WVEC Legislative Update
February 23, 2001
2008---This fun bill, the "We can afford to pay our lobbyists
bill" Sponsored by Delegate Boggs, offers that no state money should go to
groups that lobby. In Political Subdivision and Judiciary.
2017 ---The ATV Bill clarifies rules regarding where an ATV can be
driven as well as mandating helmets for children riding ATVs. Introduced by
Delegate Mary Pearl Compton, the bill is assigned to Road & Transport and then
2058---This bill requires that Secretary of State forward to county
officials and election officials a summary of ballot counting procedures
specific to each county's voting systems. Sponsored by Delegate Kuhn, it begins
in the Judiciary and continues to the Finance committees.
2070---Sponsored by Delegate Louisos this bill requires that timber
operations remove all severed trees from site. It's tidy, but it'll hurt the
timbered area because it deprives the area of potential nutrients. It has been
sent to Judiciary.
2089---"The overweight coal truck bill" sponsored by Delegate Perdue.
Its goal is to crack down harder on coal truck weight limits. Delegate Perdue, a
long time fighter against the coal industry, brings experience and the desire to
get this bill passed. Feel it rumbling in the Transport and Judiciary.
2097---Proposed by Delegate Smirl, this bill seeks to prohibit civil
actions that seek medical monitoring costs. You'll find it in Judiciary
2205 ---By request of our governor, Speaker Kiss and Delegate Trump
are sponsoring this bill in order to permit playing of video lottery games in
restricted adult-access-only facilities. The "gray machines" allowed could end
up numbering about 9,000. Play it in Judiciary and Finance.
2361---Speaker Kiss is sponsoring this bill with the purpose of
imposing a special excise tax on smokeless tobacco. Its proceeds would benefit
the programs that target reduction and cessation of tobacco by minors. It'll be
with the Health & Human Resource and Finance committees.
2366---Delegate Virginia Mahan introduced this bill to remove the
Freedom of Information Act exemption for the WV Development Office. Find it in
Government Organization and Finance.
2382---Introduced by Delegate Fleischauer, this bill is to add sexual
orientation to categories covered the Human Rights Act, & Fair Housing Act
prohibiting acts of discrimination within the work place or places of public
accommodations. Dubbed the "Hate Crimes Bill", it will be in Judiciary.
SB12---Senator Deem sponsors this amendment to the Solid Waste Act
allowing residents to exclude "yard waste" from solid waste and lets residents
pile up yard waste. Smell it in Natural Resources.
SB26---This stream-based bill, by Senator Ross, allows landowners to
enter small streams and ditches to prevent flooding on their property. "The
Flood thy Neighbor Bill" will be oozing along Judiciary.
SB51---Proposed by Senator Facemyer, this bill is to check the
ever-increasing volume of administrative rules by giving some flexibility for
state agencies and private businesses to make decisions without involving the
government. This law-circumventing bill can be found in Judiciary.
SB110---Senator Mitchell proposes to set up a regulatory scheme in
which to monitor waterways, lakes, and watercourses with this bill. It also
contains civil enforcement and a criminal provision for those who intentionally
damage waterways. The "Water Act" is floating in Natural Resources.
SB184---Presented by Senator Snyder, this bill requires that the
Secretary of the State Department of Health and Human Resources propose rules
for the regulation of private water wells. See it in Natural Resource and
SB187---Senator Craigo's bill requires log haulers to cover their logs
with a tarpaulin. If it costs timber money it's a good bill. The bill can be
found under covers in Transportation.
West Virginians Deserve Strong Antideg Policy
by Nathan Fetty and Donald S. Garvin, Jr.
Our regular readers know there's a water war brewing in the legislature this
year. An industry Dirty Water Coalition has succeeded in substituting its own
Dirty Water version of an antidegradation implementation rule in place of the
version put forward by the WV Environmental Quality Board.
It is not clear at this time how antideg will be treated by the politicians
here in Charleston. There is some early indication that the politicians don't
want an all-out war on this and are hoping to see some type of compromise
legislation brought forth. And it seems increasingly likely that the WV Division
of Environmental Protection will play a major role in drafting any compromise
rule that is offered.
Of course, WVEC supports the strongest antideg policy possible, simply
because we like clean water. In addition, if West Virginia adopts an
antidegradation policy that fails to meet or exceed Clean Water Act (CWA)
requirements, federal funding for state water programs will be dramatically
reduced, and, in the worst case scenario, the federal Environmental Protection
Agency (EPA) might decide to promulgate its own rule for the state, which would
not necessarily provide protection measures as strong as the citizens of West
Virginia would like.
In order to meet minimum federal requirements, we feel WV's antideg policy
must meet the following standards:
1. Current Tier structures should be retained and better definitions of high
quality streams must be provided (no elimination of Tier 2.5 and no Tier 1
default). There should be an open public nomination process for Tier 2.5 and
Tier 3 waters.
2. Streams should be listed as impaired (303d list) on a parameter by
3. Any water pollution trading must be on a watershed basis, must be
enforceable, and must result in a significant improvement of water quality.
4. No exemptions for Nationwide Permits 21 and 26 (mountaintop removal
5. Cumulative impacts of any allowable degradation must be considered and
6. Existing permits should be subject to some type of antideg review.
7. Adequate public notice and comment must be an integral part of the antideg
It's time to contact Governor Wise and the new DEP Director Mike Callaghan
and let them know that we expect them to support a strong antideg implementation
plan, one that contains all of the elements mentioned above (details on
contacting them can be found on Page 5).
For more information, see the Antideg Primer.
"Whatever we do to a landscape can ultimately be seen in the river into
which that landscape drains and we have done terrible things to many
landscapes. To achieve the goals of the Clean Water Act, we must stop using our
rivers and landscapes as though they were disposable. It takes more care and
money, in the short run, to manage nature well than it does to abuse it, but the
dividends are great."
-President Jimmy Carter
CWA Antidegradation Primer
Congress passed the federal Clean Water Act (CWA) in 1972. The purpose of the
act is to "restore and maintain the chemical, physical, and biological integrity
of the Nation's waters." The goal of the act is to insure that all the nation's
rivers and streams eventually are "fishable and swimmable." Anti-degradation (antideg)
requirements actually pre-date the CWA they were first adopted as policy in
federal regulations in 1968.
The Clean Water Act requires states to establish water quality standards that
define the goals and limits for all state waters. In establishing water quality
standards, states must take three major interrelated actions.
---They must designate uses - human and ecological water uses that are
officially recognized and protected. States must designate one or more uses for
each water body.
---They must establish water quality criteria - descriptions of the
conditions considered necessary to protect each designated use.
---They must develop and implement antidegradation policies and procedures
requirements for protecting all existing uses, keeping clean waters clean, and
giving strict protection to "outstanding" waters.
Federal law establishes a three-tiered approach to implementing antideg water
---Tier I Protect Existing Uses - permit no activity that would eliminate
or interfere with an existing use. This is the absolute floor, the lowest level
of water quality protection.
---Tier II Maintain "High Quality" Waters - avoid, or at least hold to a
minimum the lowering of quality on waters that currently meet or exceed water
---Tier III Protect "Outstanding" Waters give strict protection to the
most ecologically significant and sensitive, the cleanest, and the most
recreationally important waters (such as waters of National and State parks and
---West Virginia and some other states have created another level of
protection, Tier 2.5, to give additional protections to some "high quality"
waters, such as waters in our National Forests and reproducing trout streams.
Antideg is only a review of polluting activity before that activity is
permitted, but an important one that's supposed to make sure the economic and
social benefits of the discharge outweigh the damage to the environment.
The antideg section of the federal CWA insures, at a minimum, that our clean
waters stay clean unless there are important social and economic development
issues that require limited degradation. The CWA requires that states develop
and implement an antideg policy that meets or exceeds federal law. West Virginia
does have an antideg policy but has never enacted an implementation plan for
that policy, despite the fact that it has been required for almost 30 years.
Give 'Til It Hurts
by Don Garvin, WVEC President
Once again I am shamelessly begging you to support the Lobby Team with your
financial contributions. If you have not renewed your WVEC membership this year,
please do so as soon as you finishing reading this Update. If you have renewed
and can afford to send us an additional contribution, your generosity will be
And don't forget that you can also help by purchasing raffle tickets for the
Mark Blumenstein sculpture, "Sunrise Broaching." You can purchase tickets at
Taylor Books, at the WVEC/WVCAG office, or from WVEC board members. You can also
purchase a ticket by mail: just send $5 per ticket to: WVEC Raffle, 1324
Virginia St. E., Charleston, WV 25301, and we'll send your stub(s) by return
mail. Also, please help us by selling tickets to your friends and enemies. Just
call 346-5905 and we'll get additional tickets out to you right away.
A picture of the sculpture is at
Lobby Your Legislators!!
The WVEC lobby team would love to have your help! If there is a day that you
can come to Charleston and lobby your legislators, let us know. Just call the
WVEC office at 346-5905 at least the day before, and we'll get you in touch with
a lobby team member.
Remember, it's YOUR letters, visits and phone calls that tell our elected
officials what matters!!
Is Environmentalism A Balancing Act?
by Frank Young, President, WV Highlands Conservancy
So often we hear politicians, and especially industry representatives, talk
about "balancing" environmental concerns with economic development. Many even
call for a "more balanced" approach.
The implication to this "more balanced" jargon is almost always that
environmental laws and regulations are so strict and so strictly enforced that
economic development is stifled. I suggest that this is a misguided and
shortsighted view. If there is an imbalance, it is that politicians and economic
developers almost always treat environmental protection as a secondary
consideration- as the rhetorical "stepchild."
Through either weak laws or lax enforcement (or both), industry achieves its
goal of externalizing environmental costs away from the products produced and
onto the larger society, as a subsidy. The "balancing" language, then, is a
smoke screen; code words for "short term profits over long term sustainability."
This may serve some corporations' short term economic goals. But study after
study indicate that communities that practice ecological wisdom and
sustainability are, in the long run, economically stronger and more viable
socially than communities that let rogue industrialists rip, pillage and pollute
the landscape, the air and the waters.
As then interim West Virginia Division of Environmental Protection Director
Randy Huffman said a few weeks ago, "Economic development and environmental
protection can and must coexist. Contrary to popular belief, these issues are
not at odds with each other."
Mr. Huffman is quite right. This is not a balance where gain by one must be
offset by the other's loss. Economic development and environmentalism are not
mutually exclusive. They can go together, and do in many countries, states and
The progress of one can benefit the other. Pollution should not be viewed as
a necessary evil, but as a problem that still needs a resolution. Pollution and
waste cost industry, consumers and taxpayers money. This is common ground upon
which we should develop solutions.
West Virginia legislators and administrators should quit looking only to the
next campaign contribution or the next election. The current generation of West
Virginians curses previous generations for letting shortsighted profiteers
destroy and damage so much of our life support system. But unless we quit
trading our natural, life-sustaining assets for thirty more pieces of fool's
silver, our progeny will just as surely hold us in contempt of human decency for
The Filthy Water Drain
by Norm Steenstra, Executive Director, WV-CAG
Many times the WVEC has sat down with industry reps to seek common ground on
issues. Electric dereg, air quality rules, Brownfields, quarries, groundwater,
coal bonding and blasting are some that come to mind. Once again we are being
asked in the heat of the battle to sit down and talk, this time about filthy
water. Legislators like this process because they take less heat on agreed bills
and find comfort in the fact that if nobody's happy then the bill must be OK.
Most legislators don't care if the bill is a clean or a dirty water bill, they
just want a water bill passed.
Talking to the polluter community is a double-edged sword. The positive side
is that we have a chance to make our points and also to understand how they
affect industry. When government asks that we begin negotiations we really can't
refuse. To do so underscores the stereo type of the unrealistic and unrelenting
tree huggers. We cannot compete with the legal and "scientific" resources that
the polluters bring to the talk-a-thons. There are over 50 registered lobbyists
working to pass filthy water. There are about 6 of us working the other side. To
tie up 2 or 3 of us in the negotiations really dilutes our efforts, not just on
water but all our other issues, too.
We have to talk. We have to see if we can change a filthy water bill into a
"pretty clean" water bill. While your lobby team is being diluted you must talk
for them. Talk to every body about clean water. Certainly talk to your
legislators and the Governor's office but also do everything to get other people
thinking about clean water. There is a spill over effect. Over the last 12
years, the WVEC has brought controversy to the legislature. The average lawmaker
wants to avoid the PR battle and negative press . He or she does not want to
repeat the uproar of mountaintop removal, garbage, dirty secrets, etc., etc.
Lawmakers are resenting Industry for introducing the dirty water bill. Help
us increase that resentment. Communicate to Governor Wise, your newspapers and
the legislators on just how important clean water is to you. Sometimes you can
go to the well too often but this is not one of those times. Talk and write
clean water. We can win this one for the Groupers.
Policy 101-Don't Look, Don't Ask
by Rick Eades, OVEC
As the legislature begins, consider these possible blindspots, that you might
be able to drive a coal train through. Don't look now, but no one seems to be
asking how West Virginia can achieve economic development given the following
1. Coal slurry impoundments? Nothing to address inadequate siting or
permitting laws of potential monsters. Case-in-point: the 645-acre, (planned)
920-foot high dam, Brushy Fork slurry "pond" is slated to hold 5 billion gallons
of coal process slurry. This site looms over the entire Coal River basin, St.
Albans, and downstream development interests. Oh, it should be closed in about
2. Pass the buck? A DEP slurry task force has stopped inspecting mines
beneath the ponds, claiming (Mine Safety and Health Administration) MSHA is
doing it. Initial task force findings are due about April. MSHA saw no
"earth-shattering" problems in its recent review. It also didn't see a problem
at the Kentucky site that spilled 250 million gallons of slurry. That's
equivalent to 40,000 tanker truck spills. Imagine that or worse coming down the
Coal River into St. Albans. How comfortable is the legislature with reassurances
from these agencies?
3. New economic development? That might be less attractive along rivers where
slurry ponds pock the land like a latent disease. Would you locate a new
industrial or commercial facility downstream of these "ponds" if your process
had to rely on constant sources of usable water? Ask AEP or the Marathon-Ashland
refinery how happy they were to be downstream of the Kentucky disaster.
4. Economic development? Businesses and municipalities downstream of the
Marmet Locks on the Kanawha River could face a new risk, too. Dredging for "coal
fines" is underway, and will exhume 2 million cubic yards of river sediment from
behind the locks and dam. Conditions there are somewhat similar to an industrial
waste settling pond (see DuPont directly upstream). Look out water intakes,
boaters, Regatta interests all the way to Point Pleasant. Oh yeah, permitting
agencies did not require a single sample for toxic chemical analysis in the
entire material to be dredged.
5. Life in our rivers is dying! The USGS report on the New/Kanawha River
basin contains data showing serious sulfate problems (from mining) and a marked
decline in invertebrate life (stream critters) in mined areas. Is this
compelling data going to be ignored - just when an industry coalition wants to
muddy the Clean Water Act anti-degradation rules?
6. Vision? I've not heard of a single new dollar budgeted to enhance water
protection and economic development in the water-rich limestone areas of eastern
WV, not in Geologic Survey or Development Office or research or educational
Cities at risk, water protection and production languishing, economic
development faced with water management disincentives, dredging up unknown
demons from the past, all lurk in the blindspots of the legislature. I hope they
don't get buried under PROMISEs, based on re-circulating poor people's money
within the state. Those well intentioned among the West Virginia legislature may
think "if we re-build it" but without clean water nobody will come.
Environmental Sustainability Index (ESI)
A collaboration among the World Economic Forum's Global Leaders for Tomorrow
Environment Task Force, The Yale Center for Environmental Law and Policy, and
the Columbia University Center for International Earth Science Information
Network (CIESIN), the Environmental Sustainability Index (ESI) "is a measure of
overall progress towards environmental sustainability, developed for 122
countries." The ESI is based on 22 core "indicators," each of which combines two
to six variables for a total of 67 underlying variables. The idea is to create
cross-national comparisons of environmental progress as part of an effort to
foster a more analytically driven approach to environmental decision-making. The
top-ranked nations were Finland, Norway, and Canada, with the US coming in at
number eleven. View the rankings and download the full text of the 225-page
report and a Powerpoint Presentation at
www.ciesin.org/indicators/ESI/pilot_esi.html. A spreadsheet of the ESI
is promised for the near future.
Enviro Public Library Guide
www.lff.org/services/envgui.html for profiles of communities and
libraries cooperating to offer public access to environmental information. The
full text of the 1997 edition is available on line and is published by Libraries
for the Future to provide resources for environmental and public library
Governor Wise: firstname.lastname@example.org
(put Senator or Delegate's name in subject line)
or write to:
The Honorable _____________
Member, WV Senate or House of Delegates
Bldg. 1, State Capitol Complex
Charleston, WV 25305
You can fax letters to (304) 347-4819
DEP Director Callaghan:
or call 304-759-0570
Call Your Legislators toll-free at: 1-877-565-3447
Call Governor Wise toll-free at: 1-888-438-2731/558-2000 (Charleston)
And you can go on-line to
www.legis.state.wv.us for bill tracking, committee announcements, public
hearing announcements, floor calendars and daily and weekly floor actions.
Nominate a Special Place
Governor Wise, in his "State of the State" speech declared, "We will move
proactively to protect the places West Virginians hold dear. We do not want our
natural treasures, like the Blackwater Canyon, to slip out of our hands. To
identify and catalog West Virginia's most treasured places, I am asking our
citizens to tell me where these places are."
If there is a piece of public land you hold dear go to
www.state.wv.us/governor/form.htm and nominate it for protection.
Send Us Your E-Mail Address!!!
To receive action alerts on the latest issues, e-mail Chris at
email@example.com. Be sure to include
your name, address, phone.
WRITE LETTERS TO THE EDITOR!
for addresses of all WV newspapers: