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.