By Claiming That the DEQ Is Reviewing Each Wetland and Stream Crossing, the Governor Is Either Ill-Informed — Or He Is Lying.

by Stacy Lovelace

A statement regarding the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP), released by the Governor’s office last Tuesday, claimed that:

“…the Department of Environmental Quality is reviewing proposed land disturbance and construction activities along every foot of the pipeline routes, including each proposed wetland and stream crossing. I trust the public servants at DEQ to ensure compliance with these environmental standards and to address violations of permit conditions through strong enforcement action.” 

This statement included some of what the Governor usually says in his lackluster responses to the justifiable public outcry over these disastrous and unnecessary projects.  Seen for the first time, however, is the portion that claims the Department of Environmental Quality (DEQ) is reviewing each wetland and stream crossing – this addition is likely in response to renewed calls for a site-specific waterbody analysis of all water crossings along the pipeline routes (something the Governor himself called for as a gubernatorial candidate).   By claiming that the DEQ is reviewing each wetland and stream crossing, the Governor is either ill-informed — or he is lying.

Last year, the DEQ made the decision to waive its right to do site-specific waterbody analysis, and decided instead to utilize the blanket Army Corp of Engineers Nationwide Permit 12.  DEQ Water Permitting Division Director, Melanie Davenport, admitted at the April 12 State Water Control Board meeting that the DEQ had not done a site-specific waterbody crossing analysis because the agency did not have the resources.  At the same meeting, the State Water Control Board voted to open a comment period addressing the fact that site-specific waterbody analysis had not been done.  And if that isn’t enough to prove the untruthful nature of the Governor’s statement, documents obtained via a Freedom of Information Act (FOIA) request provide tangible proof. 

I’ll cite certain stormwater management plans for the MVP as an example.  The following timeline, which comprises the weeks leading up to the approval of plans for the MVP, was compiled from emails and documents acquired via the FOIA request:

March 10
Engineers contracted by the DEQ to review erosion and sediment control (ESC) and stormwater management (SWM) plans for the pipeline send an email to DEQ with a draft of comments on plans for four spreads of the pipeline route.  Due to this being an initial draft, the comments are limited in nature but still indicate several issues with the SWM plans, including that all waterbody crossings and even man-made structures have not been included in plans submitted by MVP. 

March 12
DEQ directs the engineers to proceed reviewing the plans despite the comments sent on March 10.  Only after this does DEQ send the engineers’ comments to EQT (owner of the MVP).

March 15
The contracted engineers send DEQ a “checklist” created for use when reviewing the SWM plans for each spread of the MVP.  The checklist is a spreadsheet that contains columns where a “yes” or “no” can be checked next to ‘required element(s)’ to be submitted by MVP and evaluated as part of the review.  There is then a “comments” section for each element. 

March 16
DEQ sends a status update to EQT stating that DEQ anticipates approving ESC and SWM plans for the MVP on March 23.  This email acknowledges that MVP has not submitted ESC and SWM plans for several contractor yards, but that this does not affect the anticipated approval date of March 23.  Note that the DEQ has not yet received a final version of comments on the SWM plans mentioned for March `10 nor have the checklists been completed for the SWM review.

March 19
The contracted engineers send to DEQ final comments on the four spreads mentioned March 10, and they also send completed checklists for three of the four spreads.

Of the 142 total applicable elements required to be submitted listed on the checklists as described above, 64 were marked as not submitted – or 45 percent.  Comments listed on the checklists indicated:

• All items required by Virginia Stormwater Management Program Regulations had not been submitted. 
• High groundwater and high erodibility soils were not always shown on plans.
• Not all structures and buildings were shown on plans.
• Listed land-cover, as well as land use, was not always consistent.
• Not all sensitive areas (wetlands, waterbody crossings, karst, etc.) and surface waters (perennial and intermittent streams, wetlands, lakes, ponds, seep, public drinking water reservoirs, dams, etc.) were verified.
• Some concentrated flow paths and existing streams were missing from plans.

DEQ forwards these comments to EQT and asks that they be addressed.

March 20
DEQ internally circulates a template approval letter for approving the pipeline plans.  Note DEQ has not yet received any response from EQT to address the comments sent out on March 19.

March 21
An email indicates that EQT sends to DEQ a response to the engineers’ comments.  This response was not accessible from documents acquired through the FOIA request.

March 22
The contracted engineers send the fourth and last checklist of the four spreads mentioned March 10.  This checklist shows that 63 percent of the required elements were not submitted for this spread, and comments include much of the issues listed above for the other three spreads.

DEQ internally circulates a draft of the approval letter to approve the pipeline plans.

March 23
DEQ internally circulates another draft of the approval letter to approve the pipeline plans.

March 26
DEQ officially approves the ESC and SWM plans for the MVP.  Construction is now imminent.

In sum, the DEQ was notified multiple times in the weeks leading up to the approval of MVP plans that there were issues with the stormwater management (SWM) plans for the mentioned spreads. 

Some might point to the fact that EQT did give a response to address those final comments provided by the engineers before DEQ approved the plans.  It is hard to believe that such serious issues could be addressed with a response merely two days later, especially when an average of over half of the required components were marked as not submitted. 

DEQ told EQT it anticipated approving the plans before receiving the contracted engineers’ comments on the plans, and DEQ began circulating the approval letter template before receiving EQT’s response to those comments.  This provides a considerable amount of evidence that DEQ’s intent was to approve the plans regardless of the engineers’ findings or EQT’s response.  It’s also worth noting that these (incomplete) plans and the corresponding comments were submitted in March, months after DEQ recommended the State Water Control Board approve the 401 certification for the pipeline. 

Prior to the timeline above and so not mentioned on the timeline, a document between the DEQ and the contracted engineers acknowledges that some of the karst regions of the pipeline spreads had only received a “desktop review.”  In other words, MVP did not go to the areas of karst and perform field evaluations before submitting water quality protection plans for those same areas.

The DEQ has clearly not performed complete reviews for every foot of the Mountain Valley Pipeline route, much less every waterbody crossing.  The agency is using the same frightening methods with the Atlantic Coast Pipeline.  In documents acquired via the same FOIA request, engineers’ comments indicate that (among other things), not all wetlands, stream crossings, surface waters, and karst features are included on plans.  Again, these issues are occurring months after the DEQ advised to the State Water Control Board to grant the ACP’s 401 certification.

David Paylor, the Director of the DEQ, has received thousands of dollars’ worth of gifts from Dominion Energy, primary owner of the ACP and a corporation that would also like to see the similar MVP come to fruition to protect its own interests regarding the ACP.  This has been noted time and again, but it’s a point worth continuing to stress – the influence industry has on the DEQ shows in the DEQ’s work (or lack thereof) on these pipelines and is the likely reason for the issues stated in this article.  Paylor has lost his right to be named a trusted public servant.

The State Water Control Board, who plans to revisit the issue of site-specific waterbody analysis, must take the DEQ’s bias and failings into account when reconsidering the topic. 

Secretary of Natural Resources Matt Strickler, who holds the position of overseeing six agencies, including the DEQ, must also acknowledge the DEQ’s failings regarding the MVP and ACP.  He does not have to stand on the wrong side of history simply because the Governor has chosen to do so. 

Even Governor Northam, who sent a clear message by reappointing Paylor as the head of the DEQ, can no longer talk his way around his support for Dominion and EQT, from whom he has received hundreds of thousands of dollars of donations cumulatively. 

Any progress on these pipelines must be stopped immediately until a true, complete, and unbiased site-specific waterbody analysis has been performed.  Such an analysis will ultimately prove that these pipelines, which will plow through the drinking water sources of millions of people, cannot be constructed in a manner that does not cause permanent detriment to Virginia’s water.