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WV House retains coal bill language easing water protections

SAM OWENS | Gazette-Mail
Delegate Barbara Fleischauer, D-Monongalia, shown during an earlier legislative public hearing, tried to reinsert water quality language into a coal industry bill that is moving toward passage as the session comes to a close.

House of Delegates members voted overwhelmingly on Thursday that the state Department of Environmental Protection should not set a goal that every West Virginia stream will support a “balanced aquatic community” that is “diverse in species composition.”

The House rejected by a vote of 89 to 10 an effort to reinsert that goal into state law, as it moved toward almost certain passage Thursday, the latest in a series of coal industry-backed bills that weakened environmental protections or lessened worker safety and health standards.

Delegates Barbara Fleischauer, D-Monongalia, and Larry Rowe, D-Kanawha, had tried to amend the language back into Senate Bil 687 before the legislation moves to passage stage on the next-to-last day of this year’s session. Fleischauer said that deleting the language did not match the part of the bill’s legislative title that said the measure was partly about “environmental protection.”

“Calling it ‘environmental protection’ is just wrong,” Fleischauer said. “This weakens environmental protection.”

The language at issue is an existing part of a section of West Virginia law that requires the DEP to write a new rule for how it will measure compliance with the state’s “narrative” water quality standard. While most water standards set numeric pollution limits, the narrative standard more generally prohibits conditions that “adversely alters the integrity of the waters of the state” or involves significant adverse impacts to the “chemical, physical, hydrologic, or biological components of aquatic ecosystems.”

Currently, the law requires DEP to include in those rules an evaluation of stream health that will determine if the stream “supports a balanced aquatic community that is diverse in species composition.”

Lobbyists for the West Virginia Coal Association asked lawmakers to delete that language from state law, arguing that it has been twisted by lawyers for the Sierra Club and other groups in lawsuits against coal companies.

Delegate Mark Zatezalo, R-Hancock, repeated those arguments in speaking against the Fleischauer-Rowe amendment on the floor late Thursday afternoon. Zatezalo noted that similar amendments failed on the Senate floor and in the House Energy Committee.

“It permits lawsuits by people who are trying to rule by lawsuit,” Zatazelo.

Fleischauer said that the language is important, because it ensures that DEP weigh whether streams have appropriate numbers and diversity of insects, crustaceans, and invertebrates that are key parts of the aquatic food chain and provide scientists with early warnings about stream health.

“These little insects, crustaceans and invertebrates, if you monitor them, you get an advance indication if a stream is being harmed,” Fleischauer said. “It’s comparable to the canary in the coal mine.”

Joining Fleischauer and Rowe in voting to put the water quality language back in the bill were Delegates Hornbuckle, Isner, Lynch, Miley, Moore, Pushkin, Pyles and White. The House made other changes in the bill, so it would still have to go back to the Senate after it passes the House.

Citizen groups and environmental organizations have been successful with federal court lawsuits against coal operators where mining discharges have caused or contributed to impaired water quality, measured partly by the evaluation of insect and invertebrate populations downstream from those discharges.

And in February, U.S. District Judge Robert C. Chambers issued a ruling that strongly criticized the DEP and the U.S. Environmental Protection Agency for stonewalling any effort to write and implement plans to clean up hundreds of streams where aquatic life has been damaged by coal-mining pollution. Among other things, the judge chastised the DEP for stalling for several years work on writing the narrative water quality standard implementation rule referred to in Senate Bill 687.

The legislation, including the water quality changes, started out as Senate Bill 582, a proposal from Energy, Industry and Mining Committee Chairman Randy Smith, R-Tucker and a Mettiki Coal employee. That bill would have eliminated most safety and health inspections or enforcement by the state Office of Miners’ Health, Safety and Training. Smith backed off those changes and originated SB 687 in his committee. The bill makes relatively minor changes in state mine safety policy, such as combining various boards, but leaves in place the original bill’s proposals to weaken water quality and reclamation standards for coal operations.

Smith has tried to paint Senate Bill 687 as legislation agreed to by various stakeholders, and noted it had the backing of the DEP. During a Capitol press conference on Thursday morning, the West Virginia Environmental Council and other citizen groups said Smith left them out of any such negotiations on the bill.

“The message from our legislators is that if you’re not an industry, you’re not a stakeholder,” said John Street, the council’s lead lobbyist. “If you’re just a person who enjoys the good, clean water of West Virginia -- our greatest natural resource -- you’re not a stakeholder.”

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

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