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Water company warns DEP about plan for stricter Kanawha River regulation

Gazette file photo
West Virginia American Water President Jeff McIntyre speaks to Gazette reporters and editors in March.

West Virginia American Water Co. is questioning a state government proposal to redesignate the lower Kanawha River as a potential public drinking-water source, complaining that industrial pollution reductions that the change could require would be bad for area businesses.

Jeff McIntyre, president of West Virginia American, did not oppose the West Virginia Department of Environmental Protection proposal, but warned that the agency should more carefully “evaluate how this reclassification could impact our local economy.”

The DEP wants to redesignate a 70-mile section of the Kanawha — from just upstream of Belle down to the Ohio River — to what’s called “Category A,” meaning the agency’s goal is for that part of the river to be clean enough for use as a drinking-water supply for the region.

Randy Huffman, secretary of the DEP, has called the proposal a response to January’s chemical leak into the Elk River, saying redesignating the Kanawha would give West Virginia American an option for a secondary drinking-water intake to serve 300,000 people in Charleston and surrounding communities.

In a letter to the DEP, McIntyre cautioned that the agency’s proposal “will certainly require a change to discharge permits” and “may also impact the navigability of the river in this area.”

“If our local industry is required to comply with more stringent discharge requirements and/or find alternative transportation methods, the costs of doing so could potentially drive industry out of the area,” McIntyre wrote in his July 21 letter to DEP water-quality-standards program manager Kevin Coyne. “This would not only impact the affected industries, but also those who work for such industries, and in turn, the local economy as a whole.”

McIntyre said the water company is “not suggesting that the WV DEP should not promote cleaner state waters or not reclassify the river for use as a drinking water source.” He said West Virginia American “supports efforts to improve water quality and promote clean drinking water sources.”

McIntyre’s concerns about the Kanawha rule change are similar to complaints raised about the DEP proposal by some industry lobby groups during a public hearing and comment period held last month in advance of the agency sending its plan to the Legislature for review during the 2015 session.

Jason Bostic, vice president of the West Virginia Coal Association, called the DEP proposal for the Kanawha a “regulatory stunt.” Bostic said the DEP should have focused instead on “urgent issues,” such as his group’s call for a weakening of the state’s water-quality standard for aluminum. Earlier this year, lawmakers tabled that proposal, amid heightened public concerns about water issues after the Freedom Industries leak of the coal-cleaning chemical Crude MCHM on Jan. 9.

West Virginia Manufacturers Association President Rebecca Randolph spoke out strongly against the agency proposal, saying it could cost area industry too much to reduce their pollution discharges.

“The number of businesses in and around the city of Charleston that could be affected by these new requirements and prohibitions are substantial, and consideration should be given to these collective cost,” Randolph said at the DEP’s public hearing.

In its official response to public comments, the DEP disputed the idea that ensuring the Kanawha River could be used for drinking water would hurt the area’s economy.

“[The] DEP and many other local, state and federal agencies have worked diligently to address pollution on the Kanawha River, and we do know that our collective efforts over the past few decades have resulted in vastly improved water quality,” the agency said. “Also, this change would give the Kanawha Valley greater opportunities for alternative water supplies and economic development.

“Clean water, and the predictable, consistent protection of that water, ensures the availability of one of the economy’s greatest assets — usable water,” the DEP said.

Under the Clean Water Act, all waterways are designated for different uses, such as drinking, fishing and contact recreation. These uses are really goals, set in the hope that each waterway can be kept clean enough — or cleaned up enough — for their particular designated uses. Water-quality limits for pollutants are set based on those uses, and pollution discharge permits are written to keep contaminant levels below those water-quality limits.

Currently, the DEP treats every waterway in West Virginia as if it is, or might some day be, used for public drinking water, unless the river or stream in question is specifically exempt from drinking-water use, which is known as “Category A.” The existing state water-quality-standard rule exempts the Kanawha River downstream from Diamond from Category A, and, technically, what the DEP is proposing is to remove that exemption from the rule.

In January, when the Freedom Industries chemical leak contaminated the region’s drinking water, many residents were surprised to learn that West Virginia American’s Kanawha Valley treatment and distribution plant has only one intake, on the Elk River, with no backup supply available.

The DEP rule change alone would not put a second intake on the Kanawha, though. The water company would have to propose such a project, and obtain approval from several agencies.

In opposing the DEP proposal for the Kanawha, some business lobbyists are reopening a long-standing feud with the agency over its application of Category A water-quality limits to all rivers and streams that aren’t specifically exempt.

The manufacturers association argued that the Kanawha proposal “is part and parcel of an illogical and punitive approach to implementation of water-quality standards in West Virginia.” The group said protecting the Kanawha as a potential drinking-water source is “putting the cart before the horse,” if there is no intake in that stretch of the river yet. The coal association called the designation of all streams statewide as Category A streams “fictional” and “imposes a significant regulatory burden on permit holders for absolutely no benefit.”

For years, industry groups have argued that the DEP should apply Category A drinking-water pollution limits to streams only if there is actually a public drinking-water system intake on that stream. The DEP has responded by noting that West Virginia law requires the agency to protect all state waters for “present and prospective future uses.” So, if a stream could someday be used as a drinking-water source, the DEP says, then Category A pollution limits apply, to ensure that “prospective future use” is protected.

The West Virginia Rivers Coalition submitted a letter offering support for the change in the Kanawha River’s status, and for the DEP’s policy of protecting all streams statewide to drinking-water standards. “West Virginia is rich in freshwater resources, and making sure they are adequately protected for drinking-water use is prudent management,” wrote Angie Rosser, the coalition’s executive director. Rosser said the Kanawha proposal “moves us in the right direction toward a cleaner Kanawha River and a safer and more secure drinking-water source for nearly a fifth of the state’s population.”

In his letter on the Kanawha proposal, McIntyre did not inject the water company into the broader dispute over the DEP’s statewide application of Category A waters. However, McIntyre did echo some of the concerns industry groups raised about the DEP’s Kanawha proposal. He complained, for example, that the DEP “does not have data” to assess whether the Kanawha currently meets drinking-water use standards and that, if the river meets those standards, “should not be passed over in the interest of expediting the addition of a new water source.”

“The reality is that without knowing more about the quality of . . . water, there is no guarantee that it will be suitable as an alternative water supply for the provision of public drinking water,” McIntyre wrote. “Even with the exemption removed, the water quality must be evaluated to ensure it is appropriate for use as a drinking water source of supply.”

In response, the DEP has said it does need more data, but that the current rule change is aimed not at determining if the Kanawha is clean enough for drinking water, but setting that as a goal for the river.

“[The] DEP is committed to conducting the proper analysis of conditions and developing necessary actions to address potential issues, regardless of the length of time necessary to achieve the goal of Category A use attainment,” the agency said.

Reach Ken Ward Jr. at, 304-348-1702 or follow @kenwardjr on Twitter.

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