Legislative Update: Dropped water rules may still go into effect
West Virginia’s legislators this year faced a mile-high pile of bills on their desks. A few among the stack; however, were vitally important to the future of West Virginia’s rivers.
SB 255: Senate Bill 255 was the most controversial “water” bill under the capital dome this year. The bill recommended approving the state’s antidegradation rules—a Clean Water Act requirement intended to protect high quality waters and prevent already polluted streams from getting more polluted.
The bill included the Tier 2.5 list—a collection of 309 of the state’s healthiest streams. Industry vehemently opposed the Tier 2.5 list throughout the session and lobbied extensively to disembowel the protections it offers.
One of the first moves to dismantle the list came from Senator Walt Helmick (D-Pocahontas), who successfully amended the Tier 2.5 list in the Natural Resources Committee to include only 38 streams!
Luckily, SB 255 did not move forward; however, read below about House Bill 2601 to find out what happened to the Tier 2.5 list.
SB 259: Senate Bill 259 recommended adopting the state’s water quality standards package, which included the “B2 list”—a collection of more than 450 “trout waters” located throughout the state. Industry strongly opposed this rule, as well. But—protections included in this rule ultimately prevailed after an unexpected twist of fate (see HB 2601).
HB 2601: House Bill 2601 recommended adopting all the rules proposed by the WV Department of Environmental Protection, including antidegradation (Tier 2.5 list) and water quality standards (B2 “trout waters” list). Industry proponents also had this bundle in their crosshairs in their knavish effort to remove protections for the state’s healthiest waters.
However, because allied members of the House expected industry supporters to amend the water rules on the floor—including whittling away the Tier 2.5 list to very few streams—they took it off the calendar to avoid damage to the list and never made a final move to get it passed.
Several efforts were made by House of Delegates Judiciary Chairwoman Carrie Webster and DEP to get industry lobbyists and environmental groups to accept a compromise that would have placed 156 streams on the Tier 2.5 list; however, industry was willing to settle for nothing more than 107 streams.
WVRC and other supporters of a more robust list were not willing to settle for industries’ absurd reduction of stream protections.
As a result—no compromise was reached and no further action was taken in either the House or Senate to pass the Tier 2.5 list.
But—it doesn’t end there: Because “no action” was taken on the water rules, state laws indicate that the original rules that DEP filed with the Secretary of State, prior to the legislative session, are the rules that go into effect. This inadvertent consequence may seem good since the antidegradation rule that DEP originally filed with the state included 309 streams that qualified for Tier 2.5 protection; however, last year the legislature passed a rule that trumps the above-mentioned scenario and specifically states that Tier 2.5 streams must be approved by the legislature before related protections become enforceable.
Now—making things even more complicated— DEP Secretary, Stephanie Timmermeyer, stated in the Charleston Gazette, that the law requiring legislative approval for Tier 2.5 streams is unconstitutional!
So—DEP is reportedly taking the position that it will “officially” adopt the 309 streams that it recommended to the legislature this year for Tier 2.5 protection—regardless of current debate. Timmermeyer stated that she believes a previous court case supports her position.
The Gazette reported, “That appears to be the end of the story until the two sides (DEP and industry) have a showdown in court.”
In other words folks—the battle continues. But, it seems like DEP is stepping out on a limb to protect our state’s healthiest waters. WVRC will continue working to ensure that DEP and state legislators treat many more of our state’s stream miles as healthy waters.
Your support for stream protections undoubtedly made a difference this year—thanks!
Adam Webster
Conservation Director
West Virginia Rivers Coalition
329 Davis Avenue #7
Elkins, WV 26241
Phone: (304) 637-7201
Fax: (304) 637-7204
www.wvrivers.org
