West Virginia’s Source Water Protection Program – Will It Prevent Future Public Water Contamination Disasters?

The West Virginia American Water Company (WVAWC) water crisis of Thursday, January 9, 2014 resulted from the failure of an upstream chemical tank which contaminated the source water for WVAWC’s primary water treatment facility on the Elk River in Charleston, West Virginia.  The fact that a poorly maintained aboveground chemical storage tank even existed in such close proximity to a major public drinking water intake structure is troubling, and has highlighted a major flaw in the public’s ability to protect water systems from upstream contamination risks. 

In 1986, the Federal Safe Drinking Water Act was amended to require every state to develop a wellhead protection program designed to protect ground water in the vicinity of water wells used for public drinking water supply systems.  In 1996, further amendments to the SDWA expanded the program to include all surface water systems, and West Virginia’s Source Water Assessment and Protection (SWAP) program was published August 1, 1999.   Primary requirements for the SWAP are:

1.  Delineation of the Source Water Protection area to protect, based on the area that contributes water to the well or intake,

2.  An inventory of the potential contamination sources,

3.  Determination of the public drinking water supply system’s susceptibility to contamination

4.  Making the assessment available to the public, and

5.  Public stakeholder involvement.

In West Virginia, the Environmental Engineering Division of the West Virginia Department of Health and Human Resources (DHHR) has been assigned responsibility for developing and implementing the WV SWAP.

The DHHR published its Surface Water Public Water Supply Systems Source Water Assessment and Protection Program Susceptibility Report for the West Virginia American Water Company – Kanawha Valley public drinking water supply system in April of 2002.  The purpose of the report was to identify the most significant potential contaminant sources that could threaten the quality of the public water supply.  Among other approaches, the report analyzes the potential contaminate sources within the Zone of Critical Concern (ZCC) which is intended to provide an inventory of potential contamination sources that are within a 5 hour time of travel to the water system intake structure.  The stated purpose of providing an inventory of significant contaminate source threats is to “aid in reducing the risk posed to the public drinking water supply.”  The report itself however, acknowledges that a detailed risk assessment of the potential significant contaminant sources is “beyond the scope” of the report, and suggests that “Local decision makers should do the detailed risk analysis because they are better suited to make the bridge from assessment work to protective strategies.”  Not surprisingly, the SWAP report identifies the Pennzoil Manufacturing Plant, now owned by Freedom Industries, as one of the potential contaminate source threats to the WVAWC intake structure.

The West Virginia Source Water Assessment and Protection Program suggests that the next step after assessment is completion of a SWAP Protection Plan by the affected operator a “Source Water Protection Plan” or “SWPP”).  Unfortunately, the Program does not require that a SWPP be developed, and there are no ramifications for failure to develop a SWPP or implement a SWPP.  The DHHR provides guidance for the development of a SWPP, including the development of additional control measures such as site plan review, operation standards, public education, zoning and site monitoring, and inspection.  Furthermore, the SWAP provides that the DHHR Office of Environmental Health Services will review local regulations and suggest modifications to implement source water management.  Finally, the SWAP suggests that operators develop contingency plans designed to provide a plan of action in the event a drinking water source becomes contaminated or is threatened by contamination.  Those plans must address locating alternate, approved supplies and delivering those supplies to the users.

What is most important to recognize about the Source Water Protection Plan phase of the program is that it is entirely voluntary, and provides no independent mechanism for
enforcement.  West Virginia through the DHHR provides significant guidance on developing a SWPP, and provides for an opportunity for review by the agency, but does not require that the SWPP be developed or provide any minimum standards for the plan requirements.  Even more importantly, even the most comprehensive of SWPPs will not provide a way for a public drinking water provider such as the WVAWC to implement any measure to require upstream neighbors take actions to assist in protection of the source water.  Instead, public drinking water providers must address threats to source water through existing public health, safety and environmental agencies, and their implementing statutes and regulations.

The answer to the question: “Will West Virginia’s Source Water Protection Program prevent future public drinking water contamination crisis?”  is noAs currently constructed, West Virginia’s Source Water Protection Program lacks certain features that would allow a public drinking water utility more definite means of requiring upstream best management practices to protect drinking water sources.  That said, much good work has gone into the assessment of risks to source water, and much good guidance is available about how to implement best management practices that minimize those risks.  The public drinking water crisis of January 9 has spurred public outcry for government action to prevent future disasters of a similar nature.  Many people will demand far reaching (and perhaps over-reaching) action be taken.  This writer suggests that additional tools to protect public drinking source waters are necessary, but that those needed tools will be most effective if developed in conjunction with West Virginia’s existing Source Water Assessment and Protection Program.

For additional information, please see http://www.wvdhhr.org/oehs/eed/swap/swapknowledge.asp

Richard Lewis practices in the areas of domestic and international business law with a focus on environmental and energy-related legal matters. He represents clients general business negotiations and before federal, state and appellate courts and administrative agencies in civil, criminal, and penalty proceedings.
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