Dirty Water Bill Passed by Legislature
Industry, State Team Up to Write Bill - Enviros Excluded from Having Input

By Donald S. Garvin, Jr.

Saturday night, April 14, the clock on the wall of the House chamber struck midnight and the gavel came down on the regular session of the 2001 West Virginia Legislature. Earlier in the day the House approved an antidegradation bill that was a compromise negotiated between the Division of Environmental Protection (DEP) and industry's "Dirty Water Coalition."

So what did DEP and industry agree to? They agreed to a greatly watered down version of the DEP bill, with none of the agreed on changes being very good for trout or other critters (including human beings), and none of the changes doing what the Clean Water Act says antidegradation should do -- to keep our clean waters clean.

Before asking you to read any further, perhaps a brief antideg primer and history would be helpful. Antidegradation is the part of the federal Clean Water Act that mandates already clean waters from being polluted, at least without showing an overwhelming public need to do so (it is a sad but true fact that while the Clean Water Act does provide minimum water quality standards that states must meet, at its heart it is basically a system of granting licenses to pollute). Under the antidegradation concept, any permit to pollute (or discharge) into a stream or river is supposed to undergo a "socio-economic" review to determine if there is an overwhelming social or economic need to justify granting the permit. If there is none, the permit is to be denied.

West Virginia has had an antidegradation policy on the books for years, but no implementation plan to carry out that policy. So about a year and a half ago members of the West Virginians for Clean Water Campaign (including the West Virginia Highlands Conservancy) filed a notice of intent to sue the US Environmental Protection Agency (EPA) for not requiring West Virginia to have an implementation plan in place. The implementation plan passed by the legislature this session is a result of that threat of a lawsuit: EPA told the state that if it didn't pass a plan, EPA would step in and do so.

The newly passed antidegradation implementation plan retains the basic "tier" structure of levels of protection that were contained in West Virginia's current antidegradation policy. All waters of the state are supposed to meet the federal minimum designated uses of being "fishable and swimmable."

Waters that just barely meet the state water quality standards for "fishable and swimmable" are given the lowest level of antideg protection --Tier 1. Streams and rivers whose water quality exceeds the minimum water quality standards are to receive additional antideg protection -- Tier 2, or "high quality" streams. The highest level of antideg protections -- Tier 3 is to be applied to streams characterized as "Outstanding National Resource Waters," which DEP limits to waters within our four federally designated wilderness areas.

West Virginia's existing antideg policy contains an additional category of streams -- Tier 2.5 - known as "waters of special concern." Here's the official definition of this group of streams: "Waters of special concern may include, but are not limited to, naturally reproducing trout streams, federally designated rivers under the "Wild and Scenic Rivers Act," waters in state parks and forests, waters in National parks and forests, waters designated under the "National Parks and Recreation Act of 1978," and waters with unique or exceptional aesthetic, ecological, or recreational value."

Tier 2.5 streams are to receive almost, but not quite, the same level of antideg protection as Tier 3. The Tier 2.5 category originally was a compromise offered for industry in this state, so that these streams would not be listed under Tier 3.

Enough of the primer. So, again, what did the West Virginia legislature and DEP and industry agree to?

Basically, the compromise bill is a 66-page document of exemptions. All nonpoint source dischargers are totally exempt from antideg review, including agriculture, logging, oil and gas, and highways. New exemptions were included for wastewater treatment facilities. Coal, of course, was exempted from antideg review for their valleyfill permits. And every facility with an existing permit to discharge waste water is also exempt from antideg review unless there is a significant expansion or increase of their pollution (this is commonly referred to as "grandfathering").

In addition, the standards used to determine the amount of pollution allowed before the antideg review process is triggered have been changed for every tier (this is known as "deminimus" pollution to the regulators, but not perhaps to the trout). This will result in much higher levels of pollution being allowed even BEFORE antideg review occurs.

We were successful, however, in retaining the Tier 2.5, the level of special protection afforded to "waters of special concern," which is supposed to include all reproducing trout streams (the industry coalition, ironically enough, now really detests this Tier 2.5 compromise level - apparently there are no waters in the state they feel deserve real
protection). The proposed Tier 2.5 list of streams from DEP and the West Virginia Department of Natural Resources also remains intact, however it is now a "presumptive" but not final list - the new bill creates a mechanism where every private landowner along a designated stream may appeal the designation during a one-year period after the effective date of the rule.

The DEP director will then make a decision. The director's decision is appealable to the Environmental Quality Board.

Any trout streams not on the list included in the bill will have to be nominated for Tier 2.5 level protection and approved by the legislature in subsequent years. And it remains to be seen how the Tier 2.5 appeal process will work - it could end up being a nightmare.

It's also too early to tell how high quality streams that are not on the Tier 2.5 list will fare under the protections afforded in Tier 2, which is the default level for these streams. Both Tier 2.5 and Tier 2 will allow a discharger to pollute up to a 10% "deminimus" level (this is the old "dilution is the solution to pollution" rubric). However, Tier 2 streams will also be allowed to be degraded up to a 20% cumulative cap. Will this truly protect these streams, or will the result be that we see many more streams added to the WV list of impaired waters? Only time will tell.

I want to make it clear to everyone reading this that those of us lobbying on behalf of the environmental community had no part in the negotiations that resulted in this compromise bill. DEP director Mike Callaghan and Office of Water Resources chief Allyn Turner did listen to our concerns and kept us updated on the changes they were suggesting. But when it came down to the negotiations, we were excluded from the room.

In a Charleston Gazette article last Friday, Callaghan (who, by the way, seems to be a really nice guy - a much different kind of director than we are accustomed to seeing at DEP) conceded that negotiations between his agency and industry did not include any environmental group representatives.

"I excluded them, and I've apologized for that to everyone of them as best I can," Callaghan said. "I did not mean to do that. I'm new up here, and I've got a lot to learn," he added.

As for me, after dealing with this issue off and on for the last year and intensely for the last four months, I am just glad the session is over, and I beg each of you not to mention the word "antidegradation" to me any time soon!