A bit of background - the DEP develops a list of impaired waters called the 303(d) list. (It is presently taking comment on the proposed list for 2012; draft is here.) Historically, the greatest source of impairment identified in that list, measured by total stream miles affected, has been fecal coliform. The DEP has concluded that the vast majority of that fecal coliform is from human sewage discharged by "straight pipes," which are nonfunctioning septic systems, or pipes that discharge straight from someone's house into a stream, without any treatment. It has not required permits for those point sources, to my knowledge
In its response brief the WV DEP (ably represented by Jennifer Hughes) agreed that the issue of unpermitted discharges of household sewage into waters of the state is an issue of fundamental public importance. . .” The DEP did not disagree that there are thousands of miles of streams that are impaired by fecal coliform, even though it is not even assessing compliance with the fecal coliform criteria in many streams. The DEP admitted that it “rarely if ever” has taken enforcement action against unpermitted discharges of untreated sewage to waters of state from an individual residence. Nevertheless, the DEP took the position that the Three Rivers petition, asking the Court to require the Director to address this situation, was “frivolous.”
There are a number of reasons that the DEP gave for opposing the petition, such as enforcement discretion, the alleged inability to issue permits for sources that don't meet water quality standards, and its right to treat point sources as nonpoint sources for purposes of the TMDL program. I won't presume to guess which of those arguments the Supreme Court found convincing, but I would like to comment on one reason the DEP gave for not enforcing the law against straight pipes - the alleged poverty of West Virginia citizens.
Had a reply to the DEP's brief been allowed, here is what it would have been:
The heart of the Director’s position is found in his statement that “the problem of failing household sewage exists largely in rural, low income areas. Issuing an order to a person to stop discharging untreated sewage and install proper sewage treatment is pointless if the person cannot afford to comply.” (Director’s Brief at 6-7). In essence, the Director has concluded that West Virginians who have straight pipes are too poor to pay for sanitation, and therefore enforcement is pointless. This argument fails for at least two reasons. First, it is an unproven assumption. The Director offers no support for its surmise that only poor household discharge through straight pipes. It is much more likely that households straight-pipe because they don’t know that their faulty septic systems are discharging into a stream, or because no one has given the homeowners the slightest incentive to investigate what could be happening to their sewage.
Second, it introduces a new concept into the state’s environmental protection programs – noncompliance is allowed when someone is sufficiently poor. Three Rivers Companies would contend, and hopes the Director would agree, that one of the obligations of a homeowner is to properly dispose of the home’s sewage. There is no poverty exception that allows the owner of a residence to escape the cost of treatment, effectively forcing downstream property owners to bear the burden of that choice. By the way of analogy, all car owners must have liability coverage in order operate their vehicles. There is no exception for “rural, low income persons” to drive without insurance.
The latter half of the Director’s brief describes federal and state programs for funding a small number of community wastewater systems. This is irrelevant, and only reinforces the stereotype that West Virginia citizens require state and federal money and programs in order to take care of their sewage. There is certainly a role for state and federal funds, and there are many people who will likely need help in order to install proper sewage treatment. But there is also a role for a motivated citizenry to solve their own problems. West Virginians are fully capable of doing so, if they have an incentive to act: Patronizing characterizations that excuse noncompliance in the absence of government programs only encourage dependency, not solutions.
As for the DEP's position that it was properly addressing addressing straight pipes as nonpint sources under the TMDL program:
The DEP defends its characterization of straight pipes as nonpoint sources on programmatic, not legal, grounds. There is no argument that the straight pipes aren’t point sources, as that term is defined in federal and state acts. The DEP instead argues they can be treated as nonpoint sources for purposes of the TMDL Program or EPA's nonpoint source program, although it cites no support for that proposition. The fact is there is no support for the DEP's position. Straight pipes from each of 25 residences are a point source in the same way that a discharge pipe from a community package sewer treatment plant, conveying the same wastes from those 25 households, is a point source. The advantage to the DEP in treating the straight pipes as a point source is that less scrutiny is given to eliminating nonpoint sources, which are assigned “load allocations” when TMDLs are planned. Load allocations are essentially ignored and become the subject of generalized plans without any specific implementation schedule. Point sources, on the other hand, are generally assigned specific reductions that are imposed in permits and enforced. Based on the DEP's response, the only time that actions are taken with regard to straight pipe discharges is when some other program, generally bringing federal money, is available to address them.
As you may have guessed, I represented Three Rivers. I'm looking forward to Round 2, when I figure out what that is.
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