Even after pipeline pollution, DEQ is still resisting water protections and public participation

By David Sligh

In March, the Virginia Department of Environmental Quality announced a new stakeholder advisory group to discuss numeric criteria for turbidity in streams.

Turbidity is a measure of sediment (dirt) and organic materials that make waterbodies cloudy or muddy, harm fish and other critters and impair human uses. Numeric criteria are an important tool in permitting and enforcement. The need for these requirements is all too plain, after assaults on our waters by Mountain Valley Pipeline and DEQ’s weak responses. 

There are two major problems with DEQ’s effort. 

First, DEQ has decided to exclude willing and able members of the public from meaningful roles and has stacked the SAG with representatives of regulated industries and others with financial interests and histories of opposing stringent regulations. Sadly, this fits a pattern set by DEQ leaders. The public provides scientific and legal information and local knowledge and, in many instances, the department cursorily dismisses or ignores the contributions. 

Second, DEQ started this process after decades of failing to provide this most basic protection and, only then, under orders from the State Water Control Board. This lack of initiative by DEQ leaders leaves Virginia trailing behind a majority of states and our waters unprotected against severe damages that should have been stopped years ago. 

And this DEQ failure is not limited to turbidity. Our water quality standards and DEQ’s implementation procedures need a major reform. Agency officials won’t do it on their own. It’s time for the people of Virginia to insist on these changes.

Shutting the public out

After a public notice for the first SAG meeting scheduled for March 23, Wild Virginia asked to become a member. We have years of experience with legal and technical aspects of state water quality standards and were excited to participate. A DEQ official summarily refused our request, stating curtly that “the membership of the SAG has been finalized and no additional members will be added.” 

When we objected and asked how the SAG members were selected, the official stated that the DEQ had not sought volunteers. Instead, the department had hand-picked organizations and individuals it wanted in the room. The official noted that, because this committee is not part of an official regulatory process, state laws about public involvement do not apply. That position, that the department won’t allow us to join the SAG because the law doesn’t compel it, is ludicrous.

In fact, because the SAG is a “fact-finding and information collection” exercise which “may” lead to a formal action, now is exactly the right time to give all voices an equal chance to be heard. This could be our only chance to participate, if DEQ decides to again defer its duty to draft this necessary regulation. That DEQ has yet to accept its responsibility, to have effective numeric criteria, is a major problem in itself — a point we would make as a SAG member. 

The DEQ official did invite us “to present [our] input and points of view to any of the SAG members.” While we agree that the parties DEQ chose for the SAG have standing to be there, our standing is just as strong. We and other citizens who volunteer and have useful contributions to make should not have to rely on DEQ’s preferred parties to carry our messages forward. 

Several conservation groups are on the SAG and will certainly make valuable contributions. However, requiring us and others to present our opinions through them or other SAG members, rather than directly to DEQ and its chosen participants, puts us in a subordinate position and implies that those parties are obligated to represent our views alongside theirs. This is unacceptable. 

First, the SAG members DEQ invited represent their organizations’ interests, concerns and knowledge. Neither we nor DEQ may presume that these people fully understand our positions or are able or willing to present them as we would wish. It is simply unfair to these groups and to us to ask them to speak for us.  

Second, stacked against the few citizen groups, whose obligations are to the general public and the environment, are a dozen representatives of regulated entities. The imbalance is shocking and DEQ should be embarrassed by it. For example, lawyers who commonly represent parties like Dominion Energy, the Virginia Manufacturing Association and wastewater dischargers will be strong advocates for polluting parties. We and others prepared to be legal advocates for strong protections should be there from the beginning and on an equal footing.

How much longer must we wait?

In state reviews for the Mountain Valley and Atlantic Coast pipelines, many of us warned that dirt washing off the land and released during digging and blasting through streams would produce harmful sediment pollution. MVP’s degradation of our waters has proven us right.

DEQ failed to use available tools or develop necessary ones to prevent that damage in this case and these failures have allowed pollution problems in many other cases as well, though usually with much less public exposure. 

We’ve known that sediment was a primary source of water impairments for many decades, long before the 1972 Clean Water Act was enacted. Thousands of miles of streams and countless lakes, as well as the Chesapeake Bay, sustain severe damage from sediment discharges every year. 

Virginia regulators have been obligated to adopt regulations to control these pollutants since the act was adopted. Still, we could soon reach the 50th anniversary of Virginia’s inaction on this issue, unless we act soon. That would be a disgrace for a people so fervently committed to the “common wealth.” 

At least 30 states, four U.S. territories, and dozens of Native American tribes have addressed sediment pollution by adopting numeric criteria but, until now, the DEQ has refused to even try to do so. States like Alabama and Mississippi, not known for strong environmental enforcement, have acted. From the Eastern Band of Cherokee Indians in North Carolina to the Kalispel in Washington State, Native tribes have taken the necessary steps to protect their people and their waters.  

To its credit, the State Water Control Board recognized this shortcoming and demanded action. On April 15, 2019, the Board voted unanimously “to direct the DEQ staff to develop numeric turbidity standards for use across the commonwealth,” “to make this a top priority,” and to handle it on “an accelerated schedule.” We applaud the board’s initiative, but DEQ’s inaction before and since receiving that order gives us little confidence in a good or timely result — unless citizens are allowed to play their rightful roles. 

In addressing the board, DEQ has pleaded that the task will be difficult to do soon and that it lacks resources. But the dozens of examples available, which Virginia could follow, and a large body of scientific knowledge obliterates these excuses. The U.S. EPA has developed suggested numeric turbidity criteria suited specifically to Virginia streams and, while not mandated, those criteria are protective and, we think, are probably the best and most efficient choice. DEQ need not start from scratch. 

Numeric criteria for other pollutants that are vital to fully protect Virginia waters are also decades overdue. For most streams, we have no criteria for nitrogen and phosphorus, nutrients that lead to harmful, sometimes dangerous, algae blooms. Again, DEQ’s protests, that adoption of these kinds of numeric criteria is too difficult, ring hollow. DEQ got recommendations from a panel of scientific experts for nutrient criteria in 2012 but has still not adopted adequate protections. EPA has suggested sound solutions here too and DEQ has refused to use them.

Finally, DEQ already has one available tool to help control sediments and nutrient pollution but refuses to use it. So-called “narrative criteria” are supposed to supplement the numeric goals and carry the same legal weight. These narrative criteria prohibit discharges, like those from MVP and other polluters, that cause “substances that produce color, tastes, turbidity, odors, settle to form sludge deposits” or “substances which nourish undesirable or nuisance aquatic plant life.”

In August of 2018, Water Board members asked how narrative criteria applied to the pipelines and DEQ’s response was far from adequate. When a board member noted that, according to the regulations, “turbidity is not authorized,” DEQ’s director of water permitting weakly replied that she didn’t know how to assess whether a violation was present. Well, we know how to make that judgement; the landowners whose streams and ponds have been filled with sediment-laden discharges know too. 

Also, for streams choked with algae due to huge amounts of nutrient runoff in the Shenandoah River basin, the fact that this pollution causes obnoxious color, turbidity, and odors and nourishes “undesirable or nuisance aquatic plant life” is painfully clear: to the Shenandoah Riverkeeper, who has petitioned DEQ to deal with these problems for more than a decade; to hundreds of citizens telling DEQ that algae keeps them from freely and safely using their waters. The violations are clear in thousands of photographs, scientific study results, and other evidence given to DEQ but somehow agency officials can’t or, more plausibly, won’t see them.  

The DEQ is supposed to work for all of us and we will have a voice in efforts to finally fix our water quality standards – whether invited or not. We will no longer accept excuses and perpetual delays.

You shouldn’t either.

David Sligh is the conservation director for Wild Virginia, an environmental nonprofit. He is an environmental attorney and a former Virginia Department of Environmental Quality engineer.