By Peggy Mackenzie
October marks the 42nd anniversary of the enactment of the Clean Water Act, which went into effect Oct. 18, 1972. Forty years ago, two-thirds of America’s lakes, rivers and coastal waters were unsafe for fishing and swimming, but because of the Clean Water Act, that number has been cut in half.
Clean water is important – for drinking, swimming, fishing, and for our communities, farms and businesses. And yet, one-third of the nation’s waters still do not meet the standards for clean water.
Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006, which muddied the waters by forcing the EPA to prove “a nexus” between the upstream water bodies feeding navigable waters downstream. For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rule to provide clarity.
A new Waters of the U.S. proposal by the EPA and the Army Corps of Engineers offers new opportunities to undo those uncertainties. The proposed rule clarifies protection for streams and wetlands, and all definitions of waters will apply to all Clean Water Act programs.
The rule will reduce confusion about Clean Water Act protection; clarify types of waters covered under the Clean Water Act; save businesses time and money; provide more benefits than costs to the public; and help states protect their waters. The rule is overwhelmingly supported by hunting and fishing groups and small businesses.
According to Angie Rosser, executive director of the West Virginia Rivers Coalition, nearly 60 percent of West Virginia streams are small headwaters, which form the foundation of all our water resources.
“Water flows downstream, no matter where it starts. What happens in those headwaters affects what happens down in our own back yard,” Rosser said.
Ask anyone in the Charleston area where, early this year, an industrial chemical leak leeched through the soil and contaminated the downstream water supply of 300,000 people. Gravity rules in all headwaters.
“As a small business owner who personally experienced the negative economic impact of a recent chemical spill in West Virginia’s Elk River, said Nancy Ward, CEO, Cornucopia, Charleston, “I know how crucial it is for strengthening EPA regulations to protect our waterways.”
The EPA is taking comments on the proposed update to the Clean Water Act until, Friday, Nov. 14. You can comment on the EPA rule at www2.epa.gov/uswaters.
Related to the proposal by the EPA, this month on the first day of the WV October Legislative Interim session, the Legislative Rule-Making Review Committee approved a rule modification to the Solid Waste Management Rule of HB 107 prohibiting solid waste facilities from accepting Marcellus Shale waste as part of their normal landfill tonnage.
Previous legislation prohibited solid waste facilities in a karst region from accepting Marcellus Shale waste in special cells, however the legislation did not address landfills accepting the waste as part of their regular mixed-waste tonnage. This loophole was first discovered by Senator Don Cookman (D-Hamphire) and was put forth by Senate Majority Leader John Unger.
The provision strengthens the protection of drinking water in counties with karst topography by prohibiting any amount of radioactive drill cuttings in landfills. The provision will be submitted to the full Legislature during the 2015 session.
Unger said it was important to address the rule modification during this interim session rather than wait until the next legislative session, so any out-of-state application to landfill the waste will have to abide by the new modification. “If there was to be a leak, particularly in a karst region, it would leech into ground water and create a lot of damage. There would be no way to flush the water system because it would be underground,” Unger said.
Karst landscape, formed from the dissolution of soluble rocks, is characterized by underground drainage systems with sinkholes, dolines, and caves. It is porous and exceptionally vulnerable to water contamination and pollution.
Additionally, for the solid waste authority, a critical factor is regional growth, “…and landfill space is valuable,” observed Clint Hogbin, chairman of the Berkeley County Solid Waste Authority. The rule modification will benefit not only the eastern panhandle of the state, where the legislation was first developed, but also throughout the eastern region, including Greenbrier County.
In a telephone interview, Wayne Childers, manager of Greenbrier County Landfill (GCL), affirmed that the facility has not taken in any Marcellus Shale drill waste since April of 2012. When they were accepting drill waste, the material underwent additional criteria before the landfill could accept it. Childers said the GCL was fully authorized by the DEP to take Marcellus Shale drill waste at that time, and groundwater testing was – and still is – currently done twice a month to confirm no leakage of any kind has occurred. Currently, the landfill receives 3,200 to 3,400 tons of solid waste refuse per month.
