West Virginia Lax in Stream Cleanup

By John McFerrin

The United States District Court has ruled that West Virginia was lax in its duty to beginning cleaning up impaired streams and that the United States Environmental Protection Agency has violated federal law by not requiring West Virginia to be more diligent.

How the Clean Water Act works

The goal of the federal Clean Water Act is, not surprisingly, clean water. There are two main ways that the Act accomplishes this.  The first, and most prominent, is by limiting the amount of polluted water that goes into streams.  This case is not about permitting failure or violations of limits on discharges.  It is about the second tool that the Clean Water Act provides.

The second is by identifying the streams that are already polluted and figuring out how to clean them up.

Like everything else lawyers, bureaucrats, or both ever touch, this tool has its own jargon: Total Maximum Daily Loads, Water Quality Limited Streams, and Pollutants of Concern.  Buried within the jargon was a pretty simple duty: figure out what streams are messed up, figure out how they got that way, and figure out what we are going to do about it.

Now the West Virginia Depart of Environmental Protection has been scolded by the Federal Court because it did not do its duty to figure out what streams are messed up, etc.  The United Sates Environmental Protection Agency is also in trouble because it stood by and allowed West Virginia Department of Environmental Protection to shirk its duty.

How we got here

The Federal Clean Water Act was passed in 1972.  West Virginia was supposed to begin looking at what the Act calls “impaired streams” and coming up with plans to correct the problems.  They were supposed to finish by 1985.  If West Virginia didn’t do it, then the Environmental Protection Agency was supposed to step in and do it.

In the next twenty years, West Virginia’s progress was meager.  Finally, in the mid-1990s, the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, and three individuals sued the Environmental Protection Agency, asking that it be required to step in and do what it was supposed to do to identify impaired streams and make plans to fix them.

Even while the suit was pending, the EPA and West Virginia sprang into action (more or less) and started doing these plans (called Total Maximum Daily Loads or TMDLs).

Among the streams and pollutants added to the list of pollutants we had to address was dioxin in the Ohio River. The recognition of dioxin as a pollutant of concern in the Ohio River had an impact upon the controversial pulp and paper mill that had been proposed for Apple Grove. This recognition was one of the factors which persuaded the West Virginia Environmental Quality Board that the pulp mill proposed for Apple Grove should be required to operate without discharging dioxin into the Ohio River.

In the fall of 1996, the litigation was settled.  Under the terms of the settlement, EPA and West Virginia were to prepare lists of impaired streams and plans to fix the problems.  The settlement contained a list of streams that would be done first and a commitment to complete the lists within ten years.

            Although it has not done all that it was supposed to do under the settlement, West Virginia now has a substantial list of impaired streams.  The list is reviewed and updated from time to time and streams are often added to the list.

The controversy in this case

This case addresses a specific type of impaired streams: those who are impaired by what is called “ionic pollution” or high conductivity.  West Virginia has between two hundred and six hundred such streams, depending upon who is doing the estimating.

Conductivity is a measure of the ability of water to pass an electrical current.  Totally pure water is a poor conductor of electricity.  The more substances that are in the water, the greater the conductivity.  Conductivity is useful as a general measure of stream water quality. Research has shown that high conductivity can make a stream inhospitable to aquatic life, making the stream biologically impaired.

Since 2012, West Virginia has not been considering conductivity when it prepares lists of impaired streams and plans for cleaning them up.  It did this largely because in 2012 the West Virginia Legislature directed it to not do any more lists until it had developed a new method of determining whether a stream was biologically impaired.  Such a direction would be beneficial to the coal industry.  The West Virginia Department of Environmental Protection has been “working on” developing a new method since then but has not made much progress.  It has offered no estimate of when it might finish.

The plaintiffs (West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, West Virginia Rivers Coalition, and Sierra Club) contended that submitting lists that do not include streams impaired by high conductivity is the same as submitting no lists or cleanup plans at all.  EPA has a duty to approve or disapprove the lists West Virginia has submitted. Since the lists submitted do not address conductivity, it could not approve them.  If it does not approve West Virginia’s lists, EPA must step in and do Wests Virginia’s job or preparing lists of impaired streams and cleanup plans.

The Court agreed with the plaintiffs.  It concluded that West Virginia had been lax in creating the legally required plans to clean up impaired steams.  It also ruled that the Environmental Protection Agency had been equally lax in its oversight of West Virginia.

What happens next

            In the past, West Virginia has submitted clean-up plans (TMDLs) for some streams, just not the ones that are biologically impaired by high conductivity.  EPA is required to either approve or disapprove the submissions or–in the case of the biologically impaired streams—the non-submissions of clean up plans.  The judge ordered EPA approve or disapprove the plans within thirty days.  From the tenor of the decision, it is apparent that the judge thinks that EPA should disapprove the plans (or non-plans).

Once this happens, the EPA will have a duty to step in and write the necessary clean-up plans.  If it does not do so, there will be more litigation seeking to require it to do so.

The other possibility is that EPA could appeal this decision.  Then it is back to court for more arguing, etc.