Will existing environmental rules be enough to protect Virginia streams from the potentially damaging side effects of two pipeline projects? Citizens and environmental groups cry no, but the State Water Control Board says its hands are tied.
The seven-member board decided at a contentious Aug. 21 meeting to continue allowing two natural gas pipelines — the Mountain Valley Pipeline and Atlantic Coast Pipeline — to be constructed across the state, under additional oversight.
The governor-appointed board is charged with administering the state’s water control laws and resolving special issues.
Both pipelines will carry natural gas, extracted from underground shale formations using a controversial technique called hydraulic fracturing or “fracking.” Pipeline construction entails disrupting wetlands, crossing streams, removing trees and exposing bare soil, sometimes on steep slopes.
The Mountain Valley Pipeline travels a largely north-south route through West Virginia into Virginia’s southwest corner, where work is already under way.
Construction has also begun on the Atlantic Coast Pipeline in West Virginia. From there, it will cut a southeastern path through Virginia, including parts of the Chesapeake Bay watershed, to North Carolina. According to the Southern Environmental Law Center, it will cross Virginia waterways nearly 1,000 times.
The State Water Control Board decided in April to open the pipeline projects they had conditionally approved to another public comment period, which garnered 13,000 comments by the August meeting. The board sought input on whether additional state permits should be required for each of the projects’ stream crossings to ensure water quality is protected on top of the blanket permit required by the U.S. Army Corps of Engineers for crossing waterways.
Officials with the state Department of Environmental Quality have said that existing laws will protect water quality, and the board ultimately agreed. Its members debated suspending permits for both pipelines and enacting other measures that would require stream-by-stream analysis; ultimately, though, they pulled back in a unanimous vote and directed the DEQ, which is tasked with monitoring hundreds of miles of pipeline construction, to make some changes in response to public concerns.
In a written statement, board members urged state regulators to be “aggressive” in their enforcement of existing laws intended to reduce erosion and sediment pollution during construction. They asked the DEQ to require more stringent erosion controls where needed to prevent sediment-laden runoff from washing off construction sites — as it has in several places along the path of the Mountain Valley Pipeline so far this summer.
“There is turbidity and sedimentation associated with this construction that is not acceptable and enforcement action needs to be taken,” board member Tim Hayes said to a crowd that made it clear they were looking for more. “I want that enforcement action to be as aggressive as it possibly can.”
Citizens who live along the pipeline path where construction has begun insist those controls are not enough.
Several of the nearly 200 people that attended the August meeting held up photos that showed the damage they see the projects causing to streams and properties. Sent to the board in the weeks leading up to the meeting, the images showed streams filled with raw dirt and water-filtering berms overwhelmed by the high flows after heavy rain this summer.
“When you certified these pipelines back in December 2017, is this the kind of harm you anticipated and envisioned?” Charmayne Staloff, associate attorney at the Southern Environmental Law Center, asked the board at the meeting. “The answer to that question has to be no.”
In a statement, the Chesapeake Bay Foundation’s Virginia assistant director, Peggy Sanner, called “the board’s failure to take more meaningful action” disappointing.
“In just the first few months of construction, the Mountain Valley Pipeline has polluted rivers and streams with sediment, triggered mudslides and put drinking water sources at risk. The board’s action will not prevent this damage from occurring on an even larger scale if construction on the Atlantic Coast Pipeline ramps up,” the statement said.
The DEQ already had issued a stop work order and notices of violation to the Mountain Valley Pipeline after construction contributed sediment to nearby waterways in June and July. The Federal Energy Regulatory Commission also ordered the project to stop construction on a 3.6-mile segment in the Jefferson National Forest — and then along the entire project — until the construction sites could be stabilized.
But several audience members said they have continued to see signs of construction on pipeline sections in their counties.
Organizations, some of which are participating in legal challenges against the projects, also argued that — even if the sites were fully compliant with state law — the law doesn’t go far enough to protect water quality. They also expressed concerns that the DEQ may not have enough staff to adequately oversee the projects.
Before the meeting, several local groups opposing the Mountain Valley Pipeline, including Wild Virginia, circulated a letter clarifying that state law only requires the project to prevent erosion during the sort of storms it was designed to handle. In this case, DEQ officials explained at the meeting, the projects are only required to prevent erosion during a two-year, 24-hour storm event. If a stronger storm resulted in erosion, project managers would not necessarily be held responsible by those laws.
“If the storm exceeds the ‘design storm,’ a statistically derived rainfall amount engineers use as a guideline in sizing pollution control measures, then DEQ apparently decides the polluter is not liable for its discharges or the water impacts they cause,” the letter stated.
DEQ officials reiterated this rule during their three-hour presentation to the water control board, after which citizens had 30 minutes for public comments.
“Most of the rain events that we have seen to date are exceeding those two-year, 24-hour storm events,” explained Ben Leach, team leader of the DEQ’s office of stormwater management, to the guffaws of many in the audience.
Less than a week after the board’s decision, Virginia’s Advisory Council on Environmental Justice recommended that the state revoke the permits for both projects. The council raised questions about the projects’ impact on human health and the environment, particularly in “predominantly poor, indigenous, brown and/or black communities.”
Virginia Gov. Ralph Northam has maintained that the state’s regulatory process is working as it should to protect air and water quality while allowing the projects to proceed. But the 15-member council urged him to reconsider that stance in a formal letter advising that water and air quality permits for the projects be suspended. The board was created by former Gov. Terry McAuliffe to make recommendations, but it has no authority over the regulatory process.