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

Enviro-Mich message from "Bill Tobler" <williamtobler@critterswoods.org>

This is good news.

The anti-degradation statements that I have personally seen in Michigan 
have been an insult to the concept of striking a balance between 
environmental quality and a healthy economy.  These "statements" made 
exaggerated claims with no backup evidence of any kind, and no 
cost/benefit analysis.

These have been used to create a giant loophole in environmental 
enforcement and permit writing to a degree much, much greater than I 
believe the authors of the anti-degradation concept expected.

> ----------------------------------------------------------------------
> Enviro-Mich message from "Rita Jack" <rita.jack@sierraclub.org>
> ----------------------------------------------------------------------
> Michigan:  FYI --
> -Rita.
> ****************************************
> -----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 
> 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
> 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 
> 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 
> intended solely for those environmental activists.
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