Ralph Northam campaigned for Virginia’s highest office on his Chesapeake Bay roots, and he seemed to be making good on those promises when he made reforming the state’s environmental agency his sixth order of business last year.Citizens attending a meeting of Virginia’s State Water Control Board in August 2018 waved signs asking for pipeline permits to be revoked. (Whitney Pipkin)

A new report details what the state’s Department of Environmental Quality needs to fulfill its mission, though it will face some financial hurdles to be enacted. Since 2001, DEQ’s general fund appropriations have been reduced by $46 million, and 74 positions have been lost. Overseen by Secretary of Natural Resources Matthew Strickler, the report suggests that restoring the agency’s budget and staff won't be enough.

The 14-page report states that its recommendations “will require identifying additional resources and authorities for the agency.” The need for both money and additional authority — likely to be reiterated in Northam’s proposed budget due in mid-December — will be subject to the general assembly’s approval in early 2020.

“I think this report really comes down to funding,” said Mary Rafferty, executive director of the Virginia Conservation Network, which partners with more than 100 environmental organizations in the state.

Leading up to the governor’s order, a 2017 report had revealed that Virginia ranked near the bottom among states for the percentage of its annual budget dedicated to protecting and enhancing natural resources. Northam said in 2018 that he wanted to nearly quadruple the state’s natural resources budget, which includes the environmental agency, from less than 1% of the general fund to at least 2%.

A decrease in regular contributions from the state’s general fund is not the only problem. Permit fees and penalties, which are often set in state code, have not been raised in recent years despite the increasingly complex tasks and growing workload that DEQ must process for development projects. The report suggests both factors be revisited and legislation be passed that would allow permit fees and penalties to keep up with inflation and cover the costs incurred by the agency needing to take enforcement action.

Virginiaforever, an organization encompassing both business leaders and environmental organizations, didn’t balk at the report’s recommendations. Instead, the group agreed with the need for more natural resources funding in its five-year funding plan for the state, released in July. Jeremy Slayton, a spokesman for Dominion Energy, a utility company whose energy-generating facilities are regulated by DEQ, agreed with the organization’s conclusion that “additional agency funding is necessary.”

The general assembly didn’t follow the recommendations of the group’s last plan, but this is the first year the group has specifically asked for increased funding for agencies like DEQ.

“There is widespread recognition that the agencies have been starved and can’t accomplish what they need to do,” said Peggy Sanner, the Chesapeake Bay Foundation’s Virginia assistant director and senior attorney and a member of the group.

Last year, the governor got less than 35% of a $2.5-million “immediate” infusion that he requested for DEQ, including funds to support permitting and monitoring and to upgrade the agency’s website.

“Without additional resources,” the report states, “the additional progress envisioned by [the governor’s order] will not be possible.”

In recent years, DEQ has been the subject of increased public scrutiny over its approval of permits for two major natural gas pipeline projects crossing the state. At public meetings about the pipeline permits, residents who lived near construction expressed dismay at a perceived lack of oversight while agency officials said they did not have the staff to fully monitor the project while it was under way. 

Both of the pipeline projects are currently on hold as the courts consider challenges to key federal permits.

Strickler pointed to two projects that were referred to the Virginia Attorney General for litigation last year as evidence of DEQ’s willingness to use more enforcement action against environmental violators.

“DEQ has to walk a fine line if they’re going to go after someone who’s an egregious violator,” Strickler said. “If they put a big penalty on the table, the other party might not consent… the [Attorney General’s] Office has a lot more tools in their toolbox to hold people accountable under the law.”

Attorney General Mark Herring ended up suing the Mountain Valley Pipeline project, which DEQ referred to his office, after the project racked up hundreds of sediment control violations. DEQ referred similar water quality violations to the Attorney General’s Office over an unpermitted clearing at Fones Cliffs on the Rappahannock River, which resulted in steep fines. The company behind that project has since filed for bankruptcy.

CBF’s Sanner said she had hoped the report would go a bit further to “articulate the protocol” for when the agency would turn cases over to the attorney general for enforcement. For now, Strickler said the relationship between the two parties has worked well and is one that “will continue to grow into the future.”

Evaluating the impacts of federal rollbacks to environmental laws — and whether state programs would need to step into the gap — was one of three main tasks the governor asked the report to address. He also asked the report to identify any critical or time-sensitive updates to regulations and to work with stakeholders to understand how the agency could improve its communications with the public, particularly with underserved and lower-income residents.

For Rafferty, the report’s assessment of state laws in the context of federal rollbacks was one of its most important elements.

“Right now, given where the rollbacks are happening at the Trump administration, it is really good to see the Northam administration step up and want to be a backstop to some of the worst rollbacks we’ve ever seen,” she said.

The state already has enacted coal ash disposal requirements that are stricter than the federal requirements, for example, and the General Assembly is likely to again consider linking up with other states in their efforts to reduce carbon pollution by joining the Regional Greenhouse Gas Initiative. An off-year election in November also could change the makeup of the General Assembly just before Northam releases his budget proposal in December.

The report, Rafferty said, “is an incredibly important step in this process, but it still is just a report. It needs funding and resources in order to get some of these important initiatives off the ground.”