EPA Wants WV to Add More Waterways to Impaired List
The State Journal
25 March 2013
By Taylor Kuykendall, Reporter
The federal government is proposing that West Virginia's
Department of Environmental Protection add an additional 255
waterways to a list of streams in need of cleanup.
The list the Environmental Protection Agency officially sent to
the DEP March 25 included 1,176 waterways already designated as
impaired by the state. According to the EPA, it has an obligation
to include the additional waterways list under the Clean Water
"WVDEP failed to evaluate all existing and readily available data
and information for certain water bodies of the State when
developing West Virginia's 2012 Section 303(d) list," the EPA
wrote. "Specifically, based on EPA's review of data assembled by
WVDEP in its ‘Decision Database' that was provided with the
submission of WVDEP's final 2012 Integrated Report, WVDEP failed
to evaluate existing and readily available information related to
West Virginia's applicable narrative water quality criteria as
applied to the aquatic life uses."
The Sierra Club and other environmental groups had a lawsuit filed
on behalf of the organizations stating it would sue in order to
get the EPA to take action. The Sierra Club's director of
Environmental Quality Program Ed Hopkins issued a statement
claiming the state, "in its zeal to cater to the mining industry"
abandoned its duties to protect West Virginia waterways.
"West Virginia has willfully refused to meet one of the law's
basic requirements: the identification of waterways that do not
meet clean water safeguards," Hopkinsa said. "The EPA's action is
more evidence that the State of West Virginia cannot be trusted
when it comes to protecting people and the environment from
mountaintop removal. We thank the EPA for this action, but we
believe that more vigilant action is essential to safeguard the
"We urge EPA to issue enforceable mining pollution standards that
will prevent harmful levels of conductivity resulting from
mountaintop removal mining."
The DEP claims that a Senate Bill signed into law during last
year's legislative session requires new assessment methods for
determining what streams are subject to the restrictions
associated with "impaired" status. Those standards have not yet
been revised by the DEP.
"In other words, based on its interpretation of SB 562, WVDEP has
declined to evaluate all existing and readily available data with
respect to West Virginia's narrative water quality criteria," the
EPA wrote. "In addition, WVDEP has notified EPA that it will not
be submitting identification of waters with respect to the
narrative water quality criteria for aquatic life uses until such
time as a new methodology is developed and embodied in legislative
"While WVDEP has informally provided timetables for development of
a new methodology, it is possible that such a methodology will not
be in place in time for development of West Virginia's 2014
Section 303(d) list."
Kathy Cosco, a representative of the DEP, said it will take time
to develop the methodology.
"The state has between 8 and 13 years to develop a TMDL, so taking
a year to establish a scientific method for determining the health
of the state's streams rather than using an over-simplified and
arbitrary limit for conductivity to do so, is not a crisis," Cosco
said. "In passing Senate Bill 562, West Virginia's legislature
directed the DEP to establish a method for determining the health
of the state's streams and as a result, West Virginia will have a
legally promulgated measurement for assessing the state's
narrative water quality standard, which is something it does not
Cosco defended the overall quality of West Virginia streams.
"When you look at the big picture, water quality in the state has
continued to improve over the years," Cosco said. "West Virginia
was one of the first states to place water quality based effluent
limits in it mining permits, and ours was the first state
legislature to pass a law regarding anti-degradation for state
The EPA said the state law does not override federal requirements
on state waterways.
"Recognizing WVDEP's view that it is unable to carry out the
requirement set forth in (federal law) to assemble and evaluate
all existing and readily available water quality EPA has an
obligation to take action to ensure that the federal requirement
is satisfied," the EPA wrote to the DEP.
EPA wrote that once the DEP has created a new methodology for
determining an impaired stream, it would consider its use in the
The EPA acknowledged the DEP's position in its release, but said
it was necessary to continue with its own obligation to protect
the streams. Together, the additional waterways make up for than
1,000 miles of rivers and streams identifying impaired streams
with techniques the EPA said was similar to the state's own
methods in the past.
"We recognize and appreciate the work of staff and managers at
WVDEP in developing the final 2012 Section 303 (d) list," wrote
Shawn Garvin, regional administrator with the EPA. "We look
forward to continuing to work with you on this process to address
water quality issues in West Virginia."
A 30-day comment period on the list will begin with publication in
the Federal Register on or before April 15.
The DEP did not immediately respond to a request for comment on
the EPA announcement. A full list of the proposed waters to be
added is available here: