Virginia regulators accused of slow-walking new turbidity standard

As work on Mountain Valley Pipeline remains stalled, state officials are also moving at a sluggish pace to develop a standard that would help Virginia regulate muddied waters like those that have dogged the project.

“My recollection is that this was first requested by the board about 18 months ago,” State Water Control Board member Paula Jasinski said to Department of Environmental Quality officials at a meeting Sept. 24. “Does it take that long?” 

DEQ leaders said yes. While acknowledging a five- to six-month delay due to the COVID-19 pandemic, top officials emphasized the complexity of developing such a standard, known as numeric turbidity criteria, in a state with wide geographic and ecological diversity.

But other environmental stakeholders say the department is slow-walking the process, writing its own regulations from the ground up instead of leaning on standards already adopted in many other states.

“If we were starting from scratch here, that would be one thing,” said David Sligh, a former Virginia environmental regulator and conservation director of Wild Virginia, which along with 55 other state organizations is pushing for a slate of regulatory reforms by the State Water Control Board, including accelerated development of the numeric turbidity standards. But, he continued, there’s already “decades of knowledge” on the subject.

“As they pointed out, 30 states have already done it,” he told the Mercury. “We may question whether what those states did is the best way to do it, but EPA approved every one of those states’ methods. So we can’t say it hasn’t been looked at or thought about.”

Narrative vs. numeric

At its most basic level, turbidity can be thought of as the degree to which waters are clouded or muddied. Technically, it’s “a measure of water clarity and the degree to which the water loses its transparency,” according to a definition provided by DEQ at a July turbidity work group. 

Caused by suspended particles like clay, silt, sand and biological matter including plankton, turbidity isn’t always a bad thing. The “vast majority” of Virginia’s surface waters “always have some detectable turbidity,” Office of Ecology Director John Kennedy told participants in the July meeting. 

It’s when turbidity rises far above its normal level that it becomes a problem. Choked streams and lakes quickly lead to losses of both plant and animal life, can harm recreational uses of water bodies and are unsightly. 

In regulating turbidity, Virginia has long relied on a set of “narrative criteria” laid out in the state code that among other things control the deposition of “substances that produce color, tastes, turbidity, odors, or settle to form sludge deposits.” 

But those criteria “are too subjective and as such are pretty much unenforceable,” said Bob Burnley, a former DEQ director and an advocate for the Virginia chapter of Trout Unlimited who is a signatory of the reform platform being spearheaded by Wild Virginia. 

“If you see somebody violating the numeric criteria, you can measure that and if you find a violation, a quantifiable violation, then you have some basis for enforcement,” he said. “If it’s just the way the water looks or smells or tastes, like a lot of those other narrative criteria, it’s much more difficult to say what’s acceptable or what’s not.” 

Current DEQ officials have echoed those sentiments. At the July turbidity meeting, Kennedy acknowledged “it is difficult to apply that narrative criteria in a very strict sense.” 

Still, putting numbers to the problem has been tricky. In 1976, EPA released recommendations for solids and turbidity criteria that found solids shouldn’t reduce a key depth threshold for photosynthetic activity to occur by more than 10 percent from a water body’s norm. Few states adopted that criteria, though many, including Virginia, did embrace a narrative standard also put out by EPA that said waters should be “free from” a range of effects including turbidity. 

Despite the lack of a uniform federal standard, states flocked to the idea of putting measurable, verifiable limits on turbidity in their waters. According to DEQ, about 60 percent of all states have established numeric criteria that forbid turbidity from exceeding its normal levels by either a certain value or a certain percent. Among them are many of Virginia’s neighbors in EPA Region 3, including Maryland, Delaware and Washington D.C. 

But in Virginia, according to Burnley, the issue didn’t provoke much debate until the appearance of the Mountain Valley Pipeline, which has been plagued by erosion and sedimentation problems and has caused outrage among many in Southwest Virginia who see the State Water Control Board and DEQ as reluctant to enforce water quality standards on the books. 

“People were seeing all that mud in those streams last year … on the Mountain Valley construction route and knew something was wrong, and I think were a little bit disappointed when they couldn’t get anyone to agree with them,” said Burnley. “And that’s primarily because of a lack of a numeric standard in my mind.” 

In April 2019, weeks after deciding not to revoke a key water quality certification for the pipeline, the State Water Control Board ordered DEQ to develop numeric turbidity criteria and to consider the task “a priority.”  

Stakeholders question the task itself

Seventeen months later, though, DEQ has only completed a review of existing studies on turbidity and a survey of what other states have done. And at the July stakeholder work group, agency officials appeared to question whether numeric turbidity criteria needed to be created at all. 

“What do you see as the value-added by having turbidity water quality criteria? How would they supplement or improve DEQ’s existing water quality control programs?” a set of two questions posed to participants by the department read. “From your representative perspective, what are the pros and cons of adopting regulatory turbidity criteria and what do you think are the implications for implementation?” 

Instead, officials emphasized existing water protection permits in Virginia, highlighted DEQ’s lack of water monitoring resources and pointed to the lack of formal turbidity criteria from the EPA as a challenge to the state developing its own standard. 

“We don’t have the science from EPA to begin considering criteria for turbidity. And we don’t have the resources to conduct the science, to pull that number together in the same way EPA does,” Division of Water Permitting Director Melanie Davenport told stakeholders in July. “So one of the things that we wanted to have a broader discussion about is, absent that, do we have tools that address the issues and the challenges and what is the impact of turbidity? Do we know what it is? Do we understand if it’s addressed by other programs?” 

“I just don’t know that the board really understood what it would take for us to get from here to a completely Virginia-generated technically defensible supported turbidity number,” she continued.  

In the wake of the agency’s presentation, some stakeholders expressed doubts about establishing numeric criteria at all. 

Martha Moore of the Virginia Farm Bureau Federation said she didn’t “see the value of having yet another layer of regulations to define turbidity in and of itself,” while Randy Bartlett of the Fairfax County Department of Public Works said that “it sounds like as complex as this could be … if we try to do it now it would be one of those things where we just never get it right, and getting it wrong could do a lot more damage.” 

Others pushed back. 

“You reviewed 50 studies. Sixty percent of states have adopted numeric standards,” Joe Wood of Chesapeake Bay Foundation told DEQ officials. “So to say that staff of DEQ, if they considered this a top priority, couldn’t come up with a numeric standard, I just don’t see it.” 

State Water Control Board member James Lofton at the board’s September meeting similarly expressed skepticism about the agency’s progress and its forecast that due to mandated state and federal regulatory processes and executive review, any new criteria would take another 18 to 24 months to be finalized, even if DEQ files a Notice of Intended Regulatory Action this fall, as officials said it planned to. 

“It does seem another 12 to 18 to 24 months is a very, very long time given that there are numeric standards that have already been developed in our EPA Region 3,” he said. 

Lofton also clarified that despite the challenges identified in the stakeholder meeting, numeric turbidity criteria are in Virginia’s future. 

“There was some discussion in that stakeholder meeting about whether or not there should be numeric standards,” he said. “That issue has been resolved. The board voted for numeric standards and directed the staff to develop them. So I just want to make sure that you’re not revisiting that issue, because I believe the board resolved that 18 months ago.”