DPMC has been insisting for months that the Virginia DEQ speak clearly and in writing about the status of Dominion’s application for a Clean Water Act (CWA) review, which the State is responsible for completing. We feared that without such a statement Virginia might lose its chance to properly act on that application under CWA section 401. Federal law gives states only one year to approve or disapprove the project after they have a complete application. Since Dominion filed its application with Virginia on September 16, 2015, Virginia had been unable or unwilling to provide an official finding as to whether the submittal was complete and ready for processing. DPMC had requested a statement for months, to no avail.
We finally got an explicit, written statement saying the application for the ACP is incomplete and that the one-year time clock has been stopped. Surprisingly, that written statement came from Dominion – not from Virginia officials.
The letter from the pipeline company was dated September 13, 2016, appearing on day 362 and just in time to make sure the clock was stopped before the year had elapsed. It appears that, before DPMC raised the alarm, the State assumed it could sit silent and trust that its position would be understood by the federal agencies whose approvals should be dependent on Virginia’s certification. Unfortunately, the Federal Energy Regulatory Commission (FERC) could have read Virginia’s silence as a failure to act in a manner consistent with federal regulations. FERC has, in fact, assumed that silence by states signified intent to waive their responsibilities in other cases.
DPMC is grateful that Dominion provided its last-minute letter, acknowledging, as it must, that it has still not supplied the information needed for the DEQ to judge whether water quality could be protected if the pipeline was approved. It seems strange that the State would rely on the regulated party to provide the written proof needed to meet statutory conditions. (On September 15, 2016, Secretary of Natural Resources Molly Ward followed-up with a letter confirming the information provided in Dominion’s September 13, 2016 statement.)
We remain puzzled that DEQ, according to an August 23, 2016 letter from the Secretary of Natural Resources, was still just “evaluating the scope of its authority under FERC requirements for” the CWA section 401 review. In attempts to prompt that analysis by the State, DPMC has provided its own extensive legal reviews of states’ authorities, hoping Virginia officials would engage in an exchange of opinions on these matters. Though we asked very specific questions of the State, its letter of reply supplied no specific answers, even after officials had over four months to formulate its opinions.
Secretary Ward’s letter assured us that our “voice is critical” as Governor McAuliffe’s administration works to find solutions to challenges facing Virginia and its citizens. We hope that is true but we are disheartened to have seen little proof our voice is actually being heard.
A first step in assuring us the Governor is listening to and respecting citizens’ messages would be for Mr. McAuliffe to correct the inaccurate assertions he’s made repeatedly in public statements – that the State has little authority to decide whether the pipelines can be built across Virginia. He has that authority and we expect him to exercise it.
For more information see:
RECORDER article, 09/15/16
Dominion letter to DEQ, 09/13/16
DPMC website article, 09/11/16
DPMC letter to Governor, 09/09/16
Secretary Ward letter to DPMC, 08/23/16
DPMC website article, 04/17/16
DPMC letter to State officials, 04/14/16
Army Corps of Engineers letter to Dominion, 10/14/15
ACP Joint Application to Va. and Army Corps of Engineers, 09/15/15