WVEC Action Alert

May 28, 2008

Comment Period and Public Hearing
DEP Administrative Stream Protection Rule

Comment Period Ends June 3, 2008

Public Hearing: June 3, 2008, at 6:00 p.m.
Location: DEP’s Charleston headquarters
     601 57th Street S.E., Charleston, WV 25304
     Coopers Rock Training room

You are probably tired of hearing about “Tier 3” and “Antidegradation.”  After all, following nearly a decade-long battle to protect West Virginia’s most pristine headwater streams, this year the West Virginia Legislature finally adopted an Antidegradation Implementation Rule that should protect the state’s cleanest streams from future pollution. The Legislature’s action eliminated the Tier 2.5 stream category, and added a new and expanded definition of Tier 3 waters.

That should be the end of it, right?  Well, not quite.

In May the Department of Environmental Protection filed a proposed “Tier 3 Interpretive Rule.”  This is an administrative rule, not a legislative rule, that the agency is proposing in order to clarify the new definition of Tier 3 waters.  The agency will use this administrative rule to implement the new rule passed by the Legislature.

Unfortunately, DEP’s proposed interpretation would limit the number of streams that automatically qualify for Tier 3 protection in several important ways:

  • First of all, DEP proposes a definition of streams on public lands that is too narrow. Tier 3 protections should apply to all streams and stream segments located within National Wilderness Areas, State Parks, National Parks and National Forests, and should include all waters within units of the National Park system, including the Gauley River.
  • Secondly, DEP proposes to use only a benthic macroinvertebrate “bug score” to determine if a stream qualifies as a “High Quality” water.  While this is one measure for high quality water, it is not the only measure. Streams should be considered eligible for designation based on a consideration of all available biological, chemical, and physical measurements.
  • Finally, the DEP interpretive rule is unclear about the interaction of Tier 3 streams with other waters. DEP should make it clear that activity upstream of a Tier 3 segment is not allowed to cause harm or degradation to the downstream Tier 3 segment.

Now is your chance to let DEP know that West Virginia’s highest quality rivers and streams must be protected from future degradation.  You can make those comments at the public hearing on June 3, or submit written comments by “snail mail” or email by June 3rd to:

Scott Mandirola
Assistant Director,
Division of Water and Waste Management
601 57th Street S.E.
Charleston, WV 25304
smandirola@wvdep.org 

DEP’s official notice follows below:

The West Virginia Department of Environmental Protections Division of

Water and Waste Management has scheduled a public hearing and comment period on a proposed new interpretive rule under its antidegradation program -- 47CSR2A, “Designation of Tier 3 Waters.”

The hearing will be held at DEP’s Charleston headquarters, 601 57th Street S.E., Charleston, WV 25304, in the Coopers Rock Training room on June 3, 2008, at 6:00 p.m. In addition to oral comments provided at the hearing, the agency will accept written comments at any time up to and including the public hearing. No comments will be accepted after that date. Written comments may be submitted to Scott Mandirola, Assistant Director, Division of Water and Waste Management, at the above address. Comments may also be e-mailed to smandirola@wvdep.org.

Comments will be made a part of the rulemaking record. Copies of the rule and other rule documents are available from the Secretary of State’s office or from the agency at http://www.wvdep.org/dwwm/wqs or http://www.wvdep.org/antideg. You may also obtain hardcopies of this information by calling Gloria Shaffer at (304) 926-0499, ext. 1033.