Workers had begun laying portions of the Mountain Valley Pipeline in Roanoke County near the Blue Ridge Parkway this past summer. (Ned Oliver/Virginia Mercury - July 26,2018)

Emerging after hours behind closed doors, the State Water Control Board decided Friday it would not consider revoking a key water-quality certification for the Mountain Valley Pipeline, with members citing uncertainty about the board’s authority to do so.

The water control board and Department of Environmental Quality have been under pressure from environmental groups and landowners to force work to stop on the 300-mile pipeline planned to run from West Virginia into Pittsylvania County and revoke a water-quality permit issued in 2017.

The controversial project is the subject of a state lawsuit over several hundred environmental violations and a criminal investigation by the federal Environmental Protection Agency.

James Lofton, at his first meeting as a member in December, made the motion to explore revoking the permit. It narrowly passed the seven-member board, with Chairwoman Heather Wood and members Tim Hayes and Lou Ann Jessee-Wallace voting no.

The board waited 11 weeks to hold a special meeting on reconsidering the permit.

Wood said issuing the permit for the Mountain Valley Pipeline was unique because of the size of the project, so revocation is uncharted territory for the state.

“The practical and legal issues involved are not necessarily straightforward,” Wood said.

The board went into closed session for three-and-a-half hours to discuss legal authorities and procedures related to the water quality permit.

Lofton, who originally suggested the board consider revoking the permit, said when the public meeting resumed that he had deep concerns about the pipeline project’s erosion and sediment control measures but was also worried the state couldn’t revoke the permit.

“Based on advice of counsel and statute, I do not think the board has the authority to revoke this certification,” he said.

Union workers who have worked on the pipeline clapped. Opponents groaned and yelled, “Then who does?”

“The board is very sympathetic to landowners and those opposed to the pipeline, but I’m deeply concerned we would lose the 16 conditions that are in the 401 certification if we attempt to revoke the certification,” Lofton said. “I simply cannot find the board has the authority to revoke this permit.”

James Lofton, left, conferring with fellow new State Water Control Board member Paula Hill Jasinski, made the motion to reconsider a certification related to the Mountain Valley Pipeline at his first meeting in December. (Ned Oliver/ Virginia Mercury)

He said the board was “determined to have vigorous enforcement” to make sure construction was safe.

Wood tried to further explain, saying revocation of the permit by the board would “handcuff” the state’s ability to impose additional requirements on the project.

Before she could get too far, pipeline opponents interrupted her, calling the board cowards and yelling that they were poisoning water supplies.

Wood moved to adjourn the meeting before explaining herself any more.

In a statement released by the DEQ later Friday afternoon, Wood said leaving the certification “puts additional protections in place that would not be as strong under sole federal oversight.” Removing it would have “jeopardized the commonwealth’s oversight” of the pipeline project, she added.

“This was a unique situation that required time to ensure the proper legal process was and continues to be followed,” Wood said. “The board extensively reviewed all available options to continue enforcement and monitoring of this project to ensure compliance with the conditions of the 401 certification and protection of water quality. ”

Opponents hoped for action

Environmental groups said they hoped the water control board would exercise its full statutory ability to revoke the certification.

“While the board expressed concerns that revoking the certification would erode the state’s ability to control pollution in Virginia waters, the fact is that revoking the certification would stop the project,” said Peter Anderson, an attorney with Appalachian Voices, an environmental group.

“Gov. Northam’s administration has stacked the deck for private companies at the expense of Virginia’s communities and our environment, foisting this ineffective permit on the public through a flawed process and without transparency.”

Under Section 401 of the federal Clean Water Act, states are allowed to sign off on federally permitted projects such as gas pipelines to ensure state water quality standards are upheld. The board issued that certification in 2017, finding there was a “reasonable assurance” that construction along the steep and sinkhole prone terrain wouldn’t degrade waterways with dislodged sediment.

“The State Water Control Law (SWCL) grants broad authority to the State Water Board that plainly includes authority to act on the cited condition in the certification,” a coalition of environmental groups wrote in a letter sent to board members earlier in the week.

“In particular, the board has the power to issue, revoke or amend ‘certificates’ for discharges, activities that would affect the properties of state waters, and for excavation and other actions in wetlands.”

In the 17-page letter, the groups and several lawyers laid out case law and explained why the board has the power to revoke the permit.

“There is a process so I don’t think that there’s a question of what the board’s authority is, but it’s more a question of how does this water quality certification interplay with (the Federal Energy Regulatory Commission),” said Roberta Kellam, a former member of the water control board.

She was removed from the board in November when Gov. Ralph Northam also removed two members of the Air Pollution Control Board.

Since then, Kellam has criticized the Department of Environmental Quality’s handling of MVP construction.

“I’m not really surprised that the board made that calculus to avoid the litigation that would come with going into a revocation process and the unknown of going to FERC and trying to get FERC to respect the state’s decision when you have the Trump administration,” said Kellam.

State code says DEQ can stop work on projects if there has been a “‘substantial adverse impact to water quality, or that an imminent and substantial adverse impact to water quality is likely to occur as a result of land-disturbing activities,” DEQ spokeswoman Ann Regn said in an email.

“DEQ’s determination of whether there has been a substantial adverse impact to water quality or an imminent and substantial adverse impact is likely is fact-specific and must be made on a case-by-case basis,” a 2018 DEQ memo reads.

The memo lays out some situations where it would be appropriate to issue a stop work order: When sediment or fuel harms aquatic life; when the company’s erosion and sediment controls are not functioning and the company hasn’t proposed corrective action; or when anticipated severe weather would impact water quality.

In December, Attorney General Mark Herring and the Department of Environmental Quality filed a lawsuit in Henrico County Circuit Court against the company building the Mountain Valley Pipeline for hundreds of erosion, sediment and stormwater violations during rainstorms in Craig, Franklin, Giles, Montgomery and Roanoke counties.

“The evidence is overwhelming that Mountain Valley Pipeline is a bad actor, that construction of this pipeline has hurt local waterways and our environment, and that the Water Control Board has the authority to put its foot down and stop further harm,” said Lee Francis, deputy director of the Virginia League of Conservation Voters.

“In refusing to exercise that authority, state regulators have put clean water and people in the path of this pipeline further in harm’s way.”

Harrison Wallace, Virginia director for the Chesapeake Climate Action Network, said in a statement that Herring should request an emergency injunction to stop work on the pipeline while the problems from the lawsuit are investigated.

“This project, now under criminal investigation, has been incredibly harmful to the livelihoods of scores of Virginians, but it seems that state regulators and lawyers pressured the board into inaction,” Wallace wrote.

‘We want those jobs back’

The board’s decision could have been precedent-setting and determine how other projects, like Dominion Energy’s Atlantic Coast Pipeline, which has yet to begin construction in Virginia, lose state approvals. That was the concern of the dozens of union workers like Jeremy Peters, a welder from Bath County who was working on the MVP before he was laid off in December. 

Since many of the workers don’t have a job right now, they could attend the meeting to show support for the project, Peters said.

“The permitting issues they’re having with this pipeline are probably dictating the same issues on the Atlantic Coast Pipeline, so whatever happens to one probably could happen to the other one,” Peters said. “If it goes good for one, it could go good for all, if it goes bad, it could go bad for all. So a lot rides on what they do or don’t do.”

“We want those jobs back,” he said.

When work stops, pay stops for union members who work on pipeline projects. Right now, workers like Peters usually have to travel to another state to find work.

“They’re worried about the environmental impact, they say, but the gas company’s worried about the environmental impact too because if something goes wrong, that’s money,” he said of opponents of the pipeline.

“But they’re not worried about our economical impact because we’re slaves to the master of the gas company, according to them. We’re just pawns in their game, but we’re just trying to make a living like everyone else.”