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E-M:/ FW: Judge throws out stream protection rule



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Enviro-Mich message from "Rita Jack" <rita.jack@sierraclub.org>
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Michigan:  FYI --
-Rita.
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-----Original Message-----
From: David Orr [mailto:glencanyon@comcast.net] 
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. 
STAFF WRITER 
Charleston (WV) Gazette


In a major water quality ruling, a federal judge said Friday that the
Bush
administration was wrong to approve a state stream protection
policy that
was full of loopholes.

U.S. District Judge Joseph R. Goodwin threw out the rule, sending it
back
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
intended
to protect the current quality of rivers and streams. New
development and
the additional pollution it brings are allowed, but only
if a cost-benefit
analysis shows that jobs or other results are worth
it.

"West Virginia's regulations simply fail to require the minimum
protections
required by the EPA's regulation," the judge wrote in an
opinion released
Friday afternoon.

"EPA's approval of West Virginia's procedures was based on an
unreasonable
attempt to effectively amend the plain meaning of those
provisions so as to
bring them into line with federal requirements," he
added.

Goodwin overturned the EPA's approval of seven of 13 provisions of
the
state policy that were challenged in court by the Ohio Valley
Environmental
Coalition and other groups.

"The court has rejected many of the loopholes that EPA and the state
of
West Virginia tried to create," said Jim Hecker, environmental
enforcement
director for Trial Lawyers for Public Justice, a Washington
firm that
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
said
high-quality streams "generally" are given anti-degradation
protection.
Environmental groups argued, and the judge agreed, that all
high-quality
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
Kanawha
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
West
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
non-point
source pollution, such as logging, farming and other types of
runoff.

In some cases, Goodwin acknowledged that judges must give the EPA
deference
in
 interpreting its own regulations, such as those that spell out
anti-degradation
 requirements.

But the judge said that he would not "permit the EPA to effectively
amend
those
 regulations to mean something other than what the text of the
regulation in question
 fairly supports."

Goodwin's decision is believed to be the first time that a federal
court
has thrown
 out EPA approval of a state anti-degradation policy, lawyers
in the
case said.

"This really is a groundbreaking case," said Joe Lovett of the
Appalachian
Center for
 the Economy and the Environment, which also represented the
environmental groups.
 "There is no precedent for this anywhere."

Roy Seneca, a spokesman for the EPA's regional office in
Philadelphia, said
no one
 from the agency was available Friday to discuss the ruling.

"It's really a complicated issue, and we would need to analyze the
ruling
before we
 comment," Seneca said.

Perry McDaniel, chief of the DEP Office of Legal Services, said that
state
officials
 also needed more time to digest Goodwin's opinion.

"Obviously, it's a lengthy ruling, and it appears to be very
detailed,"
McDaniel said.
 "The agency will take a closer look at it and consult with
EPA and
determine what our
 next step is."

Lawyers for various industry trade groups that intervened in the case
said
that they
 had not seen Goodwin's opinion and, therefore, couldn't
comment.

Anti-degradation is a little noticed, but important part of the
federal
Clean Water
 Act. Under the law, anti-degradation policies are supposed to
provide
streams with an
 added layer of protection above state
water-quality standards.

Water quality standards place limits on the concentration of
pollutants
allowed in
 streams. Below those standards, streams aren't safe for
fishing,
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
dirtier.

Even if additional pollution would not violate water quality
standards,

anti-degradation says that "degrading" streams below their current
quality
isn't
 generally allowed.

Water quality can be degraded, in some instances, but only if a
cost-benefit analysis
 shows that the jobs or other benefits outweigh the
environmental
cost.

Federal law required states to have anti-degradation policies and
plans to
implement
 those policies. The EPA is required to make sure states that
have

these rules are
 stringent enough.

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
<
under then-DEP
 Secretary Michael Callaghan < agreed to add numerous
loopholes to an
implementation
 policy that had already been watered-down
during a stakeholder review
process.

Callaghan agreed to those loopholes less than a week after Gov. Bob
Wise
warned
 industry lobbyists not to try to further weaken the legislation.

Since then, Wise has cited the policy as an example of how his
administration has
 "taken on some tough environmental issues in this
state."

In November 2001, the Bush administration EPA approved the state
plan,
including
 numerous provisions that were previously rejected by the
Clinton EPA.

"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
Valley
 Environmental Coalition. "It shows that big
polluters can't always
donate their way
 into getting laws rewritten to
suit them.

"The lawsuit was really our last resort," Stockman said. "Thank
goodness we
still have
 the courts to fall back on when the legislative branch of
government
is so obviously
 in bed with the big polluters."


To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

Clean Water Network listserves are for CWN members only and messages are
intended solely for those environmental activists.


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