1

August 15, 2017

David K. Paylor, Director

Virginia Department of Environmental Quality
P.O. Box 1105
Richmond, VA 23218

Re: DEQ/Mountain Valley Pipeline (MVP) Clean Water Act Section 401 Certification

Dear Mr. Paylor:

I am concerned that the Virginia DEQ has backtracked on the decision to require certifications of impacts for each individual segment of the Mountain Valley Pipeline that crosses or affects waterways. I urge you to reconsider your abdication of this certification process to the U.S. Army Corps of Engineers that only requires a blanket permit for all crossings. There is no reason for a Virginia agency to delegate authority to a federal agency when it could maintain control over preserving clean water for the state’s citizens. The U.S. Army Corps of Engineers does not have the legal authority to enforce the Virginia Water Quality Standards. I object to the Commonwealth relinquishing its authority to enforce the Water Quality Standards due to violations of such standards at stream crossings.

The scale and scope of the MVP is unprecedented, not only in Virginia but anywhere. Harm to water resources is a certainty, including public and private water supplies. The Virginia DEQ has jurisdiction not only under the Virginia State law and regulation, but also under Section 401 of the Federal Clean Water Act. To be true to your statutorily prescribed mission, you must retain your authority to analyze and evaluate the stream and waterway crossing impacts potentially or actually wrought by the proposed MVP construction. As a Virginia citizen, I call upon you to do what you initially determined was your agency’s leadership responsibility to protect the quality of water for all Virginians.

I have the following specific concerns:

The 45-day comment period is inadequate. There is no Virginia law or regulation that limits the DEQ to a 45-day comment period, and under applicable federal law the Commonwealth may take up to one year to respond to a request for a certificate once complete information is provided by the proponent. The Section 401 certification comment period must be extended.

MVP still has not provided complete erosion control construction plans, which process was not even initiated until after the 401 certification process started. The erosion control plans are a critical component of the 401 Certification. The public comment period should be extended to account for the late submittal of information to provide at least the same amount of time that the public has to review the similar documents for the Dominion ACP project that have already been submitted in their entirety, and the 401 certification comment period should be extended beyond the comment period for the erosion control plan comment period.

The DEQ has not analyzed the cumulative impacts on major watersheds from all pollution sources to waters that would be affected by this expansive project. Such cumulative impacts analyses are conducted by the DEQ for all other project views. Thus, I am asking DEQ to follow its own procedures for the MVP and not short-circuit the review process.

DEQ is taking reckless shortcuts to expedite the project review, instead of performing a careful and thorough review. Average times for construction plan reviews are 8 months to a year for an average site. The size of the MVP project is much larger than an average site, yet the schedule for plan review is much shorter and is moving forward without complete information. I further object to the deferral of the assessment of important information such as the karst hazard assessment and die testing in karst until after Section 401 certification. The karst hazard assessment and die testing results must be made available to the public for review during public comment period. Without such information, landowners and the public are being denied the right to due process.

DEQ has not analyzed impacts to recreational uses, such as fishing, that would result from construction and maintenance of the pipelines. Recreation and support of native aquatic life communities are designated uses in all state waters. The activities proposed will impair existing or designated uses that must be fully protected in state waters, not the least of which is the impact on recreational uses from presence of a 42-inch pipe on stream bottoms.

DEQ is considering approval of variances for open trench sections to exceed the standard open trench length of 500 feet. Construction variances allow for less stringent water quality protection measures. The Certification Conditions do not include requirements for analysis of construction impacts resulting from allowing the variances.

The burden of proof to assure that all water quality standards will be met is on the applicants (MVP) and DEQ. MVP has not met the standards required to provide proof that there will be no violations of Water Quality Standards. In addition, the partners in MVP have been found in violation of EPA standards in other states. On this basis, how can DEQ have the required “reasonable assurance” that MVP will indeed meet all water quality standards?

DEQ is not giving sufficient attention to its own stated mission: “DEQ protects and enhances Virginia’s environment, and promotes the health and well-being of the citizens of the Commonwealth.” The draft certification does not contain any conditions that require the proponent to restore and replace private water supplies and septic systems that are damaged by the construction. The absence of the condition is irresponsible and I object.

The Commonwealth must require and enforce the maintenance of a performance bond.

For these reasons, I specifically request that the Commonwealth of Virginia extend the comment period until the information necessary to consider the impacts to groundwater supplies is gathered as recommended by the Virginia Department of Health and other stakeholders. This should include:

  1. Thorough study of how much total sediment the proposed pipeline would release into the Roanoke River across the 100-plus crossings both during and after construction, including impacts on downstream communities and their water supplies.
  2. Supplemental review of upland impacts to the Roanoke River Basin.
  3. Sanitary survey within 1000 feet on either side of the pipeline performed by specialists to ensure water sources are protected as specifically recommended by the Virginia Department of Health.
  4. Significant additional dye-testing to trace water flows throughout the pipeline’s impacted area upon which the public and the affected landowners have the opportunity to review and comment.

Water is basic to life, so surely water is basic to the environmental quality of Virginia that you are pledge to protect and enhance.

Sincerely,

(Signature) ______

Printed Name ______

Address ______

Phone Number ______Email Address ______