State senators on Monday systematically gutted new water quality standards proposed by the state Department of Environmental Protection, including a rule designed to clean up out-of-control algae blooms on the Greenbrier River.
Members of the Senate Committee on Natural Resources, bowing in part to concerns by the state's natural gas and coal industries, took the DEP's rules package and dismantled parts of it piece-by-piece, setting one provision aside for study and taking others out entirely.
Senators said they were concerned the rules were overly burdensome on industry, too costly and unnecessary when it comes to protecting human health.
The proposed rules package, the product of a three-year internal review by the state DEP, was rolled out last May at the first stage of the year-long public rule-making process. The rules have been the source of controversy ever since.
One was meant to curb algae blooms that have choked parts of the Greenbrier River, making stretches of it useless for swimming and fishing. Serious complaints began in 2007 during a dry summer when the blooms became particularly noticeable.
"There's just too much algae growing in the river to fish," James Summers, a member of the DEP's water resources section, told the Senate committee.
Summers said 30 to 60 miles of the river's bottom gets covered with algae. A report he did in 2008 is full of photos of algae also covering the surface of the water.
The DEP regulations would have curbed the amount of phosphorus in the river. Algae feed on phosphorus, which is a key component of fertilizer and human sewage. High levels cause algae to grow uncontrollably, running off other aquatic life. The DEP's new phosphorus rule would have applied only to the Greenbrier and would have been in effect only between May 1 and Oct. 31 of each year.
Even though fertilizer is used on golf courses and farms in the area, Summers said studies showed most of the phosphorous is dumped by sewage treatment plants.
"It's not until you get those constant discharges that you see blooms," he told members of the committee.
But the cost to control phosphorous at the half dozen sewage treatments plants along the river would total about $11 million in one-time costs and $1 million in maintenance each year, said Scott Mandirola, the director of the DEP's division of water and waste management.
That would almost inevitably mean higher rates for customers.
"So they would have to increase their costs?" asked Sen. Karen Facemyer, R-Jackson.
Mandirola replied that treatment plants would.
Even though the DEP rules don't make the state pick up the tab, Sen. Walt Helmick, D-Pocahontas, suggested the bill be sent to the Senate Finance Committee.
"I assume the legislators from that area will push the state to pay for it," he said.
Sending the bill to multiple committees is a good way to kill it. The bill already was set to go to the Senate Judiciary Committee after it left Natural Resources.
"I personally don't care," said Helmick, the former finance committee chairman. "I just always took 'em up there so I could kill 'em."
Minutes later, Helmick, who said he was concerned that the DEP's work didn't do enough to consider the phosphorous content of soaps and detergents flowing into the river, amended the bill to call for further study.
The amendment passed, effectively killing the phosphorous limits. The only objection was from Sen. Clark Barnes, R-Randolph.
Leslee McCarty, the coordinator for the Greenbrier River Watershed Association, an environmental group, said after the meeting that the problem had been studied enough.
"We need help on the Greenbrier River," she said. "How can we invite somebody to our tourism place and say, 'You can ride along the Greenbrier River Trail, but don't swim in the river because it's disgusting?' "
The Natural Resources Committee also removed regulations from the DEP proposal that would have capped the solid particles allowed in river and stream water.
The coal industry was particularly concerned about the provision. They argue that the way the DEP was going about it - by limiting the number of "total dissolved solids" - was too much of a catch-all. Another way to regulate water is by putting specific limits on each kind of solid, such as iron, for example.
Sen. Herb Snyder, D-Jefferson, who is not a member of the committee but is a water chemist, appeared as a kind of expert witness. He said he had been trying to broker a deal between the environmentalists and industry.
He called the total dissolved solid limit a "very general standard." He said he had helped prepare an amendment to simply limit sulfates, a kind of runoff commonly seen from coal production.
"My efforts were to attempt to salvage some of what DEP proposed," he said.
Snyder's amendment, which was introduced by Sen. Larry Edgell, D-Wetzel, took the total dissolved solid cap and narrowed it so it regulated only sulfates and applied only to measurements taken a half-mile from water intakes.
Jason Bostic, vice president of the West Virginia Coal Association, then came up and told the committee, "I would say we probably couldn't comply with that standard."
Evan Hansen, the head of Downstream Strategies, a Morgantown-based environmental consulting group, said the amendment would "do nothing to solve the problem."
"Restricting it to a half mile would, in my opinion, make the rule have very little effect," he said.
The committee then voted to take out the sulfate cap. Because they had turned the total dissolved solid limit into just a sulfate limit, that meant the entire section of the rules meant to improve overall water quality had been rendered essentially moot.
In a third change, the committee also removed a provision from the rules package that would have limited the amount of water that could be withdrawn from streams. Lawmakers cited vague wording and noted the Legislature is already set to consider such limits this session in bills designed to regulate drilling of natural gas in the Marcellus shale. A great deal of water must be shot into the ground to release the gas from the shale.
At times, lawmakers seemed to struggle with the science and the complicated regulatory framework, and lobbyists on each side took turns calling each other liars following the meeting.
In an interview after the meeting, Hansen accused Bostic and a lobbyist from the state Chamber of Commerce of "lying to legislators" during remarks they gave to the committee over a particularly technical matter.
In a separate interview, Bostic accused Hansen of lying, too, and said the DEP had overstepped its bounds by repeatedly failing to heed lawmakers' advice that the agency limit its regulatory approach.
McCarty blamed the lobbying prowess of the state's industry groups for weakening DEP's proposals.
"I wish I'd got taken out to dinners," McCarty said after the meeting.
Contact writer Ry Rivard at ry. firstname.lastname@example.org or 304-348-1796.
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