Senate Bill No. 525

(By Senator Mitchell)

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[Introduced February 17,2000; referred to the Committee on Natural Resources; and then to the Committee on Finance.]
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A BILL to amend chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article eleven-a, relating to protection of water act; protection of certain streams; disturbances of stream beds; granting of permits to modify stream, watercourse or lake; permits to erect structures on waterways; protection of navigable waters; permit required to excavate or fill; department required to inspect structures impounding waters; bonds required of permittees; alterations of watercourses or lakes; inspection and correction; illegal impounding of waters; director to issue order after hearing to direct compliance in order to protect health, safety or environment; director to certify costs incurred by state in enforcing water protection activities; certified cost to be assessed against offending property owner; criminal liability of persons who act in disregard of the specifications provided in a construction contract designed to protect stream damage; prohibition of certain incompatible uses over either primary groundwater recharge areas or federally designated sole source aquifers; definitions; private and public rights in waters; alterations in watercourses and lakes; prescriptive rights or privileges; action for declaratory judgment; and limitations of time to bring action.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article eleven-a, to read as follows:
ARTICLE 11A. PROTECTION OF WATER ACT.
§22-11A-1. Protection of certain streams; disturbances of stream bed; permit.

(a) Except as provided in subsections (d), (e), (f) and (g) of this section, no person or public corporation may change, modify or disturb the course, channel or bed of any stream as defined in subsection (b) of this section, or remove any sand, gravel or other material from the bed or banks of such a stream without a permit issued pursuant to subsection (c) of this section.
(b) For the purposes of this section, stream means that portion of any fresh surface watercourse, except lakes or ponds having a surface area greater than ten acres at mean low water level. Small ponds or lakes with a surface area at mean low water level of ten acres or less, located in the course of the stream, are considered a part of the stream and subject to regulation under this section. Adjacent wetlands are considered a part of the stream and subject to regulation under this section.
(c) Granting of permits. -
(1) Before granting a permit, a permit renewal or a permit modification pursuant to this section, the division of environmental protection shall ascertain the probable effect on the health, safety and welfare of the people of the state and the effect on the natural resources of the state, including, but not limited to, soil, forests, wetlands, water, fish and aquatic resources and habitat therein, likely to result from the proposed project or work.
(2) In order to minimize the disturbance of a stream and in order to prevent unreasonable erosion of soil, increased turbitity of the waters, irregular variations in velocity, temperature and level of waters, the loss of fish and aquatic wildlife and the destruction of natural habitat thereof and the danger of flood or pollution, the division of environmental protection shall review the permit application or request for renewal or modification of an existing permit and may approve the manner and the extent to which the stream bed or channel may be changed, altered or modified and may limit the quantity of sand, gravel or other material that may be removed or it may deny the permit or request.
(3) The approved legislative rules proposed by the department to implement this section and the provisions of this chapter govern the processing of permit applications, renewals, modifications, suspensions and revocations under this section.
(d) No permit under this section may be required of any local public corporation which has entered into a written memorandum of understanding with the division establishing the plan of operation to be followed in carrying out projects or work affecting water courses so as to afford proper protection to the public beneficial uses of the water courses.
(e) No permit under this section may be required of any state department or state public corporation. State departments and state public corporations may enter into a written memorandum of understanding with the division concerning projects or work of the type for which a permit would be required under this section if the project or work were undertaken by a person or local public corporation. The memorandum shall establish procedures for review by the division of the plans for such projects or work and for written recommendations by the department with respect thereto.
(f) No permit under this section may be required for emergency work in a stream or on its banks which is immediately necessary to protect the health, safety and well-being of any person or persons or to prevent damage to personal or real property: Provided, That the division is given written notification by registered mail or telegraph within forty-eight hours after the commencement of the work and within forty-eight hours following the completion of the work. Whenever emergency work is performed as provided in this subsection, it shall be performed in a manner that will cause the least change, modification, disturbance or damage to the course or bed of the stream and its banks, and is limited to obstruction removal specifically causing a threat or danger.
(g) The requirements of this section are in addition to those specified in section three of this article: Provided, That the division may propose, by legislative rule that only one application for a permit need be filed with the proposed project or work requires a division permit under this section and section three of this article.
§22-11A-2. Protection of water bodies; permit.
(a) Except as provided in subsection (d) of this section:

(1) No dam or impoundment structure, including any artificial obstruction, temporary or permanent, in or across a natural stream of water course, may be erected, constructed, reconstructed or repaired by any person or local public corporation without a permit issued pursuant to subsection (c) of this section;
(2) Except where a lease or other appropriate conveyance of an interest authorizing the use and occupancy of state-owned lands underwater has been obtained from the commissioner or general services pursuant to the public lands law, no dock, wharf, platform, breakwater, mooring or other structure in, on or above waters shall be erected, placed, constructed, reconstructed or expanded after the effective date of this subdivision by any person or local public corporation without a permit issued pursuant to subsection (c) of this section. The term "reconstructed" as used in this section means the substantial rebuilding of structures or facilities and does not apply to ordinary maintenance or repair of existing functional structures or facilities, such as repainting, redriving pilings or replacing broken boards in docks;
(3) A county or municipality may submit to the director of local law or ordinance regulating docks or other structures. The commissioner shall review the law or ordinances to determine whether it provides adequate environmental protection. If the director determines that the local law or ordinance meets the minimum requirements, the director may delegate, upon the terms and conditions as he or she determines appropriate, to the local government, the authority to administer the permit program and to charge a fee for permit processing. Any delegation may be revoked by the director if he or she finds that the local government has failed to carry out the program in accordance with the terms of the delegation.
(b) For the purpose of this section, a dam or impoundment structure includes, but is not limited to, earth fills, with or without controllable outlet gates, roads, bridges or fords which unduly impede the flow of water.
(c) (1) Before granting a permit, permit renewal or a permit modification pursuant to this section, the division shall ascertain the probable effect on the health, safety and welfare of the people of the state, and the effect on the natural resources of the state likely to result from the proposed project or work.
(2) The division shall review the permit application or request for renewal or modification of an existing permit and may approve the manner and extent to which the waters of the state or the banks and shore thereof will be affected by the proposed project or work and may grant or deny the permit or request or may grant the permit or request with such conditions as might appear necessary to safeguard life, property and natural resources during and after the execution of the proposed project or work.
(3) The applicable legislative rules shall govern permit applications, renewals, modifications, suspensions and revocations under this section.
(4) The requirements of this section are in addition to those specified in sections one and three of this article: Provided, That the division may provide that only one application for a permit or request for renewal or modification of an existing permit need be filed when the proposed project or work requires a division permit under this section and any other section of this article.
(d) The requirement of a permit pursuant to this section does not apply to the following facilities:
(1) A structure used for impounding water where the area draining into the pond or other body of impounded water formed thereby does not exceed one-half square mile, unless: (A) The impounding structure is more than ten feet in height above the bed of the stream at any point; or (B) unless the quantity of water which the structure impounds exceeds one million gallons;
(2) A farm pond erected on lands devoted to farming for the purpose of soil conservation, propagation of fish, irrigation, watering of livestock, maintenance of wildlife or general farm use which is formed by an earthen embankment with an all-earth vegetated spillway and other accessory structures, unless: (A) The height of earth embankment, measured from the top thereof to the lowest point of the excavation of the reservoir area, exceeds fifteen feet; (B) the capacity of the farm pond exceeds one million, five hundred thousand gallons measured as the total volume of water which would be impounded if the surface of the water were at the bottom of the spillway at its highest point; (C) the area draining into the farm pond exceeds two hundred acres; (D) the farm pond comprises more than ten acres of surface water when full; (E) the water to the farm pond is diverted into the pond by an artificial obstruction in or across a natural stream or water course;
(3) A dock, pier, wharf or other structure used solely as a landing place on water providing dockage for five or fewer boats and encompassing within its outer perimeter an area less than four thousand feet;
(4) A mooring facility providing mooring for fewer than ten boats;
(5) Seasonal replacement or reinstallation of structures installed prior to the effective date of this subsection.
(e) The design, preparation of plans, estimates and specifications and the supervision of the erection, construction, reconstruction and repair of all the structures herein before referred to shall be done by a licensed professional engineer or in the case of farm ponds for which a permit is required, by an engineer or conservationist employed by a governmental agency, or by an engineer employed by the division.
§22-11A-3. Protection of navigable waters; excavation or fill; permit.

(a) No person may excavate or place fill below the mean high water level in any of the navigable waters of the state, or in marshes, estuaries and wetlands that are adjacent to and contiguous at any point to any of the navigable waters of the state and that are inundated at mean high water level, without a permit issued pursuant to subsection (c) of this section. For the purpose of this section, fill shall include, but not be limited to, earth, clay, silt, sand, gravel, stone, rock, shale, concrete (whole or fragmentary), ashes, cinder, slag, metal or any other similar material whether or not enclosed or contained by: (1) Crib work of timber, logs, concrete or metal; (2) bulkheads and cofferdams of timber sheeting, bracing and piling or steel sheet piling or steel H piling, separated or in combination. Nothing contained in this section is intended to be, nor may be construed to limit, impair or affect the memorandum of understanding which any state department enters into with the division of environmental protection or the general powers and duties of the division of environmental protection relating to flood control.
(b) A permit application or request for a permit renewal or modification shall be made on forms provided by the division and shall consist of a description of the character and extent of the proposed project or work, precise drawings, plans and specifications providing the location and details of the proposed project or work, and any additional information as the division may require.
(c)Before granting a permit, a permit renewal or a permit modification under this section, the division shall ascertain the probable effect on the use of the waters for navigation, the health, safety and welfare of the people of the state and the effect on the natural resources of the state, including but not limited to, soils, forests, wetlands, water, fish and aquatic resources and habitat therein, likely to result from the proposed project or work,
(d) The division shall review the permit application or request for renewal or modification of an existing permit and may grant or deny the permit or request or may grant the permit with conditions as will safeguard life or property against danger or destruction and as will make navigable waters safe for use by the public.
(e) The approved legislative rules and the provisions of this chapter shall govern the processing of permit applications, renewals, modifications, suspensions and revocations under this section.
(f) The provisions of subsections (a), (b), (c) and (d) of this section do not apply to emergency work in waters described in subsection (a) of this section which is immediately necessary to protect the health, safety and well-being of any person or persons or to prevent damage to personal or real property: Provided, That the department is given written notification by registered mail or telegraph within forty-eight hours after the commencement of the work and within forty-eight hours following the completion of the work. Whenever emergency work is performed as provided in this subdivision, it shall be performed in a manner that will cause the least change, modification, disturbance or damage to the environment, and will be limited to obstruction removal specifically causing a threat or danger.
(g) The requirements of this section exist in addition to those specified in section one of this article: Provided, That the division may provide that only one application for a permit or request for renewal or modification of an existing permit need be filed when the proposed project or work requires a division permit under this section and section one of this article.
§22-11A-4. Structures impounding waters; inspection.
(a) Whenever in the judgment of the division, public safety requires, the division shall investigate dams and other structures impounding waters in the state, docks, piers and wharves extending into the waters.
(b) The division has the power, after hearing on due notice, to make and serve an order, setting forth the findings of fact and conclusions therefrom, directing any person or local public corporation, erecting, reconstructing, repairing, maintaining or using any structures to either remove the structure or to erect, reconstruct or repair the same within such reasonable time and in a manner as shall be specified in the order, and it is the duty of every person or local corporation to obey, observe and comply with the order and with the conditions therein prescribed. The provisions with respect to administrative procedures are applicable to hearings under this section.
(c) It is unlawful for any person to fail, omit or neglect to comply with an order or to fail to remove, erect, reconstruct or repair as provided in the order within the reasonable time as designated by the department.
(d) Upon the violation of any order, the division has the power to enter upon the lands and waters where the structures are located for the purpose of removing, repairing or reconstructing the same and to take other and further precautions which it determines necessary to safeguard life or property or protect the natural resources of the state against danger occasioned by the presence of the structures. In removing, repairing and reconstructing the structures or other properties affected, the division may not deviate from the method, manner and specifications contained in the original order.
(e) The division shall certify the amount of the costs and expenses incurred by the division and any state departments for removal, repair or reconstruction which is any way connected to the county governing body of the county or counties in which the lands and waters are located, whereupon it shall be the duty of the county governing body of each county to add the amount so certified to the assessment rolls of the locality or localities as a charge against the real property upon which the dam, dock or other structure is located, designated or described by the department as chargeable therewith, and to issue its warrant or warrants for the collection thereof. Thereupon it shall become the duty of the locality or localities to collect the amount certified in the same manner as other taxes are collected in the locality or localities and when collected to pay the same into the state treasury. Any amount so levied shall become and be a lien upon the real property affected thereby to the same extent as any tax levy that becomes a lien thereon.
§22-11A-5. Bonds.
The division may require the posting of a bond by permittees conditioned upon compliance with the terms of permits issued pursuant to the provisions of this article.
§22-11A-6. Alterations to watercourses and lakes; inspection and correction; illegal impounding of waters.

(a) Whenever, in the judgment of the director, public safety requires, or an illegal excavation, fill, dam or structure impounding waters exists in or on the waters of the state, the director may cause an investigation to be made of the nature of the hazard or violation and its probable effect on the health, safety and welfare of the people of the state and the effect on the environment and natural resources including forests, soil, water, fish and wildlife.
(b) The director may, after hearing on due notice, make and serve an order, setting forth the findings of fact and conclusions therefrom, directing any person or local public corporation, who hereafter makes or allows to be made or is making an illegal or unsafe excavation or fill, or who constructs an illegal dam or structure impounding waters, to remove, replace or correct the dam or excavation or fill materials, within a reasonable time and in a manner as specified in the order, and it is the duty of every person to obey, observe and comply with the order and with the conditions therein prescribed. The provisions with respect to administrative procedures and penalties are applicable to hearings under this section.
(c) It is unlawful for any person to fail, omit or neglect to comply with an order or fail to remove, replace or correct as provided in the order within a reasonable time.
(d) Upon the violation of any order, the director or his or her duly appointed representative, has the power to enter upon the lands or waters where the illegal or unsafe disturbances are located for the purpose of removing, replacing or correcting the same and to take other and further precautions which are determined necessary to safeguard life or property or protect the environment. In removing or replacing the structures or other properties so affected the director may not deviate from method, manner and specifications contained in the original order.
(e) The director shall certify the amount of the costs and expenses incurred by the state for the removal or replacement occasioned and which is connected to the county governing body or municipal governing body of the county, counties or municipalities which the lands and waters are located, whereupon the appropriate governing body shall add the amount certified to the assessment rolls of the governing body as a charge against the real property upon which the excavation, fill, dam or structure impounding waters is located, designated or described by the director as chargeable therewith, and to issue its warrant or warrants for the collection thereof. Thereupon it shall become the duty of the applicable governing body to collect the amount so certified and when collected to pay the same to the division which shall thereupon pay the same into the state treasury. Any amount so levied shall thereupon become a lien upon the real property affected to the same extent as any tax levy becomes a lien thereon.
§22-11A-7. Crimes.
It is unlawful for a person to knowingly and intentionally act in disregard of specifications provided in a construction contract protecting against stream damage. Any person who so acts is guilty of a misdemeanor and, upon conviction thereof, shall be fined five hundred dollars.
§22-11A-8. Prohibition of certain incompatible uses over either primary groundwater recharge areas or federally designated sole sources aquifers.

(a) Definitions: The following terms have the following meanings:
(1) "Primary groundwater recharge area" means those areas of the land surface through which water of great volume and high quality generally move downward to the deeper portions of the underlying groundwater reservoir;
(2) "Primary water supply aquifer areas" means those identified and defined in the United States geological survey maps for such aquifers;
(3) "Incompatible uses" means any hazardous waste or substances as determined by the division, that may ultimately be discharged to groundwater or to the storage of a substance that may contaminate the groundwater;
(4) "Sole source aquifer" means an aquifer system that the United States Environmental Protection Agency, pursuant to public law 93-523 which is known as the federal Safe Drinking Water Act of one thousand nine hundred seventy-four, has designated as the sole or principal drinking water source for an area and which, if contaminated, would create a significant hazard to public health;
(5) "Hazardous wastes" means all materials or chemicals listed as hazardous wastes or all toxic pollutants;
(6) "Hazardous substance" means:
(A) Petroleum; or
(B) Any substance or combination of substances designated as a hazardous substance under section three hundred eleven of the Federal Water Pollution Control Act and which is not a hazardous waste; or
(C) Any substance listed by the division which because of its quantity, concentration or physical, chemical or infectious characteristics may:
(i) Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating illness; or
(ii) Pose a substantial present or potential hazard to human health or the environment when properly stored or otherwise managed: Provided, That the division shall promulgate a list of hazardous substances within one year after the effective date of this section, including petroleum for the purposes of carrying out the applicable provisions of this article. Prior to the promulgation of the list the division shall solicit information on the present practices of industry and other commercial users of hazardous substances.
(7) "Petroleum" means oil or petroleum of any kind and in any form including, but not limited to, oil, petroleum, fuel oil, crude oil, petroleum mixed with one or more other substances, gasoline, kerosene and naphtha.
(b) The division shall designate primary groundwater recharge areas within either other designated sole source aquifer systems or primary water supply aquifer areas, based upon hydro geological conditions and recommendations from the division's groundwater management plan, within twelve months from the date the sole aquifer designation becomes effective or within twelve months of the effective date of this subsection pursuant to the following procedures:
(1) The division shall hold public hearings in regard to the proposed locations and boundaries of the primary groundwater recharge areas;
(2) Notice of each public hearing shall be by Class IV publication in a newspaper of general circulation to the people residing within the primary water supply aquifer. The hearing shall not be conducted less than thirty days following the date of first publication of notice of the hearing;
(3) The division shall finalize and adopt specific locations and boundaries of the primary groundwater recharge areas within three months following the completion of the hearing;
(4) Additional primary groundwater recharge areas or new boundaries of existing primary recharge areas may be delineated by the division based upon new hydrogeological information subject to the procedure outlined in subdivisions (1), (2) and (3) of this subsection;
(c) Copies of the adopted boundaries of the delineated areas shall be kept on file in the offices of the director and the regional director of the division.
(d) The division shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to restrict or prohibit incompatible uses over primary water supply aquifers, giving special attention where necessary to protect primary groundwater recharge areas.
(e) In undertaking its responsibilities under this section, the division shall give first attention to the protection of pristine, largely undisturbed or undeveloped areas to insure the nondegradation of the water resources of the areas.
§22-11A-9. Private and public rights in waters; alterations in watercourses and lakes; prescriptive rights or privileges; action for declaratory judgment; limitations of time.

(a) An alteration in the natural flow, quantity, quality or condition of a natural watercourse or lake situated in this state and either on or below the surface of the earth, effected by the use either on or off riparian, land, withdrawal, impoundment or obstruction of the water in a watercourse or lake shall be determined reasonable and lawful as against any person having an interest in the watercourse or lake, unless the alteration is causing harm to the health, safety and welfare of any person and the natural resources of the state. No action for nominal damages or for an injunction may be maintainable because of an alteration against any person or corporation, whether a riparian owner or not, on the ground that the alteration is an infringement of the plaintiff's public or private rights and privileges in the waters of the watercourse or lake unless the alteration is causing plaintiff harm. This subsection applies to an action regardless of whether the alteration was caused before or after the effective date of this section.
(b) For the purpose of this section, "harm" means:
(1) Interference with the present use of the water or by the complaining party's present enjoyment of the waters or reparian land occurring prior to the suit, or which will immediately occur when the alteration complained of is begun, regardless of whether the interference has caused or will ever cause the party measurable financial loss; or
(2) A decrease in the market value of the complaining party's interest in riparian land occurring prior to the suit, or which may immediately occur when the alteration complained of is begun, regardless of whether use of the water or enjoyment of land was interfered with prior to the suit, or may be immediately interfered with when the alteration complained of is begun.
(c) Interference with the present enjoyment of riparian land or waters may be established by proof that the alteration complained of is rendering or may immediately render riparian land or waters utilized by the complainant less suitable or useful for the purposes to which he or she is presently devoting it. The evidence admissible to establish a decrease in the suitability or utility of land may include, but not be limited to, evidence tending to show that the act complained of has diminished, or when begun, will immediately diminish, the desirability for recreational purposes, or the natural beauty of the body of water to which the land utilized by the complainant is riparian.
(d) The cause of action essential to the initiation and creation of a prescriptive right or privilege against a private or public riparian owner to continue an alteration in the natural condition of a watercourse or lake may not be supplied by the alteration until it has caused the riparian owner harm.
(e) Nothing contained in this section may be construed as depriving any person having an interest, public or private, in the watercourse or lake, of any remedy, either at law or in equity, which they now have, or may hereafter acquire, under the law of this state, for harm caused by an unreasonable alteration in the natural condition of the watercourse or lake, regardless of whether the alteration was harmful and unreasonable from its initiation or subsequently became so.
(f) Any person may maintain an action for a declaratory judgment defining the extent of rights and privileges of any water, watercourse or lake. Neither proof of present harm nor of the likelihood of future harm to the plaintiff from an alteration in the natural condition of a watercourse or lake is a prerequisite to the maintenance of an action, the judgment which may not affect the rights and privileges of any person not a party thereto. The action is maintainable by citizens of the state, corporations, governmental units, owners or public or private land riparian to a natural watercourse or lake, persons to whom owners have granted their riparian rights, in whole or in part, and holders of prescriptive rights or privileges in the water of the watercourses or lakes and natural resources therein.
(g) No statue of limitations may begin to run against a cause of action for a declaratory judgment until a plaintiff has been harmed by an unreasonable alteration in the natural condition of the watercourse or lake effected by the person or his or her predecessor in interest against whom an action may be maintained.
(h) Notwithstanding any other provision of this section, if the harm resulting from an unreasonable alteration of the natural condition of a natural watercourse or lake is one which would not ordinarily be noticeable by an owner of land actually present thereon, no statute of limitations may begin to run against any cause of action referred to in subsections (d) and (e) of this section until the party harmed is fairly chargeable with knowledge that he or she has been harmed.
(i) Nothing contained in this article may be construed to alter of affect the right to exercise any power which the state of West Virginia or any agency thereof, or any county or municipality or any agency thereof, may have to enjoin the initiation or continuance of an alteration in the natural condition of a natural watercourse or lake.



NOTE: The purpose of this bill is to set up a regulatory scheme in which to regulate the use by owners and others of various waterways, lakes and watercourses in order to prevent environmental damage or detrimental modification to such waterways, lakes, streams or watercourses. The bill contains provisions requiring persons to obtain permits before engaging in various activities that affect waterways, lakes, streams or watercourses. The bill also contains civil enforcement provisions as well as a criminal provision for intentionally damaging waterways.

This article is new; therefore, strike-throughs and underscoring have been omitted.