West Virginia Highlands Voice

By Donald S. Garvin, Jr., West Virginia Environmental Council Legislative Coordinator

Every three years each state is required by the federal Clean Water Act to update its water quality standards. It’s called the Triennial Review process, and it’s an integral part of the Clean Water Act’s attempt to ensure that state water quality standards are protective of human health and the environment.

Since the Legislature took rulemaking authority away from the Environmental Quality Board, the West Virginia Department of Environmental Protection has largely botched this process.

In 2007, DEP’s first attempt at a Triennial Review failed to pass the Legislature, largely due to the antidegradation flap over Tier 2.5 and Tier 3. Because it failed to pass, it threw the three-year cycle for WV off a year.

So this year DEP has proposed

several changes to the state’s Water Quality Standards Rule (47 CSR 2) as its Triennial Review package for consideration in the

2011 Legislature. In the last two years, the agency held only two public meetings regarding these changes. Contrast that to the almost monthly discussions held by the EQB on water quality standards.

The process has broken down, and this year’s proposed changes reflect that.

So what’s included in this year’s proposed rule?

1). Total Dissolved Solids: To its credit, DEP has finally proposed a statewide water quality standard for “total dissolved solids”

(TDS). These are primarily chlorides (salts) and sulfates normally associated with mining and oil and gas drilling activities. This has been a high profile issue in the news lately due to the TDS problems in the Monongahela River basin (remember Dunkard Creek).

The problem is that DEP is proposing a standard of 500mg/l, which is twice as high as the 250mg/l that EPA recommends as the Human Health Standard for total dissolved solids. DEP has provided no explanation why West Virginia’s standard should not be at least as stringent as the federal standard. In addition, DEP fails to propose in this rule aquatic life criteria for conductivity, with which TDS levels are closely associated.

In brief, DEP’s proposal for a statewide TDS water quality standard falls short of being protective of human health and the environment.

2). Narrative Water Quality Standards: Again, to its credit, DEP is proposing to add “certain water withdrawal activities” and “algae blooms” as conditions not allowable in state waters. However, this additional language alone does not go far enough to protect West Virginia streams from either water withdrawals or algae blooms. This is of particular concern when considering the exponential increase of water withdrawals associated with Marcellus shale gas drilling in the state.

West Virginia currently has little regulation and no permit process for water withdrawals from streams, rivers and wells, to provide the water this new drilling activity requires. If we sit back and wait for the DEP to a statewide water resources protection plan in 2013, as mandated by the Legislature, streams will be de-watered and valuable resources lost.

In short, in order to be protective of both human health and aquatic life, DEP should draft legislation for immediate consideration by the West Virginia Legislature that will establish guidelines and a permit process for water withdrawals.

3). Iron Standard on Trout Streams: DEP is actually proposing in this rule to weaken the water quality standard for iron in West Virginia trout waters. Simply because the agency can’t figure out how to write clean up plans for streams with high amounts of this pollutant, DEP’s answer is to lower the standard.

This rule proposes weakening the current water quality standard for iron on WV’s Category B-2 trout waters by doubling the current limit of 0.5 parts per million of iron to 1.0 parts per million, which is the EPA recommended standard for iron on all waters. How our state ever got a water quality standard that is more stringent than the federal standard is another question altogether.

DEP (and the EPA, for that matter)

has few toxicity studies of iron on aquatic life to support its proposal. They have cited a more than 30-year-old study by a DNR fisheries biologist that said trout could survive iron levels as high as 1.37 parts per million. However, these lab studies were done using city water and altering the pH levels by adding vinegar. And the lab study that led to EPA’s recommendation of a federal standard of 1.0 parts per million, did not include pH as a variable.

None of the studies in the current literature take into account the unique characteristics of West Virginia trout waters: low pH, low conductivity, low ionic strength, and low acid neutralization capacity.

In brief, there is ample justification for retaining an iron standard for West Virginia trout waters that is more restrictive than the federal standard. At the very least, the standard should not be changed until more thorough studies are conducted that consider the unique water quality characteristics of WV’s trout waters.

There are other proposed changes in this rule concerning nutrient standards and mixing zones that are fairly technical in nature, but are also not protective of human health and the environment.

A water quality environmental working group made up of members of the West Virginia Rivers Coalition, West Virginia Highlands Conservancy, West Virginia Sierra Club, West Virginia Environmental Council, and others, has prepared a set of “group comments” on this proposed rule. This group will be developing fact sheets and action alerts to assist others in submitting comments on the rule.

DEP will hold a public hearing on the Water Quality Standards Rule (47 CSR 2) on Monday, July 19, beginning at 6:00 PM, in the Cooper’s Rock Training Room at DEP’s Charleston headquarters located at 601 57th Street S.E., Charleston, WV 25304.

The public comment period closes at the end of that public hearing.

Until that time you can submit written comments via U.S. mail addressed to the Public Information Office, 601 57th Street S.E., Charleston, WV 25304. You can also submit comments via email to DEP.Comments@wv.gov The West Virginia Environmental Council will post a fact sheet and action alert about this rule on our web site at http://www.wvecouncil.org/