Green Issues

 Say NO! to the Dirty Water Bill

The anti-degradation section of the Clean Water Act (CWA) is supposed to protect our clean waters unless there is important economic and social development that requires limited degradation. It's simply a review that's supposed to make sure polluters use the best pollution control technology. The federal CWA calls for states develop and implement an anti-degradation policy that meets or exceeds federal law. West Virginia does not have an anti-degradation implementation policy, even though it has been required for almost 30 years.

But the Dirty Water Bill is an industry substitute for the state water quality standards package. Polluters should not be writing their own rules! Absent a strong anti-degradation rule, the state will have to spend millions of dollars more to clean up dirty rivers and streams.

The Dirty Water Bill:

* Throws out 18 months of good-faith stakeholder negotiations. It also throws out many consensus items that all parties, including industry, agreed to! The Dirty Water Bill has had zero public comment, zero public input!

* Tosses aside the list of West Virginia's high-quality trout streams! It also wipes out longstanding protections for rivers and streams statewide! These are clean rivers and streams that are an important economic asset to West Virginia.

* Crushes small business development and economic diversification, and contains numerous unnecessary exemptions! Current polluters are exempted from review and are given a permanent advantage over new and expanded businesses.

The Legislature must pass a rule that:

Retains our current Tier structures and better defines high-quality streams. The rule must not eliminate the Tier 2.5 high-quality streams list and must not have a Tier 1 default (lowest common denominator of stream protections). There must be an open public nomination process for Tier 2.5 and Tier 3 waters (the highest quality waters).

Recognizes that an impairment of a high quality stream does not lower the level of protection needed for that stream.

Makes sure water pollution trading is on a watershed basis, is enforceable, and results in a significant improvement of water quality.

Does not exempt Nationwide Permits 21 and 26 from review (these permits allow valley fills from mountaintop removal mines).

Considers and limits cumulative impacts of multiple discharges.

Makes sure existing permits are subject to some type of anti-degradation review.

Makes adequate public notice and comment an integral part of the anti-degradation review process.

Clean Water Act Antidegradation Primer

Congress passed the federal Clean Water Act (CWA) in 1972. The purpose of the act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The goal of the act is to insure that all the nation's rivers and streams eventually are "fishable and swimmable." Antidegradation (antideg) requirements actually pre-date the CWA ­ they were first adopted as policy in federal regulations in 1968.

The Clean Water Act requires states to establish water quality standards that define the goals and limits for all state waters. In establishing water quality standards, states must take three major interrelated actions.

They must designate uses -- human and ecological water uses that are officially recognized and protected. States must designate one or more uses for each water body.

They must establish water quality criteria -- descriptions of the conditions considered necessary to protect each designated use.

They must develop and implement antidegradation policies and procedures ­ requirements for protecting all existing uses, keeping clean waters clean, and giving strict protection to "outstanding" waters.

Federal law establishes a three-tiered approach to implementing antideg water quality protection:

Tier I ­ Protect Existing Uses -- permit no activity that would eliminate or interfere with an existing use. This is the absolute floor, the lowest level of water quality protection.

Tier II ­ Maintain "High Quality" Waters -- avoid, or at least hold to a minimum and lowering of quality on waters that currently meet or exceed water quality standards.

Tier III ­ Protect "Outstanding" Waters ­ give strict protection to the most ecologically significant and sensitive, the cleanest, and the most recreationally important waters (such as waters of National and State parks and wildlife refuges).

West Virginia and some other states have created another level of protection, Tier 2.5, to give additional protections to some "high quality" waters, such as waters in our National Forests and reproducing trout streams.

Antideg is only a review of polluting activity before that activity is permitted, but an important one that's supposed to make sure the economic and social benefits of the discharge outweigh the damage to the environment.

The antideg section of the federal CWA insures, at a minimum, that our clean waters stay clean unless there are important social and economic development issues that require limited degradation. The CWA requires that states develop and implement an antideg policy that meets or exceeds federal law. West Virginia does have an antideg policy but has never enacted an implementation plan for that policy, despite the fact that it has been required for almost 30 years.

From the Charleston Gazette:

Dirty water --- Industry gets two shots

Monday February 26, 2001

MANY citizens want West Virginia's pollution regulations - the technical rules promulgated by state agencies - to be as strong as state and federal laws require. But these nature protectors face many, many hurdles.

First, there are hearings held by the state Division of Environmental Protection or the Environmental Quality Board. Often the sessions are during the day, when most ordinary people are at work. Lawyers for industries have no problem attending such meetings, which, after all, they are paid well to do.

Regular folks, though, have to take time from their jobs to make sure that the boards get more than just the industry point of view.

These boards and their technical experts or professionals within DEP then write the regulations. But the Legislature must approve the rules. That means more public hearings, also held during the workday. And industry lobbyists have far more sway in the Legislature than any citizen can hope for.

That was proven dramatically when the Joint Rulemaking Committee recently threw out antipollution rules drafted by the Environmental Quality Board and substituted a version supported by a coalition of coal operators, steelmakers, power companies and manufacturers.

The industry coalition calls its package the "Clean Water, Good Jobs" bill. Environmentalists call it the "dirty water bill."

The move by the committee to substitute the industry version was particularly egregious, since the Environmental Quality Board's version represented a compromise of sorts that industry helped negotiate.

It may have been a decent compromise. It was considered too stringent by industry and too lenient by environmentalists. It is also opposed by the U.S. Environmental Protection Agency, though, which gives weight to those who believe it's too lax.

The regulations are important ones that will establish a long-overdue state stream antidegradation plan required by federal law. Essentially, it's supposed to ensure that clean rivers in the state stay clean.

The industry substitute provides more waivers for specific types of polluting activities and offers less protection for high-quality streams.

"It was written by polluters so they can continue to pollute," said Jeremy Muller of the West Virginia Rivers Coalition.

Most states don't give industry two shots at influencing regulations by requiring legislative approval. Neither does the federal government. This incident demonstrates exactly why.

"The industry not only gets one shot when they deal with the agencies, they get another shot with the legislators they are chummy with," said Cindy Rank of the West Virginia Highlands Conservancy.

"It's another way [for industry] to maintain control over what happens in this state," Muller said.

Industry already has enough opportunity to influence the policing of pollution. Industry lawyers and lobbyists help weaken legislation before it passes. They lobby for weaker regulations written by agencies and the Environmental Quality Board. And, until recently, industry has held tremendous sway over DEP's enforcement of regulations and laws.

It's time to tip the balance back toward citizens. West Virginia should do away with legislative approval of regulations and leave that to state agencies and boards, as most other states do.

(c) Copyright 2001 The Charleston Gazette