WVEC Legislative Update
March 23, 2001
Antideg Approaching Critical Stage - DEP Unveils Tier 2.5 List
by Donald S. Garvin, Jr. and Nathan Fetty
On Wednesday, the Division of Environmental Protection (DEP) released its
proposed Tier 2.5 list of "waters of special concern." It includes 444
reproducing trout streams and other waters with exceptional quality totaling
just over 2,000 miles, the bulk of which are on public lands, mostly in the
Monongahela National Forest.
DEP calls it a very defensible list. The DNR, which helped prepare the list,
says that there are more high-quality waters that ought to be included.
Industry's Dirty Water Bill does not include a Tier 2.5 category at all, and
industry representatives at the House Judiciary Committee "antideg task
force" meeting said they were totally opposed to including a Tier 2.5
category in the antidegradation policy.
Next week will be a critical time period for the antidegradation bill. The
"task force" will hold its last meeting on Monday. Judiciary Chairman
Jon Amores had hoped that those sessions might result in some type of
compromise. Industry lobbyists haven't budged in these discussions, so it is
possible that Chairman Amores will attempt to replace industry's Dirty Water
Bill with the DEP "compromise" rule. But that's just one possible
Actually, at this point what version of an antidegradation plan the
legislature will be looking at, is nothing more than a crapshoot. If the DEP
version ends up being the "vehicle," we'll need your help to
strengthen it. If legislative leadership decides that the Dirty Water Bill will
be the "vehicle," then we'll have to work hard to kill it.
Also, we will be watching the Senate very closely. The bill is
double-referenced to Senate Natural Resources and Judiciary. As of now, it looks
as if the Senate is waiting to act on whatever rule passes the House. Meanwhile,
we are continuing to examine closely DEP's compromise version. While it is
better than the Dirty Water Coalition proposal, we want to encourage DEP and the
legislature to make it stronger, and ensure that it is easy for the public to
nominate other deserving waters to the Tier 2.5 list.
What You Can Do: It's time for a round of calls and letters to House
Judiciary Committee members asking them to "flush" the Dirty Water
Bill and to support a strong antidegradation rule. (See contact at bottom of
page) They are Amores, Manuel, Caputo, Coleman, Craig, Ferrell, Fleischauer,
Givens, Hrutkay, Mahan, Pino, Joe F. Smith, Spencer, Stemple, Thompson, Webster,
Randy White, Wills, Armstead, Faircloth, Riggs, Schadler, Smirl and Webb.
(Clearing the Water: There has been some confusion about what the
Dirty Water Bill is and where it currently sits. The Dirty Water Bill is
industry's version of an antidegradation implementation plan. In the beginning,
there was the Environmental Quality Board's version, but the Joint Legislative
Rulemaking Committee amended the EQB version by substituting the industry
version in its place. Thus, we are left with the DWB, which has been introduced
in both houses. SB 381 and HB 2719 are identical and are the only
antidegradation bills out there. When contacting the governor, elected officials
or DEP, you can reference these bills, or simply refer to the Dirty Water Bill.
If and when these bills take a different form, we'll let you know. Is this clear
Three Weeks Left, Pace Quickens
by Norm Steenstra, WV-CAG Executive Director
By the time you read this there will only be three weeks left for the forces
of darkness to inflict legislative damage on West Virginia. That's the good
news. The bad news is that during the last three weeks, the pace crescendos to
about Warp Factor 6.
Next week is the defining week. Monday is the last day that new Senate bills
can be introduced. A week from now all of the major "crunch" issues
will be identified. Keep in mind that bills that begin in the House of Delegates
must pass the House by Friday, April 6. The same is true for Senate bills. After
that point, the two houses only consider bills passed by the opposite house. As
veteran Update readers know, usually all the sludge that hits the fan occurs on
the last night of the session, this year, April 14.
It's a long shot that either timber bill (good ones) will gain enough
momentum next week to pass. The Jobs Impact bill (bad) could be a rising problem
because the pro-industry leadership needs to give bidness something concrete if
they don't get all they want on dirty water.
Dirty Water is still evolving, with the WVEC, WV-CAG and Rivers Coalition
trying to make the DEP's mediocre bill stronger.
Speaking of Dirty Water, I know it's really frustrating to Update readers to
grasp the details of dirty water. It is equally frustrating for those deeply
involved in the issue to boil down a message into something discernible to the
Over the years, I've felt (being a pretty shallow guy) that in negotiation
situations the nuts and bolts are so complex that the average person just can't
grasp the points. So what you have is the nerds dotting the i's and crossing t's
and the rest of us needing whole sentences. I think I've finally begun to
understand the four major points that can be translated into sentences.
Tier 2.5: Think of it as waters of special concern. Special waters
that need to be kept special. We are pushing DEP for more special waters.
Industry, of course, wants a fraction of the waters to be considered special.
Parameter by parameter: Special waters may not be completely special.
Picture a stream that has all the characteristics of specialness except perhaps
in one area, like too much iron or not enough dissolved oxygen. Industry wants
such a stream considered pollutable because it's not perfect. Our position is we
need to protect the positive features and remedy the problem.
Director's discretion: DEP and Industry want the DEP Director to have
the wiggle room to declare parameters (see above) not important. Our position is
that maybe we have a good and fair DEP director now but we suffered through
eight bad ones in a row. We can't give that kind of power to the director. The
DEP needs to be less politicized, not more so.
Money: Who pays for the anitdeg plan? Industry is pushing for your tax
dollars to pay for it. We say no, the permit-seeking entity should pay the full
cost if it wants a permit to pollute.
I know that green policy wonks will think this summary is too simple and
others may still say that they don't get the message. But at least I finally
understand it. The single most important message to Governor Wise is, "It's
a lot cheaper to protect our existing clean water than to clean it up
by Gary Zuckett
DEP Composts SB 12
The Division of Environmental Protection actually protected an important
provision of our Solid Waste law on E-day!. SB 12, which would have eliminated
all regulations on commercial composting facilities by exempting yard waste from
the definition of solid waste, was fixed by a DEP amendment to make it clear
that, indeed, homeowners could pile up grass clippings in their back yard (which
was already permitted) and maintained the ability of the agency to regulate
large composting operations (see last week's article for more info). Thanks to
DEP on this one!
Senate Natural Resources Snookers Enviros on E-Day!
"Why are they doing this?" we asked ourselves when we saw the
"Dirty Water Bill" up for consideration in Senate Natural Resources.
(Protocol states that when a bill is being worked on in the House the Senate
will wait for it to take action and vise versa) The only way to know is to sit
through the committee meeting and watch the action. That's what about a dozen
enviros did after the E-Day! awards.
As it turns out, the committee chair promptly dropped the bill from the
agenda leaving us to speculate that it was posted just to play with us a little
on Environment Day. Glad to provide the amusement, fellas.
DEP Promotion Moves
The governor's bill to elevate the director of DEP to a cabinet position
passed out of House Gov. Org. and now is pending in Finance Committee. This
higher profile position for DEP will only help the environment if the director
actually enforces the law. So far the new director appears to be moving in this
direction on certain issues. Let's hope he keeps it up.
Jobs Impact Gets Nod
HB 2770, the "Jobs Impact" Bill, passed out of House Economic
Development/Small Business and was sent to Finance. It would hinder passage of
stronger labor and pro enviro bills by sending them off for a study on their
effects on jobs. This bill passed the House last year and was killed in the
Senate. (See article
from last week).
Rallies the Troops
by Linda Mallet
Despite cold, rainy weather on the first day of Spring, the WVEC's 12th
annual E-Day! event and fundraisers drew people from around the state. Many of
you came to see the variety of displays from state and local environmental
organizations and learn more about what is happening within the state's
The crowd at the Capitol gathered during the traditional award presentation
segment. The day's first award, for Grassroots Environmental Activist, went to
the Eastern Panhandle's Chris Hogbin. Chris and her family crossed the mountains
in questionable weather to accept the award she earned for her tremendous work
on the WVEC's e-mail listserv. Under Chris' dedication, the list has swelled
from 10 members to over 400 is just one year.
The Linda Schnautz Environmental Courage award went to two brave activists
this year. Carlos Gore and Jimmy Weekly have both stood strong before the coal
industry as it has continuously threatened their homes and communities. They
have withstood threats and bullying and worked to preserve the town of Blair and
Mary Pearl Compton brought the group to its feet as she received the Chuck
Chambers Public Service award. For over 12 years, this Delegate from Monroe
County has been our consistent voice of sanity at the Legislature. She has been
there for many wars, including Cancer Creek, the Pulp Mill and the out-of-state
It was bittersweet to see Jim Sconyers receive this year's
Mother Jones award. While Jim has worked so hard on logging and electric
deregulation issues over the years, next week he will be moving to New Hampshire
to take a new job. It was the WVEC's prime opportunity to honor Jim, who has
never been afraid to let those in charge know what needs to be done to make
things right. WVEC and the Sierra Club will miss his energy.
Above, Laura Forman accepts Environmental Courage Award for Carlos Gore at
state capitol E-Day! awards cermony. WVEC President Don Garvin presents.
After the awards presentation, folks were urged to attend a meeting of the
Senate's Natural Resources Committee. Apparently the presence of many of you had
an effect, as the Committee decided to table the Dirty Water Bill to another
meeting. Too many people to answer to that day??
After a fun and hectic day, two events were held to help fund this year's
lobby efforts. Taylor Books hosted a reception where folks could see Mark
Blumenstein's donated sculpture and buy a chance to win it. Later, many
wonderful musicians entertained us at the Empty Glass as many of you danced, ate
and contributed more to the cause.
Pictured at right, Steve Himes entertains enviros at Taylor Books E-Day!
Thanks to all the musicians, presenters, volunteers, sponsors and other folks
who donated their time, energy and dollars to our annual event. Having all of
you there reminds the lobby team that what they are doing is a valuable, noticed
and appreciated effort!
Forestry Director Says "Law Can Be Improved"
by Frank Young, President, WV Highlands Conservancy
Several representatives of the Coalition for Responsible Logging (CORL) met
with Randy Dye, Director of the Division of Forestry (DOF) this week. CORL seeks
to improve logging techniques through changes in the law.
Most of all, Dye defended his agency's performance and loggers' performance.
But he did tell the group that, "The law can be improved." For
example, "Prior notification (before logging) would be helpful," he
"DOF could assist before a logger moves in," Dye said, adding,
"We could be a partner on the ground." But he said that his agency is
so understaffed that it cannot do post-logging inspections.
On enforcement, Dye said, "We don't have the hammer." But
concerning what tools the agency does have at hand, he said that it can issue
Compliance Orders to unregistered loggers or to loggers that do not take
measures to prevent stream siltation, or the agency can suspend logging
operations, or that it can obtain restraining orders. Upon questioning, however,
he conceded that the agency had never obtained a restraining order to stop
unsound logging practices.
Overall, this observer decided that Director Dye wants to give CORL activists
the impression that with just a little more time on the job (he's been there
more than two years) he can learn how to make what he styled
"interpretation of the law" so that his agency will be effective.
We appreciate Director's Dye's comments and his concern for responsible
logging in the state, and hope to continue our dialogue.
Meanwhile, CORL lobbyist Conni Lewis is finding increasing support for our
Logging Sediment Control Act bill among Senators and Delegates.
Super Tax Credits For Wind?
by Frank Young, President, WV Highlands Conservancy
Last year we learned that Atlantic Renewable Energy (ARE) made application to
the Public Service Commission (PSC) to construct and operate a $90 million wind
power facility on Backbone Mountain in Tucker County.
After successfully modifying the project to protect special "green"
places, including Blackwater Falls State Park and Canyon, the WV environmental
community endorsed this large, renewable energy project.
Like Tucker Co. government and development agencies, we assumed that a $90
million utility investment would add about that amount to the Tucker County tax
Now we're not so sure. Project development is being held up. The project's
manager says it is "very much on track." But ARE VP of Development
Samuel Enfield said recently, "It's going to take us several months to
construct the Backbone project, whether we build it in 2001 or 2002."
That was an interesting comment especially in light of representations the
company made to the PSC as recently as December. ARE had insisted in PSC
hearings that it needed to have immediate PSC project approval in order to put
together a financing package for construction to be completed in time to take
advantage of various federal investment and production tax credits that expired
Now ARE says 2002? What's going on? I think we found out this week. A few
weeks ago we learned that legislative gambling lobbyist Larry Swan was
"pre-lobbying" a not then yet existing bill to have new wind power
facilities assessed, for property tax purposes, at "salvage"or junk
value. Thursday, Senator Sarah Minear sponsored SB 566 that would have the
Tucker County wind project, costing about $90 million and producing about
$571,000 annually in local taxes for Tucker County, be taxed for about one sixth
that amount, only about $100,000. Under Minear's bill, Tucker County just lost
$471,000 a year!
Are the wind power barons, like coal and timber barons before them, now
blackmailing state and local officials into tax breaks that could, over the
expected 20 year life of the proposed project, cost Tucker County up to $10
million or more? Will the controversial "super tax credits" we've
awarded to the coal industry for years now be transferred to the emerging wind
Almost a half million dollars in annual taxes for this one project are about
to be given away. Multiply this by perhaps several dozen similar projects on the
"drawing board" on WV ridges and the potential for losses to local
governments is staggering.
The large Backbone Mountain project promises but seven permanent jobs. A
Wendy's restaurant would produce more. With the provisions of Minear's bill, is
the project worth it? Incidentally, Minear's bill is short-titled
"Clarifying tax treatment of certain wind power projects."
Callaghan's Computer Crashes
Great job, folks! So many of you sent DEP Director Michael Callaghan e-mail
messages in support of clean water this week that his computer just couldn't
"It crashed," he said, and asked us "to call off the
So we have agreed to ask you NOT to send any more e-mail messages to Director
Callaghan for awhile. Instead, send faxes to (304) 759-0526 or call (304)
759-0570. You can also mail letters to the Director at 10 McJunkin Rd., Nitro,
WV-CAG needs an ambitious volunteer in the Charleston area to work on a
special research project on urban recycling. Estimated time is 3-4 weeks, one
day a week. Call Norm at 346-5891 for more info.
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
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Call Governor Wise toll-free at: 1-888-438-2731/558-2000 (Charleston)
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