Regulators should respect citizen water monitors and reject the pipeline permit

December 14, 2021 12:01 am

Sites of reported sediment deposits in streams and wetlands along the Mountain Valley Pipelne’s path. (Wild Virginia)

An encounter this summer with the Department of Environmental Quality shocked me but may provide a valuable glimpse at the way some DEQ leaders regard the people they serve. That apparent disregard or disdain for the public’s role in decision-making, has popped up several times during major gas pipeline cases. 

It continues to this day. 

We must hope the State Water Control Board rejects DEQ’s recommendation to allow further discharges and habitat disruption by the Mountain Valley Pipeline, given that it is, in part, grounded in the department’s apparent disrespect for the opinions of those most affected. 

Here’s what happened on May 18 of this year. In an online advisory panel discussion of possible changes to water regulations, I spoke about a change Wild Virginia and others had proposed. Suddenly, on the screen where DEQ’s slide presentation had been shown, a small dialogue box appeared. It was from one of the top water division officials at DEQ and it said “I’m rolling my eyes.” 

Clearly, this person had intended the comment to be seen by agency colleagues and not the rest of the attendees. But, in a way, I’m glad she gave all of us this insight on her true attitude. This expression of her lack of respect for me, the people I represent, and the real concerns we worked hard to study and explain, spoke volumes.

I hasten to add that this kind of conduct by a DEQ employee is, in my direct experience, unprecedented. I have worked with folks at DEQ and other agencies for more than 40 years, and can truly say this was the first time one of them was less than courteous to me. 

Certainly, I have had many disagreements with agency people through the years, with both sides expressing our opinions forcefully. But, aside from this instance, I think we have all managed to stay civil, often friendly, in our direct relations. That’s as it should be. 

At times, when I’ve criticized a policy or decision by DEQ, I’ve been accused of attacking the workers but that’s never been the case. There’s a vast reservoir of expertise and commitment amongst DEQ’s workforce. Sometimes we think they should go further in protecting resources but they believe they lack the legal authority to do so. Sometimes we simply disagree on the facts or the science. 

Given this background, the stray written remark by this DEQ official would not have merited notice past that day, if it didn’t say something about leaders’ approach to regulation on a wider scale. Last week, I read DEQ’s response to public comments about the MVP proposal that’s before the board today and last summer’s episode came flashing back.

In that document, the agency mentioned that many people have cited the more than 300 violations the state alleged in a 2018 lawsuit against MVP. Shockingly, DEQ asserted in its message to the board that “many commenters mischaracterize, or intentionally fail to accurately characterize the violations that are resolved in the enforcement settlement.” 

In other words, DEQ is saying that members of the public lied in comments to the board. I find it deplorable that our public officials make such an accusation without showing proof. Where is the evidence that these “many commenters” were trying to mislead or misrepresent? More importantly, isn’t DEQ obligated to address the substance of the comments without attempting to slur the commenters?

Muddy water from the Mountain Valley Pipeline construction site flows over control measures and into Teels Creek in Franklin County. (Photo taken June 13, 2018, by Dave Werner)

I was also reminded of former State Water Control Board member Roberta Kellam’s story about discussions with DEQ Director David Paylor. According to Kellam, Director Paylor claimed local residents making reports of MVP pollution were “untruthful” and accused her of “working for the opposition.” Mr. Paylor should explain when residents trying to protect their waters and their communities became “the opposition.” 

Other incidents from the long pipeline fights come to mind as well. In early 2017, DEQ announced it would conduct individual permit reviews for stream crossings by the MVP and the Atlantic Coast Pipeline. According to a DEQ spokesperson, he specifically asked agency managers to verify that this announcement was accurate —  that the department would be doing the kind of stream-by-stream analysis that many, including then-Lt. Gov. Ralph Northam, had called for.

When it became clear that the department instead intended to rely on a general permit from the U.S. Army Corps of Engineers, one person reported internally that “a very confused, inaccurate picture is being spread because of a serious lack of understanding of what DEQ has done.” He suggested DEQ managers may want to publicly address these misperceptions. Seven weeks passed before DEQ owned up to the true situation, and then only when asked directly by a reporter.

Each of these situations seems to illustrate an attitude by top DEQ officials that public involvement is more of a burden than a benefit. That public comments are hurdles to clear on the way to outcomes, not valuable resources. 

As far as MVP’s violations and implications for future impacts: DEQ stated in its message to the board that it “does not agree there are ongoing, significant regular violations of erosion and sediment controls or water quality standards” or that “there have been widespread impacts” on state waters from pipeline construction. 

An analysis just completed shows otherwise. In looking at thousands of state inspection reports, Wild Virginia found documentation of more than 70 instances where sediment was discharged to streams and wetlands, stretching all the way from Giles to Pittsylvania County. It appears that more than half of these have not been the subject of enforcement actions, despite the fact that similar occurrences were deemed illegal discharges in the state’s lawsuit. 

MVP blanketed some streams in mud for hundreds or thousands of feet — the longest stretched  3,600 feet long (nearly seven tenths of a mile). In hundreds of cases pollution control structures have been “undermined,” overtopped,” “overwhelmed,” or “bypassed” by dirty water and sediment. These problems have persisted from early 2018 through recent months.

Virginians will continue to play our roles in the decision-making processes affecting our waters. We ask the board to make sure our contributions are valued. One vital step in fulfilling that promise would be to reject the flawed, harmful attempt by MVP to discharge more pollution to hundreds of our valuable waterbodies.

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.

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