EPA Revises W.Va.'s List of Polluted Streams

State DEP left thousands of miles off list

Charleston Gazette
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 the list.

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 contaminated waterways.

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 method.

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.