WVEC Legislative Update
March 2, 2001
News Up Front:
One For Clean Air!
Limiting Corporate Welfare
Intro to the Lobby Team
Breaking News on Water Bills
More Than A Timber Bill
Support House Litter Bill
Water Wars: Just Say NO to Dirty Water!
by Nathan Fetty and Donald S. Garvin, Jr.
The water war brewing in the legislature continues to percolate.
The industry Dirty Water Coalition, having 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,
is still refusing to "come to the table" to negotiate a compromise.
In the meantime, the WV Division of Environmental Protection has been
busy behind the scenes preparing its own version of an antideg implementation
plan. The exact path that might be used to advance the DEP version through
the legislative process is still unclear.
As we went to press with this Update, DEP is meeting with industry and
House Judiciary Chairman Jon Amores and stakeholders from the environmental
community and the Dirty Water Coalition to unveil the DEP version of an
antideg rule. For the latest on what happened at this meeting, please see
Please keep up the pressure on Governor Wise and new DEP Director Mike
Callaghan and let them know that you expect them to support a strong antideg
implementation plan that keeps our clean rivers and streams clean for the
benefit of all West Virginians (details on contacting them can be found
on Page 7).
Tell them that in order to meet minimum federal requirements, WV's antideg
1. Retain our current Tier structures and better define high-quality
streams. The rule must not eliminate the Tier 2.5 high-quality streams list
and must not have a Tier 1 default (lowest common denominator of stream
protections). There must be an open public nomination process for Tier 2.5
and Tier 3 waters (the highest quality waters).
2. Recognize that an impairment of a high quality stream does not lower
the level of protection needed for that stream.
3. Ensure water pollution trading is on a watershed basis, is enforceable,
and results in a significant improvement of water quality.
4. Not exempt Nationwide Permits 21 and 26 from review (these permits
allow valley fills from mountaintop removal mines).
5. Consider and limit cumulative impacts of multiple discharges.
6. Ensure existing permits are subject to some type of antidegradation
7. Provide adequate public notice and comment as an integral part of
the antidegradation review process.
The Red Scare
by Norm Steenstra, WV-CAG Executive Director
Propaganda in the water wars has taken a remarkable turn. This week the
"Anti-Degradation Coalition" released its brochure "Keep
West Virginia Open for Development." It's printed in red, white and
blue and features a red stain over 95% of West Virginia's map (see copy
on page 6). The map is a gross exaggeration of reality and most of the text
is, at best, hyperbole. The only reason the whole map isn't red is because
the water quality in the white areas is already so screwed up. The brochure
has 13 little fish symbols in it and even they are not depicted honestly
because they should be drawn floating on their backs.
Over the years we have seen industry coalitions resort to all kinds of
inflammatory, manipulative tactics but the dirty water brochure sets a new
standard in the environmental hall of shame. All but the most intellectually
challenged legislators are likely to see it as bull droppings. The threats
of job loss and no growth zones are bogus. During the struggle to get the
groundwater bill passed, the same coalition with a different name spread
the manure that farmers would not be allowed to have their cows defecate
on the ground. We are hearing the same BS on the dirty water bill.
We could never get away with the kind of tactics industry uses. I'd like
to think we would never try to deliberately deceive legislators. Honesty
is our weakness and our strength when we tangle with people concerned with
corporate profits, and their hired lawyers. Money, power and misinformation
are their tools. The Coalition is attempting to dictate the terms of debate
by playing the jobs' card. It is trying to define "balance." For
over 100 years, coal and chemical industries have defined "clean water"
and the development and promised jobs never came.
The water wars may be the defining moment for the Wise Administration's
commitment to environmental protection.. The DEP's draft rule that is to
be released today will give us all an indication of what to expect for the
next four years. Stay tuned.
More Water-Related Bills
by Nathan Fetty, WV Rivers Coalition
HB 2427, sponsored by Delegates Fleischauer and Compton, is sponsored
by the DEP to increase the maximum daily fines for Clean Water Act violations
from $10,000 to $25,000. Soon, we should see a Senate companion bill. This
great bill would put West Virginia's civil penalties on par with surrounding
states, and discourage bad actors from doing business in West Virginia.
It would set up a structure so that it's no longer cheaper to pollute and
pay the fines than it is to use good pollution control technology.
SB 26, the infamous "Flood Thy Neighbor" bill introduced annually
by Sen. Ross, gives landowners blanket authority to dredge and bulldoze
streams, without any guidance or constrictions whatsoever. Fortunately,
there is interagency guidance in place to help landowners get needed permits
for flood control, negating the need for this bill. We look for the bill
to die a quiet death.
The Protection of Water Act, SB 110, sponsored by Sen. Mitchell, is a
good bill that was first introduced last year. It also deals with streamwork,
clarifying DEP's oversight and enforcement of streamwork permits issued
by the Army Corps of Engineers. The bill gives the state a say in what the
federal government permits in WV waters, a provision spelled out in Section
401 of the Clean Water Act. All too often, the Corps issues "dredge-and-fill"
permits and offers no oversight, so permittees have no guidance to do the
work properly. This bill would right the situation.
HB 2512, sponsored by Delegate Mahan, mandates that deposits authorized
to go into the state Stream Restoration Fund will actually go there. Currently,
the monies aren't necessarily required to go to the fund, which is used
to restore streams affected by coal mining and acid mine drainage.
HB 2546, sponsored by Delegates Caputo, Prunty and Manchin says that
owners of private septic systems must verify that their systems are approved
by the Bureau for Public Health (BPH) before public utilities can be connected
to a residential or commercial structure.
Finally, HB 2528, sponsored by Delegates Boggs and C. White sets up a
matching grant program through BPH for public service districts and municipalities
to help provide water service for residents.
Bill About More Than Logging
By Frank Young
The Coalition For Responsible Logging (CORL) proposes to strengthen the
WV Logging Sediment Control Act (LSCA) to help prevent soil displacement,
erosion, sedimentation and timber theft, among other things. But while amending
the LSCA would improve how logging is conducted, it would have other valuable
For example, our bill to amend the LSCA would provide for notification
of adjoining landowners before logging is conducted . Nominally, the purpose
of this notification is to deter timber theft, an apparently prevalent practice
in West Virginia. But this provision has the added benefit, once the notification
requirement becomes known, of letting folks realize that if a logging operation
sprouts up on an adjoining property, and notification hasn't been made,
that the logging operation is an illegal one.
This should usually then set into motion a chain reaction of reporting
the illegal operation, inspection by Forestry and/or DEP officers, and either
shut down of the operation, enforcement actions, or proper registration
of the operation, or some combination of all these.
Timber sites that are not registered are not contacted by the State Tax
Department for severance tax payments. Better collection of timber severance
taxes, then, would be one result of better logging erosion and sediment
control, better logging registration procedures and timber theft prevention
laws. It is believed by the Division of Forestry, by some legislators, and
by the public at large that vast amounts of timber are harvested and marketed
without permits and without the payment of timber severance taxes.
This denies needed funding for education, logging regulation and other
environmental services, libraries, law enforcement, and other services state
government provides. Some legislators, especially those from border counties,
are acutely aware of this loss of revenue.
So the CORL's rather simple bill would improve water quality by preventing
erosion and sedimentation, deter tree theft, focus on improved logger safety,
and have the added benefit of reducing lost severance tax revenues. Who
could ask for more?
Breathe Easier: Supreme Court Rejects Clean Air Challenge
by Jim Kotcon
The U.S. Supreme Court issued a historic ruling Tuesday on a challenge
to the Clean Air Act. With strong support from the Underwood Administration
and other polluting states, industrial polluters had hoped to challenge
new ozone and particulate standards proposed by EPA in 1997. Industry had
argued that the standards were based on faulty science and that EPA should
have considered the economic impact of the standards, in spite of the express
language of the Clean Air Act that standard should be set based solely on
the level needed to protect public health.
An Appeals Court ruling last year "stayed" the implementation
of the standards, arguing that Congress had unconstitutionally "delegated"
its authority to EPA. Congress added insult to injury last fall by prohibiting
EPA from even designating areas with bad air until the Supreme Court resolved
The Supreme Court ruling was an overwhelming rejection of polluter arguments.
The Courts ruled that EPA acted correctly in ignoring economic impacts to
industry in setting the standards, that the standards were indeed based
on "sound science", and that Congress had appropriately directed
EPA and EPA was well within its authority to establish the standards.
The only confusing note was a decision on "implementation plans"
which are required for areas designated as not attaining the standards.
The Court ruled EPA must revise its implementation plans. Unfortunately,
the ruling provided little guidance on how to do so. But overall, this is
a huge victory for anyone who wants to breathe clean air, and a rejection
of the polluter arguments. It reaffirms that the Clean Air Act is ultimately
about protecting public health.
What does this mean in West Virginia? All ozone monitors in the state
showed levels exceeding the new 8-hour health standard. Based on these data,
WV-DEP last fall identified areas to be designated as nonattainment, including
Greenbrier County, Charleston, Huntington, Parkersburg, Wheeling and Weirton.
Jefferson and Berkeley Counties also could be included as part of the Baltimore-DC
metropolitan area. DEP also proposed that EPA should not formally designate
these areas until the Court ruling.
The EPA is still trying to sort out political appointments and will undoubtedly
try to put its own "stamp" on these designations, but it is unclear
who will put on that stamp at this time. Once EPA has made a formal recommendation
on designations, states (and presumably we, the public) will have four months
to comment on them. Once finalized, the states and EPA would have to establish
an implementation plan to specify how pollution will be reduced in order
to bring the areas back into attainment.
Only then will we actually begin to breathe truly cleaner air.
WHAT WE NEED TO DO:
* Keep the pressure on EPA to move forward with designations. Remind
them that people are getting sick from the air they breathe and we need
to have designations in order to start the process of cleaning up the air.
In West Virginia, there will certainly be a political battle over which
parts of the state to designate as nonattainment. Can the majority of counties
in West Virginia be exempted (as DEP proposed) if NONE of the ozone monitors
anywhere in the state show attainment?
* Remind EPA and all decision makers that the Courts were very clear
that the science supporting the standard was sound, and in fact the DC Circuit
directed EPA to move forward with designations, even if it did not think
that EPA had the authority under the Act to make states do anything about
the designations. The issue that the Supreme Court remanded to EPA was to
put together a rational implementation strategy, given the various parts
of the Clean Air Act that dictate the schedule and requirements for attainment.
Weekly Shameless Plea
by You-Know-Who, WVEC President
Remember, your help is needed to support this year's lobby effort. If
you haven't renewed your membership, please do so today! And to buy a ticket
for the WVEC raffle of Mark Blumenstein's sculpture, please send $5 a ticket
to 1324 Virginia St., East, Charleston, WV 25301. We'll mail your ticket
back to you right away! Thanks!!!!
Who's Your Lobby Team?
by Linda Mallet, Legislative Update Editor
This Legislative Update would not be possible if it were not for the
West Virginia Environmental Council's lobby team. Not only do lobby team
members work the halls of the Capitol but they take time out of their harried
lives to write about it so we can publish it and get it out to you. So,
who are these people?
This year's Lobby Team leader is seasoned veteran Gary Zuckett.
Gary Z has watched out over the bad guys at the Capitol for nine years now.
With his patience, insight and dedication, we all are looking to him for
guidance as he herds this year's Lobby team cats.
Don Garvin, WVEC President and resident trout guy, joins the team
again this year as its main water watcher. With antidegradation (no hyphen)
heating up to be the main fight this session, he will have a busy job. We
can thank Don for the term Dirty Water bill which so aptly names industry's
so-called "clean water, good jobs" bill.
Back for his second year is Nathan Fetty from the West Virginia
Rivers Coalition, a WVEC organizational member. The team is thankful to
have Nathan here this year as he has followed the anti-degradation (hyphen)
saga throughout its stakeholder process. Nathan and Don's articles will
update you on one of this year's biggest issues.
WV-CAG Executive Director Norm Steenstra brings many years of
politician-watching experience to the team as WV-CAG (another organizational
member) lends its in-kind support to the lobbying effort. For many politicians
and industry lobbyists, Norm IS the environmental lobbyist and without his
historical perspective of the issues, the team would not have access to
its main strategist.
Veteran lobbyist and former State Senator Mike Withers is following
water, timber and taxation issues and overall looking for suspicious bills
that various special interests will try to sneak through. If Mike can't
spot it, no one can.
Hydrogeologist Rick Eades is on the team for the third straight
year and brings his scientific training to us. Rick's ability to almost
instantly pick up on an issue's nuances make him invaluable to the team.
Rick specializes on coal and water issues.
Chris Hogbin from the Eastern Panhandle is our E-Mail Queen again
this season. Although her job is year-round, it picks up tremendously throughout
the session with sending out action alerts and this year's e-Update.
Those of you who are reading this on-line see it each week because of
Chris and Lynn Degen. Lynn has maintained the WVEC website since
it began and makes sure the Update appears there each Friday night.
Long-time E-Day! coordinator Denise Poole will again organize
the WVEC event at the Capitol, along with the fundraisers to be held at
Taylor Books and the Empty Glass. A huge amount of work goes into E-Day!
and it wouldn't happen without Denise's expertise. As the WVEC's membership
coordinator, she also maintains the membership list, keeps the office running
and much more.
We are lucky to have Julie Archer and Norm Steenstra III
this year as daily bill trackers at the Capitol. This behind-the-scenes
job ensures that the rest of the lobby team will stay informed on what is
happening bill-wise, while they are busy monitoring committee meetings and
chasing down legislators.
Joining Julie and Norm with bill-watching is Michelle Dawley,
a first-time team member. Michelle's training in contract management and
patience with reading the fine print make her a perfect team addition.
The Update wouldn't happen if it weren't for Conni McMorris' Thursday
and Friday commitment to the team. She has learned the tricks to the copy
machine (stand on one foot, check which direction the wind is blowing),
caught typos and given the rest of us soothing words.
And I'm back for my third year as Update editor. I am honored to work
with the rest of the team and make their words fit into these eight pages.
And thankful to all of you who have supported us so generously this lobby
by Mike Withers
Two bills dealing with the Managed Timberland tax issue have been introduced.
HB 2057 (Del. Hatfield) would reinstate the Site Index appraisal methodology.
This methodology was eliminated in 1998 and replaced by one that increased
the tax break from 20% to 80%. Remember, the resulting tax cut dealt a devastating
blow to some small counties (i.e., the Webster County Commission had to
slash its budget by 20%).
HB 2129 (Del. R. White from Webster County) would limit participation
in Managed Timberland to small land owners of 1,500 acres or less. This
same legislation was recommended for passage by an interim committee last
year and passed out of both the House Judiciary and Finance Committees.
The bill was killed by House leaders when it was removed from the special
calendar after a second reading thus preventing a vote on the issue.
One hopes the new legislature and new administration will reexamine this
issue. The big question remains - what benefit is the state getting in return
for this preferential tax treatment? Past research revealed that 54% of
this acreage is owned by just 5 companies and only 6% is owned by WV individuals.
Without evidence to the contrary, this author believes most of the acreage
involved is controlled by owners who are not "managing" their
properties any different today than they did prior to the creation of this
corporate welfare scheme.
Leaner Day at the Secret Trough
by Julie Archer
Delegates Fleischauer, Caputo and R. White have sponsored a bill that
attempts to place limits on corporate welfare and make information available
to the public so that we know how our tax dollars are being spent. This
bill has roots back to the pulp mill battle and the Freedom of Information
suits that resulted when the State Development Office refused to disclose
the excessive incentives it was offering to Parsons and Whittemore, the
company who wanted to build the monstrosity.
The "Accountability for Economic Development Assistance Act"
requires the State Department of Tax and Revenue and local entities that
levy property taxes (counties, cities and school districts) to disclose
corporate tax breaks and giveaways and other forms of government subsidized
development assistance that businesses receive (including grants, bonds,
loans, infrastructure, etc.). The bill also provides for standardized applications
for development assistance to be used by any public entity that grants government
subsidies, and establishes job creation and quality standards that must
be met in order to receive development assistance. When considering development
assistance applications, all granting bodies are to required to perform
a thorough analysis of projected wages and benefits and deny applicants
whose projected wages fail to meet 85% of the current prevailing wage, or
75% for a small business.
Applications would also be denied if the value of assistance requested
is excessive relative to the number of projected full-time jobs. In addition,
the bill requires granting agencies to submit annual progress reports for
each approved development assistance application.
The bill has teeth. If local governments, government agencies, or recipient
corporations fail to comply with the disclosure requirements, the Development
Office is to suspend current development assistance activities and is prohibited
from proceeding with current or future assistance until it receives proof
of compliance. Furthermore, the bill clearly states that all data and information
produced by the various government entities as required by the bill be considered
public record and requires that certain data be compiled and published.
This is a great piece of legislation. To bring home the bacon and stop
the corporate hogs from feeding at the secret trough, ask your legislators
to support HB 2600.
Litter Bill News
by Clint Hogbin, EPPEC
HB 2222, an anti litter bill introduced by Delegate Virginia Mahan, has
jumped into high gear and certainly deserves our support. It was taken up
in House Judiciary Committee on Tuesday. Prior to consideration, I spoke
with most Committee members and determined support was abundant. It passed
the committee with one nay vote and a minor insignificant amendment. HB
2222 finished second reading and will go for a floor vote on Friday.
While HB 2222 does not contain every asset of the Unger litter bill,
it does contain two of them and therefore deserves our support. Just like
the Unger bill, it implements points on the drivers license of someone caught
littering from a vehicle. In addition, it MANDATES community service (i.e.,
litter pickup) along with a monetary fine. It does NOT implement the three-tier
volume-based fine structure nor does any of the fine money get returned
to the county solid waste authority. My hope is to get these additions on
the Senate side. Please contact your delegates and ask them to support HB
Friday Afternoon Water Update
As we were going to press on Friday afternoon, the lobby team had this
to report on the DEP's water bill: On a quick reading, the 18-page DEP version
of the dirty water bill appears much weaker than we had hoped for. The lobby
team will review this new bill over the weekend and we'll get you details
as soon as possible. Stay tuned and keep up those calls to the governor
and your legislators. Tell them you don't want HB 2719 or SB 381, industry's
dirty water bills.
Other Bills To Watch
HB 2457 - sponsored by Delegates Boggs, Compton, Mahan, and Givens.
It amends DEP rules by establishing rules and procedures for controlling
the discharges of air pollutants, sewage sludge facilities, maintenance
of present facilities and compliance testing, amongst other matters. This
cleaner-upper can be found in the Judiciary.
HB 2477 - sponsored by Delegates Tucker, Kuhn, Ennis, and Givens,
offers a tax giveaway to power companies. It's nice to know that these delegates
care enough to offer the power companies tax breaks; hopefully they might
decide to offer one up for their voters next. Hopefully, this electric bill
will be turned off in Finance.
Governor Wise: email@example.com
(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: firstname.lastname@example.org
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.
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.
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for addresses of all WV newspapers: