West Virginia Proposes Changes to Storm Water Permit

The WV Department of Environmental Protection has proposed changes in its Multi-Sector Storm Water general permit. Much storm water permitting is done for construction activities, because silt runoff from land disturbance is one of the biggest contributors to water pollution. The Multi-Sector general permit applies to runoff from industrial facilities, where precipitation could fall on, and carry off, pollutants from uncovered waste piles, raw material piles, and the like. The permit is often issued to small and medium-sized facilities, because larger facilities are covered by individual permits that have storm water requirements written into them, along with process water limits. The Multi-Sector general permit is important even to these larger facilities, though, because the DEP permit writers often impose the requirements of the Multi-Sector general permit in the individual permits of the larger facilities.

More Aquaculture Development in the Gulf of Mexico

West Virginia's aquaculture is mostly limited to growing trout and other game fish for stocking in state streams, and some commercial facilities that use mine water to grow cold-water fish for sale. We don't have a coastline, along the Gulf or elsewhere (unless you count Myrtle Beach, SC), but I thought this article by Jessica Ferrell of the Marten Law Group was an interesting summary of the law that will apply to what is sure to be a growing industry - large scale commercial fish farming in the Gulf of Mexico.

Industry Group Seeks Changes in TSCA

Industry is sometimes accused of avoiding regulation at all costs. That isn't necessarily the case. The New York Times reports that a representative of the American Chemistry Council, which represents many chemical manufacturers, is seeking a revamp of the Toxic Substances Control Act, or TSCA. That is an environmental statute that governs the production and licensing of the many man-made chemicals that are necessary to modern society. The ACC is hoping that an updating of TSCA will restore faith in the protections offered to American consumers by the Act.

WV Supreme Court Rules in Oil & Gas Royalty Case

This blog is about energy law as much as environmental law, and I have been deficient in reporting on energy-related state court cases. To rectify that, I'll refer you to Drake v. Waco Oil and Gas Company, Inc., involving an unusual royalty situation. A brother and sister both believed that the sister owned a piece of property that was actually titled in both their names. The brother negotiated a lease of the oil and gas for the sister, with the sister getting the standard one-eighth interest in the value of the gas produced from her property. (The share of the value of the gas that is paid to the gas owner is referred to as the royalty.) When the brother (actually, a potential gas producer found the error when doing a title search) discovered he owned half the property, he sued Waco for the difference between the value of the gas produced, less the cost of producing it - in other words, the entire profit from the well. However, the Court agreed with Waco that the fact the brother had been involved in the negotiations changed the equities, and it was fair that he should get only his part of the 1/8 royalty he negotiated for his sister.

The case was before the Court on a certified question. For you non lawyers, that's a situation that sometimes arises when the facts of a case are not in dispute, and there is no clear guidance from statutes or past decisions of the Supreme Court as to how the law should apply to those facts. When that happens, the Circuit Court can frame a question to the Supreme Court that asks what the law is, assuming certain facts, to save the time that would be lost by deciding the case and then having it go up on appeal.

The case is instructive in two ways - it shows that the Court can redraft a certified question from a lower court to pose the question that it believes should have been asked (or that it wants to answer) and it is an example of the court trying to find the equities rather than strictly follow precedents. In some cases, courts that try to do justice rather than follow the law end up doing neither. In this case, I think they got it right.

West Virginia Watershed Network To Meet March 17

Attached is a notice I received from the West Virginia Watershed Network. If you are interested in water quality issues and sampling programs, and how the accumulated data is used, this is a great event to attend.

The West Virginia Watershed Network (WVWN) is planning to hold its semi-annual meeting in Morgantown on Tuesday, March 17, 2009, from 10:00 a.m. to 3:45 p.m. The meeting will be conducted as a forum where speakers from multiple agencies will provide information about ongoing statewide water sampling programs with emphasis on purpose, data collection process, data storage and access. The Forum agenda is available on the WVWN web site at: http://www.wvca.us/wvwn/wvwn_events.cfm. (Note.....notification of changes to or cancellation of the forum will be posted on this website, so please check for updates before traveling to the event.)

The meeting is open to all interested persons at no cost. The meeting will be held at the National Research Center for Coal and Energy (NRCCE) on Evansdale Campus at West Virginia University in room 101 AB. For directions to the NRCCE go to: http://www.nrcce.wvu.edu/directions.cfm *Note... Lunch is brown bag. Free parking is available at the WVU Coliseum, where a shuttle bus runs every ten minutes. See the above website for the location of paid parking near the NRCCE building, however it is our understanding, if your vehicle has state or federal license you can park anywhere at no cost.

*Contacts: Rick Buckley OSM 304-347-7162 x3019 Jim Laine WVDEP/DWWM 304-926-0499 x1061 Clairene Bailey OSM 304-347-7158 "West Virginia Forum on Statewide Water Sampling Programs" Tuesday, March 17, 2008 10:00 a.m. - 3:30 p.m. National Research Center for Coal and Energy (NRCCE) Room 101 AB Evansdale Campus at West Virginia University, Morgantown WV Open to the Public and No Cost to Attend Sponsored by the West Virginia Watershed Network

AGENDA 10:00 am Welcome and Logistics - Jim Laine (WV DEP)
10:05 am Water Monitoring Data Uses and Current Issues - Patrick Campbell (WV DEP) TMDL update, Marcellus Shale, Selenium
10:15 am USGS Flow Gauges/USGS databases - Doug Chambers
10:35 am EPA Region III Water Quality Exchange (WQX) database - Lou Reynolds
10:55 am Ohio River Sanitation Commission (ORSANCO) Ohio River Program - Sam Dinkins 11:15 am WV DEP Watershed Assessments - John Wirts
11:35 am WV Department of Agriculture - Matt Monroe
11:55 am Lunch (Brown Bag)
1:00 pm WV DEP Abandoned Mine Lands (AML) - Shelia Vukovich
1:10 pm WV DEP Special Reclamation (Bond Forfeiture) - Alyce Lee
1:20 pm WV DEP Division of Water & Waste Management - NPDES - Bob Bates
1:35 pm WV DEP Division of Mining and Reclamation - NPDES Article 11 Surface Mining Control and Reclamation Act (SMCRA) Article 3 Mining & Trend Network Information - Ken Politan 2:00 pm WV Division of Natural Resources (TBA) 2:15 pm Friends of Cheat - Keith Pitzer
2:30 pm Break
2:40 pm WV Department of Health & Human Resources - Rick Shaver
2:55 pm WV Save Our Streams (WV SOS) Program - Tim Craddock
3:10 pm WV DEP GIS information - Larry Evans
3:30 pm Wrap-up/Comments

Presenter Speaking Points Introduction to the Agency including Agency mission Sampling Plans- purpose for sampling with brief explanation (regulatory, research, program mandate, trends, etc) Locations - How are locations determined? How are locations recorded (GPS)? Collection - Type of collection (grab, composite or continuous) Parameters sampled - water chemistry (pH, dissolved oxygen, fecal, etc) Is flow monitoring included? Does the organization do macroinvertebrate sampling? Frequency of Sampling - how often are samples collected? Analysis - Field or laboratory Agency or contract laboratory Analytical methods reference Data Storage - Paper or electronic Agency database or stand alone Is GIS data available? (Type and date of coverage) Contact for GIS files or questions Data Availability - Is it available to the public Web based system or must it be requested (Is a Freedom of Information Act request required?) Overview of future monitoring plans - brief and concise Final Points Any website links you would like to provide? Identify any reports generated based on sampling program and how reports are accessed (electronic / hard copy) Identify contacts in your organization for follow-up questions or additional information. ~PLEASE PASS THIS ANNOUNCEMENT ALONG TO OTHERS THAT MAY BE INTERESTED IN ATTENDING!

West Virginia 2008 Integrated Water Quality Report Available

West Virginia's 2008 Integrated Water Quality Monitoring and Assessment Report is available from the WVDEP. I can't describe it any better than they do, so here's the press release.


A comprehensive report detailing the health of the state’s waters and a list of impaired streams has been approved by the U.S. Environmental Protection Agency.

The Department of Environmental Protection submitted the West Virginia 2008 Integrated Water Quality Monitoring and Assessment Report to the federal agency for review and approval after soliciting public input.

The report, which fulfills requirements of Section 303(d) and Section 305(b) of the federal Clean Water Act, was approved Jan. 17. Section 303(d) requires the creation of a list of impaired streams in the state and Section 305(b) necessitates an overall assessment of West Virginia’s waters. The DEP’s Division of Water and Waste Management’s Watershed Assessment Branch compiled, evaluated and summarized all readily available water quality data for West Virginia’s waters. The integrated report contains assessment methodologies and results, information on Total Maximum Daily Load (TMDL) development, water pollution control programs and various other water resource management issues. The 303(d) list is the comprehensive list used for TMDL selection and development in West Virginia.

Individuals may request a CD version of the West Virginia
2008 Integrated Water Quality Monitoring and Assessment Report or download all or part of the report from www.wvdep.org/wv303d.

For more information about this report, please contact Steve Young at (304) 926-0495.


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Alternative Energy Continues to Make Inroads

It appears that the United States took the lead in total wind-generated power production last year, although as several bloggers noted, on a per capita basis we're still far behind Germany, Denmark, Spain and other countries. This follows hard on the heels of a post from earlier this month, where I noted that in 2007 total newly-installed wind-generated power had exceeded new coal-generated power for the first time. They still haven't solved the level load, storage problem, but that may change. In the meantime, we'll have to keep producing coal and oil and gas. There is no alternative.



Also needing a power storage solution, but exciting nonetheless, is the development of what is billed as the largest solar power plant in the world, in southern California. I was interested to see that it is a solar thermal plant - that is, it generates power by using mirrors to concentrate sunlight and produce high temperatures, heating steam to drive a turbine, just like a coal plant, rather than relying on photovoltaics. Solar thermal is much cheaper to develop than photovoltaics, and while PV remains the holy grail, as a practical matter solar thermal probably will be the way to go for quite a while.