A portion of the Mountain Valley Pipeline construction site in Franklin County in 2018 (Roberta Kellam)
Visiting the Mountain Valley Pipeline construction corridor in southwest Virginia was a promise I made to local residents while I was a member of the State Water Control Board. It was a promise that wasn’t kept until Jan. 2, when I toured many farms and residential lands impacted by the MVP construction activities.
Unfortunately, it came after I was removed from the board by Gov. Ralph Northam.
My visit was timely though in that it came weeks after Attorney General Mark Herring had filed a complaint against MVP alleging several hundred water quality-related violations. The board had voted to consider revoking the MVP Water Quality Certification it issued for the project in late 2017.
Based on what I observed along about 30 miles of MVP construction, it continues to be unclear to me why the DEQ has not instructed MVP to stop work in accordance with its authority.
My tour of the MVP corridor traversed areas of very steep slopes, floodplains and freshwater wetlands. I observed situations that were clearly a threat to water quality, such as unprotected steep slopes, pipeline segments floating in water and erosion and sediment control measures in disrepair.
There are also obvious impacts to water quality, such as sediment-covered stream bottoms and turbid standing water in wetlands (the attorney general’s complaint identifies almost two miles of sediment-covered stream bottoms).
But what struck me even more than the environmental impacts was meeting the people dealing with the pipeline construction and its failed erosion control measures on their own properties — farmers and other land owners who graciously invited me to visit their properties and see for myself.
It was clear that many people felt that DEQ was not protecting their water quality to the extent promised during the water quality certification hearings and that they had lost faith in the DEQ.
From time to time during 2018, I saw photographs taken by local residents of situations on the ground that appeared to threaten water quality.
In response to my inquiries about site conditions, I was repeatedly told by DEQ Director David Paylor that the local residents are “untruthful” and their photographs were “misleading.” In the week before Hurricane Florence, when weather forecasts indicated potential catastrophic rainfall in the region, Director Paylor told me that work had stopped even though video and photographs provided by local residents showed otherwise.
I continued to press for acceptable water quality protection, suggesting that jute matting should be applied instead of the proposed mulch on steep slopes.
Director Paylor said MVP had no jute matting on site and could not obtain any jute matting in the short timeframe, a clear lack of contingency planning in my opinion.
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.
Given the more than 300 water quality-related violations cited in Attorney General Herring’s complaint, photographs and personal accounts of local residents and my own observations on the ground, I feel confident that my concerns about water quality were well-founded and relevant to my sworn duty as a State Water Control Board member.
The political angle to some of the matters before the State Water Control Board has occasionally been a challenge to overcome, but it was felt most acutely in the water quality certification approvals for both pipelines.
Then-Gov. Terry McAuliffe publicly praised both the MVP and the Atlantic Coast Pipeline projects before any environmental reviews had been completed. Although then-Lt. Gov. Ralph Northam requested in writing that an individual analysis of each stream crossing be completed by DEQ, Director Paylor deferred by passing the matter to the Army Corps of Engineers for a nationwide (general) permit in spring of 2017, without first obtaining the approval of the water board.
In May 2017, the DEQ provided a guidance document that created the requirements for pipeline projects to obtain water quality certification for “upland” activities.
In a private meeting I attended with Director Paylor, two other DEQ officials and one other board member prior to the water certification public meetings, DEQ strongly supported the board issuing water quality certifications for both pipelines, explaining that if the board did not approve both of these certifications, the state could lose certain authorities and control over protecting the waters of the commonwealth.
Nothing was said to clarify why projects initiated in 2015 would not come before the board until almost the end of 2017. The lack of transparency in this decision-making process only added to the community’s mistrust of DEQ.
Throughout the approval deliberations, DEQ assured the water board that authority existed to address any imminent threats to water quality on an immediate basis by DEQ staff. Curiously, it was only after the water board voted to approve the certifications for MVP and ACP that the General Assembly passed “stop work instruction” legislation. It is this legislation that DEQ cites as now limiting its ability to stop work on the MVP.
A Paylor-led DEQ failed to prevent the water quality and property impacts that occurred throughout 2018, and now the governor, attorney general and water board must act to protect citizens and address the continuing and substantial water quality and property impacts from the MVP.
Just as decisions made behind closed doors make public participation meaningless, so too is the board’s water quality certification meaningless absent an exercise of stop work authority.
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