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E-M:/ FW: Judge throws out stream protection rule
- Subject: E-M:/ FW: Judge throws out stream protection rule
- From: "Rita Jack" <firstname.lastname@example.org>
- Date: Fri, 24 Oct 2003 10:18:35 -0400
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Enviro-Mich message from "Rita Jack" <firstname.lastname@example.org>
Michigan: FYI --
From: David Orr [mailto:email@example.com]
Sent: Thursday, October 23, 2003 6:28 PM
To: TMDL Group list; Stumps list
Subject: Judge throws out stream protection rule
[Sorry I don't have the publication date of this story... - David Orr]
Judge throws out stream protection rule
Bush-approved anti-degradation policy is too weak, Goodwin says
By Ken Ward Jr.
Charleston (WV) Gazette
In a major water quality ruling, a federal judge said Friday that the
administration was wrong to approve a state stream protection
was full of loopholes.
U.S. District Judge Joseph R. Goodwin threw out the rule, sending it
to the U.S. Environmental Protection Agency and the state Department of
Environmental Protection to be rewritten.
In a more than 70-page ruling, Goodwin concluded that the EPA "acted
arbitrarily and capriciously" when it signed off on the state's stream
"anti-degradation" procedures in November 2001.
Under the federal Clean Water Act, anti-degradation procedures are
to protect the current quality of rivers and streams. New
the additional pollution it brings are allowed, but only
if a cost-benefit
analysis shows that jobs or other results are worth
"West Virginia's regulations simply fail to require the minimum
required by the EPA's regulation," the judge wrote in an
"EPA's approval of West Virginia's procedures was based on an
attempt to effectively amend the plain meaning of those
provisions so as to
bring them into line with federal requirements," he
Goodwin overturned the EPA's approval of seven of 13 provisions of
state policy that were challenged in court by the Ohio Valley
Coalition and other groups.
"The court has rejected many of the loopholes that EPA and the state
West Virginia tried to create," said Jim Hecker, environmental
director for Trial Lawyers for Public Justice, a Washington
represented the environmental groups. "It will now be harder
for them to be
allowed to let West Virginia's waters deteriorate."
For example, Goodwin rejected EPA approval of state language that
high-quality streams "generally" are given anti-degradation
Environmental groups argued, and the judge agreed, that all
streams are entitled to this protection.
Goodwin also said the EPA was
wrong to approve language that would
have given the DEP Secretary broad
authority to exempt certain
activities from the anti-degradation policy.
The judge threw out language that exempted large portions of the
and Monongahela rivers from anti-degradation protections. He
also tossed an
exception for pollution covered by certain "general
permits" issued by the
U.S. Army Corps of Engineers.
However, Goodwin said that EPA was within its authority to approve
Virginia language that exempted existing pollution sources from
anti-degradation cost-benefit studies unless they propose to increase
their discharges. The judge also declined to reject a waiver for
source pollution, such as logging, farming and other types of
In some cases, Goodwin acknowledged that judges must give the EPA
interpreting its own regulations, such as those that spell out
But the judge said that he would not "permit the EPA to effectively
regulations to mean something other than what the text of the
regulation in question
Goodwin's decision is believed to be the first time that a federal
out EPA approval of a state anti-degradation policy, lawyers
"This really is a groundbreaking case," said Joe Lovett of the
the Economy and the Environment, which also represented the
"There is no precedent for this anywhere."
Roy Seneca, a spokesman for the EPA's regional office in
from the agency was available Friday to discuss the ruling.
"It's really a complicated issue, and we would need to analyze the
comment," Seneca said.
Perry McDaniel, chief of the DEP Office of Legal Services, said that
also needed more time to digest Goodwin's opinion.
"Obviously, it's a lengthy ruling, and it appears to be very
"The agency will take a closer look at it and consult with
determine what our
next step is."
Lawyers for various industry trade groups that intervened in the case
had not seen Goodwin's opinion and, therefore, couldn't
Anti-degradation is a little noticed, but important part of the
Act. Under the law, anti-degradation policies are supposed to
streams with an
added layer of protection above state
Water quality standards place limits on the concentration of
streams. Below those standards, streams aren't safe for
swimming, or boating,
let alone for use as drinking water.
Anti-degradation says that current water quality may not be lowered.
Streams that are
clean must be kept that way. Streams that are dirty
can't be made any
Even if additional pollution would not violate water quality
anti-degradation says that "degrading" streams below their current
Water quality can be degraded, in some instances, but only if a
shows that the jobs or other benefits outweigh the
Federal law required states to have anti-degradation policies and
those policies. The EPA is required to make sure states that
these rules are
West Virginia only recently approved its anti-degradation policy, and
passed a plan
during the 2001 legislative session to implement it.
Under pressure from various industry groups, the Wise administration
Secretary Michael Callaghan < agreed to add numerous
loopholes to an
policy that had already been watered-down
during a stakeholder review
Callaghan agreed to those loopholes less than a week after Gov. Bob
industry lobbyists not to try to further weaken the legislation.
Since then, Wise has cited the policy as an example of how his
"taken on some tough environmental issues in this
In November 2001, the Bush administration EPA approved the state
numerous provisions that were previously rejected by the
"This ruling shows that the Bush administration can't get away with
ignoring the Clean
Water Act," said Vivian Stockman, project coordinator
for the Ohio
Environmental Coalition. "It shows that big
polluters can't always
donate their way
into getting laws rewritten to
"The lawsuit was really our last resort," Stockman said. "Thank
the courts to fall back on when the legislative branch of
is so obviously
in bed with the big polluters."
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
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