Virginia DEQ Shuts Down Public Input, Curbs Water Board in 401 Process

From the ABRA Update, January 18, 2018:

The Virginia Department of Environmental Quality (DEQ) has proclaimed that there is to be no further input from the public in the final stages of water quality certification (under Section 401 of the federal Clean Water Act) for the Atlantic Coast Pipeline, and has also purported to limit the further role of the State Water Control Board in the process.

This astounding action came to light in a posting on the agency’s website, apparently made on Friday, January 12 (the final day of the McAuliffe Administration). The pronouncement contradicts the expressed understanding of members of the SWCB regarding the Board’s continuing role in the process, as well as of the need for further public input, based on a transcript of comments made by Board members at the December 12 SWCB meeting.

The DEQ posting states, in the following excerpts (portions bolded for emphasis):

The certification approved by the Board and reviewed by our attorneys is in place and becomes effective upon the issuance of the Department’s report to the Board and the public. By law the Erosion, Sediment and Stormwater approvals upon which the effective date is conditioned are approved by certified staff and those approvals are not under the State Water Control Board’s purview.

No additional information is being accepted from the public. DEQ has not imposed any specific deadlines on ACP for the submittal of information other than those included in the certification. The deadline for submitting information necessary for the certification to become effective is at the discretion of ACP. Therefore, an estimate for the delivery and publication of the written report to the board has not been made.

Upon submittal of the report documenting approval of the Supplemental Karst Evaluation Plan annual standards and specifications, erosion and sediment control plans, and stormwater management plans, Virginia’s Section 401 water quality certification for activities in upland areas becomes effective. No further action by the board is required for the certification to become effective. As provided in the certification, the board may, after review of the report, consider further actions on the certification. The matter is before the board at its discretion without additional public comment on whether further action is warranted. When or if the certification will be an agenda item at a future board meeting is unknown at this time.