Senate Bill No. 748
(By Senators Kessler, Fanning, Jenkins, Minard, Caruth, Lanham,
McKenzie and Weeks)
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[Originating in the Committee on the Judiciary;
reported March 25, 2005.]
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A BILL to amend and reenact §22-11-7a of the Code of West Virginia,
1931, as amended, relating to mitigation; deleting the
mitigation requirement for isolated waters; and requiring the
Director to provide credit for mitigation required as a
component of the permit issuable by the U. S. Army Corps of
Engineers pursuant to 33 U. S. C. §1344 to the extent that it
satisfies state requirements.
Be it enacted by the Legislature of West Virginia:
That §22-11-7a of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
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:
(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) (B) 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) (C) The Director shall provide credit for any mitigation
that is a required component of the permit issued by the United
States Army Corps of Engineers pursuant to 33 U. S. C. §1344 to the
extent that it satisfies required mitigation pursuant to this
section.
(E) (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.
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(NOTE: The purpose of this bill is to provide that no state
mitigation shall be required by the West Virginia Department of
Environmental Protection for streams isolated by permanent
structures permitted by the United States Army Corps of Engineers
and to require the director to provide credit for mitigation that
is a required component of the permit issuable by the U. S. Army
Corps of Engineers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)