WV Senate Sends a Note to WVDEP in Rule Approval

The WV Legislature is working through its review of rules presented to it for approval.  Among the WVDEP rules up for legislative review is that which addressed the water quality standards rule (47 CSR 2).  In the amended rule WVDEP has presented to the Legislative Rulemaking Review Committee is a change that would require application of Category A (Public drinking water supply) water quality criteria to the Kanawha River.  This change advanced by WVDEP comes after the water quality impacts of the release to the Elk River and subsequently to the Kanawha River of MCHM interrupting service of potable water to the Charleston community.  WVDEP asserts that Zone 1 of Kanawha River is currently of a quality that it should be designated for public drinking.  The fact remains it is not used for public drinking.  These two facts have little if any relevance to the release of January 2014, but then it is not uncommon for political gestures to be showy rather than substantive. 

HB 2283 is the bill that incorporates many rules to include the water quality standards rule, 47 CSR 2.  As this bill has progressed through the legislative process an amendment to the WVDEP proposal was inserted by the Senate to provide that WVDEP “shall consider, for the 2017 triennial review, potential alternative applications for the Category A drinking water use designation to the waters of the state, taking into consideration stream flow, depth, and distance to a public drinking water intake.”  This language is not inconsistent with the review process that is embedded in the Section 303 of the Clean Water Act.  One might assert the language is unnecessary since the Clean Water Act already directs states to engage in review of their water quality programs.  Why would the WV legislature insert a restatement of the obvious?  WVDEP and the citizens of West Virginia are invited to review the program every three years and have done so for a very long time.

A restatement of the obvious reminds the reader to not take for granted the condition of the WV water quality program.  In this specific instance the reminder inserted in the regulation is to look at the applications for the Category A drinking water use designation.  Underlying the reminder is the concern the WVDEP has assumed a fictional default conclusion, that all waters of the state should be presumed to support a drinking water use.  The default policy sounds simple and easy to embrace.  Yet the bases for that conclusion are a series of assumptions that are more wistful than tangible.  Not all streams have a quality that supports drinking water supply uses.  The Clean Water Act was written in a manner that all streams must meet the goal of supporting uses by aquatic life (fish) and recreation (swimming).  There is no default assumption that all surface waters support public drinking.  The Clean Water Act program reserves for special treatment those waters where there is an intake structure and water is consumed, after it has been conventionally treated (cleaned-up).  Those waters are labeled Category A.  WVDEP is requiring that all discharges to surface streams must meet the Category A criteria regardless of whether there is an intake or treatment of water for consumption.  The water quality of streams is in fact varied.  The Clean Water Act recognizes that varied nature.  The varied nature means those streams support different uses, not the same uses.  Cold water fisheries are not the same as warm water fisheries and will never be.  Water quality varies based upon many influences some natural and some human induced.  Those seeking permits to discharge in West Virginia are granted permits upon the condition that they treat their discharge to help streams gain a drinking water use quality.  There are instances where that is not achievable and instances where that is not reasonable.  Not all waters should be presumed to support a drinking water use, particularly when the water is not used as a drinking water.

The Senate legislative amendment to the WVDEP rule is a yellow sticky note reminder:  for the 2017 triennial review, consider potential alternative applications for the Category A drinking water use designation to the waters of the state, taking into consideration stream flow, depth, and distance to a public drinking water intake.

A simple statement, easily understood.

Twenty-seven years of experience practicing environmental, regulatory, and natural resources law have enabled Kathy Beckett to develop a national reputation for her ability to influence environmental policies on behalf of her clients. She has been instrumental in the development of national and state regulatory programs and the drafting of environmental legislation.
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