See also: www.appalmad.org
From an Article by Robert Zullo, Richmond Times-Dispatch, October 29, 2017
Three environmental organizations say the State Water Control Board cannot conclude that there is a “reasonable assurance” that the construction of a pair of highly controversial natural gas pipeline projects planned to carve through hundreds of waterways in Virginia will protect state water quality standards.
In a letter last week, the Chesapeake Bay Foundation, along with the Southern Environmental Law Center and Appalachian Mountain Advocates, wrote that the Virginia Department of Environmental Quality’s much-maligned decision to narrow its water quality review for the Atlantic Coast and Mountain Valley pipelines to “upland” areas, among numerous other shortcomings, means the board lacks the information it needs to make a legally defensible water quality certification.
“While it is the board’s decision whether to certify the Atlantic Coast and Mountain Valley pipelines under section 401 of the Clean Water Act, DEQ must provide the board with sufficient information to make that decision,” the letter says. “DEQ has not done so. As a result, the board does not have the tools it needs to do its job and approval of water quality certifications for these proposed pipelines would be vulnerable to challenge in federal court.”
Both the Dominion Energy-led 600-mile Atlantic Coast Pipeline — which would run from West Virginia through the heart of Virginia and into North Carolina, with an extension to Hampton Roads — and EQT Midstream Partners’ 300-mile Mountain Valley Pipeline from West Virginia into Pittsylvania County, have been approved by the Federal Energy Regulatory Commission.
Standing in their way, however, are state-issued water quality certifications. Under section 401 of the federal Clean Water Act, a state must have reasonable assurance that its water quality standards will not be violated before signing off on federally approved projects such as natural gas pipelines.
And though West Virginia and North Carolina have delayed their water quality certification processes, either to request more information from the pipeline developers, in the case of North Carolina, or because a legal challenge sent regulators back to the drawing board, in the case of West Virginia, Virginia’s DEQ is pressing ahead with a process opponents say is woefully deficient.
First, the agency ceded its authority to review the hundreds of places where the pipelines will actually cross waterways, instead relying on what critics contend is a less rigorous U.S. Army Corps of Engineers general permit for the crossings, which will entail blasting and trenching in streams that environmental groups fear could lead to a surge in sediment and other possible contaminants.
DEQ Director David Paylor has said the state would merely be duplicating the Corps’ work, but opponents note that the Corps’ Nationwide Permit 12 allows for impairments to existing recreational and wildlife uses of the waterways, which state regulations do not countenance.
“Virginia water quality standards require that designated and existing uses be fully protected at all times. Temporary impairments of uses are not allowed and, certainly, long-term or permanent denial of uses is never acceptable,” the letter says. “Likewise, discharges of pollutants that cause turbidity and other defined conditions in streams are prohibited.”
Next, the DEQ removed its review of erosion, sediment control and stormwater plans — which address how the pipeline developers will attempt to limit runoff as they clear trees and flatten ridgetops along the pipelines’ paths in some of the most mountainous parts of Virginia — from the water quality certification process.
Peggy Sanner, a senior attorney with the Chesapeake Bay Foundation and its assistant director for Virginia, called the decision to take the erosion, sediment and stormwater review out of the 401 process “baffling.”
“The effect of those decisions is to prevent an understanding of the cumulative impacts of these projects,” she said. “I try to not spend too much time looking at motivations. … I do think the result of that decision in our view is to allow for a significant risk to our waterways.”
That lack of a cumulative assessment, she added, is of particular concern to the foundation, started 50 years ago and focused on stemming the flow of agricultural runoff, sewage and industrial waste into the bay. The Atlantic Coast Pipeline will cut clear across the bay’s watershed, and increased sediment loads have the potential to jeopardize the bay’s fragile recovery, including underwater grasses and the crabs and fish they shelter, Sanner said.
The environmental groups also warn that the lack of an antidegradation analysis, which refers to the requirement to protect existing uses of water, makes the DEQ’s 401 review “inconsistent with federal law and invalid.” That would include baseline data from water bodies that might be affected by the pipelines and a calculation to determine the additional pollutants the pipelines could add.
“Because DEQ has not conducted an antidegradation review, the section 401 certifications for the Mountain Valley and Atlantic Coast pipelines are vulnerable to being set aside as arbitrary and capricious by federal courts,” the letter says.
The West Virginia Department of Environmental Protection last month chose to revoke its 401 certification rather than defend it in court, chiefly because of flaws in its antidegradation analysis.
The letter likewise faults the DEQ for not considering the potential effect on drinking water wells near the pipelines’ paths and for not requiring dye tracing prior to the 401 certification to map the pollution potential in the karst terrain the pipelines will cross, areas characterized by springs, sinkholes, caves and other links to groundwater. Instead, the DEQ is requiring dye tracing only prior to construction.
The DEQ intends to deliver its recommendation to approve the pipeline certifications subject to conditions the agency is still developing at the water board’s meetings in early December.
The Richmond Times-Dispatch asked the DEQ whether it has conducted an anti-degradation analysis as well as why it omitted dye tracing; drinking water analysis; water body crossings; and stormwater, erosion and sediment control plans from the 401 process.
In response, agency spokeswoman Ann Regn said the “DEQ has consistently expressed its commitment to protecting water quality if the pipeline projects move forward.”
“As for your other questions, DEQ does not believe it is appropriate to address those issues now because our staff is still working on the response to public comments that will be presented to the State Water Control Board. The questions you raise will be addressed in the DEQ responses,” she said. “When DEQ makes its recommendations to the State Water Control Board in December, they will be based on the legal requirements we must follow and on the best scientific information available.”
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