H. B. 2530
(By Delegates Leggett, Boggs,
Yeager, Ennis and Henderson)
[Introduced January 14, 1998; referred to the
Committee on Agriculture and Natural Resources then the Judiciary.]
A BILL to amend and reenact section five, article twelve, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to exempting
property owners from any regulation that prohibits the use
of a dozer to clear the owners' stream beds.
Be it enacted by the Legislature of West Virginia:
That section five, article twelve, chapter twenty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 12. GROUNDWATER PROTECTION ACT.
§22-12-5. Authority of other agencies; applicability.
(a) Notwithstanding any other provision of this code to the
contrary, no agency of state government or any political
subdivision may regulate any facility or activities for the
purpose of maintaining and protecting the groundwater except as expressly authorized pursuant to this article.
(b) To the extent that
such these agencies have the
authority pursuant to any provision of this code, other than this
article, to regulate facilities or activities, the division of
environmental protection, the department of agriculture, the
bureau division of public health, and such other agencies of the
state or any political subdivision as may be specifically
designated by the director with the concurrence of such the
designated agencies or political subdivisions, as appropriate,
are hereby authorized to be groundwater regulatory agencies for
purposes of regulating such the facilities or activities to
satisfy the requirements of this article. In addition, the
department of agriculture is hereby authorized to be the
groundwater regulatory agency for purposes of regulating the use
or application of pesticides and fertilizers. Where the
authority to regulate facilities or activities which may
adversely impact groundwater is not otherwise assigned to the
division of environmental protection, the department of
agriculture, the bureau division of public health or such any
other specifically designated agency pursuant to any other
provision of this code, the division of environmental protection
is hereby authorized to be the groundwater regulatory agency
with respect to such the unassigned facilities or activities.
The division of environmental protection shall cooperate with the department of agriculture and the bureau division of public
health, as appropriate, in the regulation of such these
unassigned facilities or activities.
(c) Within one year of the effective date of this article,
the department of agriculture,
bureau division of public health
and division of environmental protection shall promulgate
propose, subject to legislative approval, in accordance with the
provisions of chapter twenty-nine-a of this code, such any
legislative rules as may be necessary to implement the authority
granted them by this article.
(d) Groundwater regulatory agencies shall develop
groundwater protection practices to prevent groundwater
contamination from facilities and activities within their
respective jurisdictions consistent with this article.
practices shall include, but are not be limited to, criteria
related to facility design, operational management, closure,
remediation and monitoring. Such These agencies shall issue such
rules, permits, policies, directives or any other appropriate
regulatory devices, as necessary, to implement the requirements
of this article.
(e) Groundwater regulatory agencies shall take
as may be necessary to assure that facilities or activities
within their respective jurisdictions maintain and protect
groundwater at existing quality, where the existing quality is better than that required to maintain and protect the standards
of purity and quality promulgated by the board to support the
present and future beneficial uses of the state's groundwater.
(f) Where a person establishes to the director that: (1)
The measures necessary to preserve existing quality are not
technically feasible or economically practical; and (2) a change
in groundwater quality is justified based upon economic or
societal objectives, the director may allow for a deviation from
such the existing quality. Upon the director's finding of (1)
and (2) above, the director may grant or deny such a any
deviation for a specific site, activity or facility or for a
class of activities or facilities which have impacts which are
substantially similar and exist in a defined geographic area.
The director's reasons for granting or denying such a deviation
shall be set forth in writing and the director has the exclusive
authority to determine the terms and conditions of such a any
deviation. To insure that groundwater standards promulgated by
the board are not violated and that the present and future
beneficial uses of groundwater are maintained and protected, the
director shall evaluate the cumulative impacts of all facilities
and activities on the groundwater resources in question prior to
any granting of such a deviation from existing quality. The
director shall consult with the department of agriculture and the
bureau division of public health as appropriate in the implementation of this subsection. The director shall, upon a
written request for such this information, provide notice of any
deviations from existing quality granted pursuant to this
(g) Should the approval required in subsection (f) of this
section be granted allowing for a deviation from existing
quality, the groundwater regulatory agencies shall take
alternative action as may be necessary to assure that facilities
and activities within their respective jurisdictions maintain and
protect the standards of purity and quality promulgated by the
board to support the present and future beneficial uses for that
groundwater. In maintaining and protecting such standards of the
board, such the agencies shall establish preventative action
limits which, once reached, shall require action to control a
source of contamination to assure that such these standards are
not violated. The director shall provide guidelines to the
groundwater regulatory agencies with respect to the establishment
of such preventative action limits.
(h) Subsections (e), (f) and (g) of this section do not
apply to coal extraction and earth disturbing activities directly
involved in coal extraction that are subject to either or both
article three or eleven of this chapter.
Such These activities
are subject to all other provisions of this article.
(i) This article is not applicable to groundwater within areas of geologic formations which are site specific to:
(1) The production or storage zones of crude oil or natural
gas and which are utilized for the exploration, development or
production of crude oil or natural gas permitted pursuant to
articles six, seven, eight, nine or ten of this chapter; and
(2) The injection zones of Class II or III wells permitted
pursuant to the statutes and rules governing the underground
injection control program.
All groundwater outside
such these areas remain subject to
the provisions of this article. Groundwater regulatory agencies
have the right to require the submission of data with respect to
the nature of the activities subject to this subsection.
(j) Those agencies regulating the activities specified in
subsections (h) and (i) of this section retain their groundwater
regulatory authority as provided for in the relevant statutes and
such these activities, other than this article.
(k) The director has authority to modify the requirements of
subsection (g) of this section with respect to noncoal mining
activities subject to article four of this chapter.
modification shall assure protection of human health and the
environment. Those agencies regulating such the noncoal mining
activities shall retain their groundwater regulatory authority
as provided for in the relevant statutes and rules governing such
these activities other than this article.
(l) If the director proposes a need for a variance for
classes of activities which by their nature cannot be conducted
in compliance with the requirements of subsection (g) of this
section, then the director shall
promulgate propose legislative
rules, subject to legislative approval, in accordance with
chapter twenty-nine-a of this code, following public hearing on
the record. The rules so promulgated proposed shall set forth
the director's findings to substantiate such the need and the
criteria by which such the variances shall be are granted or
denied. Should any person petition or request the director to
undertake such a determination, that person will shall give
contemporaneous notice of such the petition or request by Class
I advertisement in a newspaper of general circulation in the area
to be affected by the request.
(m) All rules, permits, policies, directives and orders of
the department of agriculture, the
bureau division of public
health and division of environmental protection, in effect on the
effective date of this article and which are consistent with this
article shall remain in full force and effect as if they were
issued pursuant to this article unless and until modified
pursuant to this article.
(n) An owner of property is exempt from any rule proposed by
any agency that prohibits the owner from using a bulldozer to
clean his or her stream beds during the months when the water is at its lowest level.
NOTE: The purpose of this bill is to exempt property owners
from any rule that prohibits the use of a bulldozer to clear the
owners' stream beds.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.