By John McFerrin

            West Virginia is considering how it will determine whether the water in streams and rivers is clean.  The West Virginia Highlands Conservancy and the West Virginia Rivers Coalition are trying to make sure it uses the most accurate measure possible.

Background

            Everybody wants clean water.  As a matter of law, esthetics, public health, or everything else we want our water to be clean.  One of the earliest of the big environmental statutes was the Clean Water Act.

            As with everything else, the devil is in the details.  The most pristine stream and sewage sludge both contain water.  The question is where on the very broad, pristine to sewage sludge, spectrum water must fall to be considered clean enough.

            One common measure of how clean water must be involves measuring what impurities are in it.  To do this, we test water for various substances.  For example, regulations establish limits for a long list of potential contaminants.  If water contains less than 0.5 mg/l (milligrams per liter) of aluminum, 1.5 mg/l of iron, etc. then it is considered clean for purposes of the Clean Water Act.  If it contains more than listed limits, we are supposed to take steps to clean it up.

            Another measure—the one involved here—involves determining whether water is clean enough by monitoring what can live in it.  This is called a biological assessment.  If water kills everything it touches, that obviously would not meet any definition of clean water.  Since almost no water kills literally everything it touches, the trick is to determine what must be able to live in water for it to be considered clean enough to meet legal requirements.

            This is important because of the implications of having a stream listed as “impaired” (another way of saying “too dirty”).  If a stream is listed as “impaired” the West Virginia Department of Environmental Protection has a duty to take steps to correct the impairment.  This might include changing permitting requirements or taking enforcement action against whoever is causing the impairment.  As long as a stream is not listed as “impaired” there is no obligation to do anything.

What’s going on

            There is no question that the West Virginia Department of Environmental Protection has to do a biological assessment of some sort.  It has now proposed regulations that set out how it will go about doing the assessments.  The West Virginia Highlands Conservancy and the West Virginia Rivers Coalition (and the United States Environmental Protection Agency, for that matter) think that there are other methods that are more accurate.

            The West Virginia Department of Environmental Protection uses a method that assigns streams a score from 1 to 100, based upon how well the stream supports aquatic life.  To do this, the Department samples the aquatic life in waterways.  The species found are reflected in the score a waterway gets.  If it scores below a certain score then it is considered “impaired” and DEP has to do something to correct the problem.

One difficulty with the proposed rule is that it includes a gray zone, where streams are neither impaired nor unimpaired.  The result of this is that streams in this gray zone will not receive the attention they need and will probably slip farther toward impairment.  There is no statistical or scientific justification for having this gray zone.

            The method proposed does not protect sensitive species.  Some species can live in relatively dirty water.  Many even thrive, benefitting from the fact that the more sensitive species are killed off.  The difficulty with the proposed rule is that the score on the 1-100 that determines whether a stream is impaired or unimpaired streams is too low.  The result is that, even if a stream has a score that identifies it as unimpaired, sensitive species still could not live there.  If DEP keeps this scoring system, the score that is needed to be classified as unimpaired needs to be higher.

            Even if these problems did not exist, the method DEP uses is not up to date.  The United States Environmental Protection Agency has been suggesting to DEP since 2010 that it adopt a more accurate method, the same method which is used in Kentucky, Maryland, Ohio, and Pennsylvania.

            A draft rule describing how West Virginia will conduct these biological assessments has been published for public comments.  The West Virginia Highlands Conservancy and the West Virginia Rivers Coalition have joined in comments, asking that the more rigorous and scientifically defensible methods of doing biological assessments be adopted.