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 Act.

"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 public.

"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 rulemaking.

"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 have now."

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 streams."

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 future.

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: