Tom Michael, Michael & Kupec Law Offices. (304) 623-6678.

Bonni McKeown, president, Stewards of the Potomac Highlands, Inc. (304) 874-3887.

Jeremy P. Muller, executive director, West Virginia Rivers Coalition. (304) 637-7201.

Wardensville. The West Virginia Department of Transportation’s Division of Highways (DOH) has agreed to settle a lawsuit with the Stewards of the Potomac Highlands, Inc. and the West Virginia Rivers Coalition regarding the construction of sediment control structures along Corridor H from Baker to Wardensville.

In a complaint filed on November 1, Stewards of the Potomac Highlands and the West Virginia Rivers Coalition, along with two individuals, charged that DOH was not adhering to its water pollution control permit as it designed sediment ponds on the Corridor H segment from Baker to Wardensville, Hardy County, in the lower Eastern Panhandle.

These ponds and basins are intended to keep sediment – dirt and mud disturbed by Corridor H construction activities – from running into nearby rivers and streams. However, DOH was intentionally allowing these sediment control structures to be constructed at half the size required by law.

The West Virginia Department of Environmental Protection’s (DEP’s) General Water Control Permit regulating stormwater associated with industrial construction activities specifically requires sediments ponds to be 3600 cubic feet per acre of drainage area. Yet, on the Corridor H sections from Moorefield to Baker and Elkins to Kerens, DOH had built 1800 cubic foot sediment ponds. They had also issued 1800 cubic foot designs for the Baker to Wardensville section despite citations from DEP inspection reports noting that the previous ponds were being built too small.

"This is the type of serious pollution that is easily overlooked," said Jeremy P. Muller, executive director of the West Virginia Rivers Coalition. "We all think about industrial pipes dumping toxic chemicals and heavy metals into our streams. Yet, it is these seemingly innocuous activities – dirt and mud and construction runoff – that are some of the biggest river polluters in West Virginia and nationwide."

As part of the settlement construction was temporarily halted until DEP approved DOH’s revised construction plans adhering to the 3600 cubic foot requirement for sediment ponds; DOH must advise all bidders and all contractors in writing that they must comply with the water pollution control permit; the plaintiffs and DEP will be provided with copies of erosion and sediment control plans for each Corridor H project between Baker and Wardensville. Within six months DOH has agreed to revise the DOH Erosion and Sediment Control Manual and the Standards and Specifications for Roads and Bridges to comply with the water permit; and DOH will pay for the plaintiffs legal fees.

Ironically, on October 18 of this year, DOH was named West Virginia Conservation Developer of the Year for its work on Corridor H from the Baker interchange westward. The state’s Soil Conservation District Supervisors Association, Department of Environmental Protection and Contractor’s Association awarded DOH the honor for "effectively implementing soil and water conservation practices."

DOH highway engineer Joe Deneault said at the time that it gave DOH pride that others have realized "the importance we place on stringent control of erosion and runoff during construction." Yet, DOH apparently was quite aware of their failure in erosion and runoff control on the adjacent Corridor H segment from Baker to Wardensville.

"Rather than contesting the charges made by my clients, DOH promptly initiated settlement discussions," said attorney Tom Michael of the Clarksburg law firm of Michael and Kupec. "They moved very quickly on this one." Robin Godfrey of Charleston also represented the plaintiffs in this case.

Non-point source pollution – that which does not come from a discharge pipe – such as agricultural run-off, parking lot and highway runoff, and acid mine drainage is responsible for polluting more lakes, rivers and streams across the U.S. than industrial discharges, or point source pollution.

"During the late summer and early fall, we received numerous reports that the Cacapon and Lost Rivers were running the color of chocolate milk," said Muller. "They were just choked with dirt and mud. This seriously affects people who get their drinking water from these rivers and who recreate in them, as well as the aquatic life in the rivers."

"This Baker to Wardensville segment of Corridor H is especially concerning because of its proven impacts on the Lost River, a high quality, naturally reproducing trout stream," said Bonni McKeown, president of the Stewards of the Potomac Highlands. "Even if they don’t recognize that nature has value in itself, I would hope that they would consider the economic impact on fishing, recreation and tourism."

"WVDOH knew the law and the permit requirements, yet they awarded construction bids and wrote bid specifications and construction plans that called for sediment basins to be built at half the size they were supposed to. It’s inexcusable," said McKeown. "Both Governor Wise and the previous Governor have long supported Corridor H, and both promised to balance this so-called progress and the environment," she continued. "Yet, here is the Governor’s Division of Highways, knowingly breaking the law and fouling up our rivers and streams in the process."

Environmentalists have contended from the beginning when plans for Corridor H were put on the map that the four-lane highway would have a large negative environmental impact.

"This is a shameful method of operation by DOH. They knew what they were doing was wrong, but didn’t want to change a thing until somebody caught them," said McKeown. "As soon as we caught them, they asked how the problem could be resolved quickly so construction wouldn’t be delayed. Cutting corners to stay on schedule is just one of the many problems we envisioned with Corridor H."

"The larger problem that we are concerned about is that we caught them on this one, but on how many other road construction projects is DOH violating the law?" said Muller. "How many projects have already been completed that unnecessarily polluted our rivers? Here is one more state agency whose work we have to watch just to make sure they follow the law."