Environmental groups called it a win. Dominion Energy — which is leading the development of the hotly contested Atlantic Coast Pipeline — called it a “very significant milestone.”
The 4-3 vote Tuesday by the State Water Control Board on a crucial water quality certification for the natural gas pipeline, after an amendment that delayed the effective date of the certification, left many scratching their heads.
The board, which had been grappling with delaying a decision on the project, ultimately approved the certification with an amendment by board member Timothy G. Hayes that prevents it from becoming effective until the Virginia Department of Environmental Quality finishes reviewing and approving a series of plans and mitigation measures.
Many pipeline opponents contend that those plans, which deal with stormwater and erosion and sediment control, among other areas, are key to deciding whether the project can be built without degrading state waterways. Developers’ plans call for the 600-mile Atlantic Coast Pipeline to cut through 11 Virginia counties on its way to North Carolina, not including an extension to Chesapeake.
A wave of speakers at meetings over the past week on the Atlantic Coast Pipeline and another planned Virginia project, the Mountain Valley Pipeline, have repeatedly told the board that the DEQ has not done its job in vetting the water quality impacts. They maintained that the board did not have enough information to come to a “reasonable assurance” that the projects would safeguard state waters during the blasting, trenching, ridgetop flattening and tree removal that construction will entail.
“There is a public concern that we have not dotted all the i’s and crossed the t’s by signing off on this without waiting for that information,” Hayes said.
DEQ staff members were still coming to grips with the implications of the vote after state police ushered the audience out.
“The amendment apparently calls for completion of the various studies people were talking about: karst, sediment and erosion controls, stormwater and probably a few others. Those reports must be completed, DEQ must analyze and approve them and present them to the water board,” said Bill Hayden, a DEQ spokesman. “Once that happens, the certification would take effect.”
In a statement, Dominion spokesman Aaron Ruby called the vote “another major step toward final approval.”
Ruby said the company would “work closely with the Virginia Department of Environmental Quality to complete all remaining approvals in a timely manner and ensure we meet all conditions of the certification,” though he would not say whether Dominion might appeal the decision.
And it was unclear whether Hayes’ amendment, which he said aimed to give the board “one more swing” at the water quality certification, would actually do that. Under the federal Clean Water Act, states are allowed to issue certifications that federally approved projects such as natural gas pipelines will not violate state water quality standards.
“The point was if the actual effective date of the certification is delayed, that may give the water board more time to think about what other actions could be taken. But at this point we don’t know what that means,” Hayden said.
Brian Coy, a spokesman for Gov. Terry McAuliffe, an early and enthusiastic supporter of the pipelines , said “the decision on the future of these projects should be based on law, science and the judgment of the people who were appointed to evaluate them.”
“If the members of the Water Control Board need additional information, they should have it,” Coy said. “The governor thanks them for their work on this important issue.”
A spokesperson for Gov.-elect Ralph Northam said Tuesday evening that Northam had no immediate comment on the decision.
Pipeline opponents saw it as a measure of vindication that buys more time.
“The board today acknowledged what we had been saying all along, that this process was flawed, that they can’t in good faith make a final decision without all the information,” said David Sligh, an environmental attorney, former DEQ engineer, conservation director for Wild Virginia and investigator for the Dominion Pipeline Monitoring Coalition.
“The overall vote means that Dominion does not have an effective certification today,” Sligh added. “There are significant roadblocks to them getting an effective certification.”
Rick Webb, a former University of Virginia scientist and program coordinator with the Dominion Pipeline Monitoring Coalition, said the decision forces the DEQ to present for public scrutiny detailed, site-specific plans for erosion and slope control that have been lacking for critical portions of the route.
“The whole game is to avoid letting us see these plans so they can be critiqued,” he said. “That’s the game they’ve been playing, and they’ve lost.”
A host of environmental groups, activists and affected landowners have long contended that the 42-inch-diameter pipeline cannot be installed in some of Virginia’s most mountainous terrain without dislodging sediment that could foul streams and waterways and risk contaminating aquifers and drinking water sources in karst areas — porous formations characterized by springs, sinkholes and other links to groundwater.
They have long criticized the DEQ’s review of the water quality impacts of the pipeline projects as bewilderingly segmented and inadequate for protecting drinking water, recreational uses and aquatic life.
Chief among the complaints: The DEQ ceded its authority to review the actual spots where the pipeline will cross waterways to the U.S. Army Corps of Engineers and wanted to approve the pipeline developers’ plans to manage erosion, sediment and stormwater separately.
The decision came after thousands of written public comments, many in opposition, and four marathon meetings on the ACP and the Mountain Valley Pipeline, for which the board approved a water certification last week. The meetings, which were held in Henrico County, drew hundreds.
Hayes’ amendment Tuesday came after an unsuccessful push by two board members, Roberta Kellam and Nissa Dean, to delay the vote or deny the certification.
“We should have all of the information in front of us,” Kellam said.
Though the pipelines enjoy the support of some state and local governmental officials and business and labor organizations, among others, the water board meetings were also marked by the presence of a determined group of affected landowners, activists, environmental groups and other opponents.
Activists frequently shouted at board members and DEQ staff members from the audience, standing and turning their backs on speakers who supported the projects, and hissing or coughing when they heard something they didn’t like. Several dozen state troopers and Henrico police officers monitored the proceedings, at times escorting out unruly pipeline opponents. Both pipeline developers had their own private security guards stationed near company officials.
“We have never seen this kind of uprising of people in this state on an environmental issue,” Sligh said. “I’ve been working on these issues for over 35 years, and I have never seen this kind of effort. I have never seen this kind of unity. And that is important, and I think they recognize this.”
It was unclear why the board let the Mountain Valley Pipeline certification, a process opponents contend has suffered from the same deficiencies, go through without a similar amendment.
“I do know that the board’s response to the public comment yesterday had an impact on them today,” Hayden said.
Pipeline opponents had urged the board to reject the certification outright and invite developers to reapply to avoid the possibility that the state might waive its authority to impose conditions on the project by missing a deadline to issue the certification. But, in just one example of the widespread confusion that surfaced during the proceedings, the DEQ could not say when the one-year clock on the water certification deadline began ticking.
“Unfortunately we don’t know the date of that 12-month window,” Hayden said. “That’s something that still needs to be resolved.”
Others noted that the DEQ was also unable to say how many drinking water wells were within a given distance of the pipeline’s route.
“They couldn’t tell you how many private drinking water wells were going to be affected by construction of this project,” said Peter Anderson, a program manager with Appalachian Voices, which opposes the pipelines. “They don’t know the impacts, and that’s why we’re going to continue this process and hopefully get some answers out of DEQ before any ground is broken.”
The decision Tuesday came as Atlantic Coast Pipeline developers began eminent domain proceedings to compel 10 Virginia landowners in Augusta, Buckingham, Highland and Nottoway counties to allow construction and maintenance of the pipeline on their property, according to federal court records.
The developers’ power to take the property comes from the federal Natural Gas Act and the certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission in a split decision in October.
Opponents have challenged the underlying demand for the project, and a FERC commissioner, in a dissenting option on both the Atlantic Coast and Mountain Valley pipelines, said she could not conclude that they were in the public interest. Dominion and its partners have said the gas is urgently needed to bring fuel to power plants and drive economic development.
Ruby said ACP has filed cases in federal courts for about two dozen properties in West Virginia, Virginia and North Carolina where pipeline construction is expected to start next year. More cases could follow.
“This is not our preference. It is an absolute last resort that we’re only taking after exhausting every other option,” Ruby said, adding that ACP has reached agreements with about 80 percent of landowners.