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DEP says water quality changes still ‘up in the air’

Despite seeking federal approval of the changes, state regulators still are trying to sort out how to implement legislation aimed at reworking the way West Virginia calculates water pollution permit limits, the staffer who runs the Department of Environmental Protection’s water quality standards program said Tuesday.

“That’s really still way up in the air,” said Laura Cooper, assistant director for water quality standards at the DEP Division of Water and Waste Management.

Cooper made her remarks during a public water quality standards meeting, in response to a request for an update on the agency’s review of one bill that significantly rewrote state water pollution law and subsequent legislation that appears to have overwritten those changes.

At issue are House Bill 2506, which contained the initial changes, and Senate Bill 687, which appeared to have overwritten those changes.

Passage of the first piece of legislation, HB 2506, gave the West Virginia Manufacturers Association and other industry groups a long-sought victory with language to move the DEP to the use of an average stream flow called “harmonic mean” when setting pollution permit limits.

For years, the DEP has used a more protective low-flow stream figure in calculating those limits. Opponents of the change to harmonic mean say it would allow more cancer-causing chemicals into the state’s streams.

The second bill, Senate Bill 687, was a coal industry-backed bill that makes changes in state mine safety and strip-mining laws. But the second bill also re-enacted the same section of state code that included the harmonic mean water quality flow changes that were made in HB 2506, replacing the changes with the language that was in the law prior to this year’s legislative session.

DEP officials have not offered a clear explanation of how they believe the agency should implement the two bills, and later sent both bills to the U.S. Environmental Protection Agency asking for EPA approval of them. The EPA has not yet responded.

Last month, DEP Secretary Austin Caperton sent a letter to state Attorney General Patrick Morrisey asking for Morrisey’s guidance on the issue, according to a copy of that letter, which was obtained from the DEP under the state Freedom of Information Act.

During Tuesday’s meeting, Cooper, said that she did not know if Morrisey’s office has responded to Caperton’s letter.

Jake Glance, DEP’s communications officer, did not respond to an email inquiring about any response from Morrisey. Curtis Johnson, press secretary for Morrisey, said that lawyers in the Attorney General’s office “are thoroughly reviewing the matter and will respond appropriately.”

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

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