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Virginia Department of Environmental Quality Steals Citizen Board Authority, Falsely Claims Board Made a “Preliminary Decision” to Issue Mountain Valley Pipeline Permit

"Will the State Water Control Board go along with this charade?"

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by Jon Sokolow

In August, the Virginia Department of Environmental Quality (DEQ) announced a public comment period on a proposed permit for the Mountain Valley Pipeline (MVP) to cross hundreds of streams and wetlands in Virginia. The announcement, which was published in the Salem Times Register and thereafter on DEQ’s website, said that the State Water Control Board would hold hearings on September 27 and 28 on the proposed permit and conduct a public comment period through October.

The State Water Control Board is an ostensibly independent seven-member citizen board created by the legislature. It has authority to approve, or not to approve, such permits.

In particular, the purpose of the notice was to “seek public comment and announce two public hearings on (1) a draft permit from the State Water Control Board that will allow the filling of wetlands and streams in Giles, Craig, Montgomery, Roanoke, Franklin, and Pittsylvania Counties, Virginia and (2) the Board’s intent to provide Section 401 Water Quality Certification for activities authorized by the U.S. Army Corps of Engineers.”

Certification under Section 401 of the Clean Water Act is required by federal law for projects like Mountain Valley Pipeline to proceed.  Without this permit, the project would have to be canceled.

In fact, these state permits are required as part of a larger review being conducted by the Army Corps of Engineers, which, assuming the states sign off – West Virginia also will weigh in – has ultimate authority to issue or not to issue water crossing permits.  In May, the federal Environmental Protection Agency told the Army Corps to reject MVP’s permit request, warning of serious and long-term degradation of streams and wetlands if construction is allowed to proceed.

But DEQ’s notice went further than just announcing hearings on the state permit.  It indicated that the State Water Control Board had already made a “preliminary decision” to approve the permit drafted by DEQ.  Indeed, the notice said just that: “The State Water Control Board’s preliminary decision is to issue the permit.”

The notice also referenced “the Board’s intent” to issue the Section 401 certification.

To anyone who has followed DEQ’s more than six-year practice of rolling over for MVP, it was no surprise that DEQ would recommend that the Board approve a new permit for MVP.  After all, DEQ has allowed construction of MVP to proceed despite widespread opposition, despite environmental damage during construction that has resulted in millions of dollars in fines – and despite the climate crisis and repeated warnings from the United Nations Intergovernmental Panel on Climate Change that we need to stop building new fossil fuel projects.

Of course DEQ was going to recommend that a new permit be issued.

What was surprising, however, was that DEQ said that the State Water Control Board itself – not just DEQ – already had made a “preliminary decision” to go along with DEQ’s recommendation.  This was puzzling because there is no public record of the Board having made any decision, preliminary or otherwise, on the new permit request from MVP.

But since the notice said the Board has already made a preliminary decision, it led to press reports like this one, that conflated DEQ’s “recommendation” with Board “approval” of the permit:

“The draft permit indicates the Virginia Department of Environmental Quality’s State Water Control Board has determined there is a “reasonable assurance” that the permit would not violate applicable water quality standards or contribute significant impairment of state waters or fish and wildlife resources in the 107 miles of 42-inch-diameter pipeline across six Virginia counties.” (emphasis added).

By law, the State Water Control Board is an independent body that has the power to accept or reject recommendations from DEQ. In practice, it historically has acted as a rubber stamp for DEQ.  The same is true for its sister board, the State Air Pollution Control Board.  And in the rare instances where the Boards show a little independence, there have been consequences – as when Governor Ralph Northam famously fired two Air Board members a week after they expressed reservations about environmental injustice in a permit proposed by Dominion Energy for a polluting compressor station in the historic African American community of Union Hill.  Northam’s action was designed to rig the hearing process and ensure that the permit would be issued by the Board. As I noted at the time, even “one pro-fracking industry rag that supports the pipeline conceded, “the timing of their replacement sends an unmistakable signal to the board: You WILL approve this compressor station, or else.”  The tactic worked – that is until the federal Fourth Circuit Court of Appeals, which took note of Northam’s Board purge, vacated the permits after deciding their issuance violated Virginia law.

Northam also fired State Water Control Board member Roberta Kellam after she repeatedly raised concerns about environmental damage being caused by Mountain Valley Pipeline during construction. After Northam fired her, Kellam said this about DEQ Director David Paylor:

“When I further questioned Director Paylor about apparent water quality impacts, he accused me of “working for the opposition” with such ferocity that I felt compelled to defend myself in writing, referring to our responsibilities to protect water quality.”

So while these Boards to date have rarely exercised much independence, DEQ likes to maintain the appearance that the Boards actually are independent.  In its latest announcement with Mountain Valley Pipeline, however, DEQ abandoned the pretense and said the Water Control Board had already made a preliminary decision to approve a new permit.

Except there was no public record of the Board ever having made that decision.

So I decided to ask.

I sent a Freedom of Information Act (FOIA) request to DEQ, asking for records related to the Board’s “preliminary decision” to approve a new permit for MVP.  In response, DEQ’s FOIA administrator asked me to get on a phone call to clarify exactly what it was I was seeking. So I got on a call with her and David Davis, Director of DEQ’s Office of Wetlands and Stream Protection.

In the call, Mr. Davis told me point blank that the State Water Control Boardhas not made a preliminary decision to approve new MVP permits.” In fact, he said, “they have not made any decision.”  When I asked Mr. Davis why the public notice said otherwise, his response was that he “would not have worded it that way” but that this was the “language provided by “operations.”

I asked Mr. Davis to put his comments in writing.  He refused, saying it was “not his job” to respond to FOIA requests. The FOIA Administrator said she would respond to my request for documents on the Board’s “preliminary decision” to approve the permit by indicating that there were “no documents responsive to my request.”  In plain language, that meant that the Board had not made any decision yet and therefore there were no records to turn over. That seemed reasonable enough.

And that’s when things got interesting.

Two hours after the phone call, I received an email from Mr. Davis – the same Mr. Davis who had just said it was not his job to respond to FOIA requests:

“Just to follow-up our telephone conversation this afternoon, DEQ, on behalf of the State Water Control Board (the Board), has determined that the MVP application conforms to the VWP regulation, and DEQ has posted the draft permit documents for the public to review.” (emphasis added).

A few days later, I received an email from the FOIA administrator saying:

“The Agency will not be issuing a no record for items 1-3.  After our discussion, I connected with additional operational staff regarding your request. The Agency acts under delegated authority when the board is not in session; therefore, the Agency will have records responsive to all items of your request.”

The FOIA administrator then said this: “The recommendation to issue a VWP permit is considered to be a draft for the public to review (preliminary decision).”

In other words, DEQ’s recommendation to the Board doubled as a preliminary decision by the Board.  Except the Board had not met, nor had it decided anything.

I continued to press DEQ to answer a simple question:  Had the Board – as distinct from DEQ – made a “preliminary decision” to approve a new MVP permit. Yes or no?

That’s when I heard from Ann Regn, DEQ’s Director of Communication.  Ms. Regn’s version was this:

“DEQ is authorized to act on behalf of the State Water Control Board. Furthermore, the Virginia Water Protection regulation requires us to make a tentative decision to issue or deny.”

Got that?

After floundering around to explain why they said that the Board had already made a “preliminary decision” that it clearly had not made – Mr. Davis had conceded that was the case – DEQ settled on a different version of reality.  The DEQ recommendation was the same thing as a preliminary decision by the Board.

Not only is DEQ presuming to speak for the Board, it already has drafted a 51-page permit for MVP that declares that the “[State Water Control] board has determined that there is a reasonable assurance that this VWP permit, if complied with, will protect instream beneficial uses, will not violate applicable water quality standards, and will not cause or contribute to a significant impairment of state waters or fish and wildlife resources.”  DEQ has published this “Board” decision on its website.  DEQ has not published anything showing a Board decision NOT to approve the permit.  It just assumes the Board will confirm its nonexistent “preliminary decision” with a “final decision” that is a foregone conclusion.

DEQ would have you believe that there is nothing to see here, everything is normal, move along.  But if this looks to you like a regulatory agency usurping the role of a citizen board that is supposed to be independent, it’s because that’s exactly what is going on here.

Instead of giving the Board balanced information and allowing it to act as the legislature intended, DEQ is now speaking for the Board, making it clear which way they should rule.  And if the Board gets out of line, they can expect the same kind of swift retribution that was dished out in the past.

So now DEQ will conduct a “public comment period” in preparation for a “hearing” for the Board to “consider” what to do – and pretend that this process is not what it appears to be – a sham.

The public is expected to play along and submit comments for the Board to “consider,” which DEQ will in all likelihood tell them to disregard.  And then in December, according to DEQ, the Board will hold a meeting to consider public comments and to make a final decision.

Except that we learned this week that no public comments will be allowed at the December hearing.

DEQ’s reasoning in prohibiting further public comments in December is that it is holding in person hearings in September – during COVID – with a quorum of Board members present.  And despite pleas from 39 grass roots organizations and hundreds of individuals to schedule a virtual hearing to allow concerned citizens to comment on the MVP permit without risking their health by going to an in person hearing, DEQ is refusing to do so.

So DEQ has made its position clear.  It knows how the Board should vote – in fact it already has voted (“preliminarily” of course) for the Board.  DEQ doesn’t particularly care what anyone else thinks.

The only remaining questions are these:

Will the State Water Control Board go along with this charade?

Will the Board allow DEQ to speak for its members and lie to the public about a “preliminary decision” that the Board never made?

Will the Board allow the planned September hearings to go ahead when it is clear that the public notice issued for these hearings contained a lie – that the Board had made a decision which it clearly did not make?

Meanwhile, if you are outraged at DEQ’s failure to protect our land and water resources, if you are concerned about the impact to our climate of a massive new fracked gas pipeline, then there is something you can do about it.  Write a public comment to DEQ telling them to deny a new permit to Mountain Valley Pipeline.  It’s as easy as following this link.

Because it’s never too late to do the right thing.

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