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Regulatory board cracks open door for more review of pipeline projects

Regulatory board cracks open door for more review of pipeline projects

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Protest against the Mountain Valley and Atlantic Coast pipelines

Protesters oppose the proposed pipelines in Richmond on Dec. 2. The State Water Control Board approved a 30-day period to solicit comment on whether current approvals are adequate to protect Virginia’s waterways.

RICHMOND — Virginia’s Department of Environmental Quality decided a year ago to cede its authority to review the hundreds of spots where two controversial natural gas pipelines will cross state waterways to the U.S. Army Corps of Engineers. Opponents of the projects have hounded the agency about that decision ever since.

However, with the Atlantic Coast and Mountain Valley pipelines advancing rapidly toward construction, the State Water Control Board cracked open the door for more review of those water crossings. The board on Thursday approved a 30-day period to solicit comment on whether the approvals the corps granted for the projects under Nationwide Permit 12 are adequate to protect Virginia waterways from the blasting, drilling and trenching that crossing them could entail.

Board member Robert Wayland, a former U.S. Environmental Protection Agency administrator, was leading a push for a meeting and public hearing on whether the corps permit adequately protects Virginia waters. Opponents have derided the corps permit as a “blanket” approval and contend it allows degradation of waterways, such as loss of recreational uses, that state water regulations do not permit.

“I watched the nationwide permit scope get significantly ratcheted down over a period of time,” Wayland said. “Quite frankly, we felt, and the Army agreed, it had been ‘Honk if you want a permit.’ ”

The board, however, eventually settled on the 30-day comment period, holding out the potential for another meeting on the subject down the road. The only no vote was Heather Wood, the board’s vice chair who had an anti-pipeline banner hung on her front porch after a December vote that allowed the projects to move forward. Board member Lou Ann Jessee-Wallace was absent.

“They did the right thing in saying we don’t have enough information,” said David Sligh, a former DEQ engineer, environmental attorney and conservation director for Wild Virginia, who opposes the pipelines. “Very simply, this is telling the companies that we have to have proof we should have demanded up front.”

Mountain Valley Pipeline, planned to be built from West Virginia through the southwestern part of the state, is led by EQT Midstream Partners of Pittsburgh, which announced this week that it wants to expand the project into North Carolina. The longer, Dominion Energy-led Atlantic Coast Pipeline, is planned to run 600 miles from West Virginia into North Carolina and will carve through the center of Virginia.

The seven-member board, which administers Virginia’s water control law, including setting standards for state waters, approved water quality certifications for both projects in December at marathon, contentious and confusing meetings that ended with considerable uncertainty about what it had done.

The federal Clean Water Act allows states to certify that there is a “reasonable assurance” that federally permitted projects like interstate pipelines will safeguard state water quality standards. Some states, such as New York, have used the approval to block pipeline projects, as many opponents urged the Virginia board to do.

But a majority of the board approved a conditional certification for the Atlantic Coast Pipeline and a differently worded certification for the Mountain Valley Pipeline that was aimed specifically at attempting to preserve the board’s authority over water crossings regardless of what the Corps of Engineers did.

Both certifications were issued before the DEQ had finished reviewing crucial plans that will govern how the pipeline builders intend to manage erosion, sediment and stormwater in “upland” areas. The pipelines will cross some of Virginia’s steepest terrain, flattening ridgetops, creating large volumes of spoil material and permanently removing trees that help hold the slopes on mountainsides.

Opponents say they cannot be built without dislodging sediment that will wind up in waterways. Other objections have focused on climate change, the use of eminent domain to force unwilling landowners to host the pipelines and a lack of proven need for the projects that was buttressed by a Federal Energy Regulatory Commission commissioner, who, in a rare dissent, said she could not conclude that either pipeline was in the public interest.

Only the Atlantic Coast Pipeline certificate was conditioned on final approval of those plans, which has not happened yet, and a report to the water board, which can then “consider further actions on the certification.” Mountain Valley’s erosion, sediment and stormwater plans were approved last month.

DEQ has decided that means the ACP certification, one of the last barriers to construction for the project, becomes effective when the plans are approved and a report is delivered to the board. There will be no prior public comment or board review of the plans before that happens, the agency has said.

“The State Water Control Board does not have approval authority over (erosion and sediment control plans),” DEQ Director David Paylor said Thursday. “The board may consider certain actions on the certification following the DEQ report. ... I believe that’s still the case.”

At least one board member was already considering additional actions, though she appeared to be on her own.

“I would read that language differently,” board member Roberta Kellam told Paylor, adding that she feared the board’s authority was being “swept under the rug.”

Kellam cited recent violations of tree-cutting restrictions that were self-reported by Dominion on the Atlantic Coast Pipeline.

“We’re talking about a violation before even the plans that they’re required to submit to perfect the certificate have even been approved,” she said. “That would seem to me potentially grounds for revoking the certificate or at least reopening discussions.”

About 15 seconds of silence followed that remark.

Melanie Davenport, DEQ’s director of the water permitting division, told the board that the agency decided its limited resources would be better spent focusing on the upland areas rather than the water crossings. She added that the corps review was “essentially the same” as the review DEQ would have conducted under its Virginia water protection permit process. And, she contended, the process DEQ selected, which includes the upland areas review as well as the corps review of crossings, gives the pipeline projects broader coverage than if the agency spent its time on a review of the crossings.

“We put those bodies on where we thought we were getting the bang for the buck,” she said.

Environmental groups, who were major supporters of Gov. Ralph Northam’s campaign last year, including a primary fight that saw him call for the pipelines to be held to the highest environmental standards, have been attempting to hold the governor to that promise.

“As the first step to the closer, site-specific scrutiny Gov. Northam has repeatedly called for, the board’s action today will ultimately ensure the waterways these pipelines propose to traverse won’t be damaged,” said Walton Shepherd, an attorney with the Natural Resources Defense Council. “And if that water protection can’t be assured to the board’s satisfaction, then the pipelines can’t be built.”

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