On August 22, 2017, the Southern Environmental Law Center (SELC) submitted comments on behalf of Shenandoah Riverkeeper, Potomac Riverkeeper Network and several other conservation groups on the Virginia’s draft section 401 Water Quality Certification for construction and operation of the Atlantic Coast Pipeline (ACP). We urged the Department of Environmental Quality (DEQ) to recommend denial of Certification to the State Water Control Board for this pipeline because the state lacks “reasonable assurance” that Virginia’s water quality standards will be protected as required by the Clean Water Act and its implementing regulations. Specifically:
- DEQ must exercise the full breadth of Virginia’s authority under Section 401 of the Clean Water Act to regulate the impacts to water quality from natural gas pipelines and to even deny certification for pipelines that will harm state waters. DEQ should apply clear regulatory standards to conduct a comprehensive review of potential impacts to water quality. The Department should not rush through its process solely to accommodate the developer’s timeline, thus cutting dangerous and unlawful corners that will jeopardize water quality.
- DEQ asserts that it has “reasonable assurance” that water quality standards will not be violated, but it has failed to articulate any explanation for its action, much less a rational connection between the facts the Department examined and the choice it made. DEQ does not discuss which water quality standards might be affected by the Atlantic Coast Pipeline or whether those standards will be violated, nor has it conducted an antidegradation review.
- DEQ has arbitrarily postponed consideration of critical information until after this 401 Certification process. The public is therefore denied the opportunity to meaningfully comment on all information relevant to the project’s impacts and the agency lacks sufficient information on which to base a decision. In the most glaring example, DEQ has deferred evaluation of erosion and sediment control and stormwater management plans even while it acknowledges that these plans are “critically important” to protecting water quality in Virginia’s streams, rivers, and wetlands.
- DEQ proposes to rely on a nationwide permit from the U.S. Army Corps of Engineers for review of the pipeline’s stream, river, and wetland crossings, but elsewhere the agency identified shortcomings with that permit that have never been resolved.
- DEQ accepted incomplete information and did not consider other important information in preparing the draft 401 Certification for the Atlantic Coast Pipeline. Therefore, the agency does not have an adequate basis to conclude with “reasonable assurance” that Virginia water quality standards will be protected.
DEQ must remedy the defects in its process and Atlantic must submit a new application containing the necessary site-specific information to reasonably evaluate the impacts of the project on water quality before DEQ can initiate a subsequent 401 Certification process for the Atlantic Coast Pipeline. Section 401 of the Clean Water Act requires “[a]ny applicant for a Federal license or permit . . . which may result in any discharge into the navigable waters, [to] provide . . . a certification from the State in which the discharge will originate” that, among other requirements, the State has “reasonable assurance” that the permitted activity “will be conducted in a manner which will not violate applicable water quality standards.”
State water quality standards include the designated uses of waterways, such as fish and wildlife habitat, drinking water, and recreation; water quality criteria established to achieve designated uses; and an antidegradation policy to protect the existing uses of waterways. Therefore, when certifying a project under Section 401, a state must have “reasonable assurance” that the project complies with the designated uses of waterways, meets numeric and narrative water quality criteria, and is consistent with the state’s antidegradation policy.
DEQ must not recommend certification of the Atlantic Coast Pipeline to the State Water Control Board, and the Board must not approve such certification. The deficiencies outlined in our comment letter render it impossible for the Board to conclude, as the Clean Water Act requires, that it has “reasonable assurance” that the project will not violate Virginia’s water quality standards.
At the outset, we expressed our strong disagreement with DEQ that it can limit the scope of comments that it will allow into the administrative record for this certification. DEQ recently published an online statement of its intention to exclude “[c]omments on erosion and sediment control plans, stormwater plans, the Corps’ nationwide permit, or the environmental impact statements” from the record of the 401 Certification. It is difficult to ascertain precisely how narrowly DEQ construes the scope of its review, but its warning highlights the most glaring problem with the Department’s process: DEQ has unjustifiably splintered the regulatory process into discrete parts that are in reality inextricably linked and indeed essential to an evaluation of the project’s impacts on water quality.
The purpose of a 401 Certification is to determine whether a project subject to federal permitting will violate state water quality standards. The Department cannot arbitrarily exclude any comments from the record of its 401 decision that pertain to information relevant to that question. The 401 Certification is inextricably linked to what DEQ has relegated to other regulatory processes—namely, the Army Corps’ Nationwide Permit 12 and erosion and sediment control and stormwater management plans. To comment meaningfully on the draft 401 Certification, our comments included a discussion of these elements and others that have a direct bearing on understanding the project’s impacts on water quality.