Originally published March 16, 2010
As has been described in previous Alerts (See
"Opposition to Coal Mining in West Virginia: It's Not
About the Law"), EPA has used a number of different
approaches in seeking to thwart the issuance of so-called
"dredge and fill" permits under Section 404 of the
federal Clean Water Act (CWA) for coal mining projects in
Appalachia. Perhaps the most well developed to date is the claim
that new or expanded mining operations will cause violations of
State "narrative" water quality standards, meant to
protect general biological, aquatic and other physical systems. In
West Virginia, that effort has reached a new level, and State
lawmakers have expressed their desire to return some balance to
EPA's oversight activities in this regard.
Two resolutions (one in each chamber) were enacted in the 2010 West
Virginia Legislative Session expressing the Legislature's
intent that State water protection laws should be primarily
administered, applied and interpreted by the State Department of
Environmental Protection (DEP), rather than EPA. Further, those
resolutions reflect a specific understanding that the State's
narrative water quality standards should not be
interpreted in such a manner as to find a violation whenever a
certain subcategory of "special use," such as a
"certain species of mayfly," is threatened. In addition,
on March 9, 2010, the Select Committee on Coal Mining Permits for
the West Virginia House of Delegates sent a letter to EPA
Administrator Lisa Jackson, expressing much the same views, and
objecting to EPA's continued efforts to reverse Section 404
permitting decisions that were made years ago. In the words of the
Committee, "[T[o say we are disappointed is an
understatement." Suggesting that EPA work with the DEP to
resolve these concerns, "post haste," the Special
Committee also invited EPA to discuss these issues with the
Committee directly. Whether such expressions of legislative intent
by the State will be considered relevant to EPA's oversight
initiatives is an open question.
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