The agreement between Dominion Energy and then-Gov. Terry McAuliffe is a liability waiver for the inevitable harm to water resources that will result from construction of the Atlantic Coast Pipeline. In exchange for paying for water monitoring, it seems that the State will exempt Dominion from liability for damage to water resources that might be revealed by the water monitoring.
That’s one way to interpret the 12/28/17 Memorandum of Agreement for Comprehensive Mitigation of Virginia Resource Impacts of Atlantic Coast Pipeline.
The following is in the “Water Quality” provisions of the agreement:
“Enhanced Water Quality Monitoring. Atlantic agrees to transfer funds in the amount of $700,000 to the United States Geological Survey (“USGS”) to pay for water quality monitoring requirements of the Commonwealth.”
This $700,000 is part of $19,200,000 to be distributed among Water Quality Mitigation Partners (including the USGS), in exchange for which, the parties, including the State, agree that “such amount fully satisfies any and all mitigation responsibilities related to and otherwise fully offsets all water quality impacts caused by forest fragmentation that are not otherwise avoided by Atlantic’s construction methods and environmental protection measures.”
The whole mitigation agreement is certainly subject to interpretation and questions about the authority of the State’s executive branch to waive liability for future violation of statute and regulations and future harm to water resources. It’s also very clear that the State Water Control Board was not well informed by the DEQ when it was advised to certify that the project will not harm water resources.
Here’s some “back story.”
Dominion was already required to reimburse the State for costs associated with the USGS monitoring without attaching the reimbursement to a liability waiver.
The following is an 8/4/17 message from James Golden to Dominion officials, in which he states that:
“Under the authority of the State Water Control Law, DEQ will seek the reimbursement of the costs associated with the work to be performed by the USGS Virginia and West Virginia Science Center. DEQ is currently developing a Memorandum of Agreement for each project to address these costs.”
Also, see below for a 9/7/17 draft MOA (between Dominion and the State), which requires Dominion to pay for the work that will be performed by the USGS. Given the 12/28/17 mitigation/liability agreement, It seems unlikely that the earlier MOA was ever finalized.
This was all obtained with a FOIA request for information concerning the DEQ’s monitoring plans. There are other components of the monitoring plans, including monitoring of stream biota, that are seemingly, for some reason, to be covered with DEQ’s own limited budget.
Finally, it should be recognized that the water monitoring in question is limited. It only involves 7 streams, among the many that will be impacted by the ACP route in Virginia.