(Coal Tattoo, 4.26.11) Well, WVDEP Secretary Randy Huffman called it the worst ruling I’ve ever seen out of the EQB as far as a lack of respect for the rule of law, so it probably is no surprise that the agency has appealed the state Environmental Quality Board’s decision in the case over International Coal Group’s New Hill West surface mine in Monongalia County.
I’ve posted a copy of the WVDEP appeal, filed in the circuit court of Kanawha County, here. Among other things, WVDEP lawyers argue in the appeal:
The board’s findings that numerous scientific studies have shown that declines in stream macroinvertebrate communities directly downstream of surface mining operations are caused by the combined effects of heightened concentrations of ions was clearly wrong in the view of the reliable, probative and substantial evidence in the record.
CLEAN WATER ACT, GUIDANCE, 4.27.11
(Sustained Outrage. 4.27.11) Big clean water news out today from the Obama administration. As announced by the U.S. Environmental Protection Agency:
Recognizing the importance of clean water and healthy watersheds to our economy, environment and communities, the Obama administration released a national clean water framework today that showcases its comprehensive commitment to protecting the health of America’s waters. The framework emphasizes the importance of partnerships and coordination with states, local communities, stakeholders and the public to protect public health and water quality, and promote the nation’s energy and economic security.
Americans depend on clean and abundant water. However, over the past decade, interpretations of Supreme Court rulings removed some critical waters from Federal protection, and caused confusion about which waters and wetlands are protected under the Clean Water Act. As a result, important waters now lack clear protection under the law, and businesses and regulators face uncertainty and delay. The Obama Administration is committed to protecting waters on which the health of people, the economy and ecosystems depend.
U.S. EPA and the U.S. Army Corps of Engineers have developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This guidance would replace previous guidance to reaffirm protection for critical waters. It also will provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act. The draft guidance will be open for 60 days of public comment to allow all stakeholders to provide input and feedback before it is finalized.
The draft guidance will reaffirm protections for small streams that feed into larger streams, rivers, bays and coastal waters. It will also reaffirm protection for wetlands that filter pollution and help protect communities from flooding. Discharging pollution into protected waters (e.g., dumping sewage, contaminants, or industrial pollution) or filling protected waters and wetlands (e.g., building a housing development or a parking lot) require permits. This guidance will keep safe the streams and wetlands that affect the quality of the water used for drinking, swimming, fishing, farming, manufacturing, tourism and other activities essential to the American economy and quality of life. It also will provide regulatory clarity, predictability, consistency and transparency.
As The Washington Post explained:
It remains unclear what portion of the nation’s waterways will now come under stricter regulation. After the Supreme Court issued rulings that questioned whether the Clean Water Act applies to isolated streams that are not connected to navigable waterways, Bush officials said as many as 20 million acres of wetlands fell under that category.
The EPA has also abandoned more than 1,500 pollution probes in recent years, given the uncertainty surrounding what qualifies as “waters of the United States.”
You can read the proposed guidance here, and EPA has posted some cost-benefit studies on this guidance here and here, and this Sierra Club report has some interesting background, as does this report from the Congressional Research Service.
It’s not surprising that West Virginia’s members of Congress signed onto a letter opposing this action by EPA. Earthjustice, meanwhile, had kind words for the EPA’s move:
For nearly a decade the Clean Water Act has been broken and left thousands of streams, rivers and wetlands exposed to oil spills, fills and destruction, and other industrial discharges from polluters.
This pollution has not only left our waters dirty, it has threatened the millions of Americans who depend on these waters for drinking. The Obama administration’s new guidance reinstates most of the protections of the Clean Water Act, although there are some important water bodies that may still be left unprotected until Congress addresses this issue. This is an important step forward to fix a Bush-era guidance that sacrificed our waters for the sake of special interests.
This new guidance now will be subject to public comment. We know the American people want, expect, and deserve clean water for their families and communities. We hope they will speak up now to support the Obama administration’s efforts to keep our nation’s waters protected from pollution.