by Margaret Janes

Clean rivers and streams are like Mom and apple pie – nobody wants to be perceived as being against them. So it should come as no surprise that the Department of Environmental Protection (DEP) is declaring its recent anti-degradation plan -- which actually makes it easy for industry to pollute clean waters – to be a victory for the environment.

Congress passed the Clean Water Act in 1972 with the far-reaching goal of cleaning up of the Nation’s waters and eliminating future water pollution. The Clean Water Act also contains a more modest goal: it requires states to protect their high quality waters from further degradation. To meet that goal, the Clean Water Act mandates that states adopt "anti-degradation" policies to prevent any further lowering of water quality in high quality rivers, streams and wetlands unless polluters are first able to satisfy a stringent cost/benefit analysis.

The "anti-degradation" policy says that before a polluter gets permission from a state to degrade high quality waters, the state must conduct a rigorous and open public review process to assure that the benefits of the economic and social value of the proposed activity outweigh the costs of degrading the water. The concept is a sensible expression of sustainable economic policy. High quality waters may be degraded, but only if that public review shows that allowing the degradation is as good a deal for the citizens of the State as it is for the polluter.

A sound anti-degradation policy would harmonize the State’s economic and environmental concerns. Simply put, the easiest and least costly thing West Virginia can do to keep water clean and safe is to prevent pollution before it occurs.

Sadly, the DEP, working together with industry lobbyists and lawyers, has devised new rules that illegally eviscerate the fundamental protections of the anti-degradation policy. It is not surprising that industry lobbyists and lawyers would work to undermine the laws that would subject their employers’ activities to public scrutiny. Nor was it unexpected that the Bush EPA, controlled by former industry lobbyists, would approve the new rules. But the participation by the Wise administration’s DEP in this alliance was unexpected and disappointing. To add insult to injury, the Wise administration has repeatedly described its complicity in weakening these Clean Water Act protections as a victory for the environment.

The anti-degradation policy in West Virginia has been subjected to death by a thousand cuts. Over the last five years, numerous versions of the policy made their way through stakeholder groups, administrative reviews and legislative negotiations and hearings. At each step, subsequent plans were significantly weakened.

Yet none of the compromise plans that emerged were acceptable to the big polluters in the State. DEP Secretary Callaghan inflicted the final cut during a 1:00 a.m. meeting with industry lobbyists. The result of this closed-door session was sixteen pages of carefully crafted exemptions from the anti-degradation policy. Among the worst of these exemptions is one that attempts to circumvent Judge Haden’s Bragg ruling by removing protections from high quality streams destroyed by mountaintop removal mining valley fills.

Big polluters never tire of claiming that the path to economic calamity is paved with environmental regulation. An effective anti-degradation plan would require those who want to degrade our waters to back up their unsupported economic claims with real numbers. True to form, big polluters hired an army of industry lobbyists and lawyers to kill any anti-degradation plan that would include public scrutiny and balanced economic analysis.

Lawyers and lobbyists know a good deal when they see it. Usually, new environmental regulations are anathemas to the industries they regulate. The DEP’s anti-degradation plan was so weak that industry lawyers instantly recognized the windfall that the DEP had provided their clients and rushed to threaten EPA that they would sue if EPA did not approve the plan in a hurry. Not surprisingly, the Bush EPA approved DEP’s new rules without delay.

Remarkably, Director Callaghan’s DEP has decided to go further still. In an ongoing, little-known process, DEP is writing guidance for day-to-day implementation of the anti-degradation plan. The details emerging from this process make it clear that DEP and representatives of polluters are using it as another opportunity to quietly weaken the anti-degradation policy.

The DEP’s actions during the past year show a lack of will to protect the environment and disrespect for open government. Secretary Callaghan’s two most important policy actions -- gutting the State’s anti-degradation policy and proposing an absurdly weak coal mining reclamation bonding system – were sweetheart deals "hammered out" in secret between the Secretary and industry lobbyists.

West Virginia’s forests, which contain thousands of miles of high quality streams, are the most productive and diverse temperate forests in the world. If we use our environmental assets wisely, we will create a sustainable economic future for our children and grandchildren.

It is not too late for the Wise administration to recognize that carefully protecting the State’s waters is both good for the environment and sound economic policy. Many environmentalists supported Governor Wise in the last election because of his long record of activism on behalf of good government and the environment. An anti-degradation policy, properly implemented, would embody the approach of balancing environmental, economic and social concerns that Governor Wise championed in his inaugural address. We urge Governor Wise to recommit himself to protecting the environment while promoting sustainable economic growth. The administration still has the opportunity to get DEP on a track that reflects these commitments.