EPA Revises W.Va.'s List of Polluted Streams
State DEP left thousands of miles off list
25 March 2013
By Ken Ward Jr.
CHARLESTON, W.Va. -- Federal regulators stepped in this week to
revise a biennial report on impaired rivers and streams across
West Virginia, after state officials -- citing a legislative
mandate -- left more than 1,000 miles of polluted waterways off
U.S. Environmental Protection Agency officials proposed to add 255
waterway segments where it found aquatic life was impaired to the
state's so-called "303(d)" list, named for the section of the
Clean Water Act that requires it be prepared.
Included in the proposed listings from the EPA were 37 miles of
the Gauley River and large segments of streams in the Tug Fork,
Monongahela and West Fork watersheds.
EPA officials said Monday that federal law doesn't allow the state
to simply ignore evidence that those streams are troubled while
the state Department of Environmental Protection works on a
legislative mandate to come up with a new way of deciding which of
those streams belong on the list.
"You have to have a complete and accurate picture of the health of
streams," said Jon Capacasa, director of the EPA's regional water
protection division. "If you don't, the whole process lacks
integrity from the start."
EPA officials were facing a potential lawsuit by the Sierra Club
and other citizen groups if the EPA approved the latest Clean
Water Act "impaired" streams list issued by the DEP.
The issue focuses on a simmering controversy over the DEP's not
including hundreds of streams on a list of waterways that are
overly polluted and need to be cleaned up.
The DEP left many of those streams off in response to a
coal-industry-based bill passed during the 2012 legislative
session. The bill, signed by Gov. Earl Ray Tomblin, ordered the
DEP to abandon its existing methods of measuring stream health and
come up with a new set of rules to define when streams are
considered biologically impaired.
The DEP has yet to write those rules, and agency officials
declined to add to the new cleanup list hundreds of streams that
otherwise might have been included under the state's old formula.
DEP Secretary Randy Huffman said Monday that he disagrees with the
EPA's decision, but added, "I'm not going to raise Cain over this.
I'm not worked up over it."
Huffman said his agency's current plan is to complete work on a
new stream assessment protocol in time for review by lawmakers
during the 2014 regular session. But the EPA expressed concern the
state's new procedure might not be done in time for use in the
next required listing of impaired streams that same year.
Federal law requires states to publish such lists every two years,
and then to develop plans to clean up pollution in the
Under the law, if states don't comply, the EPA is supposed to step
in, and the EPA also is charged with reviewing state stream lists
and ensuring local regulators are doing the job properly.
In West Virginia, the DEP has for years used a measure called the
West Virginia Stream Condition Index, or WVSCI, to grade if
waterways are "biologically impaired." The EPA has been pushing
the state to use another test that it believes is more accurate.
State officials and the coal industry, though, oppose the EPA
Last year, lawmakers passed SB562, which ordered the DEP to write
new rules for "evaluating the holistic health of the aquatic
ecosystem." Top DEP officials opposed the EPA's version of a
biological impairment test, and Huffman said he also believed that
the state's WVSCI should also not be the only measure used in
making such determinations.
And while state officials come up with a new method and write
rules to govern it, the DEP decided not to make any new
impaired-stream listings based on either of the current tests.
In a Monday letter to Huffman, EPA regional administrator Shawn
Garvin wrote that federal rules require states to "evaluate all
existing and readily available water quality information" when
preparing their impaired-stream lists. By ignoring available WVSCI
score data indicating some streams were impaired, Garvin wrote,
the DEP did not comply with those federal rules.
"SB562 is a state law that does not override federal
requirements," the EPA said in an attachment to Garvin's letter.
"EPA has an obligation to take action to ensure that the federal
requirement is satisfied."
Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.