Category Archives: Water Quality

Citizen Observers Continue to Document Violations


As construction on the Mountain Valley Pipeline ramps up again (although in some places it never actually ceased, despite the stop work order), citizen observers have and will continue to document the many and ongoing MVP violations of Erosion and Sediment Control Standards specified by the Virginia Department of Environmental Quality and its State Water Control Board.

For example, on-site in the same location that DEQ had recently inspected, the Virginia Pipeline Violations team encountered multiple, extensive mudslides, in some places thick, wet mud nearly a foot deep, washing from the construction area – in the same location where DEQ/MVP inspectors claimed on August 21 that there was no evidence of silt leaving the construction area. Concerned citizens relentlessly demanded that DEQ return, and on August 28 DEQ found violations on this location.

Shout-Out for Pipeline CSI and Mountain Valley Watch

An August 24, 2018, article in ThinkProgress, All-volunteer groups patrol construction of gas pipeline projects in Virginia, North Carolina, explains the background of the all-volunteer groups patrolling pipeline construction projects in West Virginia, Virginia, and North Carolina. The article includes extensive quotes from Rick Webb, David Sligh, and Kirk Bowers. Both Pipeline CSI and Mountain Valley Watch were created to monitor construction of the Atlantic Coast and Mountain Valley Pipelines, with trained volunteers essentially serving as citizen regulatory agencies, since the state regulatory agencies have neither the staff nor the will to monitor the massive projects as needed.

“In some cases, these volunteer monitoring groups have gathered more information on the pipelines’ impact on the environment and private lands than the regulators that are paid to monitor the projects. The mission of these all-volunteer oversight groups is to make sure laws are obeyed and no corners are cut during construction. And if the volunteers do their jobs well enough, they hope to provide enough evidence of violations to force regulators to issue permanent stop-work orders on the projects.”

A trained group of experts are monitoring and documenting problems in water quality, erosion and sedimentation control, and runoff with sound scientific results and “evidence grade” information – information strong enough to use in court. Often the Virginia Department of Environmental Quality has been unable to get in on-site and observe problems, and only knows of violations because citizen observers are in the field doing the work with on-the-ground monitoring and aerial surveys.

“With previous construction projects, inspectors with the Virginia DEQ would, as Webb described, apologetically tell pipeline construction crews that the U.S. Environmental Protection Agency was forcing them to keep close tabs on their work. ‘Everybody blamed the EPA’ for making everyone do extra work, Webb said. With the creation of the Pipeline CSI, ‘they can blame us,’ he noted.”

Information on the Pipeline CSI here.

Information on Mountain Valley Watch here or on Facebook.

Virginia State Water Control Board Meeting Actions


At its meeting on Tuesday August 21, 2018, the Virginia State Water Control Board received a report from the Department of Environmental Quality regarding the recent Public Comment Period on the Adequacy of the US Army Corps of Engineers NWP 12 Review of Stream Crossings for the Atlantic Coast Pipeline and the Mountain Valley Pipeline.

Although earlier reports indicated attendees would not be allowed to speak, the Board did allow 30 minutes of public comment from selected individuals – following the 2 hour presentation from DEQ in which, as noted by Chesapeake Climate Action Network, “The Department of Environmental Quality, headed by the controversial David Paylor, continued to strongly recommend that the board allow pipeline construction to proceed, despite mounting evidence that MVP and ACP have already harmed water quality.”  Many commenters urged the Board to take strong action in light of the problems unveiled by the public comments that were filed.   David Sligh, Conservation Director for Wild Virginia, told Board members, “The fact is that the Corps of Engineers’ permitting decision is not based on water quality standards. They explicitly say over and over that that is not their job, that’s the job of the states. . . For DEQ to tell you that they don’t intend to enforce certain parts of your water quality standards is atrocious and you should not accept that.”

Rather than taking any strong action on its own, the Board chose instead to adopt a motion calling for the DEQ “to aggressively enforce” the Erosion & Sediment and the Stormwater requirements for the ACP and the MVP.

It is not clear yet what effect the Board’s resolution will have.

The full text of the motion adopted by the Water Board follows:

The Board has reviewed the public comment received during the comment period, has heard the staff’s evaluation of the public comments and the sufficiency of the Nationwide Permit 12 to protect stream crossings impacted by the Mountain Valley Pipeline and the Atlantic Coast Pipeline.

The Board has also heard the staff’s report on the status of both projects regarding public complaints, compliance and enforcement and have considered advice of counsel as to the Board’s jurisdiction and authority.

Based on the foregoing considerations, the Board directs DEQ staff:

  1. to share relevant information from the public comment period with the Corps of Engineers for their consideration in administering and enforcing Nationwide Permit 12 to ensure protection of state waters;
  2. to continue aggressive compliance, inspection and enforcement activities to the maximum extent of its authority, and to include incorporation of erosion and sediment measures required by the Department of Mines, Minerals and Energy where they are relevant and to the extent that they are more stringent; and
  3. to respond promptly and effectively to verified public complaints of violations.

Staff reports presented to the SWCB are here.

The Richmond Times-Dispatch report of the meeting says, “The water board narrowly defeated, 4-3, a motion to modify or revoke the state’s certification of a nationwide permit to oversee more than 1,000 water crossings by the Mountain Valley and Atlantic Coast pipelines, but agreed unanimously to require more rigorous enforcement of state standards to protect water quality. …. The water board’s action still dismayed a capacity crowd of pipeline opponents who expressed their distrust of the Virginia Department of Environmental Quality throughout a tense, nearly four-hour meeting that they interrupted repeatedly to challenge statements by regulatory staff. …. But some water board members appeared skeptical of the state’s ability to protect water quality from sedimentation, after Melanie Davenport, DEQ’s director of water quality permitting, said the state does not have a way to measure or enforce sediment limits in waterways. ‘That’s really not reasonable assurance we are protecting the water quality,’ said Roberta A. Kellam, a board member from the Eastern Shore. Kellam joined two other members of the seven-member board in supporting an unsuccessful motion to hold a formal hearing on whether to revoke or amend certification of the national permit, which gives regulatory oversight of stream crossings to the Army Corps of Engineers instead of the state.”

Read the statement from Chesapeake Climate Action Network, in which CCAN General Counsel Anne Havemann says, “Instead of requiring an individual review, the Board instead called on DEQ to conduct aggressive compliance efforts. While we are still reviewing the Board’s decision it appears to have no teeth, and could allow sediment to continue to be dumped into the water with impunity. In the midst of public outcry and ongoing harm to water quality, we cannot applaud a decision that merely requires the DEQ do the job it should have been doing all along.  Today is a shameful day for David Paylor’s Department of Environmental Quality, and a sad day for Virginians. But, the fight is not over. We will continue taking these pipelines to court. We are confident that the federal courts will continue to overturn the insufficient permits for these pipelines, and evidence will prove once and for all that these pipelines should never be built.”

Press release from Appalachian Voices.

Statement from POWHR Coalition.  Points out that “Several members of the Board — Roberta Kellam, Nissa Dean, and Robert Wayland — supported a motion to initiate the formal hearing process to consider amending or revoking the permits for the two pipelines. The motion lost on a 3-4 vote, with Southwest Virginia’s own representative, Lou-Ann Jessee Wallace, voting against the motion.”

Statement from the Chesapeake Bay Foundation.

Southern Environmental Law Center senior attorney Greg Buppert said, “We have seen firsthand that pipeline construction in Virginia cannot be done without causing serious and permanent sedimentation problems to rivers and streams.  The people of the commonwealth deserve better than blanket assurances that everything will be OK when the facts on the ground show that they are not.”

Following are videos from the meeting.

From Appalachians Against Pipelines (1 hour 12 minutes):

From Appalachian Voices (3 hours 46 minutes):

Closing comments, from Marie Eve Robbins (58 minutes):

Richard Averitt’s reaction (1 minute 30 seconds)
 

Troubling Questions Raised by Email Exchanges

An email exchange between Rick Webb of Dominion Pipeline Monitoring Coalition (DPMC) and the Virginia Department of Environmental Quality (DEQ), regarding DEQ’s handling of mail sent to the State Water Control Board, raises questions about why DEQ is apparently withholding information from State Water Control Board members prior to their meeting on August 21, 2018.

Further, DEQ will not finish its summary of comments submitted to the Board until the date of the meeting itself. But according to an August 17, 2018, Blue Virginia article about an email exchange between David Sligh of Wild Virginia, DEQ has not given to SWCB members the report by Wild Virginia and DPMC summarizing the 13,000+ comments made during the April-June comment period.

Is DEQ trying to limit what information SWCB members see?

Webb’s report documents DEQ’s failure to consider the impact that construction of Atlantic Coast and Mountain Valley Pipelines would have and already has had on Virginia’s water quality.  Regarding the email exchange, Webb writes, “The correspondence below concerns what amounts to a wholesale waiver of Virginia’s limits on the length of contiguous open trench during pipeline construction.

“If DEQ accepts Dominion’s waiver request (incorporated in the Erosion and Sediment Control Plans currently under review), open trenches (up to 12 ft deep and 30 ft wide at the top) will be allowed top-to-bottom on all the steep mountains crossed by the ACP in western Virginia. Note that DEQ and Dominion propose to limit the total open-trench length in any given construction spread to 16,000 ft. This is not protective in any meaningful sense because it will still allow open trenches on all mountainsides – from the top of the ridge to the stream below.

“FYI, we have conducted research related to DEQ’s waiver of the open-trench limitation (a minimum standard in the ESC regulations).  We examined DEQ records for 12 such open-trench variance requests made through 2015. We found that DEQ granted all such requests, with the longest being for a 15-mile open trench in southern Virginia. We concluded then. and It is still safe to say, that prior to review of the ACP and MVP, DEQ’s involvement with pipeline projects was limited to granting variances to critical regulatory requirements. There was essentially no review or oversight. This helps somewhat to explain DEQ’s present difficulties.”

On Friday August 10, Rick Webb wrote to DEQ:

RE: Comment concerning Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP) Projects
State Water Control Board Request for Technical Information on Specific Wetland and/or Stream Crossings

FR: Rick Webb on behalf of Dominion Pipeline Monitoring Coalition (DPMC)

This comment concerns the above-cited public notice posted on the Virginia Regulatory Town Hall on April 27, 2018, entitled Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP) Projects – State Water Control Board Request for Technical Information on Specific Wetland and/or Stream Crossings. Comments were previously submitted by me, Rick Webb, on behalf of the DPMC during the officially designated comment period. This comment concerns significant information that was not available during the officially designated comment period.

Newly obtained information indicates that Dominion Energy has proposed to the Virginia Department of Environmental Quality (DEQ) and may be granted a general variance to Virginia Erosion and Sediment Control Regulation Minimum Standard 16A (VAC 25-840-40.16A, which requires that no more than 500 linear feet of trench may be open at one time.

Deep open trenches extending down from the tops of mountains greatly increase the risk of uncontrolled runoff and sedimentation at stream crossings. The increased risk is due both to concentration of runoff in the trench and due to interference with installation of other erosion control measures (e.g., the proper installation of water interceptor diversions across the disturbed corridor area). The potential impact of waiving open-trench limits was not addressed in the Clean Water Act Section 404 permit review by the U.S. Army Corps of Engineers.

Concerns were raised about open-trench variances at the December 12, 2017 meeting of the State Water Control Board, where Melanie Davenport, Water Permitting Division Director for DEQ, answered a board member question concerning variance requests and factors considered. In response, Ms. Davenport indicated that open trench lengths would be limited depending on the percent slope. To the extent that this response provided assurance to the board, it was misleading.

Dominion now proposes that a three-tiered set of criteria be applied to determine allowable open-trench lengths, as follows:

  • Where slopes are <10%, the maximum allowable contiguous open-trench length would be 7,000 feet.
  • Where slopes are 10 to <33%, the maximum allowable contiguous open-trench length would be 5,000 feet.
  • Where slopes are >33%, the maximum allowable contiguous open-trench length would be 2,500 feet.

These criteria effectively waive open-trench limits. The ACP will cross many steep-sided mountains with the construction corridor running down to stream crossings. These criteria will allow uninterrupted open trenches on all of these mountains. In the event of significant rainfall and runoff, impacts at stream crossings will be unavoidable. This one among many reasons why the State Water Control Board cannot simply rely on the Section 404 general permit to prevent violation of water quality standards and protect water resource uses.

On behalf of the DPMC, I ask that the board give careful consideration to this significant problem.

Thank you,

Rick Webb

On Friday August 17 he received this response:

Thank you for your recent email to the State Water Control Board (Board).

In addition, if your email contained specific complaint information, the email has been forwarded to compliance staff to ensure they have the information.

Cindy M. Berndt
Director, Regulatory Affairs
Department of Environmental Quality
1111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, Virginia 23218
804.698.4378 [Call: 804.698.4378]

Webb replied, also on Friday August 17:

Ms. Berndt,

Thank for your message below acknowledging my recent comments to the State Water Control Board.

I request a copy of any submissions to the Board concerning my comments, including my comments (the email copied below) and any related summaries, advice, or other information provided to the Board by DEQ. Please also let me know which Board members received the material.

My comments addressed significant information that was not available during the officially designated comment period, and these new comments were submitted 10 days prior to the upcoming Board meeting. I seek to confirm and ensure that my comments concerning this information was provided to the Board to inform its deliberations on the sufficiency of the NWP12 for permitting waterbody crossings associated with the ACP and MVP pipeline proposals.

Thank you.

Rick Webb


From Rick Webb on Sunday afternoon August 19, 2018: Update: I did hear back from Cindy M. Berndt, Director, Regulatory Affairs, Department of Environmental Quality. She confirmed that my email concerning the open-trench waiver has been forwarded to each member of the State Water Control Board. Based on this and other well-documented deficiencies associated with regulatory review and oversight of stream crossings, there is no “reasonable assurance” that the ACP and MVP will or can be constructed without harm to Virginia’s water resources. The board should withdraw 401 certification for both projects.

Mountain Valley Watch Issues Report

After three months of monitoring the construction work on the Mountain Valley Pipeline, Mountain Valley Watch, a citizen watchdog group, has submitted detailed comments to the Virginia State Water Control Board. Through August 7, 2018, Mountain Valley Watch volunteers submitted 277 reports of suspected improper erosion controls at Southwest Virginia construction sites, reports which professional engineers and academics evaluated before submitting 58 complaints to DEQ.

The executive Summary of the report states, “The data demonstrates that:

  • Precision Pipeline frequently failed to employ Best Management Practices and properly install required erosion control devices and maintain them. The direct result is the serious impairment of Virginia waters.
  • The extent and repetition of these failures (often in the same location), consistent with research in referenced journals, indicates the limitations of BMPs in mountainous terrain. BMPs are not infallible, nor are they intended to be so; they are designed to minimize adverse impacts. Rain events, well within the standard of “normal,” on steep slopes of upland watersheds overwhelm BMPs. This is documented in scientific reports in refereed journals.
  • The processes by which DEQ decided the Nationwide Permit 12 and conducted the 30 day public comment period were fundamentally flawed, contributing to an unsubstantiated opinion that MVP construction would not significantly impair Virginia waters. This report demonstrates significant sediment loading into streams.
  • It is imperative that DEQ and the SWCB revisit their decisions to approve the Section 401 Certification and Nationwide 12 permit for the Mountain Valley Pipeline.
  • There is a reasonable likelihood, based in on the facts on the ground, that continued construction will continue to significantly adversely impact Virginia water for years to come.

State Water Control Board Meeting on August 21

The Virginia State Water Control Board’s (SWCB) next regular meeting is scheduled for Tuesday, August 21, beginning at 9:30 am, at the Pocahontas Building, First Floor House Committee Room, 900 East Main Street, Richmond, VA 23219. The tentative meeting agenda includes the following items at the end of the meeting:

  • VII. Mountain Valley Pipeline/Atlantic Coast Pipeline Reports Nationwide Permit 12 Comment Period Update in Response to April 12 Requests from Board
  • VIII. Other Business Future Meetings (September 20 and December 13)
  • IX. Public Forum
  • ADJOURN

A summary of the more than 13,000 comments filed with the Virginia Department of Environmental Quality on the adequacy of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for the ACP supposedly is being prepared by DEQ for the SWCB’s review and supposedly is to be made available to the public. At this writing, the DEQ summary is not yet available, although Wild Virginia and Dominion Pipeline Monitoring Coalition posted a summary on August 15, 2018.  We hope SWCB members have been studying that!  DPMC and Wild Virginia also posted the full set of comments on July 20, 2018, and the full set is finally available on the DEQ Web page.

In the Executive Summary of their summary document, Wild Virginia/DPMC state, “However, we were recently old by a DEQ official that new comments will not be accepted at the Board meeting and that any written comments must have been submitted 10 days before that meeting. This approach is clearly not designed to allow full and effective public participation and the Board should not accept it. DEQ’s failure to issue its summary in a reasonable period of time deprives citizens of any chance to reply, if the 10-day limit is enforced. We’ve been told further that citizens will not have the chance to speak at the upcoming Board meeting about these issues. This differs from the normal case, where the public is given an opportunity to review and comment upon the staff’s response to comments. We believe these decisions negate the principle of transparent and open government and that it is an outrageous approach for public servants to follow. We ask the Board to reject DEQ’s rulings and allow for public comments on August 21.”

A section of the Wild Virginia/DPMC document summarizes major substantive issues that have not been addressed by DEQ, including “crossings not identified in tables; waterbodies characterized incorrectly or incompletely; crossing method not specified; combined impacts from multiple crossings; antidegradation; trout and other sensitive species; impacts on Tier III waters; groundwater threats; variances; direct discharges from “uplands” areas; impacts from horizontal directional drilling and spills; impacts on designated and existing uses; temperature impacts; enforcement and compliance issues; and lack of historical information on effectiveness of Nationwide Permit 12.”

We wonder how the State Water Control Board will review all the comments and address all issues in the designated portion of their meeting.