The Chesapeake Bay Foundation (CBF) has urged the Virginia State Water Control Board (WCB) to “recognize that the draft Certification fails to meet Congress’s intent when it granted the states the responsibility to protect state waters through CWA § 401, to decline approval of the draft Certification and to remand the matter to DEQ for further work consistent with these comments.”  The CBF, a 50-year-old non-profit organization dedicated to preserving the Chesapeake Bay, said the certification recommendation submitted to the WCB “does not rest on reasonable assurance that that water quality in receiving streams – including the tributaries and other waters subject to the Chesapeake Bay . . . – will be protected.”

Among points made by the CBF in its August 22 comments are:

  • The states’ role in evaluating and certifying a federal project has never been more important than it is here, given the Project’s scope and potential to impact hundreds of small streams as well as larger tributaries that drain to the Chesapeake Bay. Decades of Bay restoration work . . . have made it clear that pollution to tributary streams is a major and ongoing cause of Bay degradation; without protecting them, the Chesapeake Bay will never be restored.
  • DEQ has proposed to address the Project’s § 401 certification in two separate segments. For activities impacting uplands . . . DEQ devised and followed a new Project review procedure . . . For activities impacting stream crossings and wetlands, DEQ deferred review and certification to the U.S. Army Corps of Engineers (USACE) and its Nationwide 12 permit. We believe the bifurcated certification process was inappropriate and the draft Certification reflects serious omissions and weaknesses that contradict the agency’s conclusion that there is “reasonable assurance” of water quality protection. In these circumstances, the State Water Control Board (“Board”) must decline to approve the draft Certification and remand it to DEQ for necessary modifications.
  • The § 401 certification process requires states to assess whether a federally-permitted project like the one at issue here will violate the state’s water quality standards. . . No such information or analysis of the likely quantity and timing of discharges that may affect water quality appears in this record. . . The absence of this information in a proposed § 401 certification for a project of this magnitude is, frankly, stunning.
Chesapeake Bay Foundation Urges VA Water Board to Decline 401 Approval
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