H. B. 4630
(By Delegates Michael and Mezzatesta)
[Introduced February 27, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section six, article one, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend article eleven of
said chapter by adding thereto a new section, designated
section seven-a, all relating to division of environmental
protection; director of division; powers, duties and
responsibilities; water quality certifications; excluding
divisions counsel from classified service; certification
agreements; providing for certain fees; agreement provisions;
providing for a performance review by the legislative auditor
and providing an effective date.
Be it enacted by the Legislature of West Virginia:
That section six, article one, chapter twenty-two of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that article eleven of said chapter be amended by adding thereto a new section, designated section
seven-a, all to read as follows:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-6. Director of the division of environmental protection.
(a) The director is the chief executive officer of the
division. Subject to section seven of this article and other
provisions of law, the director shall organize the division into
such offices, sections, agencies and other units of activity as may
be found by the director to be desirable for the orderly, efficient
and economical administration of the division and for the
accomplishment of its objects and purposes. The director may
appoint assistants, hearing officers, clerks, stenographers and
other officers, technical personnel and employees needed for the
operation of the division and may prescribe their powers and duties
and fix their compensation within amounts appropriated therefor.
(b) The director has the power to and may designate
supervisory officers or other officers or employees of the division
to substitute for him or her on any board or commission established
under this code or to sit in his or her place in any hearings,
appeals, meetings or other activities with such substitute having
the same powers, duties, authority and responsibility as the
director. Additionally, the director has the power to delegate, as
he or she considers appropriate, to supervisory officers or other
officers or employees of the division his or her powers, duties, authority and responsibility relating to issuing permits, hiring
and training inspectors and other employees of the division,
conducting hearings and appeals and such other duties and functions
set forth in this chapter or elsewhere in this code.
(c) The director has responsibility for the conduct of the
intergovernmental relations of the division, including assuring:
(1) That the division carries out its functions in a manner which
supplements and complements the environmental policies, programs
and procedures of the federal government, other state governments
and other instrumentalities of this state; and (2) that appropriate
officers and employees of the division consult with individuals
responsible for making policy relating to environmental issues in
the federal government, other state governments and other
instrumentalities of this state concerning differences over
environmental policies, programs and procedures and concerning the
impact of statutory law and rules upon the environment of this
state.
(d) In addition to other powers, duties and responsibilities
granted and assigned to the director by this chapter, the director
is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the "division
of environmental protection" any contract or agreement with the
federal government or its departments or agencies, subdivisions of
the state, corporations, associations, partnerships or individuals: Provided, That the powers granted to the director to enter into
agreements or contracts and to make expenditures and obligations of
public funds under this subdivision shall may not exceed or be
interpreted as authority to exceed the powers heretofore granted by
the Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection
methods and disseminate information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violations of
statutes or rules which the division is charged with enforcing; to
serve and execute warrants and processes; to make arrests; issue
orders, which for the purposes of this chapter include consent
agreements; and to otherwise enforce the statutes or rules which
the division is charged with enforcing;
(4) Acquire for the state in the name of the "division of
environmental protection" by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the
division of environmental protection, gifts, donations,
contributions, bequests or devises of money, security or property,
both real and personal, and any interest in such property;
(5) Provide for workshops, training programs and other educational programs, apart from or in cooperation with other
governmental agencies, necessary to ensure adequate standards of
public service in the division. The director may also provide for
technical training and specialized instruction of any employee.
Approved educational programs, training and instruction time may be
compensated for as a part of regular employment. The director is
further authorized to pay out of federal or state funds, or both,
as such funds are available, fees and expenses incidental to such
educational programs, training and instruction. Eligibility for
participation by employees will be in accordance with guidelines
established by the director;
(6) Issue certifications required under 33 U.S.C. §1341 of the
federal Clean Water Act and may enter into agreements in accordance
with the provisions of section seven-a, article eleven of this
chapter. Prior to issuing any such certification the director shall
solicit from the division of natural resources reports and comments
concerning the possible certification. The reports and comments
shall be directed from the division of natural resources to the
director for consideration; and
(7) Notwithstanding any provisions of this code to the
contrary, employ in-house counsel to perform all legal services for
the director and the division, including, but not limited to,
representing the director, any chief, the division or any office
thereof in any administrative proceeding or in any proceeding in any state or federal court, said counsel to be classified-exempt.
Additionally, the director may call upon the attorney general for
legal assistance and representation as provided by law.
(e) The director shall be appointed by the governor, by and
with the advice and consent of the Senate, and serves at the will
and pleasure of the governor: Provided, That in lieu of appointing
a director, the governor may order the secretary to directly
exercise the powers of the director. The secretary shall designate
the order in which other officials of the division shall act for
and perform the functions of the secretary or the director during
the absence or disability of both the secretary and the director or
in the event of vacancies in both of those offices.
(f) At the time of his or her initial appointment, the
director shall be at least thirty years old and shall be selected
with special reference and consideration given to his or her
administrative experience and ability, to his or her demonstrated
interest in the effective and responsible regulation of the energy
industry and the conservation and wise use of natural resources.
The director shall have at least a bachelor's degree in a related
field and shall have at least three years of experience in a
position of responsible charge in at least one discipline relating
to the duties and responsibilities for which the director will be
responsible upon assumption of the office of director. The
director shall may not be a candidate for or hold any other public office, shall may not be a member of any political party committee
and shall immediately forfeit and vacate his or her office as
director in the event he or she becomes a candidate for or accepts
appointment to any other public office or political party
committee.
(g) The director shall receive an annual salary of sixty-five
thousand dollars and shall be allowed and paid necessary expenses
incident to the performance of his or her official duties. Prior
to the assumption of the duties of his or her office, the director
shall take and subscribe to the oath required of public officers
prescribed by section five, article IV of the constitution of West
Virginia and shall execute a bond, with surety approved by the
governor, in the penal sum of ten thousand dollars, which executed
oath and bond shall be filed in the office of the secretary of
state. Premiums on the bond shall be paid from the division funds.
ARTICLE II. WATER POLLUTION CONTROL ACT.
§22-11-7a.
Certification agreements; required provisions;
effective date.
If the applicant for the water quality certification seeks
certification of activities covered by the United States army corps
of engineers nationwide permit twenty-one or twenty-six issued in
accordance with 33 U.S.C. §1344 and 33 C.F.R. Part 330 for use at
or in conjunction with a surface coal mining operation as defined
in section three, article three of this chapter, then certification shall be issued subject only to the following conditions:
(1) If the applicant's surface coal mining operation will not
impact waters of this state designated as national resource waters
and streams where trout naturally reproduce and will not impact
waters of the state which are wetlands of one acre or more in size,
and if the watershed above the toe of the farthest downstream
permanent structure authorized pursuant to an United States army
corps of engineers nationwide permit twenty-one or twenty-six is
less than four hundred eighty acres, then the director shall issue
a water quality certification containing only the following
conditions:
(A) All earthwork operations shall be carried out so that
sediment runoff and soil erosion to waters of the state are
controlled and minimized. Best management practices for water
pollution control shall be used by the surface coal mining
operations;
(B) Heavy equipment, such as bulldozers, backhoes and
draglines, may not be used or operated within waters of the state
outside of the boundaries of a permanent structure, unless that use
cannot be avoided. If use of heavy equipment within waters of the
state outside the boundaries of a permanent structure is
unavoidable, then the work shall be performed so as to minimize
resuspension of sediments and disturbance to substrates, banks or
riparian vegetation;
(C) Any riprap shall be of a composition that does not cause
a diminution of existing water quality by adversely affecting the
biological, chemical or physical properties of waters of the state.
If riprap is used, it shall be of a weight and size using current
and prudent engineering design; and
(D) Removal of riparian vegetation outside the boundaries of
a permanent structure shall be minimized.
(2) If the watershed above the toe of the farthest downstream
permanent structure authorized pursuant to the United States army
corps of engineers nationwide permit twenty-one or twenty-six is
greater than or equal to four hundred eighty acres, then the
director may further condition a water quality certification on a
requirement that the applicant mitigate the expected water quality
impacts only under the following conditions:
(A) The water quality certification may require mitigation at
a ratio of one acre area for every one acre of permanent loss of
waters of the state on the permitted area, except for waters of the
state isolated as a result of the permanent structure;
(B) For waters of the state isolated as a result of a
permanent structure, the maximum mitigation ratio shall be five- tenths acre of mitigation area for every one acre of those isolated
waters;
(C) The director shall accept mitigation on the permitted
area, mitigation off the permitted area, mitigation banking of waters of the state, or any combination thereof, or any other
mitigation measure acceptable to the director;
(D) Upon completion of the work required by an agreement to
conduct operations authorized by this subsection, the surface coal
mining operation shall obtain a certification from a registered
professional engineer that all mitigation work specified in the
agreement has been completed in accordance with the conditions of
the water quality certification. The director shall promptly review
the certification and provide to the surface coal mining operation
with notice that all mitigation work has been successfully
completed, or that further mitigation work is necessary to meet the
conditions imposed by the water quality certification. The
mitigation amount may not exceed one hundred thousand dollars per
acre of stream disturbed. Those moneys shall be deposited in the
stream restoration fund under the jurisdiction of the division of
environmental protection and any expenditures from this fund after
the thirtieth day of June, one thousand nine hundred ninety-eight
may not be authorized from collections but shall only be authorized
by appropriation by the Legislature.
(3) The director shall issue a general certification without
conditions for use of United States army corps of engineers
nationwide permit twenty-one or twenty-six for a road crossing on
the permitted area directly impacting less then two hundred linear
feet of waters of the state.
(4) The director shall confer with representatives of the
surface coal mining industry and representatives of environmental
organizations with an interest in water quality in developing a
manual of approval options for mitigation on permitted areas,
mitigation off permitted areas and mitigation involving banking of
waters of the state.
(5) The director has ten working days to make a determination
that an application for a water quality certification is
administratively complete or to give written notification to the
applicant of specific deficiencies. The director has forty working
days to review an administratively complete application for a water
quality certification, to issue or waive that certification, or to
deny that certification with specific deficiencies identified, and
to notify the applicant of the final determination: Provided, That
public comment and public participation shall be in accordance with
the certification requirements set forth in article three of
chapter twenty-two of this code. If the director has not notified
the applicant of its final determination within forty days of
receiving an administratively complete application, the water
quality certification shall be deemed granted.
(6) The performance evaluation and research division of the
legislative auditor's office shall conduct a preliminary
performance review of the mitigation program of the division of
environmental protection during the interim of the legislature in the year one thousand nine hundred ninety-eight. The joint
committee on government and finance shall authorize a study of the
methods to determine values for stream mitigation. The joint
committee in authorizing the study shall set the guidelines and
issues to be studied. A biannual status report as to the progress
of study shall be provided to the joint committee on government and
finance on or before the tenth day of July each year and the tenth
day of January each year until the study has been completed.
Within thirty days of completion, a copy of the study shall be
provided to the joint committee on government and finance.
(7) The provisions of this section shall apply to all
mitigation agreements signed on or after the ninth day of March,
one thousand nine hundred ninety-six.
Note: The purpose of this bill is to implement the U.S, Corp
of Engineers permit system for water quality and to provide a
mechanism for preservation of water quality and surrounding areas
in the vicinity of mining operations.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Section 22-11-7a is new; therefore strike-throughs and
underscoring have been omitted.