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Introduced Version House Bill 3344 History

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hb3344 intr
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.
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