Tuesday 11 December 2018

Waterkeepers Chesapeake’s comments on Virginia’s Draft 2016 Integrated Report of Surface Water Quality (IR) highlight the many ways that this report on water quality does not protect local waterways and fails to make plans to improve impaired waterways.

Even after several years, impaired segments of waterways listed as Category 5 have not yet received required Total Maximum Daily Loads (TMDLs).  By comparing the 2016 IR and the 2014 IR, it becomes clear that many waterways listed as “Category 5” in 2014 have not yet received a TMDL. According to the Clean Water Act §303 (d)(1), every state must identify impaired waters, rank those waters in terms of severity of pollution, and assign TMDLs to those waters in accordance with the priority ranking. As Virginia’s Department of Environmental Quality (DEQ) is well aware, when a waterway is listed as a Category 5 it means that the body of water is impaired, or does not attain water quality standards and needs a TMDL; this is the classic list of Section 303 (d) waters. It’s unclear why these waterways have not received a TMDL over the years. A long list of waterways in Virginia’s Potomac and Shenandoah River basins have not received a TMDL for over nine years now, despite being listed as a Category 5.

There is little to no justification for why these impaired waterways have not yet received a TMDL over the years, some of which have been listed for over a decade. Further, some of the justifications in the notes section of the 2016 IR are exactly the same as the 2014 IR. Solely by looking at parts of the James River and Potomac Rivers, which have not received a TMDL, it becomes clear that there were absolutely no changes from the 2014 IR to the 2016 IR in terms of associated notes for PCBs in fish and public water supplies, E. Coli in recreational waters, pH issues impairing aquatic life, among other issues that cause environmental harm and public health concerns. This is the same for many other waterways. It is important that DEQ assign TMDLs to these waterways to ensure that water quality standards are being attained and that Virginia’s anti-degradation policy is being followed. 

Impaired segments covered by the Chesapeake Bay TMDL still require local TMDLs. DEQ should reverse its decision to remove hundreds of impaired segments of waterways from Virginia’s Category 5 list of impaired waters due to the Chesapeake Bay TMDL in the 2012 IR, 2014 IR, and 2016 draft IR. Many of the water segments removed from the Category 5 list of impaired waters needing a TMDL and placed on the Category 4a list only had conclusive statements about their reasons for removal. For instance, in the 2016 IR, for a segment of the James River that was partially delisted, there is a lack of clear explanation for why the segment was delisted along with, “The Chesapeake Bay TMDL was approved by the EPA on 12/29/2010; therefore, it will be considered Category 2C.” Under the Chesapeake Bay TMDL, the EPA stated that “in some cases, the reductions required to meet local conditions shown in existing TMDLs may be more stringent than those needed to meet Bay Requirements.” A local TMDL is needed for many of the water segments listed in Category 4a because the Chesapeake Bay TMDL is not localized to address specific needs of certain waterways and, in many cases, is less stringent than those DEQ previously determined.

DEQ has failed to gain any new information on many waterways listed as Category 3 over the years. Many waterways listed as Category 3 have been listed as such for many years now, with no progress made on obtaining any new information to decide whether water quality standards are being met. Even Category 3b waterways have not been reassessed. According to the 2016 IR, Category 3b listings mean that “some data exists but it is insufficient to determine support of any designated uses. Such waters will be prioritized for follow up monitoring.” It is important that DEQ gather more information on these waterways and work with local water quality organizations to ensure that water quality standards are being attained and that Virginia’s anti-degradation policy is being followed.

DEQ should make clearer any designation changes from previous IRs for increased public participation and awareness. In order to assess any changes to designations from previous reports, DEQ should simply add a column to the Appendix 1 Integrated List of All Waters in Virginia that includes the waterway’s designation from the prior report. This would make it easier for the public to see whether there have been any changes, improvements, degradations, or assigned TMDLs over the prior two years. This information is essential not only for transparency, but will allow citizens and water quality organizations to more easily assess whether water quality standards are being attained in their watersheds.


In late August, the United States Court of Appeals for the D.C. Circuit rejected the Federal Energy Regulatory Commission’s (FERC) approval of a Southeastern natural gas pipeline under the National Environmental Policy Act (NEPA). The Court found that FERC failed to quantify the climate impacts that would result from burning the natural gas that the Sabal Trail pipeline would deliver to power plants in Alabama, Georgia, and Florida.

According to the Court, FERC’s environmental impact statement (required under NEPA) for the project “should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so… As we have noted, greenhouse-gas emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate.”

The Court reasoned that quantifying greenhouse gas pollution from pipeline projects would enable FERC to compare potential emissions to other projects and to the total emissions from the state, region, and nation for emissions-control goals. This information is essential for ‘informed decision making’ and ‘informed public comment,’ according to the Court.

“The D.C. Circuit’s decision is long overdue – for too long FERC has rubberstamped project after project from the natural gas industry without fully considering the significant climate change impacts that these projects will cause. This is the first case in a line of cases to successfully challenge FERC’s lack of consideration for increased greenhouse gas emissions that result from major projects like this pipeline,” said Waterkeepers Chesapeake’s Executive Director, Betsy Nicholas.

For years, environmental organizations have argued that FERC must consider climate change impacts and greenhouse gas emissions when reviewing major projects, like the Sabal Trail pipeline.

Waterkeepers Chesapeake, Earthjustice, and other environmental groups led one of the more recent challenges against FERC for failing to consider potential climate change impacts that would result from increased fracking due to the construction and operation of a fracked gas export facility in southern Maryland. Dominion Energy’s Cove Point facility is poised to cause more greenhouse gas pollution than all of Maryland’s coal-fired power plants combined. While, the Court ultimately found that FERC was not required to consider ‘indirect effects’ like increased fracking and associated climate impacts in its approval of the facility – this case was important in that it introduced the Court to the potential impacts that arise from fossil fuels infrastructure.

More info: http://www.sierraclub.org/planet/2017/08/sabal-trail-pipeline-FERC-fracked-gas-pipeline

On August 16, 2017, on behalf of Waterkeepers Chesapeake, Assateague Coastkeeper, Waterkeeper Alliance and more than 70 organizations, representing thousands of businesses and citizens, Southern Environmental Law Center (SELC) submitted comments asking the Trump Administration to reject offshore drilling in the Atlantic. SELC released this statement:

The comments said “Opening the Atlantic to offshore oil and gas drilling poses a direct threat to the fragile and unique ecosystems of the southeast coast and to the millions of people whose livelihoods depend on our clean coastal resources.”

The comments specifically argue against offshore drilling in the Southeast because:

  • Coastal communities and governors in the region strongly oppose drilling on the coast;
  • Drilling would harm the tourism and ocean economies along the coast;
  • Drilling would threaten unique and sensitive shorelines, valuable salt marshes, barrier islands, productive marine habitats and fisheries, and numerous areas designated for state and federal protection;
  • Drilling would conflict with many important uses for these ocean areas, including Department of Defense and NASA operations, commercial and recreational fisheries, and renewable energy development;
  • Chronic pollution and the risk of catastrophic oil spills, especially given the lax oversight and regulatory environment, present too great of a threat to the Atlantic coast;
  • The oil and gas industry’s economic projections are based on faulty assumptions that overestimate jobs and income, while discounting the existing tourism- and recreation-based economies; and
  • The United States should invest in and develop clean, renewable energy sources instead of wasting resources on developing dirty energy sources.

“There is overwhelming opposition to drilling from coastal communities, elected officials across the political spectrum, local businesses, and commercial and recreational fishing groups,” said Sierra Weaver, senior attorney from the Southern Environmental Law Center. “These individuals, communities, and businesses have recognized that the risks of drilling outweigh any potential benefits. We will not gamble with our coast.”

Today’s comments come after President Trump signed an executive order in April reopening the issue of offshore drilling in the Atlantic, among other areas. At the same time, the Trump administration is clearing the way for offshore drilling by fast tracking the process for approving seismic testing to identify offshore oil and gas deposits. Even before drilling is underway, seismic blasting is likely to cause significant harm to marine mammals like the endangered North Atlantic right whale and the bottlenose dolphin, as well as commercially valuable fisheries.  

Almost 130 East Coast cities and towns, including Wilmington, Myrtle Beach, Charleston, and Savannah, and hundreds of businesses, trade groups, and tourism associations have passed resolutions opposing Atlantic drilling and seismic testing.  Most recently, Virginia Beach and Norfolk joined the opposition, passing anti-drilling resolutions that reversed their earlier support.  Republican and Democratic elected representatives at the state and federal level have voiced opposition to drilling off the Atlantic coast, including North Carolina Governor Roy Cooper and South Carolina Governor Henry McMaster.

In March of 2016, the Obama Administration decided to scrap a controversial plan to open the Southeast coast to industrial oil and gas drilling for the first time, a move that would dramatically change coastal communities and jeopardize coastal economies. The Southeast coast is built around a thriving tourism industry that attracts visitors from around the world to the pristine beaches, picturesque coastal communities, and beautiful waters that could be devastated with a single major oil spill. Even without a catastrophic accident, the industrialization and infrastructure associated with drilling—the rigs, refineries, pipelines, and traffic—would irreparably change coastal communities and the thriving tourism economy.

To read a full copy of the comments, please click here.