West Virginia Considers Weakening Water Protections

By Randy Kessling

The West Virginia Department of Environmental Protection held a virtual public hearing on April 20 to receive comments on its proposed Biological Assessment Rule which governs the process by which the state’s wadeable streams are evaluated and determination made on the health of each stream.  The Highlands Conservancy last reported on the issue in the June, 2019, issue of The Highlands Voice.  Since that time, the WV Department of Environmental Protection has continued its efforts to weaken the biological impairment standards for West Virginia streams by continuing to rely on obsolete, less accurate assessment methods to identify impaired streams, and by changing the definition of impaired streams based on stream assessment scores. 

 The Clean Water Act establishes a narrative standard by which water quality in a stream is assessed based on the degree to which it can support aquatic life.  Through stream sampling, a profile of the number and type of macroinvertebrates living in a stream is an indicator of the extent to which a stream has suffered impairment of its ability to support life.  These profiles are scored numerically on a scale from 1-100 and the numeric score for a given stream is called its Index of Biotic Integrity (IBI).  

Under current Department of Environmental Protection rules, streams with benthic Index of Biotic Integrity scores greater than 72 are considered unimpaired, while streams with IBI scores less than 72 are considered impaired.  Current DEP Benthic IBI protocols require the identification of stream macroinvertebrate species at the taxonomic Family level.  A more accurate assessment would be obtained if the Benthic IBI protocols were based upon macroinvertebrate species identification at the taxonomic genus level. 

Since 2010, the Environmental Protection Agency has suggested to DEP that it use the more accurate genus-level identification of species in its Index of Biotic Integrity protocols, and that DEP increase the unimpaired IBI threshold level from 72 to 74.5 based upon WV DEP’s own data.  DEP’s proposed rule ignores both of EPA’s recommendations, even though West Virginia’s surrounding states, Kentucky, Maryland, Ohio, and Pennsylvania, now base their assessments on species identification at the more accurate genus level.

The current DEP rule uses a binary classification of stream impairment in which a stream as either unimpaired or impaired based upon the Index of Biotic Integrity score discussed above (stream IBI score ≥ 72 = unimpaired, and an IBI score <72 = impaired).  DEP’s proposed rule creates a “Gray Zone” in which streams with IBI values between 61 and 72 are considered neither impaired nor unimpaired but, per the proposed rule, “considered as having insufficient data until additional information is collected or supplied that allows a determination to be made on the thresholds set forth above”.  If DEP’s proposed rule is enacted, over 2,200 of the total 34,000 stream segments currently classified as “impaired” would fall within the proposed Gray Zone and lose their “impaired” classification status and, consequently, their eligibility for remediation assistance.  

Certainly, it is reasonable to conclude that an unassisted Gray Zone stream is likely to degrade further without assistance, and it is known that under the proposed rule, it would have to be even further degraded to an IBI score below 61 before it would receive any help.  It is also easy to surmise that the lower a Gray Zone stream’s IBI sinks, the more money, resources and time will likely be required for its remediation.  

There is no rationale, scientific data, or any apparent public benefit to support this proposed Gray Zone scheme, and one can only speculate on the motives that underly it.  There are, unfortunately, multiple, agents out there who are willing, eager, and quite capable of helping a struggling Gray Zone stream to further degrade its water quality until its descending IBI scores reach the “impaired” threshold where then, and only then, it becomes eligible for assistance.  

The comment period for this proposed rule is now closed.  We await DEP’s response to the comments that have been provided.  It may be that the Environmental Protection Agency will tire of DEP’s continuing disregard its recommendation and change the course of what the DEP is trying to do with this proposed rule. It does appear that passage of this proposed rule as it stands, will increase cost to the WV taxpayer and lower the water quality of thousands of WV streams.  We hope that DEP will reconsider this proposed rule and acts responsibly to retract it.       


Public Hearings in the Age of Social Distancing

It is standard practice to hold public hearings on proposed regulations, including the one on Biological Assessment discussed in the accompanying story.  Now that we are all staying at least eighteen hands apart, the Department of Environmental Protection holds such hearings by teleconference.

West Virginia Highlands Conservancy Board members Randy Kessling and Cindy Ellis went (in a manner of speaking) to the one on Biological Assessment.  While Randy drew the short straw (unravelling and making sense of a complicated rule), Cindy got to report on her impression of this new hearing method.

Her impression was that the teleconference served fairly well in the place of an on site meeting and seemed to even increase attendance.  There were forty one people online.  Some fresh faces/voices chimed in from the eastern panhandle.

The Department of Environmental Protection has different views on how to do Biological Assessment from those of meeting participants from the West Virginia Highlands Conservancy, the West Virginia Rivers Coalition, and the Ohio Valley Environmental Coalition.  Even those who did not fully understand the nuances of Biological Assessment made a contribution by demonstrating that disagreement with DEP’s view was widespread.  

Note:  A “hand” is a unit of measurement, equivalent to four inches.  It is most commonly used to describe the height of horses.