By David Sligh
The Virginia Department of Environmental Quality is proposing to again defer to the U.S. Army Corps of Engineers on decisions about the health of thousands of Virginia streams and wetlands. And, despite the fact that DEQ has a legal obligation to ensure our water quality standards are enforced on all regulated projects, the department has just admitted that it hasn’t done so in this case. This follows a pattern of failure that the State Water Control Board must reject.
The DEQ has advertised “tentative” certifications of dozens of nationwide permits, which the corps wants to issue to govern projects that would dig and blast through our waters. The state certifications, issued under the Clean Water Act and Virginia law, would give a stamp of approval to the corps’ flawed permits and would prevent our regulators from taking further action, when it turns out that the requirements the corps develops are not adequate to protect Virginians and our resources.
One of these nationwide permits, NWP 12, has been applied to the Mountain Valley Pipeline and the Atlantic Coast Pipeline, and to many other destructive projects across the country. It is also the subject of numerous lawsuits, and courts have ruled that its use was illegal in some cases. Wild Virginia, with allies in Virginia and West Virginia, is now in court challenging the corps’ use of NWP 12 for the MVP, and the federal appeals court has stopped all waterbody crossings by MVP while the judges consider the arguments in that case.
The thing is, NWP 12 would not have applied to these pipelines in Virginia if the DEQ had denied a certification for it in 2017, as citizens advocated. We made the case for that denial based on proof we supplied DEQ to show the corps’ permits could not prevent violation of Virginia’s water quality rules. When we asked what proof DEQ had to counter our evidence and to support its actions, through requests for specific information under Virginia’s Freedom of Information Act, the DEQ was forced to admit “the agency has no records . . . regarding your request.”
This stunning admission, nearly four years ago, should have prompted the DEQ to make changes in the way it performs its duties but that hasn’t happened. When we alerted the Water Control Board to DEQ’s failure to make the necessary investigations and analyses, to show that pipeline stream crossings would protect our waters, the DEQ responded with a presentation that should have embarrassed our public officials.
At a public meeting in August 2018, DEQ staff presented photos of pipeline crossings of streams where all work had been completed and the presenter seemed to imply that these views of grassy hillsides and stream banks proved that our waters had been protected during construction. Of course, the fact that vegetation had been re-established on pipeline corridors years after construction had ended bears no real relevance to the question as to whether standards violations occurred during construction. And when a board member asked how long one of those pipelines had been in place, the DEQ employee said he believed it was installed sometime between 1930 and 1950.
With this appalling record in mind, when DEQ asked for public comments on yet another round of certifications for NWP 12 and other nationwide permits, we saw that the agency had included no explanations for any of the proposals addressed in its public notice. So, we again sought pertinent records from DEQ, to see if they had built any base of facts and reasoning during the last two or three years, after they’d been repeatedly confronted with our concerns and with the reality of damages caused by the MVP.
We asked for records showing how DEQ had analyzed, or even discussed, whether their proposed approvals would ensure that water quality standards violations would be prevented. We also asked whether DEQ had now gathered any data on water quality standards compliance during construction by MVP or any other project, and if they had incorporated such findings into the agency’s decision. To reiterate — the explicit legal finding that must be made to justify a water quality certification is that the provisions of our water quality standards regulation will be met. And a valid finding cannot be made without solid proof.
We explicitly asked only for information that DEQ had actually used in its decision-making process, with the assumption that such records would be easily identified and close at hand. The answer from DEQ, again, shows a shocking refusal by the department to do its duty: “the agency cannot readily identify records responsive to the specifications of your request.”
From this record, it is clear that DEQ leadership will not fix this glaring problem, in regard to its handling of these water quality certifications for the nationwide permits. Therefore, the State Water Control Board must require a change.
As a former DEQ employee, I know that department personnel are dedicated and capable of doing the necessary work, as required by the law. In fact, even though DEQ was unable to provide the specific evidence I asked for, the records I reviewed showed that many of the technical staff members spent significant time and effort reviewing the NWPs and discussing appropriate actions. However, the one basic question that DEQ is supposed to answer before it approves the certifications was apparently never even asked.
We won’t stop asking that question and the water board, which meets Wednesday, should insist on the answer as well.
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.