HIGHLAND COUNTY — In this corner of the George Washington National Forest, the slope rises sharply from the bank of a briskly bubbling stream about a mile from the West Virginia line.
Nearby, trees have been felled along a 125-foot wide swath up to the edge of a U.S. Forest Service access road to make way for the Atlantic Coast Pipeline, the hotly-contested, 600-mile natural gas project between West Virginia and North Carolina. Spearheaded by Dominion Energy, the pipeline will cut through some of Virginia's most mountainous terrain and hundreds of its waterways.
This unnamed tributary of Townsend Draft, a native brook trout stream, is one of them.
And the site illustrates what the Virginia Department of Environmental Quality hasn't examined, despite an environmental review the agency and Gov. Ralph Northam's administration have described as the most rigorous ever for a pipeline project, say David Sligh and Rick Webb, among the organizers of a pipeline construction monitoring effort.
This stream is one of the spots where the U.S. Forest Service insisted on site-specific plans for how Dominion and its partners intend to hold the ridge and its slopes together. The plan calls for leveling the top to create a flat workspace for heavy equipment and workers and carving a trench up, across and down it before replacing the missing earth with large volumes of fill material.
"That's one of the handful of locations where we actually see what they propose to do," said Webb, a retired University of Virginia stream scientist. "I anticipate there's going to be extreme damage to water resources."
Among the possibilities: steel mesh nailed into the rock to hold the slope in place, which Webb and Sligh, a former DEQ engineer and environmental attorney, argue will dramatically alter the runoff characteristics into the stream below. Sediment contamination is the main concern, a circumstance they fear will be repeated over and over again along the mountainous parts of the pipeline route. Seven pipeline stream crossings will directly affect drainage to a half-mile section of Townsend Draft, Webb says.
"In a year or two, Governor Northam is going to have to answer for what this looks like," Sligh said.
PRESSURE MOUNTING ON NORTHAM
During his successful campaign for governor, Northam walked a fine line on the Atlantic Coast Pipeline and a separate southwestern Virginia project by EQT Midstream Partners, the Mountain Valley Pipeline, calling on them to be held to high environmental standards without signaling his endorsement or opposition.
Now, opponents are demanding his administration live up to one of the more concrete statements he made on the projects, which came during a debate a year ago when he asked DEQ to conduct a "site specific" review of where the pipelines will cross Virginia streams and rivers. For a host of reasons — from property rights to climate change to the damage from construction — the pipelines have become the thorniest environmental issue in the state.
Last year, a DEQ spokesman initially announced the state would conduct its own stream-by-stream review, though the agency later called that a communications error. Instead, the DEQ is relying on a U.S. Army Corps of Engineers nationwide permit for the crossings, a much-criticized decision that is still an unsettled argument a year later. The water quality debate has become the game within the game for opponents, because denial of a state water quality certification could potentially stop the projects.
With a standoff dragging on between Theresa "Red" Terry, a Roanoke County property owner who took to a tree to block Mountain Valley Pipeline tree clearing, and chainsaw-toting contractors, among other protests, 20 Democratic state lawmakers urged Northam two weeks ago to conduct "a full, on the ground, stream-by-stream analysis of all water crossings" for the projects.
They also raised concerns about how protests of the projects are being handled. Though some reports indicated police were preventing the tree-sitters from getting food and other necessities, Roanoke County Police said last week it "will provide protesters with what is needed to ensure their physical needs are met"' as well as perform daily checks by trained medical staff.
U.S. Sen. Tim Kaine, a Democrat up for re-election this year who has requested that the Federal Energy Regulatory Commission conduct a new hearing on the public need for both projects, also voiced concern over handling of protests.
"Pipeline opponents, both landowners and advocates, are rallying to #StandwithRed, frustrated about having their land seized through eminent domain at the end of what they rightly see as a flawed FERC process," Kaine wrote on Facebook. "And now local law enforcement is thrust into the middle of it. We need to make sure protesters are all treated humanely and we must work to ensure the situation doesn’t escalate."
Pipeline proponents, including the big energy companies developing the projects and the labor unions who will help build them, see the call for more review as another stall tactic aimed at dragging out the approval process.
And so far, the Northam administration hasn't budged.
"I am deeply sensitive to the concerns expressed by those protesting. While local law enforcement is the primary responder to these protest sites, I have asked Virginia State Police to support their efforts, particularly with respect to ensuring the health and safety of everyone involved," Northam said in a statement Wednesday. "The state’s role is to follow the law and to hold these projects to the highest environmental standards possible — we are doing just that. I am confident in the public servants at the Department of Environmental Quality who are tasked with ensuring compliance with the most environmentally protective process in Virginia history."
Not surprisingly, neither pipeline developer supports additional water-crossing reviews.
Natalie Cox, a spokeswoman for MVP, which has received all necessary state approvals to proceed, said the review process has lasted three years and is at an end. And Dominion's Aaron Ruby called it a "waste" of taxpayer dollars.
"The Virginia Department of Environmental Quality is requiring stronger environmental protections and higher water quality standards for this project than any other in the agency’s history," Ruby said.
WHAT IS DEQ DOING?
In response to the state lawmakers, DEQ Director David Paylor said the agency used GIS data to examine "each stream and wetland crossing proposed" as part of its review of FERC's draft environmental impact statement, which came out in December of 2016.
Last year, DEQ certified the corps permit at issue, Nationwide Permit 12, though it reserved the right to require an individual application for a permit "on any specific project" that might otherwise be covered by the program. States have the authority under the federal Clean Water Act to issue certifications that federally-approved projects such as natural gas pipelines won't violate their water quality standards. New York has used that power to block pipelines.
DEQ performed what it called an "upland" review, namely construction areas outside of crossings that could affect water quality, such as ridges and mountaintops. DEQ has argued that doing its own water crossing review would merely duplicate the corps' work.
The ACP cannot start construction until DEQ finishes a sprawling, separate review of plans for managing erosion, sediment and stormwater along the pipeline's Virginia's route.
The State Water Control Board in a split vote approved those certifications, with conditions, in December, though some members thought they would get another chance to act on the crossings after the corps made its decision.
Critics noted that the upland review did not include a site-specific look at where and how Dominion intended to use its "best-in-class" techniques for managing the steepest slopes along the route, such as the Highland County sites flagged by the Forest Service and spotlighted by Webb and Sligh.
Ruby, the Dominion spokesman, said the discretionary program goes above and beyond regulatory requirements and will require on-the-ground decisions by construction managers to determine which works best in a given terrain. Therefore, he said, it's not subject to DEQ review.
IS PERMIT ADEQUATE?
Last month, the water board threw a potential wrench into pipeline developers' plans when it approved a 30-day comment period that began Monday on whether Nationwide Permit 12 is adequate to protect Virginia waters from the blasting, trenching and other crossing methods pipeline construction will involve.
At least three members of the seven-member board appear to have doubts. Environmental opponents have argued that the corps permit allows significant sediment discharges to waterways, altering habitats and harming aquatic life, and that its definition of "temporary" impacts means months or years.
"Virginia water quality standards set a higher bar for water quality protection than the corps’ NWP 12 does," a trio of environmental groups wrote last year.
"I am not comfortable with all crossings by the pipelines we reviewed being authorized by a NWP," wrote water board member Robert Wayland, a former federal Environmental Protection Agency assistant administrator, in an email to Paylor last month, obtained by the Times-Dispatch via a Freedom of Information Act request. "I think DEQ should identify crossings of high-value wetlands and streams and we should determine whether they should be authorized, authorized with additional conditions, or not authorized."
Reached by email this week, Wayland said he has "trouble accepting" a determination that the hundreds of crossings for MVP and ACP qualify for coverage under the nationwide permit, which would require that their "cumulative impacts are 'minimal.'"
"I will be interested in public comment on whether the commonwealth’s aquatic resources are adequately protected by this broad authorization of impacts," he said.
Tom Walker, the chief of the regulatory branch of the corps' Norfolk District, rejected the notion that the permit is a rubber stamp.
He said project managers for the pipelines spent "the better part of a year in the field looking at these crossings" and estimated they examined 85 percent of them or more.
"On the whole, both projects did a good job of rerouting to avoid the resource or switching from open trench to directional bore to avoid impacts to the resource," he said.
Between both pipelines, he added, the total amount of wetland or waterway loss — that is, permanently altered by construction — is "under a couple of acres."
However, he acknowledged that Virginia is still within its rights to perform its own certification for the crossings.
“They could tell us that, on further analysis, there's some problems here and this doesn’t meet the general water quality standards," Walker said. “I don't recall that ever happening."