Lawsuit Threatened Over West Virginia's Impaired Streams List

            The Sierra Club, West Virginia Highlands Conservancy, and the Ohio Valley Environmental Coalition have advised EPA that they intend to file a citizen suit under the Clean Water Act because of EPA’s failure to approve or deny West Virginia’s 303(d) list of impaired streams. West Virginia recently sent a revised 303(d) list to EPA on December 21, 2012.  EPA was required to approve or disapprove it within 30 days, but did not do so.  The environmental groups contend that EPA not only had an obligation to act on West Virginia’s 303(d) list, EPA had an obligation to disapprove it.

Streams are impaired if they violate water quality standards, including narrative standards that prohibit “materials in concentrations that are harmful, hazardous or toxic to man, animal or aquatic life” and “adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems. . . .”  47 C.S.R. §§2-3.2(e) and 3.2(i).  In previous 303(d) lists West Virginia used the West Virginia Stream Condition Index (WVSCI) to determine which streams showed biologic impairment.  However, in 2012 the Legislature changed the W. Va. Code to require the Secretary of the DEP to propose rules for “measuring compliance with the biologic component of West Virginia’s narrative water quality standard. . .”  W. Va. Code §22-7(b).  Because those new rules/new standard have not been adopted, the DEP did not list new streams for biologic impairment, preferring to wait until the new standard was set.

            Environmental groups are contending that the DEP could not refuse to list streams that were impaired as it waits for the DEP to develop a process for setting a biological standard.  Furthermore, they felt that the DEP should have used a different assessment methodology (Genus-Level Index of Most Probable Stream Status (GLIMPSS) for the 2012 303(d) list. 

            For each waterbody on the 303(d) list, the DEP us to develop a plan for meeting water quality standards, called a total maximum daily load, or TMDL.  West Virginia has a well-developed TMDL and 303(d) listing program, one of the best in the nation.