Senate Bill No. 562
(By Senators Kessler (Mr. President), Beach, D. Facemire, Fanning, Hall, Helmick, Prezioso, Plymale and Klempa)
[Originating in the Committee on Natural Resources;
reported February 15, 2012.]
A BILL to amend and reenact §22-11-7b of the Code of West Virginia, 1931, as amended, relating to establishing a public policy for narrative water quality standards; establishing a procedure to determine compliance with the biologic component of the narrative water quality standard; clarifying rule-making authority; and allowing an affected water intake owner to waive the one-half mile zone requirement contained in water quality standards established by the Department of Environmental Protection.
Be it enacted by the Legislature of West Virginia:
That §22-11-7b of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7b. Water quality standards; implementation of antidegradation procedures; procedure to determine comp1iance with the biologic component of the narrative water quality standard.
(a) All authority to promulgate rules and implement water quality standards vested in the Environmental Quality Board is hereby transferred from the Environmental Quality Board to is vested in the Secretary of the Department of Environmental Protection. as of the effective date of the amendment and reenactment of this section during the 2005 regular session of the Legislature: Provided, That the legislative rule containing the state’s water quality standards shall remain in force and effect as if promulgated by the Department of Environmental Protection until the secretary amends the rule in accordance with the provisions of article three, chapter twenty-nine-a of this code. Any proceedings, including notices of proposed rulemaking pending before the Environmental Quality Board, and any other functions, actions or authority transferred to the secretary shall continue in effect as actions of the secretary.
(b) All meetings with the secretary or any employee of the department and any interested party which are convened for the purpose of making a decision or deliberating toward a decision as to the form and substance of the rule governing water quality standards or variances thereto shall be held in accordance with the provisions of article nine-a, chapter six of this code. When the secretary is considering the form and substance of the rule rules governing water quality standards, the following are not meetings pursuant to article nine-a, chapter six of this code: (i) Consultations between the department’s employees or its consultants, contractors or agents; (ii) consultations with other state or federal agencies and the department’s employees or its consultants, contractors or agents; or (iii) consultations between the secretary, the department’s employees or its consultants, contractors or agents with any interested party for the purpose of collecting facts and explaining state and federal requirements relating to a site specific change or variance.
(c) In order to carry out the purposes of this chapter, the secretary shall promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code setting standards of water quality applicable to both the surface waters and groundwaters of this state. Standards of quality with respect to surface waters shall protect the public health and welfare, wildlife, fish and aquatic life and the present and prospective future uses of the water for domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial uses thereof. The water quality standards of the secretary may not specify the design of equipment, type of construction or particular method which a person shall use to reduce the discharge of a pollutant.
(d) The secretary shall establish the antidegradation implementation procedures as required by 40 C. F. R. 131.12(a) which apply to regulated activities that have the potential to affect water quality. The secretary shall propose for legislative approval, pursuant to article three, chapter twenty-nine-a of the code, legislative rules to establish implementation procedures which include specifics of the review depending upon the existing uses of the water body segment that would be affected, the level of protection or “tier” assigned to the applicable water body segment, the nature of the activity and the extent to which existing water quality would be degraded. Any final classification determination of a water as a Tier 2.5 water (Water of Special Concern) does not become effective until that determination is approved by the Legislature through the legislative rule-making process as provided for in article three, chapter twenty-nine-a of the code.
(e) All remining variances shall be applied for and considered by the secretary and any variance granted shall be consistent with 33 U. S. C. Section 1311(p) of the Federal Water Control Act. At a minimum, when considering an application for a remining variance the secretary shall consider the data and information submitted by the applicant for the variance; and comments received at a public comment period and public hearing. The secretary may not grant a variance without requiring the applicant to improve the instream water quality as much as is reasonably possible by applying best available technology economically achievable using best professional judgment. Any such requirement will be included as a permit condition. The secretary may not grant a variance without a demonstration by the applicant that the coal remining operation will result in the potential for improved instream water quality as a result of the remining operation. The secretary may not grant a variance where he or she determines that degradation of the instream water quality will result from the remining operation.
(f) (1) It is declared to be the public policy of this state that any interpretation and implementation of West Virginia's narrative water quality standards, which have been authorized by the Legislature in a promulgated administrative rule, is the responsibility of the department. It is further declared to be the public policy of this state that the department's interpretation of West Virginia's narrative water quality standards must fully comply with the statement of public policy set forth in section two of this article.
(2) Measuring compliance with the biologic component of West
Virginia's narrative water quality standard requires evaluation of the holistic health of the aquatic ecosystem and a determination that the stream: (i) Supports a balanced aquatic community that is diverse in species composition; (ii) contains appropriate trophic levels of fish, in streams that have flows sufficient to support fish populations; and (iii) the aquatic community is composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach, or, if the assessed reach has insufficient flows to support a fish community, in those downstream reaches where fish are present.
(3) The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary to implement the provisions of this section.
(g) The one-half mile zone requirement contained in §7.2.a.2, series two, title forty-seven of the West Virginia Code of State Rules, is not applicable to any stream segment upstream from the intake of a public water supply (Water Use Category A) if the affected water intake owner waives the benefit of the rule in a writing provided to the department. To remain effective, the waiver must be renewed by the downstream water intake owner for each permit renewal of an affected upstream discharger. Any waiver under this subsection may be revoked by the owner of an affected intake upon the provision of written notice to the department. Upon receipt of the notice of revocation, the department shall modify any upstream permit to impose requirements in accordance with the one-half mile zone requirement.