On October 25, 2017, attorneys representing five citizen groups sent a letter to members of the Virginia State Water Control Board with the intention to clarify the legal authorities and duties that must govern the Board’s decision on the Atlantic Coast and Mountain Valley pipeline projects. The groups represented include: Appalachian Mountain Advocates, Chesapeake Bay Foundation, Preserve Craig, Southern Environmental Law Center, and Wild Virginia.
Both ACP and MVP have applied to the State of Virginia for Water Quality Certifications. The Board will receive recommendations from the Department of Environmental Quality in early December as to actions that the Board may take in response to the applications to fulfill its duties under Clean Water Act section 401. Before Certifications may be granted, the Board must determine there is a “reasonable assurance” that all state water quality standards will be met – without that finding to support the Certifications, the pipelines cannot be built.
To date, DEQ representatives seem to have been unwilling to acknowledge that Virginia has all the authority it needs to stop these projects due to the harm they will inflict on our waters. The processes DEQ has designed seem engineered to preclude full and adequate assessments. A clear indication of DEQ’s refusal to take its responsibilities seriously in this regard, is described by David Sligh, who signed the letter on behalf of Wild Virginia:
“A DEQ official indicated last summer that the Water Quality Certifications could be denied ‘in theory.’ The State Water Control Board must understand that denial is not a theory, but that Congress reserved states’ full authority to veto bad projects. The board has an obligation to exercise that authority to the fullest to protect Virginians and our environment.”
Today’s letter seeks to dispel any misunderstanding and make clear that the Board has full legal authority to reject these pipelines, just as other states have done. Recent actions by both West Virginia and North Carolina, acknowledging that the pipeline companies have failed to prove their cases, must be an example to Virginia officials.
Beyond the recognition that the State Water Control Board can deny Certification for each pipeline, the attorneys’ letter explains why it must do so. The burden is on the State to ensure that all necessary information and analyses are available to show the true impacts the projects could have and, in turn, the burden of proof to show the proposals will fully protect water quality falls on the proponents of these destructive projects.
As recounted in the letter, neither the pipeline companies nor DEQ have lived up to the standards the law requires. Therefore, DEQ will act irresponsibly if it maintains the positions it took in draft Certifications for each pipeline – that the necessary “reasonable assurance” exists. But, even if DEQ fails to do its job, the Board may not depend on arbitrary and legally-invalid recommendations. The body of evidence and the analysis DEQ has so far provided is far from adequate to support Board approvals. Therefore, the letter’s authors recommend that the Board deny Certifications and insist that all necessary information be provided before the cases are re-submitted for its consideration.
Major deficiencies in the processing of the pipeline Certification requests include:
• DEQ’s decision to review the water quality impacts at each water crossing of the pipelines separate from impacts of the “upland” areas of the pipelines’ construction activity is “unsupported by science.”
• The agency’s proposal that the board rely on the Army Corps of Engineers to determine the risks to water from the water crossings under a blanket “nationwide permit” with weaker standards than Virginia is “arbitrary and capricious.” In essence, the board would have no knowledge of what those exact risks are, nor would it have the power to impose conditions on the construction work at the crossings.
• As the letter states, because of DEQ’s refusal to consider erosion and sediment control and stormwater management plans as part of the Certification process, “[t]he Board cannot rationally conclude that it has reasonable assurances that water quality will be protected before reviewing how the project proponents intend to control the greatest source of water pollution associated with pipeline construction.”
• The agency did not require the pipeline companies to conduct “dye-tracing” in karst geology prior to the board’s evaluation of the 401 certificates, so the board has no information about the potential scope of the threat to both surface and groundwater in a vast area of the western part of the state where karst formations are prevalent.
Tammy Belinsky, who co-authored the letter on behalf of Preserve Craig, Inc. and who works with DPMC stated: “Each member of the State Water Control Board has a singular duty to the citizens of Virginia to assure the protection of our water resources. Their decisions on these pipelines will be their legacy on how they chose to execute that duty.”
Earlier Comments on the DEQ’s Draft Certification
DPMC: Hydrologic Assessment of ACP Project
DPMC: Experts on Compliance with Water Quality Standards
DPMC: Deferred Planning for High-Hazard Areas of the ACP
DPMC: Significant Impacts that Challenge 401 Certification
Appalachian Mountain Advocates: ACP
Appalachian Mountain Advocates: MVP
Southern Environmental Law Center: ACP