EIS Available for Western Greenbrier Co-Production Demonstration Project

In order to satisfy the National Environmental Policy Act, certain projects must be the subject of an Environmental Impact Statement (EIS). The Department of Energy has recently finished its EIS for the Western Greenbrier Co-Production Demonstration Project, Rainelle, Greenbrier
County, WV, which involves an innovative use of coal refuse and co-generation. For an abbreviated project summary from the Federal Register, and information on where to get the EIS, see below.


SUMMARY: DOE has decided to implement the Proposed Action alternative,
identified as the preferred alternative, in the Western Greenbrier Co-
Production Demonstration Project, Final Environmental Impact Statement
(DOE/EIS-0361; November 2007) (FEIS). That alternative is to provide
approximately $107.5 million (up to 50% of the development costs) to
Western Greenbrier Co-Generation, LLC (WGC) through a cooperative
agreement under the Clean Coal Power Initiative (CCPI) Program for a
Co-Production Facility to be located at Rainelle in Greenbrier County,
West Virginia. This funding will be used by WGC to design, construct
and demonstrate a 98 megawatt (net) power plant and cement
manufacturing facility based on an innovative atmospheric-pressure
circulating fluidized bed (CFB) boiler with a compact inverted cyclone
to generate electricity and steam by burning approximately 3,000 to
4,000 tons per day of coal refuse from several local sites.
DOE considered two overall alternatives: To provide cost-shared
funding or not to provide cost-shared funding to WGC's proposed
project. In addition, DOE examined a range of implementing options for
the power plant site, fuel supply, water supply, limestone supply,
means of transportation, and transmission corridors. DOE analyzed in
detail the environmental (including socioeconomic) impacts of each of
these different options, as well as the economic and environmental
benefits related to the reclamation and potential reuse of the coal
refuse sites.
This ROD and Floodplain Statement of Findings have been prepared in
accordance with the regulations of the Council on Environmental Quality
(CEQ) (40 Code of Federal Regulations [CFR] parts 1500-1508) for
implementing the National Environmental Policy Act (NEPA), DOE's NEPA
Implementing Procedures (10 CFR part 1021), and DOE's Compliance with
Floodplain and Wetland Environmental Review Requirements (10 CFR part 1022).
ADDRESSES: The Final EIS is available on the DOE NEPA Web site at
http://www.blogger.com/www.eh.doe.gov/nepa/documentspub.html

Virginia Rejects WV IGCC Plant

American Electric Power has proposed building a integrated gasification combined cycle coal burning power plant in Mason County. This state-of-the-art facility would be a great step toward burning coal more cleanly and efficiently. Unfortunately, the Virginia State Corporation Commission rejected the IGCC, and it's approval was necessary because Appalachian Power Company's service area includes Virginia, so some of the cost recovery would have been required from Virginia ratepayers. You can read more about it at
http://dailymail.com/Business/GeorgeHohmann/200804240216

Article on Kelly Goes, Secretary of the Department of Commerce

A healthy economy requires a balance between wealth creation and protection of the environment. As Justice Neely said, environmental statutes require us to "strike a balance between a vibrant economy in which we all live in a sewer and a land of sparkling waters where everyone lives on the dole." Four-H Road Comm. v. Chief Div. of Water Resources; 177 W.Va. 643;355 S.E.2d 624 (W. Va. 1987).

Balancing economy and ecology requires an ability to understand real dangers, which in turn requires some understanding of complex technical matters. In my limited experience with Kelly Goes, Secretary of the Department of Commerce, I have observed that she is unusually good at understanding technical arguments and winnowing the wheat from the chaff. You can learn more about her in an article by George Hohmann in the Charleston Daily Mail at http://dailymail.com/Business/200804240208

Coal Companies Agree to Limit Valley Fills

Ken Ward reports in today's Charleston Gazette that three surface coal mining companies have agreed to limit their valley fills, and to give notice to citizen groups if they intend to start additional fills. The agreement was a concession by the companies to be allowed to continue mining, and was made because Judge Chambers has temporarily blocked any new permits, based on his earlier decisions. In 2007, Judge Chambers ruled the Corps of Engineers had to perform additional studies before granting certain permits to Massey Energy, and later ruled that instream sediment ponds at the valley fill toes were not allowed. Those decisions have been appealed to the Fourth Circuit by Massey and the Corps, and the Court was scheduled to hear the appeals on May 13. The 4th Circuit has now changed that to early September. The Gazette article can be accessed at http://www.wvgazette.com/News/Business/200804230695

West Virginia Coal Association

The West Virginia Coal Association represents mining interests in the Mountain State. Coal is one of West Virginia's chief natural resources, and the severance taxes it generates provide a large chunk of state and county revenues. Visit its website for more information about the industry and the importance of coal mining, including mountaintop mining, to the economy of the state and America's energy independence.

Ohio Valley Environmental Coalition Targets Coal Plants

The Ohio Valley Environmental Coalition (OVEC) is one of the better known environmental organizations in West Virginia, and it has consistently opposed mountaintop mininng in West Virginia. A sampling of its issues and positions can be gleaned from its website, at p://www.ohvec.org/ovec_news.html For a counterpoint, see the next post.

ORSANCO Accepting Comments on Pollution Control Standards

The Ohio River Valley Water Sanitation Commission (ORSANCO), is an interstate commission representing eight states and the federal government. Member states include: Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia, and West Virginia. Its pollution control standards apply on the Ohio River in lieu of West Virginia's water quality standards when the ORSANCO standards are more stringent. Any discharger into the Ohio River should follow ORSANCO's development of standards.

ORSANCO is initiating a review of its Pollution Control Standards for Wastewater Discharges to the Ohio River. The Commission Standards include designated uses of the Ohio River, numerical water quality criteria established to protect the uses, and effluent limits necessary to meet those criteria. It is the policy of the Commission to conduct a formal review of its Standards every three years; the last such review was completed in October 2006. You can find the issues that ORSANCO expects to be raised for the review of its pollution Control standards at http://www.orsanco.org/review/PCSIssues.doc


Comments on any portion of the Standards will be accepted until May 16, 2008. All comments received by that date will be considered by the Commission’s Pollution Control Standards Committee; their consideration may result in proposed revisions to the Standards. Any proposed revisions will be presented at a public hearing and will be subject to an additional public comment period before they are acted upon by the Commission.

In order to facilitate review of the current Standards, five public workshops will be held. Each workshop will include brief descriptions of the authority and purpose of the Commission Standards, their relationship to state and federal standards, the content of the current Standards, and issues that are expected to be addressed in the current review. The major portion of each workshop will be devoted to questions and discussions on the Standards and related issues. The workshops will not be recorded and no formal statements will be taken; they are being held to facilitate discussion of Standards- related issues and to assist persons who may be considering the submittal of comments. Information on the public workshops will be posted on the Commission web site http://www.orsanco.org/.

Comments on the Standards should be submitted to the following address:
ORSANCO
5735 Kellogg Avenue
Cincinnati, Ohio 45228
Att: PCS Comments

Comments may also be submitted by email to ptennant@orsanco.org by fax to 513/231-7761. Comments should arrive by the close of business on Friday, May 16, 2008. Any and all comments received will be considered by the Commission’s Pollution Control Standards Committee. A summary of all comments received and their disposition will accompany the proposed revisions when they are presented for public review. If you have any questions in this matter, please contact the Commission staff.

Voluntary Rural & Outdoor Heritage Conservation Act

Rob Lannan, who is a member of the Board of Trustees for The Nature Conservancy in West Virginia, reports that Governor Manchin recently signed the Voluntary Rural & Outdoor Heritage Conservation Act. The Act establishes a new Outdoor Heritage Conservation Fund (to be initially capitalized by a minimal fee on the recording of deeds and certain other documents). The Fund is designed to leverage private, federal and local monies to permit the State to purchase lands for conservation purposes. The legislation also establishes a Board of Trustees composed of the Director of the Division of Natural Resources and the Director of the Division of Forestry (ex officio) and nine (9) voting members to be appointed by the Governor. The nine appointed members are to be representative of (1) the West Virginia Agricultural Land Protection Authority; (2) a registered forester; (3) 501(c)(C) land trusts; (4) professional experts in biology or ecology nominated by the West Virginia Academy of Sciences; (5) a member with demonstrated expertise in public health and public recreation; and (6) a representative of sportsman and sportswomen. The Fund is also authorized to receive monies from a variety of sources, including the issuance of revenue bonds.


Significantly, a broad spectrum of varying political interests, under the leadership of The Nature Conservancy, came together to support the legislation including land trusts, sportsmen and sportswomens’ groups, farm land protection boards, various wildlife groups, land owners, agricultural interests, and the business community. A copy of the legislation can be accessed at:
http://www.legis.state.wv.us/Bill_Text_HTML/2008_SESSIONS/RS/BILLS/SB622%20SUB2%20enr.htm.

Rob also reports that the West Virginia Environmental Institute, on whose Board he also sits, will be holding its 2008 Annual Conference on the Environment at the Marriott in Charleston, on Wednesday, May 7. The conference theme is “Sustainable Communities and the New Economy.” The keynote speaker will be Governor Parris N. Glendening, the former Governor of Maryland and now President of the Smart Growth Leadership Institute. More information about the Conference, including registration information, can be found at the Institute’s website, www.wvei.org/conference.html.

Huffman named as new WV DEP Secretary

CHARLESTON, W.Va. – Gov. Joe Manchin today appointed Randy Huffman as cabinet secretary for the West Virginia Department of Environmental Protection. Huffman, currently DEP’s deputy cabinet secretary and director of the Division of Mining Reclamation, is a 21-year veteran of the agency. Huffman will succeed Stephanie R. Timmermeyer in DEP’s top post. Timmermeyer announced her plans to leave state government last month.
The governor believes the appointment is important to the agency, because it will maintain consistency in the day-to-day operations and services.
“Randy’s technical background has served him well as the agency’s mining director for the past three years. His background and knowledge of the internal workings of the agency make him an obvious choice for this position,” said Manchin.
“As we move forward with our energy policy in this state, I will be relying heavily on Randy and the DEP to ensure that we are doing so in a way that protects our natural resources for future generations. Secretary Timmermeyer recommended Randy as a person that could step into the position seamlessly, and I agree.”
Huffman, a West Virginia native, has served in a number of leadership positions at the agency through his career, including manager of the Pollution Prevention and Open Dump Program, the Landfill Closure Assistance Program, and the Office of Administration. He has served as the deputy cabinet secretary and as the director of the Division of Mining and Reclamation since 2005. He has a mining engineering technology degree from the West Virginia Institute of Technology and a master’s of business administration degree. Huffman also serves as a squadron commander in the West Virginia Air National Guard’s 130th Airlift Wing in Charleston.
Huffman will take over as head of DEP beginning May 1st, with Secretary Timmermeyer choosing to officially resign her post at that time now that the search for her replacement is complete.

DEP Issues Tier 3 Interpretive Rule

The WV DEP has issued its interpretive rule describing how it will implement the Legislature's decision to eliminate Tier 2.5 from the water quality standards (47 CSR 2) and antidegradation rule (60 CSR 5) and expand the categories of Tier 3 waters. The rule can be found at http://www.wvdep.org/Docs/14902_47-2A_Designation_Tier_3_waters_4-15-08.pdf The DEP website also has explanatory documents that will help explain how the rule is expected to work.

For those interested in Tier 3, the water quality standards rule, which sets out the definition of Tier 3 (see section 4.1), can be found at http://www.wvsos.com/csrdocs/pdfdocs/47-02.pdf and antideg rule, which explains how antidegradation is applied, and how Tier 3 waters are nominated, can be found at http://www.wvsos.com/csrdocs/pdfdocs/60-05.pdf

The rule is an interpretive rule, and therefore will not be subject to legislative approval, absent a challenge by someone alleging that it is a legislative rule.

District Court Vacates SPCC Definition of Navigable Waters

On March 31, 2008 the US District Court for the District of Columbia vacated a key portion of the Spill Prevention Control and Countermeasures (SPCC) rule, 40 CFR Part 112. (American Petroleum Institute v. Johnson, 2008 WL 834435.) The Court concluded that the definition of "navigable waters" that was adopted by the EPA when it finalized the rule in 2002 was not sufficiently explained in light of US Supreme Court decisions issued before (and after) the rule was finalized. EPA had adopted a broad definition of navigable waters, and the Court questioned whether EPA could justify such a broad reach of the rule in light of the Solid Waste Authority of Northern Cook County (SWANCC) and Rapanos decisions. EPA can either repropose a definition of navigable waters that will pass muster with the Court, or appeal the Court's decision.

The decision is important because SPCC plans are required for most facilities that have the potential to discharge oil to navigable waters. The new definition that the Court vacated extended the definition to almost any body of water, including ephemeral streams and isolated wetlands and lakes. SWANCC and Rapanos called that into question, although there's no bright line as to which water bodies are navigable. Navigable waters clearly include those that are navigable in fact, and adjacent wetlands, and probably other streams that flow regularly. However, the term may not include the most ephemeral streams, or isolated ponds not directly connected to flowing streams.

Until EPA appeals and gets a stay, or implements a revised definition, the previous definition for navigable waters probably applies, although it, too may not be consistent with Rapanos and SWANCC.

Greenhouse Gas Reporting

Thanks to Anne Blankenship for this report on greenhouse gas emmissions reporting that will now b required in WV

On March 6, 2008, regulations to implement the West Virginia Greenhouse Gas Emissions Inventory Program, 45 CSR 42, passed through the West Virginia Legislative Session. The regulation establishes: (1) the requirements for sources to report greenhouse gases emitted above a de minimis level; (2) an inventory for greenhouse gas emissions from stationary, area, mobile and biogenic sources, and (3) a voluntary registry for the reduction and sequestration of greenhouse gas emissions.

Only those stationary sources that are required to report air emissions of regulated pollutants by the WV DEP are required to report their greenhouse gas emissions under this rule. The reporting period for greenhouse gas emissions will be based on the reporting cycle currently used for the air emissions inventory program. In addition, the regulation requires the WV DEP to ensure that the state reporting is consistent as possible with developing regional, national or international greenhouse gas programs. EPA is developing its own emissions reporting program, which should be announced later this year, and the WV DEP has stated that it will try to avoid redundancy wherever possible.

For those interested in EPA's climate change information, and those who want to see the latest greenhouse gas inventory, which was released a couple of days ago, go to http://www.epa.gov/climatechange/

The Breakthrough Institute

The Breakthrough Institute is a centrist environmental think tank that is changing the way the green movement views development and the environment. Its approach- that traditional environmentalism won't be successful if it is constrained by a no-growth attitude toward development - is expressed in a recent book written by Michael Shellenberger and Ted Nordhaus, Break Through - From the Death of Environmentalism to the Politics of Possibility. The book has been favorably reviewed by Newsweek, the New York Times, and other publications of note. Though I don't necessarily share their belief in the inevitability of human-induced global warming, their challenge to rethink environmentalism is refreshing.

You can read more about the Institute and its philosophy at its website http://thebreakthrough.org/index.shtml

Disclaimer - Mike Shellenberger, in addition to being the president of the Institute, is also my cousin. There is no accounting for the random action of genes.

Global Warming - Ponder the Maunder

Those of you listening to NPR on April 15 may have heard a story on Kristen Byrnes, a 16 year old who has done an extensive amount of research into global warming, and concludes that concerns are overblown. You can access her website at http://home.earthlink.net/~ponderthemaunder/index.html

For those interested in seeing what the United Nations panel on climate change is saying, go to http://unfccc.int/2860.php

Argument in the West Virginia Flood Litigation

Argument will be heard by the West Virginia Supreme Court of Appeals today (April 16) in the appeals by plaintiffs in the In Re Flood Litigation. The lawsuits were filed following floods that occurred in July of 2001 and May of 2002 throughout southern West Virginia. The 2001 floods were assigned to a mass litigation panel consisting of 3 judges. The trials were split up by watersheds, and in March of 2006 the first, for flooding in a portion of the Upper Guyandotte, was held, with a verdict for the plaintiffs. That verdict was subsequently set aside by the presiding judge, JudgeHutchison. The second watershed that was set for trial was the Coal River, but Judge Recht dismissed the plaintiffs' claims before discovery was completed.

The history of the lawsuits is long and convoluted, and involves at least one trip to the Supreme Court already (In Re Flood Litigation, 216 W. Va. 534, 607 SE 2d 869 (2004). If you are interested in the issues being appealed, and background of the litigation, the WVSCA website has the briefs that were filed, as well as the orders appealed from, at http://www.state.wv.us/wvsca/calendar/april08.htm

Recovery of Waste Heat

The May, 2008 Atlantic Monthly has an interesting story about the recovery of waste heat from industrial and utility boilers. Check out http://www.theatlantic.com/doc/200805/recycled-steam Apparently there is an incredible amount of energy that could be captured using off the shelf technology that is currently being vented.

EPA and the US Army Corps of Engineers have issued rules relating to compensatory mitigation for wetlands destruction, effective June 19. The rule can be found at http://www.epa.gov/EPA-WATER/2008/April/Day-10/

While West Virginia does not have many wetlands in the traditional sense of swamps or bogs, the mitigation rules are extremely important for the coal mining industry, which often must compensate for destruction of streams caused by valley fills. Valley fills are deposits of excess overburden removed during surface mining, which must necessarily be placed in streams (often ephemeral or intermittent streams) near the surface mine. Compensatory mitigation is often required for the loss of those . One way to do that is to construct wetlands elsewhere, improve stream habitat, or purchase credits from someone who has already constructed or repaired wetlands. The rule explains how that can be done.

Some of the introductory text of the rule is set forth below.


SUMMARY: The U.S. Army Corps of Engineers (the Corps) and the
Environmental Protection Agency (EPA) are issuing regulations governing
compensatory mitigation for activities authorized by permits issued by
the Department of the Army. The regulations establish performance
standards and criteria for the use of permittee-responsible
compensatory mitigation, mitigation banks, and in-lieu programs to
improve the quality and success of compensatory mitigation projects for
activities authorized by Department of the Army permits.
This rule improves the planning, implementation and management of
compensatory mitigation projects by emphasizing a watershed approach in
selecting compensatory mitigation project locations, requiring
measurable, enforceable ecological performance standards and regular
monitoring for all types of compensation and specifying the components
of a complete compensatory mitigation plan, including assurances of
long-term protection of compensation sites, financial assurances, and
identification of the parties responsible for specific project tasks.
This rule applies equivalent standards to permittee-responsible
compensatory mitigation, mitigation banks and in-lieu fee mitigation to
the maximum extent practicable. Since a mitigation bank must have an
approved mitigation plan and other assurances in place before any of
its credits can be used to offset permitted impacts, this rule
establishes a preference for the use of mitigation bank credits, which
reduces some of the risks and uncertainties associated with
compensatory mitigation. This rule also significantly revises the
requirements for in-lieu fee programs to address concerns regarding
their past performance and equivalency with the standards for
mitigation banks and permittee-responsible compensatory mitigation.
DATES: The effective date is June 9, 2008.
ADDRESSES: Headquarters, U.S. Army Corps of Engineers, Operations and
Regulatory Community of Practice, 441 G Street, NW., Washington, DC
20314-1000. Headquarters, U.S. Environmental Protection Agency,
Wetlands Division, Mail code 4502T, 1200 Pennsylvania Ave, NW.,
Washington, DC 20460.
The Corps and EPA have established a docket for this action under
Docket ID No. EPA-HQ-OW-2006-0020. All documents in the docket are
listed on the http://www.regulations.gov web site. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Water Docket,
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by
e-mail at david.b.olson@usace.army.mil, or Mr. Palmer Hough at 202-566-
1374 or by e-mail at hough.palmer@epa.gov. Additional information can
also be found at the Corps Headquarters Regulatory Program webpage at:
http://www.usace.army.mil/cw/cecwo/reg/index.html or the EPA
compensatory mitigation webpage at: http://www.epa.gov/wetlandsmitigation.
SUPPLEMENTARY INFORMATION:
I. Background
II. General Comments and Responses
A. Overview
B. Most Frequently Raised Issues
1. Section 404(b)(1) Guidelines
2. Compensatory Mitigation Standards for Streams
3. Discretionary Language
4. Watershed Approach
5. In-Lieu Fee Programs
C. Other General Comments
III. In-Lieu Fee Programs
IV. Compliance With Section 314 of the NDAA
V. Organization of the Final Rule
VI. Discussion of Specific Sections of the Final Rule
VII. Administrative Requirements
I. Background
Compensatory mitigation involves actions taken to offset
unavoidable adverse impacts to wetlands, streams and other aquatic
resources authorized by Clean Water Act section 404 permits and other
Department of the Army (DA) permits. As such, compensatory mitigation
is a critical tool in helping the federal government to meet the
longstanding national goal of ``no net loss'' of wetland acreage and
function. For impacts authorized under section 404, compensatory
mitigation is not considered until after all appropriate and
practicable steps have been taken to first avoid and then minimize
adverse impacts to the aquatic ecosystem pursuant to 40 CFR part 230
(i.e., the CWA Section 404(b)(1) Guidelines).
Compensatory mitigation can be carried out through four methods:
the restoration of a previously-existing wetland or other aquatic site,
the enhancement of an existing aquatic site's functions, the
establishment (i.e., creation) of a new aquatic site, or the
preservation of an existing aquatic site. There are three mechanisms
for providing compensatory mitigation: permittee-responsible
compensatory mitigation, mitigation banks and in-lieu fee mitigation.
Permittee-responsible mitigation is the most traditional form of
compensation and continues to represent the majority of compensation
acreage provided each year. As its name implies, the permittee retains
responsibility for ensuring that required compensation activities are
completed and successful. Permittee-responsible mitigation can be
located at or adjacent to the impact site (i.e., on-site compensatory
mitigation) or at another location generally within the same watershed
as the impact site (i.e., off-site compensatory mitigation).
Mitigation banks and in-lieu fee mitigation both involve off-site
compensation activities generally conducted by a third party, a
mitigation bank sponsor or in-lieu fee program sponsor. When a
permittee's compensatory mitigation requirements are satisfied by a
mitigation bank or in-lieu fee program, responsibility for ensuring
that required compensation is completed and successful shifts from the
permittee to the bank or in-lieu fee sponsor. Mitigation banks and in-
lieu fee programs both conduct consolidated aquatic resource restoration,
enhancement, establishment and preservation projects; however, under
[[Page 19595]]
current practice, there are several important differences between in-
lieu fee programs and mitigation banks.
First, in-lieu fee programs are generally administered by state
governments, local governments, or non-profit non-governmental
organizations while mitigation banks are usually (though not always)
operated for profit by private entities. Second, in-lieu fee programs
rely on fees collected from permittees to initiate compensatory
mitigation projects while mitigation banks usually rely on private
investment for initial financing. Most importantly, mitigation banks
must achieve certain milestones, including site selection, plan
approval, and financial assurances, before they can sell credits, and
generally sell a majority of their credits only after the physical
development of compensation sites has begun. In contrast, in-lieu fee
programs generally initiate compensatory mitigation projects only after
collecting fees, and there has often been a substantial time lag
between permitted impacts and implementation of compensatory mitigation
projects. Additionally, in-lieu fee programs have not generally been
required to provide the same financial assurances as mitigation banks.
For all of these reasons, there is greater risk and uncertainty
associated with in-lieu fee programs regarding the implementation of
the compensatory mitigation project and its adequacy to compensate for
lost functions and services.
As noted in the preamble for the March 2006 proposal, the majority
of the existing guidance regarding compensatory mitigation and the use
of these three mechanisms for providing compensation exists in a number
of national guidance documents released by the Corps and EPA over the
past seventeen years (sometimes in association with other federal
agencies such as the U.S. Fish and Wildlife Service and the National
Marine Fisheries Service). Since these guidance documents were
developed at different times, and in different regulatory contexts,
concerns have been raised regarding the consistent, predictable and
equitable interpretation and application of these guidance documents.
In November 2003, Congress called for the development of regulatory
standards and criteria for the use of compensatory mitigation in the
section 404 program.
Section 314 of the National Defense Authorization Act (NDAA) for
Fiscal Year 2004 (section 314) requires the Secretary of the Army,
acting through the Chief of Engineers, to issue regulations
``establishing performance standards and criteria for the use,
consistent with section 404 of the Federal Water Pollution Control Act
(33 U.S.C. 1344, also known as the Clean Water Act), of on-site, off-
site, and in-lieu fee mitigation and mitigation banking as compensation
for lost wetlands functions in permits issued by the Secretary of the
Army under such section.'' This provision also requires that those
regulations, to the maximum extent practicable, ``maximize available
credits and opportunities for mitigation, provide flexibility for
regional variations in wetland conditions, functions and values, and
apply equivalent standards and criteria to each type of compensatory
mitigation.''
In response to this directive, the U.S. Army Corps of Engineers and
the U.S. Environmental Protection Agency (the agencies) published a
proposed rule in Part II of the March 28, 2006, issue of the Federal
Register (71 FR 15520), with a 60-day public comment period. As a
result of several requests, the Corps and EPA extended the comment
period by an additional 30 days. The comment period ended on June 30, 2006.
In the preamble to the March 2006 proposal, the agencies noted
their decision, in light of their respective statutory roles in the
section 404 program, to pursue this rulemaking as a joint effort
between the Corps and EPA. The preamble also discussed the Corps's
decision to develop these standards for all DA permits which could
potentially require compensatory mitigation. Thus, in addition to Clean
Water Act section 404 permits, these standards also apply to DA permits
issued under sections 9 and 10 of the Rivers and Harbors Act of 1899.
Finally, the preamble also discussed why these standards should apply
to compensatory mitigation for impacts to streams and other open waters
in addition to wetlands.
As discussed in the preamble to the March 2006 proposal, in 2001
the National Research Council (NRC) released a comprehensive evaluation
of the effectiveness of wetlands compensatory mitigation required under
section 404 of the Clean Water Act. This report noted concerns with
some past wetland compensatory mitigation and provided recommendations
for the federal agencies, states, and other parties to improve
compensatory mitigation. This report was an important resource in the
development of today's rule.

R0297001.PDF

The 303(d) list of impaired streams, published every 2 years by the WV DEP, is available for comment. The comment period began March 24 and ends May 7. The list of streams, and information on submitting comments, can be found at www.wvdep.org/wv303d.

Impaired streams are subject to a number of limitations, including more stringent NPDES permit limits. Every permitted discharger should check to see whether, and to what extent, it might be affected by the listings.