The Environmental Protection Agency (EPA) has informed the West Virginia Department of Environmental Protection (WVDEP) that it will modify the state's list of impaired waters that it sent to EPA pursuant to Section 303(d) of the Clean Water Act. EPA will add 255 streams to the state's proposed list of 1,176 impaired waters. At issue is the extent to which WVDEP must follow EPA dictates in compiling its lists of streams considered “biologically impaired” as a result of supposedly violating State “narrative” water quality standards.
The Clean Water Act requires that every two years states identify water bodies that do not meet water quality standards. This list must then be sent to the EPA for review and approval. EPA and the states will then work together to clean up the impaired waterways. The lists include both streams in which numeric standards for substances like iron are exceeded and streams which are considered “biologically impaired” because they violate “narrative” standards , which generally prohibit “significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems.”
WVDEP, like many other states, has long used an index based on aquatic insect populations as the sole means of listing streams as biologically impaired. The index, known as the West Virginia Stream Condition Index (WVSCI) does not identify causes of impairment or even whether they may be related to a discharge of a pollutant---removal of forest canopy, increases in flow from paved areas and the like are all capable of influencing the WVSCI score. Nor has the WVSCI ever been subjected to rulemaking by WVDEP or submitted to EPA as a “water quality standard” even though historically it has been used as the sole measure of compliance with the narrative standard.
In 2012, the West Virginia Legislature enacted Senate Bill 562, which instructed the WVDEP to develop a new, broader assessment tool for judging a water body’s compliance with narrative standards. As a consequence of SB 562, when WVDEP submitted its most recent 303(d) list of impaired waters to EPA, it did not include 255 new streams which would have been considered impaired if the WVSCI had been used to evaluate them. The DEP cited SB 562 not to include the 255 streams in its 303(d) list, contending that the Bill precluded it from evaluating waters for aquatic life uses until the new methodology was officially adopted.
The Sierra Club responded to WVDEP’s 303(d) list by submitting to the EPA a Notice of Intent to sue, stating that the EPA failed to rule on West Virginia’s 303(d) list within the prescribed 30 day period and that the organization is required to deny the list due to DEP’s failure to list all waters not complying with narrative water quality standards. The NOI asserted that WVDEP’s decision to stop using the WVSCI and await the new measures of compliance to be produced as a result of SB 562 constitute a change in WVDEP’s water quality standards that cannot take effect until approved by EPA.
In response to the Sierra Club’s NOI, the West Virginia Coal Association (WVCA) filed its own NOI with the EPA. In it, WVCA argued that SB 562 could not constitute a change to the state’s water quality standards until WVDEP actually promulgated rules pursuant to SB 562. Additionally, WVCA stated that if the EPA finds that WVDEP must obtain EPA approval for using a assessment protocol compliant with SB 562, then WVDEP was also required to obtain EPA approval before it could use its old methodology—the West Virginia Stream Conditions Index (WVSCI)—for identifying impaired streams. As a result, EPA would then be required to reject every 303(d) list that WVDEP has submitted using the WVSCI methodology.
EPA answered by acknowledging WV DEP’s stance that SB 562 prevented it from evaluating the new streams for aquatic life uses until the new assessment methodology was adopted. However, EPA stated it had an obligation under the Clean Water Act to include these streams in the state’s 303(d) list.
EPA plans to issue an official federal register notice announcing its intention to add 255 streams to the DEP's impaired water list on or about April 15th. After notice is issued, EPA will set up a 30 day comment period before it issues its final 303(d) list for West Virginia.
For more information, visit here.
This article was authored by Emily M. Renzelli, Jackson Kelly PLLC. For more information on the author see here.