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 page 5.

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 policy must:

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 review.

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 residual effects.

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 challenges.

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.


* 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 season!



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 2222.


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.



Contact Information

Governor Wise: governor@wvgov.org

Legislators: cglagola@mail.wvnet.edu

(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: mcallaghan@mail.dep.state.wv.us

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 cahogbin@cs.com. Be sure to include your name, address, phone.



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