(From the press release of January 24, 2002. Contact persons: Vivian Stockman, Ohio Valley Environmental Coalition, (304) 927-3265, 522-0246. Jeremy P. Muller, West Virginia Rivers Coalition, (304) 637-7201. Dr. Margaret Janes, Appalachian Center for the Economy and Environment, (304) 897-6048. Jim Hecker, Trial Lawyers for Public Justice, (202) 797-8600, ext 225. Joe Lovett, Appalachian Center for the Economy and Environment, (304) 645-9006.

The Ohio Valley Environmental Coalition (OVEC), West Virginia Rivers Coalition (WVRC), and 23 other environmental organizations and citizens filed a lawsuit on January 23, 2002 against the US Environmental Protection Agency (EPA) over a water quality policy that is supposed to keep West Virginia’s high quality rivers and streams from being unnecessarily polluted.

Joe Lovett of the Appalachian Center for the Economy and the Environment (The Appalachian Center) in Lewisburg, WV, and Jim Hecker of Trial Lawyers for Public Justice in Washington, DC represent the plaintiffs.

The complaint, filed in federal district court in Huntington, WV, alleges that EPA approved an illegal anti-degradation implementation plan for West Virginia. The plan, passed by the state Legislature in 2001, was approved by the Bush EPA this past November.

"For years we have tried to work with state and federal agencies to come up with a plan that protects our rivers," said Jeremy P. Muller, executive director of WVRC. "However, EPA and the state were not willing to put forth protections for West Virginia’s outstanding rivers and streams. Instead, they continually gave in to polluters."

"The Bush EPA approved plan is a better deal for polluters than it is for the citizens of this state," said Dr. Margaret Janes, Senior Policy Analyst for The Appalachian Center. "It does not comply with federal law. That’s why we had to sue."

The anti-degradation provision of the 1972 federal Clean Water Act is supposed to ensure that clean waters are protected and polluted waters are not polluted further. An anti-degradation policy says that before a polluter gets permission from the state to pollute high quality waters, the state must conduct a thorough and open public review of the project to assure that the social and economic benefits of allowing water pollution outweigh the social and economic costs of that pollution.

However, West Virginia’s policy is full of exemptions and weak provisions. For example, the lower reaches of the Monongahela River and Kanawha River are arbitrarily and permanently afforded the lowest level of protection regardless of water quality.

"We’re concerned because an implementation policy was supposed to be on the books decades ago, and now that the state finally adopted one, it doesn’t comply with federal law," said Dianne Bady, director of OVEC. "It’s because of weak policies like this that West Virginia’s environment and its people have suffered from decades of needless pollution."

Additionally, all existing dischargers in the state are exempt from review, unless they significantly expand. Certain classes of activities are exempt, such as valley fills from large mountaintop removal operations. Some of West Virginia’s high quality trout streams are exempt for certain types of pollutants.

"This is what you get when you take rule-making away from expert agencies and place it in the hands of the legislature and high paid lobbyists," said Bryan Moore, chair of the board of WVRC. "Two years of public input were effectively eliminated."

Nationally, anti-degradation is becoming an issue as citizens and environmental groups are protecting the clean rivers and streams that remain. Environmentalists, who see the Bush administration as pushing an anti-clean water agenda, are seeking under-utilized protections that forward-thinking legislation, like the Clean Water Act, provides.

"This lawsuit has national implications for clean water and could set the standard for the whole country," said Joan Mulhern, co-chair of the Clean Water Network, a national coalition of over 1,000 advocacy organizations. "The Bush EPA has backtracked on anti-degradation policy, so it is doubly important that West Virginians hold the agency accountable."

"The Clinton EPA was poised to promulgate a protective policy for West Virginia, but after President Bush took the White House any chance of getting meaningful environmental policies in West Virginia evaporated," said Muller. "Public health, recreation, tourism, a strong economy, and West Virginia’s future, are why we protect our clean water. It appears the Bush EPA would allow industry to pollute West Virginia’s rivers rather than protect them."

West Virginia’s environmental community participated in 18 months of good-faith negotiations before the state’s Environmental Quality Board (EQB), which promulgates water quality standards. The EQB wrote a weak anti-degradation implementation policy for the state Legislature. After late-night, backroom negotiations with industry, the state Department of Environmental Protection crafted an even weaker policy, which the Legislature passed. Several months later, the Bush EPA gave its unconditional approval of the policy, prompting today’s lawsuit.

"All of these plaintiffs would prefer to not set environmental policy through the courts," said Bady. "But when every other avenue – the Legislature, the state agencies, and the Bush EPA – demonstrates a disregard for protecting our rivers, those who work daily to protect our environment are left with no other option. It’s disappointing and a shame."

"This is the sort of policy-making we’re seeing across the country from the Bush EPA," noted Dr. Janes. "Polluters get red-carpet treatment and average citizens who depend on clean water get polluted rivers not fit for drinking, swimming, or fishing."