What the Water Control Board hearings really tell us

On Thursday, December 7, the Virginia Water Control Board voted to certify that there was “reasonable assurance” that the Mountain Valley Pipeline would not harm Virginia’s water quality, subject to about a dozen conditions. Two board members — Roberta Kellam and Nissa Dean — dissented, while five voted in favor.

The entire process extremely problematic. The Board was missing at least three critical pieces of information: (1) complete karst studies; (2) a permit from the Army Corps of Engineers, which looks at impacts to streams, wetlands, other waters of the United States; and (3) site-specific erosion and sediment control and stormwater management plans.

Throughout the hearing, Board members themselves expressed concern that they were being asked to “put the cart before the horse.”

In reviewing the Mountain Valley Pipeline (and the Atlantic Coast Pipeline), the DEQ developed a new permitting process. Last week’s hectic decision made it clear that both the DEQ and the Water Control Board did not completely understand the new process and its implications. This new pipeline permitting process for the first time considered “upland activities,” that is, what happens to water quality when you clear steep mountains of all vegetation, and deferred to the U.S. Army Corps’ review of stream crossings.

At the State Water Control Board meeting, some board members, led by Robert Wayland, expressed skepticism that the Army Corps’ review would be sufficient to protect water quality — no matter if the Army Corps issues the same blanket one-size-fits-all permit it issues for most pipeline projects or actually does an individual review. The board attached an amendment to the permit that attempted to preserve its right to review stream crossings after the Army Corps issues its permit. The idea would be that the DEQ would present to the Water Control Board about whether the Army Corps permit was good enough, and, if not, the state could do its own review. It’s not clear, however, whether this attempt by the board to preserve its right to review stream crossings will stick. MVP now has a 401 certification that it can take to FERC. If FERC allows MVP to proceed, the state of Virginia would have to ask FERC for a rehearing, FERC could issue a tolling order, and the process could drag on while MVP starts to build. More broadly, this was the Board’s chance to look at the cumulative impacts to water quality from upland activities plus stream crossings, and it failed to look at the big picture.

The Board added a couple of additional conditions that aren’t too clear, related to expanding the width for a stream crossing and about successor-in-interest liability.

Governor McAuliffe and his administration have had their thumb on the scale for these projects from the very beginning, and that was evident at the hearing.

Why was McAuliffe’s DEQ asking the Board to make its decision without so muchcritical information? At one point, a Board member asked to see an Executive Summary of a not-yet-complete karst study. Maybe the Board members read that over their lunch break?

A lawyer from the Attorney General’s office also advised the Water Control Board to act quickly. During deliberations, the permit was projected onto the wall and changes were made using track changes. The vote itself was confusing. It was not clear who voted for and against the amended permit until the public insisted, and the chairman acquiesced, to a roll call vote.┬áThe entire process was rushed, hectic, and confusing.

Yesterday’s outcome is beyond disappointing, though not entirely unexpected given McAuliffe’s full-throated support for these pipelines. We’ll have to see what happens at tomorrow’s hearing on the Atlantic Coast Pipeline… but we now have a better sense of what to expect.