I emailed the Virginia Department of Environmental Quality (DEQ) on Monday, asking where I could find public comments on the proposed Mountain Valley Pipeline and Atlantic Coast Pipeline projects. This morning, they responded with links (note: if you click on these, they will start downloading, so you might not want to!): for the MVP and for the ACP. Note that these are huge “zip” files, that it’s a pain in the neck to search through them, that they are not particularly user friendly, etc. Still, at least they’re available, so I’ll be going through them and posting ones I find noteworthy. For starters, here’s an email from Tom Perriello, who during his run for governor last spring came out strongly against the pipelines, setting up a major contrast with both Gov. McAuliffe and Lt. Governor Ralph Northam. See below for Perriello’s email, with some bolding by me for emphasis, and in red for even more emphasis. – Lowell
August 22, 2017
The Honorable Molly Ward
Secretary of Natural Resources
1111 East Broad Street
Richmond, VA 23219
David K. Paylor, Director
Virginia Department of Environmental Quality
629 East Main St.
Richmond, VA 23219
Robert Dunn, Chair
State Water Control Board
c/o Office of Regulatory Affairs
Department of Environmental Quality
P.O. Box 1105
Richmond, VA 23218
Re: Section 401 Certification for the Proposed Mountain Valley and Atlantic Coast Pipelines
Dear Secretary Ward, Director Paylor, and Chairman Dunn:
In recent weeks, hundreds of Virginians attended and spoke at a series of public hearings on the proposed Mountain Valley and Atlantic Coast pipelines. Many of those who spoke were farmers and other residents who live in the direct path of the proposed pipelines, and they expressed their deep concerns that the pipelines would harm the water supplies on which they depend for their lives and livelihoods. I share their concerns.
Previously as a candidate for governor of Virginia, I opposed the building of these two pipelines, and that opposition continues in my capacity as a citizen of the Commonwealth. At the time, I challenged Dominion Energy and other stakeholders to present a better strategy to meet our energy needs – one focused on investing in clean technologies that would create sustainable jobs building a renewable infrastructure in Virginia. I believed then, as I do now, that the billions of dollars being spent on two proposed fracked gas pipelines could be better spent creating hundreds of new businesses in the decentralized energy sector, from weatherizing building stock, to generating wind and solar power, to geothermal and methane capture, to refurbishing of existing infrastructure.
These backwards looking projects waste $7 billion in ratepayer money, provide artificial multi-decade advantages to monopolies, and promote fossil fuel consumption instead of letting consumer choice and market forces produce the sustainable jobs of the future. These pipeline investments also advance a dangerous trend of government abuse of eminent domain for corporate profits rather than public needs.
All Virginians, whether they support or oppose these pipelines, should agree that the process by which the pipelines are reviewed must be rigorous, thorough, and in accordance with existing law. Virginia retains broad authority to conduct its own analysis under Section 401 of the Clean Water Act. Indeed, on August 18, the United States Court of Appeals for the Second Circuit reaffirmed a state’s right to conduct its own Section 401 review. In that case, the New York State Department of Environmental Conservation denied Section 401 certification for the proposed $1 billion Constitution Pipeline and the court affirmed that decision. It is noteworthy that the environmental issues that led New York to reject that fracked gas pipeline – particularly the potential impact on stream crossings – are similar to the concerns raised about the proposed Virginia pipelines at the recent DEQ hearings.
On June 29, a coalition of more than 80 environmental and community organizations led by the Southern Environmental Law Center, the Virginia Conservation Network and the Shenandoah Valley Network, wrote a letter (SELC Letter) urging a thorough site by site review of these proposed pipelines. I fully join their call to action, in which they said:
“We write to urge the Commonwealth to use the full scope of its authority to assess the impacts of the Mountain Valley and Atlantic Coast pipelines. Our groups represent tens of thousands of Virginians who are counting on the Department of Environmental Quality (DEQ) and the State Water Control Board (Water Board) to conduct a thorough and transparent review of stream and wetland crossings, as well as upland activities, and ensure that Virginia water quality standards are met.
“Specifically, we request that DEQ require individual 401 certification review for wetland and stream crossings, rather than relying on the Army Corp of Engineers’ (the Corps) Nationwide Permit 12 (NWP 12). In addition, DEQ should wait to…move forward with Section 401 certification until the pipeline developers have provided all information necessary for thorough DEQ review, and the public has had an opportunity to examine that information.
The SELC Letter further noted:
“Virginia has broad authority to conduct its own analysis under Section 401 of the Clean Water Act. These enormous infrastructure projects would cross hundreds of sensitive waterways, including waterways in some of the steepest terrain in the eastern United States. Both pipelines pose significant threats to Virginia’s water quality and aquatic environment, including threats to: the recharge area of Gardner Spring, which supplies five million gallons of water a day to the citizens of Staunton and Augusta County, tributaries of Warwick Run that are state designated trout waters,…the Cowpasture River, …the Jackson River…and Bottom Creek….Virginians rely on these waterways for recreation, fish habitat, and the health of our watersheds. Analysis of these crossings by DEQ and the Water Board is critical to ensure that water quality and the aquatic environment in Virginia are protected.
“Such a review would not be redundant with the analysis under NWP 12. The Corps will not conduct site-specific reviews of the more than 1,000 crossings along the pipeline routes. When authorizing a project under NWP 12, the Corps must only find that each individual waterbody crossing along the pipeline route will not cause a loss of more than a half-acre of waters of the United States.
“As DEQ has noted, NWP 12 contains general conditions, including those pertaining to restoration and mitigation. But the Corps will not ensure that those conditions are met before determining that a project can be authorized under NWP 12. That means that impacts from activities like in-stream blasting and trenching in rugged and challenging terrain, will not be considered unless DEQ considers them. Whether serious impacts such as sedimentation can be mitigated would not be known without such analysis, despite the risk to some of the most pristine waters in Virginia. DEQ can and indeed must fill this gap with its own review of waterbody crossings.”
I urge you to pay particular attention to this latter point from the SELC Letter regarding in-stream blasting and trenching because those issues were central in New York State’s decision to reject the Constitution Pipeline.
DEQ has previously recognized that it retains the authority to conduct individual reviews of project impacts even when the project may be authorized by an NWP. Notably, DEQ has also expressed concerns in comments to FERC about the scope and breadth of NWP 12. See VA DEQ Comments on Draft EIS for the Atlantic Coast Pipeline at 1 (noting the need for analysis of proposed stream and wetland crossings that “go beyond the normal jurisdictional determination requirements to include sufficient evidence that the system will be able to maintain its original functions indefinitely after restoration.”).Nonetheless, I understand that DEQ currently does not plan to consider all river, stream and wetland crossings. For projects of this magnitude, it is essential that DEQ acknowledge the full extent of Virginia’s authority under Section 401 to review, regulate, and even deny certification for pipelines that may adversely affect state waters. DEQ has the right and duty under Section 401 to expand its review to include these sites and I urge it to do so.
Most importantly, I am concerned that DEQ is closing the public comment period on the pipelines on August 22, while giving pipeline developers until October 13 to release publicly their site-specific plans for erosion and sediment control and stormwater management. As DEQ itself has said, these plans are “critically important” to ensuring that Virginia’s rivers, streams, and wetlands are protected. See VA DEQ Comments on Draft EIS for the Atlantic Coast Pipeline at 13. The public deserves an opportunity to comment fully on all aspects of the project during the Section 401 certification review.
The State Water Control Board is responsible for reviewing and approving the Section 401 certification. After appropriate review, the board must certify that the project developer has provided “reasonable assurances” that water quality will be protected. 33 U.S.C. § 1341; 40 C.F.R. §121.2(a)(3). Under the DEQ’s arbitrarily bifurcated review process, however, the board will not have the necessary information to appropriately review these critical factors affecting water quality. I question how the board can make a “reasonable assurance” finding without having first reviewed the plans for erosion and sediment control and stormwater management.
I strongly encourage you to expand the public comment period to incorporate comment on erosion and sediment control, stormwater management, and other important aspects of the plan as part of the 401 process. This will allow for consideration of these issues by the State Water Control Board and allow for a full and fair hearing on these issues.
Though not relevant to Section 401 review, I must also note that these pipelines and the proposed Buckingham compressor station threaten multiple African-American heritage sites, and the impact of our continued fossil fuel usage will disproportionately impact low-income and African American residents of the Commonwealth.
Under Virginia’s Constitution, the official policy of the Commonwealth is “to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.” Va. Const. Art. IX. We should not rush this process and risk the health of our lands and waters. I urge you to fulfill your responsibilities to protect Virginia’s water quality by performing a complete, thorough, and transparent review of each water crossing. DEQ should ensure – prior to issuing any Section 401 certification – that effective erosion and sediment control and stormwater management plans are feasible and in place. DEQ should allow the public a full and fair opportunity to review and comment on this critical information before making any final decisions.
Thank you for considering these comments.
Sincerely,
Tom Perriello
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