WARNING. This story contains law talk. May cause drowsiness. Do not read while driving or operating heavy equipment.
By John McFerrin
Several groups and individuals have sued the Virginia State Water Control Board, The Virginia Department Of Environmental Quality, and several individuals over the impact of the Atlantic Coast Pipeline on water quality.
The controversy is over the whether Virginia properly found that there was “reasonable assurance” that the pipeline and its construction would not harm Virginia’s waters. As proposed, the pipeline would cross 890 Virginia rivers and streams and hundreds of acres of wetlands along its route. It will require the developer, Atlantic Coast Pipeline, LLC to clear 5,000 acres in the state, including 3,000 acres of forest. These streams including 73 or stockable trout streams in the mountains of western Virginia. In addition to trout waters, the pipeline will also cross 74 migratory fish spawning waters or their tributaries. Pipeline access roads will cross 89 Virginia rivers and streams, including 31 wild or stockable trout streams or tributaries to those trout streams. Pipeline developers may be required to blast in the stream channel or in adjacent areas to install the pipeline. Developers will drill under others, like the James River at the border of Buckingham and Nelson Counties,
With all these crossings and all this disturbance, the pipeline must receive a permit pursuant to the United States Clean Water Act.
Even though the United States Army Corps of Engineers approves the permits, the states have a role. Before the project may go ahead, the state must certify that there is “reasonable assurance” that the project will not violate state water quality
Here, Virginia has made this finding that there was “reasonable assurance.” The plaintiffs claim that this was mistaken.
Background
Activities such as filling a stream or a wetland, crossing a stream or a wetland, etc. require a permit under the Clean Water Act. Many such activities apply for and receive an individual permit. To get an individual permit, someone must submit sight specific plans. Those plans are reviewed, and a permit is issued for specific activity on that sight.
In addition to the permit, before a project may go ahead the state where it is located must determine that there is “reasonable assurance” that the project will not cause a violation of state water quality standards. The goal is to assure that, even though federal authorities approve a project, state authorities have a chance to make sure that local water quality standards are not violated.
There are some activities for which an individual permit is not required. This comes about because the United States Army Corps of Engineers has decided that there are some activities where the effect is small, and it is the same no matter where the effect is. When this happens, the Corps issues what it calls a Nationwide Permit. Anybody who wants to do one of the activities covered by one of these Nationwide Permits just has to announce that it is going to do something covered by the Nationwide Permit. It then just has to follow the requirement of the Nationwide Permit and never has to apply for an individual permit.
Much to the horror of those concerned about the effects of the Atlantic Coast Pipeline, there is a Nationwide Permit (Nationwide Permit 12) for pipelines. Even though the terrain it must cross assures that there has never been a pipeline like the Atlantic Cost Pipeline, it has announced an intention to rely upon Nationwide Permit 12. This means that no agency will have to evaluate each stream crossing individually.
Even though Dominion is relying upon Nationwide Permit 12, state agencies still must certify that there is “reasonable assurance” it will not cause a violation of state water quality standards.
The arguments
The plaintiffs make three arguments. The first is that there was no consideration of the cumulative effects of the pipeline on water quality. The pipeline will cross hundreds of streams and go through hundreds of acres of wetland. Even if the impact of each crossing is small (something with which the plaintiffs would disagree), the cumulative impact of so many crossings would not be. Virginia cannot certify that there is “reasonable assurance” that the project will not violate state water quality when it has not considered the cumulative impact.
For example, Townsend Draft, a Virginia wild trout stream in Highland County, has nine pipeline and access road crossings on the main channel and tributaries over one half mile. The Calfpasture River in Bath and Augusta Counties has 71 pipeline and access road crossings in its watershed. Even if the impact of a single crossing is minor, the cumulative impacts would be dramatic. Nobody could certify that there is “reasonable assurance” that state water quality will not be violated unless the cumulative impact had been considered.
Second, the agencies did not perform an anti-degradation review. All states, including Virginia, have what are called anti-degradation policies. They are supposed to be applied so that existing uses of waterways are maintained. Under these policies, streams are classified in what are called tiers. Tier 1 waters are those where the water barely meets water quality standards. Tier 2 waters are cleaner and can support more uses. Tier 3 waters are cleaner still and could support even more uses. Waters classified as Tier 3are usually trout streams since trout can thrive in only the cleanest of waters.
It is possible, under the regulations, to lower the water quality in some streams so long as the resulting water does not fall below the standards that exist for all streams. Before that is allowed, the state agencies must conduct what is called an “antidegradation review.” This involves a socioeconomic review to determine whether the lowering of water quality is worth the benefit that would be gained from the project.
The state agencies did not perform this review. Everybody agrees that this project will add sediment to the streams. Nobody could build a pipeline for hundreds of miles, crossing hundreds of streams, and not add sediment to the streams. Before this degradation of the streams is allowed there must be an antidegradation review. There was no such review done for the Atlantic Coast Pipeline.
Third, the reviewing agencies did not consider that the proposed pipeline will go over karst topography. Karst is landscape underlain by limestone that has been eroded by dissolution, producing ridges, towers, fissures, sinkholes, and other characteristic landforms. These areas present a unique set of environmental challenges, including sinkhole flooding, sinkhole collapse, and groundwater contamination. Karst regions contain aquifers capable of producing large supplies of water used for watering livestock, drinking water, and stream recharge. Streams flowing through karst regions often disappear underground for many yards or miles before resurfacing as a spring or stream.
Rainfall landing on karst areas sinks quickly into the soil and the highly permeable rock beneath and then flows through a similarly integrated, but underground, drainage system. Rainfall carrying pollutants might flow hundreds or thousands of feet, or even several miles, to eventually emerge at and possibly contaminate a surface water.
Although Atlantic has assured, and the state agencies have accepted, that water in these regions will be protected, this assurance is meaningless as neither knows the boundaries of all the drainage areas in these regions. Thus, the state agencies have not determined what areas surrounding the pipeline path actually drain to a particular stream or creek. Without that information, the state agencies had no ability determine the potential impacts to water quality in karst areas, and therefore had no basis for a finding of reasonable assurance.
But there’s more
These were the conventional arguments, the ones available to the plaintiffs at the time they first decided to take legal action. Then Virginia took a procedural step which threw things into flux.
The developer of any project must decide if it will apply for individual permits for stream crossings or rely upon a Nationwide Permit. The Atlantic Coast Pipeline relied upon Nationwide Permit 12, the one for pipelines. When it came time for Virginia to make its certification that there was “reasonable assurance” that the pipeline would not violate water quality standards, Virginia said that it relied upon Nationwide Permit 12 and its provisions to assure that water quality standards would not be violated.
After having relied upon Nationwide permit 12 to certify “reasonable assurance”, Virginia then had second thoughts. It asked for public comments on the question of whether the terms of Nationwide Permit 12 are adequate to protect Virginia waters. It could decide that the terms of Nationwide Permit 12 were not adequate and that the developer must seek individual permits for stream crossings.
A big part of the basis for Virginia’s certification of reasonable assurance was that Nationwide Permit 12 was adequate. Not it is having second thoughts about whether Nationwide Permit 12 is adequate. If the basis for the certification of reasonable assurance is crumbling, then the certification of reasonable assurance must be faulty as well.
What plaintiffs want
The plaintiffs want the Court to decide that Virginia’s certification of reasonable assurance that the pipeline would not cause a violation of water quality standards was invalid. They want the Court to send the decision back to Virginia to try again.
The case is pending in the United States Court of Appeals for the Fourth Circuit.