Last year, lawmakers passed SB562, which ordered DEP to write new rules for "evaluating the holistic health of the aquatic ecosystem," a move that agency Secretary Randy Huffman has said he supports.
"I'm glad they did that," Huffman said. "I supported that."
Top DEP officials opposed EPA's version of a biological impairment test, and Huffman said he also believed that the state's WVSCI should also not be the only measure used in making such determinations. And while state officials come up with a new method and write rules to govern it, DEP decided not to make any new impaired stream listings based on either of the current tests.
When environmental groups examined state records and data, they found that DEP's latest list did not include 173 streams that would have been included if the state's old formula had been used to measure their biological health. They also found that more than 540 streams weren't listed that would have been if EPA's method had been used.
In a report on its listing decisions, DEP said that, in response to SB562, it was "not adding new biological impairments" to the list until the new rules are written. When the new rules become effective, DEP cautioned, "delisting ... may occur if the application of the methodology demonstrates a non-impaired condition."
The DEP's latest list -- without those streams -- was submitted to EPA for federal review on Dec. 21. Under the law, EPA had 30 days to either approve or reject the list. EPA did neither. Instead, federal officials asked to schedule a conference call with EPA staffers about the matter.
"That response is not only legally deficient; it also reinforces the state's recalcitrance," wrote Appalachian Mountain Advocates lawyer Joe Lovett, who filed the formal lawsuit notice with EPA on behalf of citizen groups. "EPA's passivity towards WVDEP's refusal to enforce the Clean Water Act not only harms our environment, but weakens the rule of law in our region."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.