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Storm Water: Flood thy Neighbor?

Stewards has asked the West Virginia Environmental Quality Board again to rule that drainage from storm ponds must go to a stream and not just be dumped on a neighbor downhill. Many builders have tried to oppose us in the case and the EQB has let one intervene to represent the others' interests. The other builders appealed to Kanawha County Circuit Court, so they clearly want to send their storm water downhill to the neighbors, without the neighbors' permission of course.

We thought we had cleared up this problem with a 2005 case, reported in our January 2005 newsletter, where Stewards challenged the inadequacies of Corridor H storm drainage plans. We reached a settlement on that, where we, DEP, and EQB all agreed that storm ponds must drain either directly to a receiving stream or along a channel to a stream. They cannot just drain onto the downhill neighbor's land. We'll see how this case comes out. If you have storm water coming on your land from neighboring construction sites, please contact us.

December 2006: Shenandoah Fish Kill

Neil Gillies, executive director of Cacapon Institute in Highview, Hampshire County, West Virginia, passes along this report of a fish kill from Jeff Kelble with the Shenandoah Riverkeepers.

Close To Home: Your Septic System Protects the Groundwater

Click here to "Keep Your Septic System Sweet"!

WV Potomac Tributary Strategy

The WV Tributary Strategy Stakeholders Group is preparing the WV Potomac Tributary Strategy. Click here for more info.

Clean Rivers: Why Clean Water Matters

Clean water is important for the life of fish, turtles, waterfowl and invertebrates in the water. It is also important for recreation, tourism, and to minimize drinking water treatment costs.

Rain carries sediment (mud) from cities, construction sites, eroded areas and plowed fields into rivers. Mud is the most pervasive killer in rivers because it suffocates life on the bottom.

When you feel slippery rocks on a clean river bottom, you are feeling a community of life. Diatoms that coat the rocks create energy by photosynthesis. Tiny insect larvae and other invertebrates have mouth parts adapted to graze on the slippery coating or they use nets or filters to capture food in crannies or water flowing over the rocks. These hunters and gatherers become food for adult fish, turtles and waterfowl. Sediment or lack of oxygen suffocates the whole chain of life.

Before people developed the Potomac Highlands area, mud was held by forests and captured by thousands of beaver ponds, so rivers ran clear even in storms. Now every rain turns rivers brown. Construction in this area is the biggest cause of mud in rivers. Farm plowing used to be a big problem, but most farmers now use no-till methods and drill seeds into the stubble of the previous crop, never plowing the ground bare to prevent their soil from running off.

The national Clean Water Act of 1972 limits pollution that individuals, businesses, and governments may put in rivers. Successful legal actions by Stewards help you learn about potential pollution more easily and suggest ways to avoid it.

Most polluters need a permit that limits what they may discharge. Every five years after a permit is issued, the WV Department of Environmental Protection (DEP) revises the permit, receives public comment, revises the permit again, and writes back explaining why it accepts or rejects each comment.

You can comment on each pollution permit twice per decade. Commenting is an important way to work for cleaner water. You may see a way to reduce pollution, and DEP may accept your comments and require the pollution to be reduced. If your comments are rejected and you don't think the reasons given are good enough, you can appeal to the Environmental Quality Board. The Board consists of five people, mostly science and engineering professors, appointed by the Governor, who hear appeals and also establish the overall limits for pollution in our rivers, the West Virginia Water Quality Standards.

Find Out About Pollution Permits Near You

Starting in 2004 DEP will send emails (or letters if you lack email) listing pollution permits that DEP wants comments on. The notices are organized by county, so you only have to see the ones near you. Early in 2004 you will be able to sign up for as many counties as you want at www.wvdep.org. If you don't use the internet you can write to: Public Information Office, 1356 Hansford Street, Charleston, WV 25301.

We and the WV Rivers Coalition got these notices started by appealing a permit that had not gone through proper public notice. The settlement of our appeal included these notices so people can find out about comment periods in their area. The notices were required for years, and the state ignored the rules. Stewards has met several times with Rivers Coalition, DEP, and other groups to work out details.

If you learn about a polluter or pollution permit and need help, contact us, or call the Rivers Coalition's permit program 304-291-8205 or email ehansen@downstreamstrategies.com.

Storm Sewers

Also starting in 2004 you can comment on a city's plans to clean up storm water. Most city storm sewers are separate from treated sewage, and they have been unregulated for many years. When it rains, storm sewers carry mud, oil, and anything else from streets into rivers. Because of national appeals by the Natural Resources Defense Council, 40 of the largest cities in West Virginia have to educate the public and reduce the pollution that storm sewers cause. By March 2004 each city must submit a 4-year plan, which will be announced on the area lists described above, so you can comment on whether the plan will be effective, and can suggest stronger actions or a faster schedule. DEP's original permit did not include public comment, and an appeal by Stewards and the Rivers Coalition was needed to open the process to public comment.

Less Degradation Of Rivers

Stewards participated in yet another successful appeal this year on rules in West Virginia that let streams be degraded by more pollution. Stewards was one of several plaintiffs in a lawsuit about anti-degradation rules. US District Judge Goodwin agreed with us that DEP was weaker than EPA rules allow on 7 out of 13 issues challenged, and he told the government to fix them.

Most streams are somewhat cleaner than the legal limits. The Water Quality Standards, which set a limit on each pollutant, such as nitrates, phosphorus, etc., has anti-degradation rules try to keep this clean situation, unless important socioeconomic reasons justify degradation. The purpose of the Clean Water Act is to remove all pollution, not let it continue or get worse, but, unfortunately, polluters are still allowed to add pollution in 6 ways:

(1) each polluter may go to the limits of its current permit until it expands;

(2) polluted water which comes from a broad area (non-point or sheet flow, such as farms and forests) is not reviewed as long as reasonable, cost-effective, best management practices (BMPs) are installed and maintained;

(3) polluters may discharge more pollutants if they get someone upstream to reduce those pollutants even more (trading);

(4) polluters on low quality streams (tier 1) may discharge each pollutant up to the legal limit for the stream;

(5) polluters on middle quality streams (tiers 2 or 2.5) may use, collectively, 10% of the gap between the actual water quality in the stream, and the legal limit;

(6) polluters on lower middle quality streams (tier 2) may go beyond 10%, all the way to the legal limit, if they use the cleanest practical techniques, and show social or economic benefits (such as jobs, taxes, or meeting social needs);

On the best streams (tier 3, usually in remote wilderness), new polluters are basically not allowed unless they send their effluent to another stream or reduce other pollution even farther upstream.

The winning arguments keep higher standards on rivers where DEP wanted to drop them. The win also requires reviews of each pollutant in sewer plants and all sites covered by a general permit, and keeps the cumulative limit in exception 5 above at 10%, not 20%.

Nitrogen

The Chesapeake Bay Program is trying to protect the bay from being suffocated by pollution all over the watershed, including the Potomac Highlands in West Virginia. Their main concerns are sediment, as discussed above, and nitrogen.

Excess nitrogen from poultry, cattle, human waste, and fertilizer, is a nutrient that can cause explosive algae growth. When the algae die, bacteria that cause the algae to decay use up oxygen in the water, suffocating fish and invertebrates. Phosphorus acts similarly as an excess nutrient.

The Bay program has tentatively set the following goals for reduction of Nitrogen and sediment. These are rough numbers, because they are applied region-wide, with very broad data. West Virginia is trying to find the main source of each to achieve reductions.

Any new loads, from new construction or new polluters, have to be balanced by greater reductions somewhere else. Sewer plants re-lease substantial amounts of Nitrogen: six pounds per year per per-son, not counting sewer pipe breaks or permit violations. Septic systems release 40% less per person, but are not being used for most new homes in the area.

Construction Signs

In 2004 you will start seeing signs on large construction sites, where over 1 acre of land is to be cleared. The signs will say what is being built and will give a DEP phone number you can call for a copy of the erosion plan.

Construction sites are required to manage their bare earth so rain will not carry mud or discolored water into rivers, suffocating life there. When you see the sign go up, you can get a copy of what the builder filed at DEP and comment on it.

The state rule is that "distinctly visible color" is not allowed in rivers and streams, so report it when you see it (State regs: 46-1-3.2.f, on our website).

Compliance is required anywhere an acre will be cleared of vegetation or cleared of previous construction (i.e., demolition). Even an old subdivision with four or more lots remaining to be built must comply, because an acre will be disturbed eventually (1/4 acre on each lot). It doesn't matter if there are separate builders at separate times. Subdivisions are considered a "larger plan of development" and each builder must comply.

The construction signs and the public comment process result from an appeal by Stewards, which criticized several aspects of construction permits, including lack of opportunity for the public to comment on erosion controls. We won this sign requirement, though we did not succeed in getting big enough storm water basins to hold the biggest storms each year, or quick mulching of bare earth to stop erosion before each rain.

If you see discolored water flowing off a construction site, or if you see a builder clear more than one acre without a sign,

1) Take pictures;

2) Call Enforcement, 304-558-2497, and send the pictures with date, location, and how much rain fell, to

a) Enforcement, 1356 Hansford St., Charleston, WV 25301

b) And contact us; we want to keep a file of problems and solutions.

Resources

The West Virgina Code of State Rules Search Page lets you search the state code. For example to see the state code on water quality standards search for Title/Series 46-01, or search on Title for water quality.

The Appalachian Center For Economy And Environment helps fight legal battles, provides research and promotes policies to benefit sustainable communities in Appalachia. It aims to hold extractive and polluting industries accountable by serving as a government watchdog. It will search for means of clean and responsible economic development, and advocate in Congress, state legislatures and executive agencies for these policies. The Appalachian center wants to get West Virginia and its neighbors on the front-burner of national environmental and economic policy. Our area is important in the same way as the great wildernesses of Alaska, the Rocky Mountains, the Everglades. Contact Margaret Janes, senior policy analyst, 304-897-6048.

Blue Heron Environmental Network watches over the the Back Creek watershed in Berkeley County, West Virginia.

The West Virginia Rivers Coalition seeks the conservation and restoration of West Virginia's exceptional rivers and streams.

The Groundwater Foundation makes learning about groundwater fun and understandable for kids and adults alike.

The Potomac Conservancy is a regional land and water conservation organization dedicated to protecting and enhancing the natural, scenic, recreational, and historical qualities of the Potomac River and its watershed lands.

Friends of the Cacapon River is a nonprofit citizens watershed group based in Great Cacapon, focusing on the lower (northernmost) reaches of the Cacapon through Hampshire and Morgan Counties. Has published a tour map of the Cacapon.

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