The Dominion Pipeline Monitoring Coalition has insisted, in an April 14th letter sent to the Office of the Virginia Secretary of Natural Resources and the Virginia Department of Environmental Quality (DEQ), that regulatory shortcuts requested by proponents of the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) are illegal. Instead, members of Governor McAuliffe’s administration have an obligation to closely review the projects and deny approvals where water quality would be degraded by pipeline construction and operation. DPMC demands that proper procedures be followed by State authorities, in accordance with those officials’ duties under the federal Clean Water Act (CWA) and Virginia water protection laws.

In the letter to Deputy Secretary of Natural Resources Angela Navarro and DEQ Director David Paylor, David Sligh of DPMC cites information from DEQ regulators indicating that the State is inclined to forgo full reviews of the pipeline proposals and grant “rubber stamp” approvals. Sligh wrote, “[w]e hope our fears are unfounded but feel compelled to explain the bases of our objections to any shortcuts that either the pipeline companies or the State may consider, which would avoid thorough, project-specific, and legally-necessary reviews.”

The State of Virginia has a vital role in licensing of major interstate pipeline projects. While the Federal Energy Regulatory Commission (FERC) and the U.S. Army Corps of Engineers (COE) have authority to issue permits for these pipelines, those approvals cannot be granted and the projects may not be built without Virginia’s certification that all State water quality requirements will be met. Congress took care in adopting the Clean Water Act to guard States’ rights to prevent federal projects from damaging state waters. Members of Congress explicitly stated that States would have the power to veto such proposals or condition federal approvals to avoid pollution of water bodies. In addition, the Virginia General Assembly has required the DEQ to deny approval for projects unless applicants prove that waters will be fully protected.

Under Section 401 of the Clean Water Act, applicants for federal approvals of these pipelines must secure a Water Quality Certification (WQC) from Virginia, in which the State provides “reasonable assurance” that all applicable water quality protection requirements will be met. That assurance cannot be given in these cases unless the State reviews detailed plans and assesses possible impacts on hundreds of wetlands and streams across Virginia. Despite this fact, DEQ officials have so far indicated that they believe the projects can go forward under a blanket certification given for a Corps of Engineers “Nationwide Permit” that Virginia issued in 2012. That COE Nationwide Permit and Virginia’s blanket Certification was intended to cover a class of small projects that bear no resemblance to the huge construction jobs which the ACP and MVP would involve. The Virginia Water Protection Permit (VWPP) regulations constitute a separate review process that the ACP and MVP must undergo. Here again, the State of Virginia has adopted a General VWPP that allows construction of certain minor utility line projects to go forward without thorough, individual reviews of the threats to water quality. And again, Virginia officials have signaled that they may bypass procedures for project-specific VWPP reviews and allow coverage under this one-size-fits-all General Permit for these pipelines, even though the nature and extent of each of these projects is far larger and creates much greater pollution risk than the projects for which the General Permit was created.

DPMC MAKES THE FOLLOWING SPECIFIC ASSERTIONS

Incomplete Applications from ACP and MVP Prevent Proper WQC Analyses  Some of the support for this assertion include the facts that:

• The COE has written that it lacks information needed to proceed with its CWA review.
• The U.S. Forest Service (USFS) has deemed some of Dominion’s data unreliable for use and the company and/or its consultants to have misrepresented facts.
• Dominion has not submitted detailed and complete information about the new and longer segment proposed recently for the ACP.
• MVP’s resource protection plans leave many serious gaps in data and analyses, as demonstrated by USFS comments and questions.

These Pipeline Proposals are Ineligible for Coverage Under Virginia’s General WQC  There are three reasons ACP, MVP, and other large interstate pipelines require individual and detailed water quality reviews before Virginia can provide CWA 401 Certifications:

• The blanket 401 WQC excludes projects that have water withdrawal intakes in surface waters and piping of non-potable water. These large projects, as explained in company documents, will withdraw water from streams and wetlands for hydrostatic testing of pipeline segments. Also, they will withdraw water upstream of stream sections under construction or blasting and pipe it downstream to be discharged. These pipelines violate the conditions in the blanket 401 and cannot be covered by it.
• Even if the blanket 401 was sufficient to meet Virginia’s responsibility to certify the COE permit, it is not adequate to cover a federal approval by FERC, which is based on a much broader and more inclusive authority than that possessed by the COE. The State’s 401 WQC review for the FERC license must be as broad as the range of the FERC reviews in Virginia.
• Virginia’s blanket 401 WQC does not meet the most basic legal requirement set by the CWA, that “[a] certification made by a certifying agency shall include the following . . . [a] statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate.” David Paylor’s 2012 Certification failed to include the most vital finding that Virginia was required to make and is therefore invalid.

ACP and MVP Cannot Meet Requirements for Coverage Under the General VWPP  Virginia has adopted a general permit for utility projects, designated WP2, whose coverage is limited to pipelines with very small impacts on water quality. General Permit WP2 applies only where activities would “permanently or temporarily impact up to one acre of nontidal wetlands or open water” and “where activities will permanently or temporarily impact “up to 1,500 linear feet of nontidal stream bed.” Given the huge number of waters to be affected in Virginia by each pipeline, the notion that negative impacts will be limited in extent to the ranges listed is not credible. Dominion’s own submittals describe sixty-three instances where non-tidal wetland crossings are predicted to have “temporary construction impacts” with areas greater than the regulatory threshold of one acre, with the largest impact exceeding an area of 13 acres.

Note:  The April 14th letter also included specific Freedom of Information Act requests for related documents.

Click here to access the  April 14, 2016 letter to the Office of the Virginia Secretary of Natural Resources and the Virginia Department of Environmental Quality.

For more information, contact David Sligh: davidwsligh[at]yahoo.com; 434-964-7455