OK, folks, it is time to plunge into the arcana of environmental regulation. The subject matter might prove of interest if you’ve been tracking the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) controversies, especially if you’re deeply immersed enough to be familiar with the dust-up over seemingly contradictory press releases issued by the Virginia Department of Environmental Quality (DEQ) on April 6 and April 7, and the Freedom of Information Act request that ensued. If these matters have escaped your notice, however, be forewarned. We cannot guarantee that your eyeballs won’t glaze over, turn to stone, and drop out of your skull sockets.
On April 6, the DEQ issued a press release which was widely reported in the Virginia media — to wit, that the department had “notified ACP and MVP that in addition to utilizing the U.S. Army Corps of Engineers nationwide permit 12 for wetland and stream crossings, DEQ will be requiring individual 401 water quality certifications for each project.”
That sentence is incomprehensible unless you know what “nationwide permit 12” means, what “401 water quality certification” means, and what the difference is between a “nationwide” permit and an “individual” permit.
At issue are hundreds of wetland and stream crossings along the proposed routes of the two pipelines. Environmentalists are concerned that rugged slopes and karst geology of the mountains in Virginia and West Virginia will make it impossible to dig pipeline trenches without creating erosion and releasing sediment into rivers, streams and wetlands. The pipeline companies say they are equipped to handle the challenging conditions.
As part of the Federal Energy Regulatory Commission-led regulatory review of interstate pipeline projects, the U.S. Army Corps of Engineers must grant a “401 certification,” which states that a project meets the requirements of Section 401 of the Clean Water Act. The DEQ, the agency in charge of state water-quality regulation, has the option of accepting the Corps of Engineers 401 certification or getting more deeply involved. In this instance, given the magnitude of the pipeline projects, DEQ decided that it, too, had to grant 401 certification, meaning that the projects must abide by Virginia water-protection regulations. (See the Update below.)
By mentioning “Permit 12” in its press release, DEQ was alluding to a particular category of projects that include “energy generation facilities, living shorelines, aids to navigation, dredging, utility line activities, aquatic habitat restoration, and removal of low-head dams.” The ACP and MVP are both covered under the rubric of utility line activities.
The big news in the press release was DEQ’s shift from “general” permits to “individual” permits. To obtain a general permit, a pipeline company must demonstrate that it meets a basic checklist of requirements. “All you have to do is turn in your checklist,” explains DEQ spokesman Bill Hayden. By contrast, the “individual” permit required by DEQ entails going beyond the checklist. Among other requirements, DEQ will hold public hearings for each project and provide extended periods for public input.
Groups opposed to the pipelines hailed this news as a positive development. The reaction of the pipeline companies was along the lines of, meh, this wasn’t what we were looking for, but we can live with it.
The next day, DEQ issued another press release. This one stated that DEQ “has provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits.” More specifically:
DEQ found that there is a reasonable assurance that the activities permitted under the Corps’ Nationwide Permit program, including the Norfolk District Corps’ Regional Conditions, will be conducted in a manner that will not violate applicable water quality standards, provided permittees comply with all applicable Section 401 conditions.
The coincidence in timing between the two press releases created the impression that they were connected. People in the environmental community wondered if the communique represented a rollback, or partial rollback, of what DEQ had stated the previous day. At the very least, wrote Rick Webb, project coordinator for the Dominion Pipeline Monitoring Coalition, DEQ had “muddied the waters.”
“We do not agree that the Corps’ NWP 12 (nationwide 12 permit) is appropriate for either the ACP or MVP and have made that argument to the [Corps of Engineers,” says David Sligh, regulatory system investigator with the DPMC.
In order to gain insight into the basis for DEQ action, DPMC filed a Freedom of Information Act request. DEQ responded that it would require a seven-day extension beyond the normal five days it had to respond. The anti-pipeline people replied that DEQ should be able to respond more quickly and did not accept its reasons justifying the delay. On April 12, DPMC delivered a petition for injunctive relief, demanding the DEQ meet the legal requirement of five-day delivery. In an widely distributed email, Webb took issue with DEQ’s inability to deliver the documents on the grounds of “the complex nature” of the request, and accused the department of “changing its story.”
DEQ staff explained that the records could not be obtained immediately because the staff who held them were out of the office. DEQ and DPMC eventually reached an agreement for the records to be furnished by April 25.
The irony is that the second press release, though addressing the same regulatory process, DEQ contends, was unconnected to the previous day’s announcement. The department had completed a routine, five-year review to see if Nationwide 12 permits were consistent with Virginia water-quality regulations. The review concluded that they were, and DEQ issued the press release to say so. The timing — one day after the first press release — was coincidental, Hayden tells Bacon’s Rebellion. The complexity of the regulatory process contributed to the confusion over the announcement’s meaning.
Bacon’s bottom line: Conclusion #1: The regulatory process is insanely complicated. Conclusion #2: DEQ and environmental groups need to develop a better way to communicate with one another than issuing press releases and filing FOIA requests.
Update: David Sligh says my description of how the regulatory process works is wrong. Here’s how he describes it:
“As part of the Federal Energy Regulatory Commission-led regulatory review of interstate pipeline projects, the U.S. Army Corps of Engineers must grant a Clean Water Act section 404 permit for work done directly adjacent to streams and wetlands. The Corps has a Nationwide Permit that can cover such work related to a broad group of utility line waterbody crossings but the Corps also may conduct reviews and issue individual 404 permits where it deems that option preferable or where a project cannot meet the standards allowing coverage under the NWP. To proceed with a project under either the nationwide or individual 404 permit, the State of Virginia must issue a Clean Water Act section “401 certification,” which states that a project meets the requirements of water quality standards designed to protect state waters. Again, the state may cover a particular project under a blanket 401 certification, that says the whole class of activities covered under the NWP will meet water quality standards, or Virginia may conduct individual 401 reviews, which the state has now announced they will do for each of the major pipelines (the MVP and ACP).”There are currently no comments highlighted.