H. B. 3344
(By Delegates Frederick, Porter, Long,
Varner and Kominar)
[Introduced
March 25, 2005
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact
§22-1-6
of the Code of West Virginia,
1931, as amended; and to amend and reenact §22-11-7a
of said
code, all relating to prohibiting the Division of Natural
Resources from approving or rejecting any certification issued
under the provisions of 33 U.S.C. §1344
; and providing no
additional mitigation may be required as a condition of
certification by the state when mitigation is a required
component of the permit issuable by the United States Army
Corps of Engineers under the provisions of 33 U.S.C. §1344.
Be it enacted by the Legislature of West Virginia:
That
§22-1-6
of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and to amend and reenact §22-11-7a
of
said code, all to read as follows:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-6. Secretary of the Department of Environmental Protection.
(a) The Secretary is the chief executive officer of the
Division. Subject to section seven of this article and other
provisions of law, the Secretary shall organize the department into
such offices, sections, agencies and other units of activity as may
be found by the Secretary to be desirable for the orderly,
efficient and economical administration of the department and for
the accomplishment of its objects and purposes. The Secretary may
appoint a deputy secretary, chief of staff, assistants, hearing
officers, clerks, stenographers and other officers, technical
personnel and employees needed for the operation of the department
and may prescribe their powers and duties and fix their
compensation within amounts appropriated.
(b) The Secretary has the power to and may designate
supervisory officers or other officers or employees of the
department to substitute for him or her on any board or commission
established under this code or to sit in his or her place in any
hearings, appeals, meetings or other activities with such
substitute having the same powers, duties, authority and
responsibility as the Secretary. The Secretary has the power to
delegate, as he or she considers appropriate, to supervisory
officers or other officers or employees of the department his or
her powers, duties, authority and responsibility relating to
issuing permits, hiring and training inspectors and other employees
of the department, conducting hearings and appeals and such other duties and functions set forth in this chapter or elsewhere in this
code.
(c) The Secretary has responsibility for the conduct of the
intergovernmental relations of the department, including assuring:
(1) That the department carries out its functions in a manner
which supplements and complements the environmental policies,
programs and procedures of the federal government, other state
governments and other instrumentalities of this state; and
(2) That appropriate officers and employees of the Division
consult with individuals responsible for making policy relating to
environmental issues in the federal government, other state
governments and other instrumentalities of this state concerning
differences over environmental policies, programs and procedures
and concerning the impact of statutory law and rules upon the
environment of this state.
(d) In addition to other powers, duties and responsibilities
granted and assigned to the Secretary by this chapter, the
Secretary is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the
"Department of Environmental Protection" any contract or agreement
with the federal government or its departments or agencies,
subdivisions of the state, corporations, associations, partnerships
or individuals: Provided, That the powers granted to the Secretary
to enter into agreements or contracts and to make expenditures and obligations of public funds under this subdivision may not exceed
or be interpreted as authority to exceed the powers granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection
methods and disseminate information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violations of
statutes or rules which the division is charged with enforcing; to
serve and execute warrants and processes; to make arrests; issue
orders, which for the purposes of this chapter include consent
agreements; and to otherwise enforce the statutes or rules which
the division is charged with enforcing;
(4) Acquire for the state in the name of the "Department of
Environmental Protection" by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the
Department of Environmental Protection, gifts, donations,
contributions, bequests or devises of money, security or property,
both real and personal, and any interest in property;
(5) Provide for workshops, training programs and other
educational programs, apart from or in cooperation with other
governmental agencies, necessary to insure adequate standards of public service in the department. The Secretary may provide for
technical training and specialized instruction of any employee.
Approved educational programs, training and instruction time may be
compensated for as a part of regular employment. The Secretary is
authorized to pay out of federal or state funds, or both, as such
funds are available, fees and expenses incidental to such
educational programs, training, and instruction. Eligibility for
participation by employees will be in accordance with guidelines
established by the Secretary;
(6) Issue certifications required under 33 U.S.C. §1341 of the
federal Clean Water Act and enter into agreements in accordance
with the provisions of section seven-a, article eleven of this
chapter. Prior to issuing any certification the Secretary shall
solicit from the Division of Natural Resources reports and comments
concerning the possible certification: Provided, That in no event
may the Division of Natural Resources have or be granted the right
to approve or disapprove certification. The Division of Natural
Resources shall direct the reports and comments to the Secretary
for consideration; and
(7) Notwithstanding any provisions of this code to the
contrary, employ in-house counsel to perform all legal services for
the Secretary and the department, including, but not limited to,
representing the Secretary, any chief, the department or any office
thereof in any administrative proceeding or in any proceeding in any state or federal court. Additionally, the Secretary may call
upon the Attorney General for legal assistance and representation
as provided by law.
(e) The Secretary shall be appointed by the Governor, by and
with the advice and consent of the Senate, and serves at the will
and pleasure of the Governor.
(f) At the time of his or her initial appointment, the
Secretary must be at least thirty years old and must be selected
with special reference and consideration given to his or her
administrative experience and ability, to his or her demonstrated
interest in the effective and responsible regulation of the energy
industry and the conservation and wise use of natural resources.
The Secretary must have at least a bachelor's degree in a related
field and at least three years of experience in a position of
responsible charge in at least one discipline relating to the
duties and responsibilities for which the Secretary will be
responsible upon assumption of the office. The Secretary may not
be a candidate for or hold any other public office, may not be a
member of any political party committee and shall immediately
forfeit and vacate his or her office as Secretary in the event he
or she becomes a candidate for or accepts appointment to any other
public office or political party committee.
(g) The Secretary will receive an annual salary of eighty-five
thousand dollars and will be allowed and paid necessary expenses incident to the performance of his or her official duties. Prior
to the assumption of the duties of his or her office, the Secretary
shall take and subscribe to the oath required of public officers
prescribed by section five, article IV of the Constitution of West
Virginia and shall execute a bond, with surety approved by the
Governor, in the penal sum of ten thousand dollars, which executed
oath and bond will be filed in the office of the Secretary of
State. Premiums on the bond will be paid from the department
funds.
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7a. Certification agreements; required provisions;
effective date.
(a) Any applicant for the water quality certification that
seeks certification of activities covered by the United States army
corps of engineers permits issued in accordance with 33 U.S.C.
§1344 and 33 C.F.R. Parts 323 or 330 for use at or in conjunction
with a surface coal mining operation as defined in section three,
article three of this chapter, certification may be issued subject
to the following conditions:
(1) If the applicant's surface coal mining operation will not
impact waters of the state designated as national resource waters
and streams where trout naturally reproduce and will not impact
wetlands of the state in a manner inconsistent with all applicable
state or federal standards as the case may be, as required by the federal Clean Water Act, and if the watershed above the toe of the
farthest downstream permanent structure authorized pursuant to the
United States army corps of engineers permits issued in accordance
with 33 U.S.C. §1344 and 33 C.F.R. Parts 323 or 330 is less than
two hundred fifty acres, then the director may issue a water
quality certification pursuant to the requirements of this section.
If the watershed above the toe of the farthest downstream permanent
structure impacted is equal to or greater than two hundred fifty
acres, the director shall require that mitigation be undertaken.
Additionally, the director may require mitigation for temporary
impacts to waters of the state as specified in subdivision (2) of
this subsection.
(2) If the watershed above the toe of the farthest downstream
permanent structure authorized pursuant to the United States army
corps of engineers permits issued in accordance with 33 U.S.C.
§1344 and 33 C.F.R. Parts 323 or 330 is greater than or equal to
two hundred fifty acres and all other necessary requirements are
met consistent with this section, the director shall further
condition a water quality certification on a requirement that the
applicant mitigate the expected water quality impacts under the
following conditions: Provided, That no additional mitigation may
be required by the director where the mitigation is a required
component of the permit issuable by the United States Army Corps of
Engineers under the provisions of 33 U.S.C. §1344.
(A) The water quality certification may require mitigation at
a ratio appropriate to the type of waters impacted, consistent with
state or federal standards as required by the federal Clean Water
Act, for the types and locations of waters impacted;
(B) For waters of the state isolated as a result of a
permanent structure, the maximum mitigation ratio shall be
five-tenths acre of mitigation area for every one acre of those
isolated waters;
(C) The director may accept mitigation on the permitted area,
mitigation off the permitted area, mitigation banking of waters of
the state, or any combination thereof, or any other mitigation
measure acceptable to the director; and
(D) Upon completion of the work required by an agreement to
conduct operations authorized by this subsection the surface coal
mining operation shall obtain a certification from a registered
professional engineer that all mitigation work specified in the
agreement has been completed in accordance with the conditions of
the water quality certification. The director shall promptly
review the certification and provide to the surface coal mining
operation with notice that all mitigation work has been
successfully completed, or that further mitigation work is
necessary to meet the conditions imposed by the water quality
certification. The mitigation amount may not exceed two hundred
thousand dollars per acre of stream disturbed above the toe of the farthest downstream permanent structure. Those moneys shall be
deposited in the stream restoration fund under the jurisdiction of
the Division of Environmental Protection and any expenditures from
this fund after the thirtieth day of June, one thousand nine
hundred ninety-eight, shall not be authorized from collections but
shall only be authorized by appropriation by the Legislature.
Additionally, the expenditures are only authorized in those
counties where the activity leading to the mitigation occurred or
in those counties adjacent to the counties where the activity
leading to the mitigation occurred. The director shall by the
thirty-first day of December of each year provide a report to the
Joint Committee on Government and Finance on receipts and
expenditures from the stream restoration fund, the number of
acreage reclaimed by the division through the use of these funds
and the effectiveness of achieving stream restoration through the
payment of the mitigation amounts into the fund in lieu of
reclamation by the certificate holder.
(3) The director shall confer with representatives of the
surface coal mining industry and representatives of environmental
organizations with an interest in water quality in developing a
manual of approval options for mitigation on permitted areas,
mitigation off permitted areas and mitigation involving banking of
waters of the state.
(4) The proposed surface coal mining operation shall comply with all applicable state and federal laws, rules and regulations.
(5) The director shall propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code, for the purpose of implementing the provisions of this
section which rules shall include, but not be limited to, the
following:
(A) Establishing all necessary operational and performance
requirements for an operator undertaking activities covered by this
section;
(B) Modifying the provisions of this section, when necessary
and appropriate to bring the provisions of this section into
compliance with state or federal law or regulation; and
(C) Establishing the specific operational requirements for
mining operations consistent with this section appropriate to
protect the waters of this state during and following mining
operations.
(b) The Joint Committee on Government and Finance may
undertake or facilitate a study of the impact of mountaintop mining
and valley fills upon the State of West Virginia.
(1) To facilitate the study, the Joint Committee on Government
and Finance is further authorized to coordinate with and seek
funding from appropriate federal agencies to facilitate the study
including, but not limited to: The Environmental Protection
Agency, Army Corps of Engineers, office of surface mining and the fish and wildlife service.
(2) In order to facilitate the research, the Joint Committee
on Government and Finance shall appoint a council to coordinate and
direct the research. The composition of the council shall be
determined by the joint committee, but shall include
representatives from the various interested parties as determined
solely by the joint committee.
NOTE: The purpose of this bill is to prohibit the Division of
Natural Resources from approving or rejecting any certification
issued under the provisions of 33 U.S.C. §1344
while providing no
additional mitigation may be required as a condition of
certification by the state when mitigation is a required component
of the permit issuable by the United States Army Corps of Engineers
under the provisions of 33 U.S.C. §1344.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.