When the state Department of Environmental Quality announced in April that it would require individual water-quality certifications for the Atlantic Coast and Mountain Valley natural gas pipeline projects, environmental groups applauded what they thought would be an exhaustive, stream-by-stream review of the pipelines’ potential construction implications.
The DEQ confirmed Wednesday, however, that it will rely on a U.S. Army Corps of Engineers national permit for the hundreds of spots where the pipelines will cross waterways — a “blanket” permit for utility line activities that pipeline opponents say doesn’t do enough to safeguard some of the pristine streams along the routes from sediment that could be dislodged via construction, leveling ridgelines and tree removal, among other effects.
That’s at odds with what DEQ spokesman Bill Hayden said April 6, when Hayden told the Richmond Times-Dispatch that the DEQ would require certifications for each individual segment that crossed or affected a waterway. Hayden was even more explicit with The Roanoke Times, telling the paper in an email that “the ‘individual’ certification looks at each wetland, stream crossing, etc., separately, to determine specific requirements that would be necessary.”
The agency isn’t backtracking, says James Golden, the DEQ’s director of operations. Rather, Hayden talked with reporters before he had been briefed by “technical” staff members at the DEQ, Golden said Wednesday.
Asked why the DEQ let nearly seven weeks pass without correcting Hayden’s widely reported remarks, Golden said that “in hindsight, DEQ should have tried to provide additional clarity” regarding the process.
Golden stressed that the DEQ is still asserting regulatory requirements that go “above and beyond” the federal permit, including “quite robust” erosion and sediment control and stormwater requirements.
The department sent the developers of both pipelines extensive requests for information last week “for the purpose of evaluating whether additional 401 certification conditions are necessary to ensure protection of water quality.” The letters reference Section 401 of the Clean Water Act, which gives states the authority to require certifications and impose conditions to ensure that federally permitted projects such as pipelines will not adversely affect waterways. Both pipelines are being reviewed by the Federal Energy Regulatory Commission.
Rather than duplicate the Corps’ work, Golden said the state’s individual certifications will focus on “upland areas” not covered in the U.S. Army Corps of Engineers’ process. Those spots, such as ridgelines and hilltops, are outside of the corps’ jurisdiction, but could affect water quality in valleys below.
“We felt like the work they were doing would simply be duplicated by DEQ,” Golden said. “We felt it was much more important to fill these gaps we didn’t feel would be addressed by any other regulatory mechanism.”
Environmental groups don’t agree.
“DEQ shouldn’t give its authority away to the federal government when it comes to protecting Virginia streams and rivers and we hope that DEQ will reconsider its decision in how it evaluates these projects,” said Greg Buppert, an attorney with the Southern Environmental Law Center in Charlottesville, which opposes the pipelines.
The DEQ’s decision to consider seriously the upland areas not covered by the Corps permit is “a good thing” but doesn’t go far enough, Buppert said.
“These projects are complex. They will traverse some of the steepest and most sensitive terrain in Virginia. They’ll cross hundreds of streams and rivers and wetlands,” Buppert said. “We have no confidence that the Corps permit is adequate for projects of the scope of the Atlantic Coast Pipeline and Mountain Valley Pipeline.”
The Corps’ nationwide permits, he added, include “boilerplate conditions” developed to cover projects across the country, not the site-specific review called for by the complexities of the pipelines.
David Olson, a regulatory program manager with the Corps, said that under the Nationwide Permit 12, which covers everything from sewer lines to oil and gas pipelines, the Corps must determine that a project would result in no more than “minimal adverse environmental effects.”
“If we decide that it’s more than minimal then we would assert our authority to require individual permitting of that activity,” he said. “We would look at the entire series of crossings that would constitute that utility project.”
In letter to Gov. Terry McAuliffe and his chief of staff Wednesday, the Dominion Pipeline Monitoring Coalition, a group of organizations fighting the Atlantic Coast Pipeline, requested that the governor “reject the dangerous and illegal shortcuts to the regulatory process that the state of Virginia is obligated and has promised to conduct.”
“Why has the public been misled about your administration’s intentions? If DEQ’s false public statements were due merely to miscommunications amongst agency staff, why has the department taken six weeks to alert the public to that fact?” says the letter, drafted by attorney David Sligh, who is a conservation director for Wild Virginia and an investigator for the coalition as well as a former senior engineer at the DEQ.
Aaron Ruby, a spokesman for Dominion, the lead partner in the ACP, would not comment on the flap over Hayden’s remarks.
“At every stage of the project, we’ve taken tremendous care to meet the highest standards for protection of the environment and public safety. Throughout this process, we’ve worked with state and federal agencies to ensure the project receives a thorough environmental review with robust public participation,” he said in a statement.
The DEQ’s decision to use the Army Corps permit while also requiring an individual approval process for other portions of the project “will provide for public review of the protective measures we’ve adopted to preserve water quality,” he said.
The pipelines have loomed large in the June 13 Democratic gubernatorial primary, with the split between Lt. Gov. Ralph S. Northam and former Rep. Tom Perriello one of the few areas of daylight between the candidates.
Northam, who has avoided a yes-or-no answer on the pipelines, has fallen back on calling for a “robust and transparent” approval process, taking credit for spurring the DEQ to assert more oversight over the contentious projects.
“I was the only one on this stage that actually wrote a letter to the DEQ and had communication with the DEQ to do what I could as lieutenant governor through the executive branch to make sure that we changed from blanket permitting to a site-specific permitting, which they followed my lead on,” Northam said at a Roanoke debate this month.
Perriello’s campaign said Wednesday that he “looks forward to hearing more in the coming days about how and why this happened.”
“Today’s reversal raises serious questions,” Perriello said in a statement. “Virginia leaders should speak clearly on where they stand on these pipelines. As President (Donald) Trump guts funding for the federal agencies tasked with reviewing these projects, it’s more important than ever that our state conduct as strict and rigorous a review as possible to protect Virginians’ access to clean water.”
Northam’s campaign said that the Army Corps process, combined with the DEQ’s individual requirements for certain aspects of the project that must be approved by the State Water Control Board, creates “a rigorous regulatory process that goes above and beyond what the state has required in the past.”
“The lieutenant governor’s position has always been that these projects must be held to the highest environmental standards, and he maintains that position,” said spokesman David Turner.