well has a hydrologic connection to those streams, and Pipeline
construction will contaminate his well water. Ex. 17 at ¶10. Pipeline construction
will likely cause Mr. Johnson to leave and/or sell his property. Id. at ¶17.
The Supreme Court holds that environmental harms like those described
above, “by [their] very nature, can seldom be adequately remedied by money
damages and [are] often permanent or at least of long duration, i.e., irreparable.”
Amoco Prod. Co. v. Vill. Of Gambell, 480 U.S. 531, 545 (1987). The “dredging
and filling of [waterbodies] that may occur while [a c]ourt decides [a] case cannot
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be undone.” Sierra Club v. U.S.A.C.O.E., 399 F.Supp.2d 1335, 1348 (M.D. Fla.
2005). There simply “is no adequate remedy at law to compensate the public for
the harm caused by the disposal of fill material into waters ... or in wetlands.” U.S.
v. Malibu Beach, Inc., 711 F.Supp. 1301, 1313 (D.N.J. 1989). The loss of mature
forests is not compensable by money, rendering that type of loss quintessentially
irreparable. See, e.g., W. Land Exch. Project v. Dombeck, 47 F.Supp.2d 1216, 1218
(D.Or. 1999). Finally, the Pipeline construction’s lethal effect on aquatic life “is,
by definition, irreparable.” Humane Soc’y v. Gutierrez, 523 F.3d 990, 991 (9th Cir.
2008).
III.

Preliminary Relief Will Not Substantially Harm the Corps or MVP.
In contrast to the real and permanent environmental harms discussed above,

equitable relief would pose only minimal or temporary injury to the Corps and
MVP. Although the Corps has interests in defending its permits and permitting
process, “the effect of an injunction on these interests seems rather
inconsequential.” O.V.E.C. v. U.S.A.C.O.E. (O.V.E.C. II), 528 F.Supp.2d 625, 632
(S.D.W.Va. 2007).
As for MVP, any “[l]oss of anticipated revenues generally does not
constitute harm to others affected by injunctions in environmental cases.” Anglers
of the AU Sable v. U.S.F.S., 402 F.Supp.2d 826, 839 (E.D. Mich. 2005) (citing
N.P.C.A. v. Babbitt, 241 F.3d 722, 738 (9th Cir. 2001)). Monetary loss is relevant
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to the balance of harms only when it “threatens the very existence of the movant’s
business.” Wisc. Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985). Accord
Fed. Leasing, Inc. v. Underwriters at Lloyd’s, 650 F.2d 495, 500 (4th Cir. 1981).
This is not such a case, as MVP has never maintained that it will go out of business
if it has to seek an individual Section 404 permit instead of using NWP 12.
Moreover, MVP cannot now object that the application of the streamcrossing duration condition would cause it substantial harm because it forewent
opportunities to seek administrative or judicial review of WVDEP’s imposition of
that condition on NWP 12 under West Virginia law, notwithstanding that its PCN
was pending when WVDEP imposed the condition. That is, MVP has waived any
objection to the condition at issue, and “a party may not claim equity in his own
defaults.” Long v. Robinson, 432 F.2d 977, 981 (4th Cir. 1970).
IV.

The Public Interest Favors Preliminary Relief.
Where environmental resources are threatened, “the balance of harms will

usually favor the issuance of an injunction.” Amoco Prod. Co., 480 U.S. at 545.
See also N.W.F. v. Burford, 676 F.Supp. 271, 279 (D.D.C. 1985). Moreover, the
“public has an interest in the integrity of the waters of the United States and in
seeing that administrative agencies act within their statutory authorizations and
abide by their own regulations.” O.V.E.C. v. Bulen, 315 F.Supp.2d 821, 831
(S.D.W.Va. 2004). The CWA embodies the “balance Congress sought to establish
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between economic gain and environmental protection.” O.V.E.C. v. U.S.A.C.O.E.,
528 F.Supp.2d 625, 633 (S.D.W.Va. 2007). Ensuring Congressional mandates are
carried out is always in the public interest. See, e.g., Johnson v. U.S.D.A., 734 F.2d
774, 788 (11th Cir. 1984).
CONCLUSION
For the foregoing reasons, Sierra Club requests that this Court stay the
Corp’s verification of NWP 12 for the Pipeline pending resolution of the petition
for review.
Dated: May 22, 2018

Respectfully submitted,
/s/ Derek O. Teaney
DEREK O. TEANEY
EVAN D. JOHNS
JOSEPH M. LOVETT
APPALACHIAN MOUNTAIN ADVOCATES, INC.
Post Office Box 507
Lewisburg, West Virginia 24901
Telephone: (304) 793-9007
Facsimile:
(304) 645-9008
E-Mail:
dteaney@appalmad.org
Counsel for Petitioners

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CERTIFICATE OF COMPLIANCE WITH TYPE VOLUME LIMIT
This motion complies with the type-volume limits because, excluding the
parts of the document exempted by Federal Rule of Appellate Procedure 32(f)
(cover page, disclosure statement, table of contents, table of citations, statement
regarding oral argument, signature block, certificates of counsel, addendum,
attachments), this brief contains 5,196 words. This brief has been prepared in a
proportionally spaced typeface using Microsoft Word for Mac 2011 in Times New
Roman, 14 point.
/s/ Derek O. Teaney
DEREK O. TEANEY
APPALACHIAN MOUNTAIN ADVOCATES, INC.
P.O. Box 507
Lewisburg, WV 24901
Telephone: (304) 793-9007
Email:
dteaney@appalmad.org

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CERTIFICATE OF SERVICE
I hereby certify that, on May 22, 2018, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Fourth
Circuit by using the appellate CM/ECF system. The participants in the case are
registered CM/ECF users and service will be accomplished by the appellate
CM/ECF system.
/s/ Derek O. Teaney
DEREK O. TEANEY
APPALACHIAN MOUNTAIN ADVOCATES, INC.
P.O. Box 507
Lewisburg, WV 24901
Telephone: (304) 793-9007
Email:
dteaney@appalmad.org