2008 WV Legislative SessionWrap-up from WV Environmental Council
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After a battle that has lasted more than eight long and grueling years, the WV Legislature finally adopted an Antidegradation Implementation Rule that should protect the state’s cleanest streams from future pollution. The Legislature’s action actually eliminates the controversial Tier 2.5 stream category, and adds a new and expanded definition of Tier 3 waters.

Tier 3 streams now are defined as “all Federally designated rivers under the ‘Wild and Scenic Rivers Act’, 16 U.S.C. §1271 et seq.; all streams and other bodies of water in state parks which are high quality waters or naturally reproducing trout streams; waters in national parks and forests which are high quality waters or naturally reproducing trout streams; waters designated under the ‘National Parks and Recreation Act of 1978’, as amended; and pursuant to subsection 7.1. of 60CSR5, those waters whose unique character, ecological or recreational value, or pristine nature constitutes a valuable national or state resource.”

So, the Tier 2.5 category is now gone. Tier 2.5 was a compromise with industry in the first place, created by the old Office of Water Resources several years ago to avoid having to list all reproducing trout streams as Tier 3, and it would have allowed those streams to be further polluted. This surprising turn of events is a major victory for stream protection in several ways:

· The State has finally made an official commitment to stream protection;

· All reproducing trout streams on public lands in West Virginia will now automatically be Tier 3;

· Streams on private lands can be nominated for Tier 3 designation, without requiring legislative approval.

So the Coal Association partially got what it wanted in the Water Quality Standards rule: a weakened standard for aluminum, and the ability to appeal permit decisions on trout streams not officially on the list. But the definition of “trout waters” was left in tact, along with the old B2 stream list in Appendix A.

Obviously, a lot of work remains to be done in order to protect all waters of the state from future degradation. But for now, the Legislative war over stream protection is over. So – aside from the streams rules – how did the environment fare during the 2008 Session of the West Virginia Legislature?

As usual, it’s pretty much a mixed bag. There were some significant victories, and there were some losses. Here is a brief summary of some of the environmental bills that made it through the sausage-grinding process, and some that did not.

HB 4267/SB 438 – DNR Rules on Drilling in State Forests: This was a good piece of legislation that was passed by both chambers. It was basically a response to terrible land management practices by an irresponsible oil and gas operator at Kanawha State Forest, but morphed into a rule that would apply on all State Forests. The rule provides for increased protection and oversight of drilling activities on State Forests, and also increases public involvement in the process.

SB 622 – Voluntary Rural and Outdoor Heritage Conservation Act: This is a good bill that began as an Interim Study on creating a mechanism and funding source for farmland and natural resource preservation. The bill was subjected to an arduous track through the legislative process, but was finally approved by both houses. Unfortunately, the final version adopted by the Legislature is pretty stingy regarding the funding amount.

SB 641/HB 4501 – Amending the Water Resources Protection and Management Act: This is the “water quantity” bill. The bill authorizes the continuation of the water resources survey; authorizes DEP to develop a state water resources management plan; and authorizes the designation of regional and critical area water resources planning areas and plans. The bill was passed by both houses, but only the House version of the budget bill contained the more than half a million dollars funding for the bill. The budget conference committee restored the funding in the Senate version.

SB 770 – The McDowell County Mega-Landfill Bill: This was truly an ugly bill that would have encouraged the importation of out-of-state garbage by offering to reduce landfill tipping fees statewide. It was simply another attempt to raise the tonnage cap at the McDowell landfill and turn it into a mega-dump for East Coast garbage. This bill was fast-tracked and passed by the Senate. Thanks to a lot of hardwork by WVEC lobby team member John Christensen, and a strong showing by grassroots folks at the public hearing, the bill was never taken up for consideration by the House Finance Committee and died a well-deserved death.

HB 4438/SB 626 – Expedited Air Pollution Permits for Minor Sources: This is a truly ugly bill that basically allows construction to begin on minor-source facilities and modifications to minor-source facilities before their air pollution permits are approved! 

This was a Chamber of Commerce sponsored bill that they have been pushing for several years, and this year the Department of Environmental Protection (DEP) got on board in support. The WVEC lobby team negotiated some amendments to the bill that would have improved it somewhat. Those amendments were accepted by the House, but were mostly gutted by the Senate. The bill passed in the final hours of the last night of the session. The basic premise of the bill is simply bad public policy.

Energy Bills: First, of all nothing bad happened – there was no coal-to-liquids bill for example. Secondly, not much good happened either. However, a few positive bills did make it through the process. SB 474 provides a sales tax holiday for Energy Star products for home use. This year, the holiday will be September 1-7; in 2009 and 2010, it will be the entire month of September. And HB 4434 creates a revolving loan fund for energy and water savings projects at state institutes of higher education.

Delegate Barbara Fleischauer (D-Monongalia) sponsored five progressive energy-related bills. But only one passed both houses – HB 4028, which allows counties and municipalities to enter into contracts for energy savings at public buildings. Unfortunately her other four energy-related bills never even made it onto a committee agenda. These were HB 4066, the Green Buildings Act; HB 4083, which would have created a renewable portfolio standard; HB 4095, which would have created a commission to study the impact of global warming in West Virginia; and HB 4133, which would have resulted in West Virginia adopting California’s low-emission vehicle standard.

Other Good Bills That Went Nowhere: As usual, some really good ideas for the environment never even got onto committee agendas. These included (once again) SB 135/HB 2773 – the Bottle Bill, and SB 240/HB 4050 – the Public Campaign Financing Act, and SB 23 – Requiring a Public Health Assessment of DEP Rules. And add to that list some bills that were introduced for the first time this year, such as SB 482/HB 4286 – the Oil and Gas Surface Owner’s Bill of Rights.

Then there was SB 588, a bill that essentially would have eliminated large mountaintop removal mines by outlawing “valley fills,” the practice of dumping mine wastes into streambeds.

Senator Jon Blair Hunter (D-Monongalia) introduced SB 588 knowing full well that he would not have the votes to get the bill out of committee. But as acting chair of the Senate Energy, Industry and Mining Committee, he engineered a remarkable “informational hearing” about the impacts of this method of mining in the coalfields.

While allowing the Coal Association to give its usual “dog and pony show” in defense of the undefendable creation of valley fills, the Senator also arranged for inspirational testimony about the reality of mountaintop removal mining from folks like Cindy Rank, Denise Giardina, Joe Lovett, and coalfield residents Lorelei Scarbro and Reverend Roy Crist.

The committee room was packed. There was decent attendance by committee members and there was a lot of media coverage. It truly was a highlight of this year’s legislative session.

Well, that’s a brief look at how the environment fared in the 2008 Legislative Session. Once again the West Virginia Environmental Council lobby team had a respectable presence at the Capitol and made a significant impact on environmental legislation.

The WV State Chapter of the Sierra Club is one of the original members of the WVEC, and the lobby team thanks you for your continued support.

(WVEC lobbyists John Christensen and Vickie Wolfe contributed to this article).



WVEC lobbyists planning strategy under the Gold Dome this past session.
From L to R: John Christensen, Don Garvin, Vickie Wolfe

Photo © Chuck Wyrostok/Appalight.com