A Brain-Frying Foray into the Regulatory Maze

OK, folks, it is time to plunge into the arcana of environmental regulation. The subject matter might prove of interest if you’ve been tracking the Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) controversies, especially if you’re deeply immersed enough to be familiar with the dust-up over seemingly contradictory press releases issued by the Virginia Department of Environmental Quality (DEQ) on April 6 and April 7, and the Freedom of Information Act request that ensued. If these matters have escaped your notice, however, be forewarned. We cannot guarantee that your eyeballs won’t glaze over, turn to stone, and drop out of your skull sockets.

On April 6, the DEQ issued a press release which was widely reported in the Virginia media — to wit, that the department had “notified ACP and MVP that in addition to utilizing the U.S. Army Corps of Engineers nationwide permit 12 for wetland and stream crossings, DEQ will be requiring individual 401 water quality certifications for each project.”

That sentence is incomprehensible unless you know what “nationwide permit 12” means, what “401 water quality certification” means, and what the difference is between a “nationwide” permit and an “individual” permit.

At issue are hundreds of wetland and stream crossings along the proposed routes of the two pipelines. Environmentalists are concerned that rugged slopes and karst geology of the mountains in Virginia and West Virginia will make it impossible to dig pipeline trenches without creating erosion and releasing sediment into rivers, streams and wetlands. The pipeline companies say they are equipped to handle the challenging conditions.

As part of the Federal Energy Regulatory Commission-led regulatory review of interstate pipeline projects, the U.S. Army Corps of Engineers must grant a “401 certification,” which states that a project meets the requirements of Section 401 of the Clean Water Act. The DEQ, the agency in charge of state water-quality regulation, has the option of accepting the Corps of Engineers 401 certification or getting more deeply involved. In this instance, given the magnitude of the pipeline projects, DEQ decided that it, too, had to grant 401 certification, meaning that the projects must abide by Virginia water-protection regulations. (See the Update below.)

By mentioning “Permit 12” in its press release, DEQ was alluding to a particular category of projects that include “energy generation facilities, living shorelines, aids to navigation, dredging, utility line activities, aquatic habitat restoration, and removal of low-head dams.” The ACP and MVP are both covered under the rubric of utility line activities.

The big news in the press release was DEQ’s shift from “general” permits to “individual” permits. To obtain a general permit, a pipeline company must demonstrate that it meets a basic checklist of requirements. “All you have to do is turn in your checklist,” explains DEQ spokesman Bill Hayden. By contrast, the “individual” permit required by DEQ entails going beyond the checklist. Among other requirements, DEQ will hold public hearings for each project and provide extended periods for public input.

Groups opposed to the pipelines hailed this news as a positive development. The reaction of the pipeline companies was along the lines of, meh, this wasn’t what we were looking for, but we can live with it.

The next day, DEQ issued another press release. This one stated that DEQ “has provided water quality certification for the U.S. Army Corps of Engineers 2017 Nationwide Permits.” More specifically:

DEQ found that there is a reasonable assurance that the activities permitted under the Corps’ Nationwide Permit program, including the Norfolk District Corps’ Regional Conditions, will be conducted in a manner that will not violate applicable water quality standards, provided permittees comply with all applicable Section 401 conditions.

The coincidence in timing between the two press releases created the impression that they were connected. People in the environmental community wondered if the communique represented a rollback, or partial rollback, of what DEQ had stated the previous day. At the very least, wrote Rick Webb, project coordinator for the Dominion Pipeline Monitoring Coalition, DEQ had “muddied the waters.”

“We do not agree that the Corps’ NWP  12 (nationwide 12 permit) is appropriate for either the ACP or MVP and have made that argument to the [Corps of Engineers,” says David Sligh, regulatory system investigator with the DPMC.

In order to gain insight into the basis for DEQ action, DPMC filed a Freedom of Information Act request. DEQ responded that it would require a seven-day extension beyond the normal five days it had to respond. The anti-pipeline people replied that DEQ should be able to respond more quickly and did not accept its reasons justifying the delay. On April 12, DPMC delivered a petition for injunctive relief, demanding the DEQ meet the legal requirement of five-day delivery. In an widely distributed email, Webb took issue with DEQ’s inability to deliver the documents on the grounds of “the complex nature” of the request, and accused the department of “changing its story.”

DEQ staff explained that the records could not be obtained immediately because the staff who held them were out of the office. DEQ and DPMC eventually reached an agreement for the records to be furnished by April 25.

The irony is that the second press release, though addressing the same regulatory process, DEQ contends, was unconnected to the previous day’s announcement. The department had completed a routine, five-year review to see if Nationwide 12 permits were consistent with Virginia water-quality regulations. The review concluded that they were, and DEQ issued the press release to say so. The timing — one day after the first press release — was coincidental, Hayden tells Bacon’s Rebellion. The complexity of the regulatory process contributed to the confusion over the announcement’s meaning.

Bacon’s bottom line: Conclusion #1: The regulatory process is insanely complicated. Conclusion #2: DEQ and environmental groups need to develop a better way to communicate with one another than issuing press releases and filing FOIA requests.

Update: David Sligh says my description of how the regulatory process works is wrong. Here’s how he describes it:

“As part of the Federal Energy Regulatory Commission-led regulatory review of interstate pipeline projects, the U.S. Army Corps of Engineers must grant a Clean Water Act section 404 permit for work done directly adjacent to streams and wetlands. The Corps has a Nationwide Permit that can cover such work related to a broad group of utility line waterbody crossings but the Corps also may conduct reviews and issue individual 404 permits where it deems that option preferable or where a project cannot meet the standards allowing coverage under the NWP. To proceed with a project under either the nationwide or individual 404 permit, the State of Virginia must issue a Clean Water Act section “401 certification,” which states that a project meets the requirements of water quality standards designed to protect state waters. Again, the state may cover a particular project under a blanket 401 certification, that says the whole class of activities covered under the NWP will meet water quality standards, or Virginia may conduct individual 401 reviews, which the state has now announced they will do for each of the major pipelines (the MVP and ACP).”

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11 responses to “A Brain-Frying Foray into the Regulatory Maze”

  1. kvdavis2 Avatar

    Well, as an environmental regulatory compliance manager, it made perfect sense to me! 😉 …and applicants for such engineering projects either maintain on staff, and/or retain consulting firms, with experience in such permit applications (don’t try this at home).

    There are many skillsets that are best hired out. This is not evidence of excessively complex permitting, just unfortunate timing on press releases.

    “They” (EPA, ACOE, FERC, etc.) actually *have* tried to simplify it, and the Nationwide Permits are one tool for that. If one submits a project under a nationwide permit, and it meets the conditions, then the project applicant doesn’t have to go thru the individual permitting process.

    In the pipeline instance, DEQ is saying that, because of the high variability among sites where the pipeline is crossing regulated waters/wetlands, they need to submit for individual permits.

    …don’t know how many metrosexuals on here get “man”-icures 😉 but you know those pumice stones some people keep in their showers to file their feet all smooth and pretty? That’s what karst is like – very fragile.

    1. I’m glad you understand it. I’ve had a devil of a time getting it straight. Please weigh in if I get something wrong. I don’t have editors reading my material. I count on readers to set me straight.

  2. The Energy Fix Avatar
    The Energy Fix

    So what do we make of the required info still needed from both pipelines?

    1. Can you be a little more specific? What required info are you referring to?

  3. TomH, LarryG and I were just going at this issue under the heading of your recent April 14 post: https://www.baconsrebellion.com/38942-2/ The CE (not my favorite federal agency from the point of view of responsive, balanced decisionmaking) does have a way with blanket permits — for example, if someone wants to build a private pier in Mathews County, extending past the high tide line and over the water, you can self-certify that the pier will meet the terms of the CE’s blanket permit for private homeowner piers, and, after submitting drawings and notice to all the adjacent property owners and several months wait and no protests, you get a form letter from the CE granting permission to go ahead. What’s astounding here is that such a mundane “check the boxes” process could be deemed appropriate for evaluating the clean-water impact of an interstate pipeline crossing 1000 miles or so of mountainsides and valleys and wetlands and rivers.

    I have a hard time criticizing the State DEQ for considering that to be inadequate. But, somehow, we must find a way for the Byzantine State-federal environment regulatory process to reach timely conclusions — a “check-the-boxes” but timely decision, even one heavily biased against the applicant, is better than a decision that takes years to obtain (or can never be obtained) from bureaucrats too spineless to stick their necks out. Take that Surry to Skiffes Creek transmission line across the river, for example, or its equally daunting alternative, a crossing of the Chickahominy Swamp requiring condemnation of a few homes. How can we be a nation of economic progress without making decisions like these in less than our childrens’ lifetimes?

  4. Jim,

    Could you please get clarification from the DEQ that they intend to require a complete 401 permit application and review for the ACP and the MVP?

    This would be significant news if it is true. A complete 401 permit requires far more specific information that what has so far passed muster with FERC. Most pipeline developers are unable or unwilling to provide the information necessary to meet 401 permit requirements.

    That is what stopped the Constitution Pipeline dead in its tracks. FERC had issued the CPCN but when the New York Department of Environmental Conservation told the Constitution developers that DEC would require a complete 401 permit application, the developers halted their activity and filed suit.

    Based on the incomplete information that has been filed with FERC by the developers of the ACP and MVP it appears that the owners of the new pipeline projects in Virginia would also be unwilling or unable to provide the information needed to meet the water quality permit requirements.

    That is why the apparent reversal of DEQ between the April 6 and April 7 announcements seemed plausible. It is possible that DEQ could accept incomplete information and watered down standards in order to issue the pipeline companies a 401 permit, but that could leave them open to legal challenges. The 401 permit requirements are specific and backed by federal law.

    I think Virginia citizens are owed a clear explanation about how the DEQ intends to execute this process. If they have in fact accepted the use of nationwide permits for various types of projects, they still must provide evidence of how they reached the decision of how the DEQ determined the types of projects they would accept under the nationwide permit would meet Virginia water quality standards. The DEQ should also announce that the pipeline projects do not qualify for treatment under the nationwide permit so they could not reverse themselves at a later date once the CPCN was issued. It would also be fair to the developers to know now what the requirements will be so they can begin to provide the necessary information.

  5. LarrytheG Avatar

    I’m going to presume that DEQ is trying to determine the quickest most efficient way to APPROVE the pipelines as it’s primary goal.

    but even for a regulator – picking the best path through the regulatory wickets may be a challenge given the changing dynamics, political and oppositional these days.

  6. […] A Brain-Frying Foray into the Regulatory Maze, Bacon’s Rebellion, 4/19/17 [discussing differences between “nationwide” and “individual” permits under the federal Clean Water Act, relating to potential stream/wetland impacts of the proposed natural gas pipelines]. […]

  7. […] roil Virginia governor’s race, regulators backtrack on their role, Washington Post, 5/25/17. A Brain-Frying Foray into the Regulatory Maze, Bacon’s Rebellion, 4/19/17 [discussing differences between “nationwide” and “individual” […]

  8. […] roil Virginia governor’s race, regulators backtrack on their role, Washington Post, 5/25/17. A Brain-Frying Foray into the Regulatory Maze, Bacon’s Rebellion, 4/19/17 [discussing differences between “nationwide” and “individual” […]

  9. […] roil Virginia governor’s race, regulators backtrack on their role, Washington Post, 5/25/17. A Brain-Frying Foray into the Regulatory Maze, Bacon’s Rebellion, 4/19/17 [discussing differences between “nationwide” and “individual” […]

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