Greenbrier River at Alderson ~ Throwback March 2016.

Photo by Brianna Barkley

We are all the watershed

10 Ways to Protect Your Watershed

As water travels over the land, it is impacted by what's happening in the watershed. Your yard is part of a watershed, here are some actions you can take to lower your impact:

1. Service your septic system

2. Clean up after your pets

3. Limit the use of fertilizers and avoid pesticides

4. Properly dispose of household chemicals

5. Prevent chemicals from reaching storm drains

6. Buffer streams on or near property

7. Use commercial car washes or park vehicle in grass to wash

8. Check your car for leaks, and recycle your used motor oil

9. Select non or less toxic household cleaners (and body products)

10. If you see something, say something Report spills, illegal dumping or suspicious activity to WVDEP at 1-800-642-3074

Brought to you by WV American Water & Piney Creek Watershed Association

The Seemingly Endless Path to Define WOTUS

American College of Environmental Lawyers/ January 13, 2023 / JDSUPRA

The definition of “waters of the United States” (WOTUS) determines federal jurisdiction under the Clean Water Act (CWA). It affects U.S. Army Corps of Engineers (Corps) permitting for impacts from crossing, or otherwise disturbing, federally regulated streams and wetlands, as well as NPDES permitting, federal spill reporting and SPCC plans.

As one of their last actions for 2022, U.S. EPA and the Corps (the Agencies) released a pre-publication notice of a new definition of WOTUS on December 30, 2022. The new definition will become final 60 days after publication in the Federal Register. The definition was originally proposed in a December 7, 2021 rulemaking.

Although the Agencies have promoted this final rule as establishing a “durable definition” that will “reduce uncertainty” in identifying WOTUS, this definition does not appear to provide much-needed clarity. Rather, generally speaking, the new definition codifies the approach that the Agencies have already been informally utilizing, which entails relying on the definition of WOTUS from the late 1980s, as interpreted by subsequent U.S. Supreme Court decision (e.g., Rapanos v. United States, 547 U.S. 715 (2006)). The agencies reverted back to this definition in August of 2021, when the U.S. District Court for the District of Arizona vacated the definition of WOTUS promulgated by President Trump’s administration, referred to as the Navigable Waters Protection Rule.

The Agencies’ current approach to interpreting WOTUS relies heavily on both of the frequently discussed tests identified in the Rapanos decision. In Rapanos, Justic Antonin Scalia issued the plurality opinion, holding that WOTUS would include only “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to such relatively permanent waters” (i.e., adjacent wetlands). Justic Anthony Kennedy, however, advanced a broader interpretation of WOTUS in his concurring opinion, which was based on the concept of a “significant nexus,” meaning that wetlands should be considered as WOTUS “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered water.” 

President Biden’s new definition directly quotes and codifies these tests as regulations that may be relied upon to support a WOTUS determination. Publication of this definition, at this time, is likely a preemptive move by the Agencies in advance of the Supreme Court’s impending decision in Sackett v. EPA, a case in which the Court is considering whether the Ninth Circuit “set forth the proper test for determining whether wetlands are ‘waters of the Unites States.’” Some have speculated that the U.S. Supreme Court’s opinion may support a more narrow interpretation of WOTUS that is currently being implemented by the Agencies. If true, this inconsistency would create even more uncertainty in identifying WOTUS. 

While the new WOTUS definition may not, conceptually, be a significant change to how the Agencies approach federally regulating streams and wetlands, the new definition could expand how the Agencies evaluate whether a wetland is “adjacent” to a WOTUS and whether a waterbody will “significantly affect” a WOTUS, both of which would support federal jurisdiction of the stream/wetland. The preamble to the new definition includes a lengthy discussion regarding adjacent wetlands. In addition, the new definition of “significantly affect” enumerates five factors to be assessed and five functions to be considered in evaluating whether a potentially unregulated water will have a “materials influence” on a traditionally navigable water. Factors include distance from the traditionally navigable water, hydrologic factors (e.g., frequency, duration, magnitude of hydrologic connection) and climatological variables (e.g., temperature and rainfall). Functions include contribution of flow, retention and attenuation of runoff and provision of habitat and food resources for aquatic species in traditionally navigable waters. Both the factors and the functions are broad and open to interpretation, which arguably could provide the Agencies with additional justification for asserting federal jurisdiction over more waterbodies.

The new definition also codifies that the effect of the potentially regulated water must be evaluated “alone or in combination with similarly situated waters in the regions,” which will likely broaden how the Agencies evaluate the potential regulation of ephemeral and isolated waterbodies.

If the fate of the new WOTUS definition follows the same path as President Obama’s Clean Water Rule and President Trump’s Navigable Waters Protection Rule, the new definition will be challenged quickly after it becomes effective. These challenges may result in the stay or vacatur of the new definition. If this occurs, the Agencies may, again, revert back to the current definition of WOTUS.

As final note, while the Biden administration originally indicated that it would undertake a second rulemaking to advance another, more expansive definition of WOTUS following the finalization of this new definition, the December 30, 2022 notice does not mention this potential second proposed WOTUS rulemaking, raising uncertainty as to whether a second rulemaking is still contemplated.



Anyone whose activities may cause impacts to a waterbody or wetland, including land developers and those in the aggregates and energy industries should watch these developments so that they understand how the WOTUS definition may be interpreted and how it may affect their permitting strategies.

Joe Manchin's top aide to join oil and gas

lobbying group

Sen. Joe Manchin (D-WV) walks through the Capitol with his chief of staff, Lance West, on June 14, 2022.

Photo: Anna Moneymaker/Getty Images

Hans Nichols/ January 12, 2023, 2023/ AXIOS

Sen. Joe Manchin’s chief of staff, Lance West, is joining the American Petroleum Institute as vice president of federal affairs, Axios has learned.

Why it matters: As Manchin’s top aide for the last two years, West knows the politics – and the players — of the energy and climate change debates. His hiring indicates that API is preparing to play offense and defense in the new Congress.

• Through the on-again and off-again Build Back Better negotiations, he developed a reputation as a fierce advocate for Manchin's positions.
• A former Division I golfer, West worked closely with White House officials and other senate offices on a deal that Manchin ultimately — and somewhat surprisingly — supported: The Inflation Reduction Act, which included some $370 billion to combat climate change and reduce greenhouse gas emissions.

What we're hearing: West’s departure is unrelated to Manchin’s decision on whether to run for reelection in 2024, which still has much of Washington waiting.

• Wes Kungel, Manchin's current legislative director, will replace West as the new chief of staff.

What they are saying: “Lance joins API at a critical time for our industry,” API president and CEO Mike Sommers said.

• “His position on Capitol Hill placed him at the center of some of our country’s more important legislative debates, and his deep relationships on both sides of the aisle will be a tremendous asset to our organization and the industry we serve,” Sommers said.
• “I’m grateful for the opportunity to help shape a commonsense energy future that benefits all Americans,” West said. “API and its members are leading the world with innovative solutions to ensure we have reliable, affordable, and cleaner energy the country and world needs."



The big picture: With the passage of the IRA, the Biden administration will turn to implementing the climate provisions to ensure the new spending will help the U.S. achieve its goal of cutting emissions 50% below 2005 levels by 2030.

• Sen. Majority Leader Chuck Schumer and Manchin were unable to pass the permitting reform legislation that Manchin demanded for his vote for the billions in green energy subsidies.
• Permitting reform, as well as getting the Mountain Valley Pipeline project approved, will remain key priorities for Manchin.

Delegate Evan Hansen, D-Monongalia, hopes to reintroduce legislation strengthening state oversight of PFAS and oil and gas wells in the upcoming state regular legislative session.

PERRY BENNETT | WV Legislative Photography

Greater protection from PFAS and oil and gas well pollution persist as environmental legislative priorities ahead of session

Mike Tony/ January 11, 2023/ The Logan Banner

The West Virginia legislative session starting next week will feature more of the same goals for environmentalists — greater protection from oil and gas well pollution and cleaner water.

It’s likely to feature similar legislation as that which has failed in the past, too.

Delegate Evan Hansen, D-Monongalia, says he plans to reintroduce bills that failed in last year’s regular session that would increase funding for the state Office of Oil and Gas beleaguered by staff shortages in recent years and seek to prevent oil and gas wells from being orphaned.

Hansen, one of the Legislature’s leading environmental advocates whose bills face long odds in a Republican supermajority that has grown since last year, also plans to reintroduce a bill that would establish maximum contaminant levels for PFAS. PFAS are man-made chemicals linked to harmful health impacts that have been used in consumer products since the mid-20th century.

The state’s well inspection staff has dwindled from 17 to nine in the past two-plus years.

The office has faced a $1.3 million shortfall with its main revenue pipeline, permit fees, drying up amid oil and gas industry struggles. The office doesn’t collect revenue from annual oversight fees like the Department of Environmental Protection’s other divisions.

In 2020, the office resolved to eliminate 14 of 39 positions, saving $1.1 million, according to agency officials.

There are 75,000 wells throughout the state, including roughly 6,000 orphaned wells, that inspectors are responsible for, DEP Deputy Secretary Scott Mandirola told lawmakers considering legislation to bolster Office of Oil and Gas funding during the session.

Two bills that would have at least restored the office’s funding to its levels before the downsizing got approval from a Senate energy panel, and one passed the entire Senate. But that’s as far as they went.

Hansen’s House Bill 4054 last year in part would have required oil and gas well operators to set up an escrow account for each well to set aside money for well-plugging.

Drillers would have had to agree to plug all orphaned and abandoned wells in a leased area that would be drained by the well to get a new well-drilling permit.

Hansen’s House Bill 4055 last year would have established human health water quality criteria for the most pervasive PFAS, including those linked to cancers.

The EPA said in June that two PFAS known as PFOA and PFOS are many times more dangerous than previously thought. The agency slashed the advisory levels of those two PFAS to tiny fractions of what they were before.

Hansen said his proposed legislation would require the DEP to use federal PFAS permitting guidance released last month.“It moves our permitting system in the right direction,” Hansen said.

West Virginia lags other states in regulatory limits for PFAS and sanctions for the manufacturers responsible for contaminating the environment with them. The Geological Survey study published in July found high concentrations of PFOA and PFOS in the Ohio River Valley and the Eastern Panhandle. The former, the study found, is the region most vulnerable to PFAS contamination in West Virginia.

The West Virginia Rivers Coalition and other environmental groups have called for more protective state PFAS oversight in recent years.

But given the swelled Republican supermajority, state environmental advocates may play more defense against bills they find objectionable than offense for bills they back.

In recent sessions, that has meant fighting legislation aimed at rolling back regulations on oil and gas tanks closest to public water intakes.

The Legislature has gradually weakened its oversight of oil and gas tanks since 2014. The exemptions started a year after the Elk River spill, when the Legislature, in 2015, scaled back the Aboveground Storage Tank Act to only require inspection of tanks that contain either 50,000 gallons or more of hazardous material or are located within a zone of critical concern.

In 2017, the Legislature carved out an exemption for tanks outside zones of critical concern.

The West Virginia Environmental Council has identified defeating further tank regulation rollback attempts as a top legislative priority for the upcoming session.

Story has been edited for length. Original story HERE

Opposing views of the latest news of MVP

Game over for the Mountain Valley Pipeline

Ella de la Cancela/ January 5, 2023/ Virginia Mercury

The Mountain Valley Pipeline (MVP) is 0-4 on first down conversions. The red zone is nowhere in sight, and the clock is running out. Why are people still betting on this team? 

MVP is a monstrous, 303-mile fracked-gas pipeline planned to run through the Blue Ridge and Appalachian regions of Virginia and West Virginia, all the way to North Carolina. It would boost the bottom line of fossil fuel companies at the expense of regional clean water and endangered species. It would require up to four new compressor stations, facilities that keep the gas pressurized as it travels. The pipeline would also cut through about five miles of the Jefferson National Forest and bisect the iconic Appalachian Trail and Blue Ridge Parkway.

MVP was thrust into the national spotlight in August, when Sen. Joe Manchin, D-West Virginia, Senate Majority Leader Chuck Schumer, D-New York, and then-House Speaker Nancy Pelosi, D-California, made a closed-door agreement to advance Manchin’s priorities in exchange for a vote on the Inflation Reduction Act. Not only would this dirty deal greenlight MVP, the carbon equivalent of 26 new coal plants, it would also limit judicial oversight and gut bedrock federal environmental law. Before Manchin’s proposed legislation even hit the floor in September, he was forced to pull the language. He simply didn’t have the votes, so his first legislative pass was incomplete.

Continues HERE

________________________________



Updated MVP Draft Forest Environmental Review Seen Arriving Ahead of Schedule

Jeremiah Shelor/ January 5, 2023/ Natural Gas Intelligence

Earlier than expected, the U.S. Forest Service (USFS) has released a draft version of an updated environmental review needed for the Mountain Valley Pipeline’s (MVP) proposed 3.5-mile crossing of the Jefferson National Forest along the Virginia-West Virginia border.

Notice of the availability of the draft supplemental environmental impact statement (EIS) was published in the Federal Register on Dec. 23, ahead of the planned January release date previously shared by the agency.

The USFS developed the latest EIS document after the U.S. Court of Appeals for the Fourth Circuit in January 2022 vacated the agency’s decision to authorize the natural gas conduit’s planned crossing of national forest lands.

The release of the USFS draft environmental review puts the federal permitting process for MVP’s Jefferson National Forest crossing about five weeks ahead of schedule, analysts at ClearView Energy Partners LLC estimated, citing information from regulators shared in the fall.

“We have long argued that permits that could survive judicial review would ensure the project’s eventual placement in service,” ClearView analysts said of the 303-mile, 2 million Dth/d MVP. “The more expeditious Forest Service movement on the draft EIS — which we identified as the proverbial ‘tall pole in the tent’ of outstanding permits — suggests that” a scenario where timely and “diligent” regulatory reviews bring the stalled pipeline across the finish line without the need for legislative intervention “may actually be materializing.”

Continues HERE

Rivers Upchurch/ January 6, 2023/ 59 NEWS

City officials told 59News the Lewisburg water project is on track and construction is going smoothly.The $75 million project is expected to be completed by February 2024.

Construction of the new system forced the closure of a 1.8-mile section of the Greenbrier River Trail, but Lewisburg City Manager Misty Hill said the new trailhead entrance at Harper Road in Hopper has allowed most of the trail to stay open while progress continues on construction.

“This weather has been great but it also comes with some issues with some mud and keeping the actual road on Stonehouse clean,” said Hill. “But we’ve been anticipating that. We are right on track and everything’s been going pretty smoothly.”

During the cold weather over the holiday season, Hill said the city’s public works department worked around the clock to keep the current water system operational. But the leaks they faced should hopefully be a problem of the past when the new system is completed.

View story HERE

Green Infrastructure Training

February 13-17, 2023

Country Inn Suites

2120 Harper Road, Beckley, WV

The National Green Infrastructure Certification Program provides the base-level skill set needed to properly construct, inspect and maintain green stormwater infrastructure.

This event will be hosted by New River Conservancy, with Dwayne Jones as the ECI approved NGICP trainer/presenter. This course is a live in-person training.

Training is held from 9:00 a.m. to 5:00 p.m.

This is a wonderful training opportunity for private consultants and contractors, local officials, watershed groups and more.

Learn more HERE

FERC Monthly Virtual Open Meeting

January 19, 2023 @ 10:00 AM

Virtual Open Meeting

Commission meeting held in Commission Meeting Room (Room 2C) at FERC Headquarters, 888 First St. N.E., Washington, D.C. 20426

A  free live webcast is available for this meeting from 10:00 am - 11:00 am. All webcasts are archived for 3 months. Full info HERE      

Volunteer

Make your time count by volunteering with your favorite non-profit to do any number of things from helping with river cleanups, to monitoring rivers and creeks, to making phone calls or licking envelopes. You make a difference.

Follow these pages 

WV Rivers ~ WV Rivers is the statewide voice for water-based recreation and clean, drinkable, swim-able, and fishable rivers and streams-from the headwaters to wherever water flows in West Virginia. 

Appalachian Voices ~ The Appalachian Voice has covered environmental, outdoor and cultural news in the Appalachian mountains since 1996. We provide thorough and well-researched journalistic news coverage to fit a niche not often covered by standard news media.

New River Conservancy ~ Protecting the water, woodlands and wildlife of the New River Watershed. River Clean Ups

Allegheny-Blue Ridge Alliance ~ Protecting the heritage, resources and economy of the Allegheny-Blue Ridge region.

WV Environmental Council ~ Facilitate communication and cooperation among citizens in promoting environmental protection in West Virginia, to assist in organizing grass roots groups, to facilitate interaction among established environmental organizations, and to correspond with all appropriate local, state, and federal agencies involved in the management of West Virginia's environment. 

Wild Virginia ~ Along with our partners, alliances, and citizens like you, we press on in the fight against fracked gas pipelines in our region. The Mountain Valley Pipeline poses a great risk to our forests and surrounding communities. We are also working to improve habitat connectivity for wildlife throughout Virginia and to ensure that all of our waterways are fully protected in accordance with the law.

Stop the Money Pipeline ~ If we can stop the flow of money, we can stop the flow of oil. In early 2020, thirty-two organizations came together to form the Stop the Money Pipeline coalition. We stand on the shoulders of years of movement work pressuring financial institutions to act on climate.