DEP Stormwater General Permits – Back Door Back Sliding

Dr. Christine Wimer, President Jefferson County Foundation 

The Department of Environmental Protection (DEP) administers the federal National Pollutant Discharge Elimination System (NPDES) program in West Virginia for the U.S. Environmental Protection Agency (EPA). In doing so, the DEP writes Stormwater General Permits that provide standards for construction and operation activities across the state that could poison or pollute water resources. The general permits are revised and reissued every five years by the DEP and reviewed by the EPA. The progressive permitting program requires that each new permit is at least as stringent as the last and the goal is to increase the protection for water resources over time.

Federal regulations prohibit regulated entities or representatives of regulated entities from participating in the writing of general permits. This prevents regulated entities from reducing the protections in the permits in order to reduce the burden on their business. It seems however that certain regulated entities have found a way around this.

The DEP released a new Stormwater Construction General Permit in 2019, and as it should, it improved protections for water resources over the previous version. However, this permit was appealed to the Environmental Quality Board (EQB) by industry and the DEP quickly settled with them, giving them all of the changes they requested, and the EQB approved. But, then the EPA objected to these changes as backsliding, and specifically told the DEP that no entity could continue to operate under the now expired and replaced previous version of the permit.

After the EPA rejected the changes, the DEP advised the EPA they were abandoning the changes and, allegedly, requiring entities to either obtain a registration under the original 2019 general permit or get an individual NPDES permit. However, instead, the DEP issued Unilateral Enforcement Orders, allowing over 730 entities across the state to operate without permit coverage, under the expired permit conditions of the previous general permit, in direct defiance of the EPA and of its own commitment to the EPA.

Jefferson County Foundation filed an appeal of the first of these orders in April, citing that the DEP was operating beyond its authority by allowing entities to operate without an NPDES permit in violation of the Clean Water Act. The case was delayed, and despite the EQB’s previous assurances it would not be dismissed for mootness, last week the case was dismissed as moot, the mootness created by its own delays. The Foundation is considering the options for appeal pending the review of the final decision; as well as considering what other options exist for challenging this sham process.

There is a clear pattern here, where: 1. a fairly protective permit is approved, 2. an industry representative appeals it, 3. a quick settlement is made by the DEP with great deference to the wishes of industry, and 4. the permit conditions are relaxed. It has happened at least three times now. First, with the Oil and Gas Stormwater General Permit, then with the Construction Stormwater General Permit as described above, and it is happening again. Last fall, the Industrial Stormwater General Permit (also known as the Multi-sector) was reissued. It was appealed by another industry group with the same lawyer as the previous two appeals.

The Foundation fears that this pattern represents a systemic coordinated attempt by regulated entities to participate in the drafting of general permits, which is strictly prohibited by federal law, and induce “backsliding” or relaxing of requirements and protections as long as possible. This case sets up a pattern that will sanction the DEP using enforcement orders as a stop gap measure to allow entities to continue working under more lenient standards whenever more convenient for them. The DEP and EQB seem to be more than complicit in this. If successful, this will specifically thwart the overall goal of the NPDES program of increasing protection for water resources and leave the natural resources of West Virginia in grave danger. Left unchecked we can expect even more of this to come.

Seeing this pattern, Jefferson County Foundation submitted a motion to intervene in this latest appeal last fall. The EQB rejected the motion citing that the DEP had already settled the appeal. The revised draft permit that was written from that settlement has now been released for public comment (Sept 17 – Oct 23,  2020). We encourage you to submit public comment. Please request a virtual pubic hearing in your public comment. The draft permit can be found here. If there is enough public interest, the Secretary may hold a public hearing. More information can be found here. Check out our website for discussion of the permit changes and ways to take action. Jeffersoncountyfoundation.org/make-a-difference/

We must not allow this abuse of process, and contrived back door manipulation by industry lawyers and lobbyists to protect the polluters to continue. We must stand up for our natural resources. We must force the DEP to do its job – protect the environment, not those who endanger it. Please check out the Jefferson County Foundation website and if you are able support our effort to protect the natural resources of WV.