DEQ is still failing to protect state waters from MVP 

December 8, 2021 12:02 am

An erosion control device at a temporary equipment crossing for Mountain Valley Pipeline in May 2021. (Federal Energy Regulatory Commission construction report)

By Freeda Cathcart

The Virginia Department of Environmental Quality is failing to protect our rivers, streams, wetlands and endangered species from harm caused by the Mountain Valley Pipeline project.

Imagine that a driver accumulated multiple speeding and reckless driving tickets, clearly demonstrating a public safety threat. The driver is fined but retains his license. The public documents and reports the driver’s continued, reckless speeding and other numerous infractions to the police. Instead of the police investigating the reports, the reports are sent to the DMV who granted the driver’s license. The DMV sees no problem and upholds its original permitting of the hazardous driver over public safety,  saying the driver is registered, inspected and licensed. The DMV’s lapse in enforcement enables the hazardous driver to override public safety, creating an unjust, dangerous situation.

Currently, that’s how DEQ is functioning, except it’s the high stakes of Virginia’s water and endangered species that DEQ permits MVP to continue harming.

After hundreds of water pollution violations, the DEQ agreed to a $2.1 million Consent Decree with the MVP, which requires accountability for further violations. The consent decree had the director for the enforcement division of the DEQ as the signer and it doesn’t prevent the DEQ from enforcing all environmental laws. Indeed, it is their responsibility.

Pollution reports submitted by citizen monitors to DEQ, however, have been routed to DEQ Director of Water Permitting Melanie Davenport. There appears to be a lack of scrutiny by DEQ Director of Enforcement Tiffany Severs to evaluate if environmental laws need to be enforced. This is unacceptable because Davenport demonstrated her lack of environmental enforcement experience and skills in a letter in which she dismissed documented reports about MVP continuing to pollute the endangered Roanoke logperch habitat, stating that there hadn’t been reports of “dead or distressed fish”.

Ms. Davenport explained in her letter that the agency is not enforcing the commonwealth’s “narrative water quality standard” meaning that the agency is not investigating the impacts of sedimentation to water bodies and the habitat for endangered species. It also appears that the DEQ isn’t enforcing our commonwealth’s antidegradation policy. State code states that “degradation may be expected to temporarily occur provided that after a minimal period of time the waters are returned or restored to conditions equal to or better than those existing just prior to the temporary source of pollution.” Impaired streams and the Roanoke River have been impacted for years by MVP’s continuing pollution.

The habitat for the endangered Roanoke logperch has been subject to a recovery plan since 1992. The plan specifically identifies stream sedimentation as a risk to its recovery. Dr. Paul Angermeier informed the US Fish and Wildlife Service in 2018 that sedimentation impacts the health and survival of the species at each and every life stage. The observation of dead fish is not the proper standard for determining impact. Millions of public funds had been invested in the recovery of the Roanoke logperch before the MVP loaded tons of sediment into its habitat. MVP’s construction through the steepest mountains has loaded even more sediment into Roanoke River’s headwaters.

The 2019 consent decree between the DEQ and MVP required an independent environmental auditor. But then the DEQ approved MVP’s choice of the same company, Tetra Tech, who helped develop MVP’s erosion and sediment controls, to be the auditor. This has created an inherent conflict-of-interest leading to ineffective “enforcement.”

Before tropical storms Fred and Ida came to SWVA, the DEQ received several reports that MVP’s project was polluting the streams. On July 20, 2021, MVP’s “environmental inspectors” visited where several well-documented pollution reports had been submitted to the DEQ proving the MVP project was diverting polluted water directly into a Roanoke River tributary stream. The landowner reported that the inspectors stated they were there to “check a box.” The problem wasn’t fixed before the tropical storms struck — causing even more MVP pollution to enter the endangered Roanoke logperch’s habitat.

New laws went into effect in July 2021, authorizing the DEQ to protect Virginia’s water from MVP’s continuing pollution. MVP hasn’t been able to construct through water bodies since the Fourth Circuit Court issued an emergency stay citing an investor call where MVP officials said they would quickly trench through streams “before anything is challenged.”

Davenport’s September 2021 report to the State Water Control Board said that MVP would transition from forward construction to stabilization by installing and maintaining erosion and sediment controls by mid-October. However, the Virginia Department of Conservation and Recreation instructs that temporary seeding in all regions of Virginia ends on Aug. 31 and that it must be certified seed put down with a certified inspection.

MVP didn’t plant the temporary seed at the appropriate time. Therefore, installing sod would be an effective way to protect the streams from MVP’s sediment pollution. However, MVP has used helicopters to spread seed over MVP’s corridor. In the past, helicopter-scattered seed became part of the sediment pollution washing into our streams instead of growing on the slopes.

Last year, MVP said they were spending $20 million a month on erosion and sediment controls. This is the fourth fall that MVP didn’t prepare to protect their investment by following scientific, experience-based recommendations to establish a stable ground cover on our steep Appalachian slopes. The DEQ would not have allowed this irresponsible behavior by farmers or local developers. MVP must be held accountable for the harm to Virginia’s slopes and waterways.

State and local elected officials have sent detailed letters about how MVP’s construction is harming the slopes and waterways of SWVA. Often the DEQ doesn’t even bother to respond to those concerns. Mitigation money set aside at the beginning of the project was based on using best management practices. MVP initially projected project completion before 2019. By failing to heed scientific and expert warnings to avoid the karst in the valleys and the landslide prone steep mountainsides “no-build zone”, MVP has harmed their investors and the environment.

The DEQ isn’t enforcing state and federal laws to protect our water and endangered species. It’s the responsibility of the Office of the State Inspector General to assure that the administration “comply with all applicable state and federal regulations.” The Inspector General must investigate why the DEQ is failing to protect Virginia’s waterways and endangered species habitat from Mountain Valley Pipeline’s pollution and what must be done to protect our environment from further harm.

Freeda Cathcart is the soil and water conservation director representing Roanoke City. Contact her at [email protected].

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