By John McFerrin
The West Virginia Highlands Conservancy has joined with the West Virginia Rivers Coalition and other groups to comment on regulations on how West Virginia determines how clean streams have to be. The whole process is arcane but important.
It is settled, both as a matter of law and of public expectations, that we should have clean water. The controversies arise over exactly what “clean” means. Just as the term “clean room” means something different to parents than it does to teenagers, there are ongoing controversies over exactly what “clean” means. This is the latest chapter in that ongoing controversy.
The cleanliness of water is measured in two ways: numeric standards and narrative standards. Numeric standards have to do with concentrations of pollutants, things such as so much of a pollutant per liter of water. They would be expressed in something such as 3 milligrams per liter of iron, 1 milligram per liter of aluminum, etc. Narrative standards are descriptions of what streams are used for, whether they are fishable, swimmable, etc.
The particular narrative standard involved here is the one that says that the water must support aquatic life. It is based upon the common sense assumption that we can tell how clean the water is by looking at what can live in it.
In looking at what can live in waterways, we can’t physically count every bug in every stream. We have to count samples of bugs in samples of streams and draw some conclusions from that data. What the Highlands Conservancy, the Rivers Coalition, etc. are commenting on is the method that the West Virginia Department of Environmental Protection uses to do that sampling.
It is also important to look at what kinds of life we search for. The method that the groups suggest would insure that the sampling finds the insects, crustaceans, and invertebrates that are the foundation of a healthy ecosystem. Without them, the entire food chain breaks down. Loss of invertebrate populations is an early signal that pollution is damaging life in a stream. If the state moves to assessing stream life based on fish or the ability to support fish, not only will West Virginia be at the bottom for the weakest narrative quality standards in the country, but it will be severely limited in accurately measuring the health of its waterways
The comments focus on the Department’s use of outdated sampling methods. For several years the Untied States Environmental Protection Agency has been recommending an updated method of sampling and using that sampling to determine the health of streams. The Department wants to keep using the older method; the groups want it to update to the newer, more accurate method.
There is also controversy over the threshold that must be reached before a stream is considered impaired (not clean enough). The current sampling method assign streams a score, based upon what aquatic life is found. The method the Department of Environmental Protection wants to use leaves it unclear whether certain streams are impaired or not.
Why do we care?
Starting with “how clean is clean” and moving on to different measures of water quality and then to how we count bugs, this all starts to sound like the splitting of hairs that we have already split twice. It isn’t.
Accurately determining whether streams are impaired (whether they can support life) is important in a couple of ways. First, the Department of Environmental Protection has a duty to keep lists of streams that are “impaired” (not meeting water quality standards). If a stream is on the list, the DEP then has a duty to take steps toward correcting whatever is impairing the stream. If it cannot accurately assess the aquatic life in a stream, it cannot tell whether a stream is impaired. If it cannot know which streams are impaired, it cannot know which streams need attention.
Second, whether or not there is biological impairment can determine whether polluters can be held accountable. If a polluter is causing biological impairment, that can be the basis for an enforcement action. Unless there is an accurate method to measure biological impairment, this is impossible.
This attention to how we sample and how we determine biological impairment stems from a bill passed by the West Virginia Legislature. Legislative forensics could probably determine whose fingerprints are on that bill. The smart money is on it being one of West Virginia’s polluting industries.