Governor Northam Must Act to Protect Virginian’s and Our Waters

By David Sligh, Conservation Director, Wild Virginia

Let Your Voice Be Heard!

Our new Governor has the authority and duty to protect our waters and communities from the Mountain Valley and Atlantic Coast Pipelines.

Governor Northam must uphold the principles he has supported for many months and we ask that you let him know that you will support him in doing the right thing.

Contact the Governor today and urge him to:

  • See that his administration prohibits any construction, including clearing of trees, for either pipeline unless and until all conditions of water quality certifications are met,
  • Order the DEQ to conduct individual Clean Water Act section 401 reviews for stream and wetland crossings covered by the Corps of Engineers’ Nationwide 12 Permit,
  • Ensure that DEQ provides for public notice and comment on additional plans ACP is required to submit and that there is a clear procedure for the State Water Control Board to review and decide whether the certification will become effective.

Call the Governor
804-786- 2211
or
Send an email to his Chief of Staff clark.mercer@governor.virginia.gov

Background

Many members of the public are rightly concerned that pipeline companies will start tree removal and/or excavation any day on either the Mountain Valley Pipeline (MVP) or Atlantic Coast Pipeline (ACP).  Currently,  MVP has asked the Federal Energy Regulatory Committee (FERC) for permission to proceed with construction, while ACP  has requested a partial approval to proceed, which would allow a certain amount of tree clearing.

There are still actors and actions that can prevent  clearing and construction. 

Legal challenges

Wild Virginia and our partner organizations have filed two federal suits against FERC and against the State of Virginia. We’ve asked for injunctions to prevent work on the pipeline until legal questions can be resolved by the courts. Likewise, parties have filed objections with FERC to oppose Atlantic Coast Pipeline’s request to proceed with tree cutting.

DEQ can prohibit construction and clearing 

The State of Virginia through the Department of Environmental Quality (DEQ) could to exert its rightful authorities under the Clean Water Act and prevent tree clearing and construction on either pipeline. So far, the DEQ has been unwilling to acknowledge or use those authorities and we are strongly urging Governor Northam to change that.

DEQ has claimed it can’t prohibit all tree cutting on either project, despite the fact that neither has yet complied with all of the conditions in water quality certifications approved by the State Water Control Board. Without complete compliance with those conditions, which include submission and approval of erosion and sediment control, stormwater management, and other plans, construction cannot proceed.

However, DEQ has drawn an arbitrary and improper distinction between certain types of tree clearing and “land disturbance” and claimed it has no authority to limit or prevent the first class of activities.

DEQ is wrong. States have all the authority they need to prevent any construction-related actions that could affect water quality until all conditions in their Clean Water Act section 401 certifications are met. Destruction of forest stands in preparation for cutting trenches and laying pipe is construction and no false distinction drawn by DEQ can hide that fact. These actions will affect water quality, changing water flows and produce pollutant discharges, no matter how the trees are cut.

Clear direction from our new Governor

Governor Northam must insist that his top environmental officials prohibit any and all activities related to construction of the pipelines that might affect water quality unless and until all
requirements of the Water Quality Certifications are met.

DEQ must perform individual reviews of waterbody crossings

Another issue we are asking Governor Northam to address is the need for Virginia to review individual stream and wetland crossing plans. The Northam administration’s top environmental officials must use their authority to review and approve or disapprove waterbody crossings covered by the Corps of Engineers’ general permit.

The State Water Control Board ensured, through language added to the water quality certifications issued in December, that the State retained the authority to perform individual reviews of proposed waterbody crossings by the pipelines. Despite the Board’s action, DEQ shows no intention of actually exercising that authority, although the Corps of Engineers’ Nationwide Permit 12 (NWP 12) fails to uphold Virginia’s water quality standards.

On December 22, 2017, the Corps notified MVP that its crossings would be covered under Corps of Engineers’ Nationwide Permit 12. It is now time for the Northam administration to exercise the authority it and the State Water Control Board expressly reserved, to review these actions in a way that upholds Virginia’s standards. Otherwise, the Board’s efforts to preserve that authority will have been meaningless and the State will have ceded its rightful powers to a federal agency that has no commitment to protect our state waters and our communities.

Ensure a transparent process for public input

Finally, there must be an open and transparent process through which the State Water Control Board, with public input, decides whether the ACP water quality certification becomes effective.
The Board rejected DEQ’s recommendation that they give final and irrevocable approval to ACP at the Board’s December meeting. Instead, the Board specified that the certification would not become effective until all required plans and analyses had been submitted and both DEQ and the Board had deemed them approvable.

The Board described certain procedural steps that should be taken by DEQ and the Board. In apparent disregard of the Board’s wishes, DEQ posted information on its web site, apparently the day before the new Governor took office, that would exclude the public from any useful role in ensuring the plans are acceptable and that would override the Board’s wish to “have an opportunity to take one more swing at [the pipeline reviews],” an expectation one Board member expressed.

Governor Northam must require that before the ACP certification is deemed effective:

  • Remaining plans submitted by the company are made available to the public for review and comment and that DEQ considers and addresses those comments,
  • DEQ makes a final recommendation to the State Water Control Board, based on its review of the final plans and of public submissions, and
  • DEQ requests formal Board action on its recommendation.

We are calling on the Governor

If you want fair processes and full protection against damages from these pipelines let the Governor know that you support our requests for action.