Category Archives: Water Quality

Your Voice Is Needed

A request from Wild Virginia:

The Trump administration has acted to weaken Virginia’s ability to protect our water from projects like the Mountain Valley and Atlantic Coast Pipelines.

We need your voice!

Please call Attorney General Mark Herring today at 804-786-2071.
Tell him to challenge an illegal regulation just finalized by the Trump administration to weaken state powers under the Clean Water Act

Background:
Trump’s Environmental Protection Agency has now finalized a change to the regulation governing states’ authorities under section 401 of the Clean Water Act; a portion of the law through which Congress intended to retain historic state authorities over their own environments and to veto or alter federally-licensed projects that would damage their waters and their people.

Last October, Wild Virginia sent this letter to Virginia Attorney General Mark Herring urging him to strongly oppose this regulatory change and many of you contacted him as well. We are grateful that AG Herring acted in our interest to preserve Virginia’s authority by joining 23 other states in comments to the EPA opposing this move. Predictably, EPA ignored those comments and others from thousands of citizens across the country, in favor of industry interests who seek to avoid proper environmental regulation.

Now, it’s time for our Attorney General to go to court to defeat EPA’s unlawful action. 

Please join us in calling on the Attorney General today! (and thank him for his previous action) As stated in our letter from last year: The Commonwealth of Virginia, since its founding, has a strong history of independence and we must not now defer to the wishes of a President who would trample our rights in favor of fossil fuel companies and others who would despoil our state for profit. 

Please take a moment to add your voice and urge Mark Herring to stand up for our right to protect our water 804-786-2071.

Court Denies Request to Reinstate NWP 12

On May 28, 2020, the Ninth Circuit Court of Appeals denied the request by the Army Corps of Engineers, Transcanada Keystone Pipeline, and other pipeline companies to reinstate Nationwide Permit 12 (NWP12). This means NWP 12 will remain invalid while the Ninth Circuit considers whether the Montana district court correctly ruled that the Corps violated the Endangered Species Act.

The District Court’s April 15 ruling came in a case challenging the NWP12 permit for the Keystone project and was extended to affect permits for other new oil and natural gas pipelines. The ruling impacts the Atlantic Coast and Mountain Valley Pipelines, neither of which currently have valid NWP12 permits. At this point, the Corps cannot authorize either the MVP or the ACP to use NWP12 unless and until the Ninth Circuit reverses the Montana district court’s determination that the Corps violated the Endangered Species Act.

Appeals Court Urged to Keep Freeze on Army Corps’ NWP 12 for Pipelines

From Allegheny-Blue Ridge Alliance’s ABRA Update #277, May 22, 2020:

The Ninth Circuit Court of Appeals has been urged to uphold a Federal District Court in Montana’s ruling prohibiting the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP12) program from issuing new permits for oil and natural gas pipelines. The District Court’s April 15 ruling came in a case challenging the NWP12 permit for the Keystone project and was extended to affect permits for other new oil and natural gas pipelines. The ruling impacts the Atlantic Coast and Mountain Valley Pipelines, neither of which currently have valid NWP12 permits.

In a May 20, 2020 brief filed with the Court, the Northern Plains Resource Council, a Montana-based conservation group, argued that Army Corps had failed to evaluate the cumulative impact on endangered species of all projects under the NWP12 and that the agency should have completed a programmatic review under the Endangered Species Act before reauthorizing the program for a five-year term beginning in 2017. The case is before the Ninth Circuit on appeal by the Army Corps and industry groups that are asking the Appeals Court to overturn the District Court’s freeze of the NWP12 program until the case is decided the issues. For a copy of the brief, click here.

Yet Another Blow to ACP and MVP

Writing in Blue Virginia on May 12, 2020, Jonathan Sokolow describes how the nationwide injunction by a judge in Montana brings construction on the Atlantic Coast and Mountain Valley Pipelines to a halt, since they no longer have a valid permit to cross the thousands of waterways along their routes.

“On April 15, the judge in Northern Plains Resource Council v. U.S. Army Corps of Engineers, issued a nationwide order vacating a key federal permit, known as Nationwide Permit 12 (NWP 12 for short). Chief District Court Judge Brian Morris ruled that the Corps failed to comply with key provisions of the Endangered Species Act when it issued NWP 12 in 2017.”

Although the case was about the Keystone XL pipeline, the vacated permit affects all pipeline construction. Both the MVP and the ACP decided to avoid applying for individual water crossing permits by asking for and receiving permission to use the now vacated blanket NWP 12.

Keystone XL and other and other industry powerhouses (including Dominion) asked Judge Morris “to reverse himself, or at least modify his April ruling to apply only to the Keystone XL pipeline. They also asked the judge to stay his own order pending appeal.” On May 11, Judge Morris said no to both requests.

When companies complained that the ruling left them unable to cross water bodies, the judge pointed out that they could still pursue individual permits: “Developers remain able to pursue individual permits for their new oil and gas pipeline construction….Intervenors possess no inherent right to maximize revenues by using a cheaper, quicker permitting process, particularly when their preferred process does not comply with the [Endangered Species Act].”

Sokolow says, “Keystone XL will no doubt appeal this ruling. And ACP and MVP will continue to spin repeated court losses as ‘temporary’ setbacks. But for now, the nationwide injunction represents another huge impediment to construction of two massive pipelines that together, would more than double Virginia’s production of green house gases from stationary sources.”

And Sokolow concludes with a statement we all heartily endorse: “It is long past time for the companies behind these projects to fold their tents and go home.”

DEQ: Still Resisting Water Protections, Public Participation


In a Virginia Mercury guest column on May 11, 2020, Wild Virginia’s David Sligh discusses the ongoing refusal by Virginia’s Department of Environmental Quality to recognize violations of water quality “in thousands of photographs, scientific study results, and other evidence given to DEQ” that “agency officials can’t or, more plausibly, won’t see.”

He says, “In state reviews for the Mountain Valley and Atlantic Coast pipelines, many of us warned that dirt washing off the land and released during digging and blasting through streams would produce harmful sediment pollution. MVP’s degradation of our waters has proven us right. DEQ failed to use available tools or develop necessary ones to prevent that damage in this case and these failures have allowed pollution problems in many other cases as well, though usually with much less public exposure.”

DEQ’s response? They repeatedly say they don’t know how to assess whether a violation is present, it is too difficult to adopt numeric criteria for pollutants, tasks are too difficult to do in a timely fashion, and resources are lacking.

In March 2020, DEQ announced a new stakeholder advisory group to discuss numeric criteria for turbidity in streams. Sounds good, right? Not as good as it sounds.

“First, DEQ has decided to exclude willing and able members of the public from meaningful roles and has stacked the SAG with representatives of regulated industries and others with financial interests and histories of opposing stringent regulations.”

“Second, DEQ started this process after decades of failing to provide this most basic protection and, only then, under orders from the State Water Control Board. This lack of initiative by DEQ leaders leaves Virginia trailing behind a majority of states and our waters unprotected against severe damages that should have been stopped years ago.”

For the new stakeholder advisory group, DEQ “hand-picked organizations and individuals it wanted in the room” and “because this committee is not part of an official regulatory process, state laws about public involvement do not apply.”

Court Denies Request for A Stay of Keystone XL Decision Affecting NWP 12

From Allegheny-Blue Ridge Alliance’s ABRA Update 274, April 30, 2020:

Chief Judge Brian Morris for the U.S. District Court for the District of Montana said on April 28 that he would not issue an administrative stay to his April 15 order blocking the Army Corps’ Nationwide Permit 12 (NWP12) program, pending consultation with other federal agencies under the Endangered Species Act. The judge’s earlier decision effectively halted the authority of the U.S. Corps of Engineers from issuing any permits for any project subject to NWP12. This includes the Atlantic Coast Pipeline, which at this date does not have a valid NWP12 permit in any of the four Corps districts in which the project’s route runs. Last week, the Corps suspended issuing any NWP12 permits. Judge Morris in his April 28 ruling establish a briefing schedule for the April 15 decision to be appealed.

See Court Ruling on Army Corps Permit for Keystone XL Will Impact ACP for the story on the April 15 order.