Chesapeake Bay: West Virginia Legislature Adopts “Holistic” Approach

Balancing environmental and economic concerns, the 2009 West Virginia Legislature adopted a “holistic” approach to protection of the Chesapeake Bay watershed and nutrient reduction projects with the passage of Senate Bill 715.  The bill declares that any program to protect the Chesapeake Bay must include: (1) a nutrient trading and off-set program; and (2) a capital improvement program.  The bill also delays implementation of nutrient removal requirements, giving affected sources time to meet them. 

In the bill, the Legislature makes two findings.  First, the Legislature finds that the Chesapeake Bay and its tributaries are “valuable natural resources” for  more than 200,000 citizens living in 8 West Virginia counties in and around the Chesapeake Bay watershed and concludes that the “best interests” of the state include protecting and promoting the environmental health and integrity of the Chesapeake Bay.  Second, the Legislature finds that the Chesapeake Bay has been identified by U.S. EPA as impaired water due to excess nitrogen and phosphorus, also called nutrients, entering the bay from its tributaries, resulting in depleted dissolved oxygen supplies and other factors which impact the overall health of the watershed. 

The bill acknowledges that West Virginia and five other states have agreed to reduce the amount of nutrients contributed to the Chesapeake Bay by sources located within their respective jurisdictions.  The bill expressly identifies the following sources of nutrients discharged into the watershed:  (1) wastewater discharged by West Virginia wastewater treatment facilities; (2) stormwater discharged from various sources; and (3) wastewater discharged from agriculture-related activities.  The list of sources identified in the bill is not exhaustive, and the bill includes catch-all language for “other sources of wastewater related to both natural and man-made impacts”.

In addition to protecting and promoting the environmental health and integrity of the Chesapeake Bay watershed, the Legislature recognizes other non-environmental priorities, including “affordable and high-quality public infrastructure services,” “safeguard[ing] existing industrial and agricultural sectors of the economy,” and “continued economic growth and quality of life of West Virginia communities within the watershed”.  The Legislature states in the bill that: “The capital costs of nutrient removal processes…would result in significant increases in rates for an essential public service, deferral or cancellation of other critical infrastructure extensions and/or improvements and act as a disincentive for business growth, both commercial and agricultural, in these communities, if not the shrinking of industrial and agricultural activity in the watershed.”  Accordingly, the Legislature adopts a “holistic” program to protect the Chesapeake Bay. 

The Legislature tasks the Secretary of the West Virginia Department of Environmental Protection (WV DEP), in consultation with stakeholders, with implementing this “holistic” program for balancing the protection of the Chesapeake Bay and the economic vitality of the West Virginia communities in and around the watershed.  By June 1, 2010, the WV DEP must report to the Joint Legislative Commission on State Water Resources the status of proposed performance standards necessary for wastewater treatment facilities.  By June 1, 2012, the WV DEP is tasked with establishing a nutrient trading and off-set program and is also tasked with recommending to the Legislature a program establishing a new and independent source of funding for capital improvements needed because of nutrient removal requirements.

Pending establishment of a nutrient trading and off-sets program in June 2012, the bill authorizes the WV DEP to implement interim trading and off-set programs for individual permittees “as necessary and appropriate” for the protection of the Chesapeake Bay and its tributaries.  The legislation also directs the WV DEP to modify existing West Virginia/National Pollutant Discharge Elimination System (NPDES) permits containing limitations for the discharge of phosphorous and nitrogen into the Chesapeake Bay.  The bill directs the WV DEP to modify the limitations to take effect only after the WV DEP completes its report to the Joint Legislative Commission on State Water Resources, submits its recommendations to the Legislature, and establishes a nutrient trading and off-sets program, and the Legislature approves the recommendations for a program establishing a new and independent source of funding for capital improvements needed because of nutrient removal requirements.  The bill also directs the WV DEP to recalculate nutrient loading requirements and modify West Virginia/NPDES permits if necessary to be consistent with any new information or the issuance of a final total maximum daily load (TMDL) for the Chesapeake Bay. 

The bill amends the West Virginia Water Pollution Control Act, W. Va. Code §§22-11-1 et seq., by adopting a new section, designated §22-11-30 and entitled “Chesapeake Bay Restoration Initiative”.  For additional information contact Gale Lea Rubrecht at galelea@jacksonkelly.comor 304-340-1200. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.