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ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 163
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
____________
[Passed March 13, 2004; in effect ninety days from passage.]
____________
AN ACT to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §22-25-1, §22-25-2,
§22-25-3, §22-25-4, §22-25-5 and §22-25-6, all relating to
establishing the water resources protection act; providing
legislative findings; finding that the state reserves a
sovereign interest in the waters of the state as a valuable
public resource; defining terms; declaring the state shall
claim and protect state waters for the use and benefit of its
citizens; providing for preservation of common law rights;
providing that a water use survey and registration of large
users of state waters be undertaken by the secretary of the
department of environmental protection;
requiring the
secretary to coordinate survey with state agencies and report
to a legislative oversight commission; requiring persons
making withdrawals exceeding seven hundred fifty thousand
gallons per month to participate in survey and registration; requiring the secretary to use reasonable alternatives for
estimating usage; requiring persons participating in survey
and registration to submit accurate information; providing
limited exceptions to survey and registration participation;
authorizing the secretary to coordinate with other state
agencies and the United States geological survey; directing
the department of environmental protection to propose a
strategy for water management; authorizing secretary of
department of environmental protection to promulgate rules;
establishing confidentiality of submitted information and
exceptions; providing criteria for requesting and receiving
confidentiality designation; establishing requirements for
requesting confidential documents and appeal process;
establishing a joint legislative oversight commission to
monitor survey and develop policies; and providing civil
penalties for noncompliance.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §22-25-1, §22-25-2,
§22-25-3, §22-25-4, §22-25-5 and §22-25-6, all to read as follows:
ARTICLE 25. WATER RESOURCES PROTECTION ACT.
§22-25-1. Short title; legislative findings.
(a) Short title - This article may be known and cited as the
"Water Resources Protection Act".
(b) Legislative findings:
(1) The West Virginia Legislature finds that it is the public policy of the state of West Virginia to protect and conserve the
water resources for the state and to provide for the public
welfare. The state's water resources are vital natural resources
of the state that are essential to maintain, preserve and promote
quality of life and economic vitality of the state.
(2) The West Virginia Legislature further finds that it is the
public policy of the state that the water resources of the state be
available for the benefit of the citizens of West Virginia,
consistent with and preserving all other existing rights and
remedies recognized in common law or by statute, while also
preserving this resource within its sovereign powers for the common
good.
§22-25-2. Definitions.
For purposes of this article, the following words have the
meanings assigned unless the context indicates otherwise:
(a) "Beneficial use" means uses that include, but are not
limited to, public or private water supplies, agriculture, tourism,
commercial, industrial, coal, oil and gas and other mineral
extraction, preservation of fish and wildlife habitat, maintenance
of waste assimilation, recreation, navigation and preservation of
cultural values.
(b) "Consumptive withdrawal" means any withdrawal of water
which returns less water to the water body than is withdrawn.
(c) "Farm use" means irrigation of any land used for general
farming, forage, aquiculture, pasture, orchards, nurseries, the
provision of water supply for farm animals, poultry farming or any other activity conducted in the course of a farming operation.
(d) "Interbasin transfer" means the permanent removal of water
from the watershed from which it is withdrawn.
(e) "Maximum potential" means the maximum designed capacity of
a facility to withdraw water under its physical and operational
design.
(f) "Person", "persons" or "people" means an individual,
public and private business or industry, public or private water
service and governmental entity.
(g) "Nonconsumptive withdrawal" means any withdrawal of water
which is not a consumptive withdrawal as defined in this section.
(h) "Secretary" means the secretary of the department of
environmental protection or his or her designee.
(i) "Water resources", "water" or "waters" means any and all
water on or beneath the surface of the ground, whether percolating,
standing, diffused or flowing, wholly or partially within this
state, or bordering this state and within its jurisdiction, and
includes, without limiting the generality of the foregoing, natural
or artificial lakes, rivers, streams, creeks, branches, brooks,
ponds, impounding reservoirs, springs, wells, watercourses and
wetlands: Provided, That farm ponds, industrial settling basins
and ponds and waste treatment facilities are excluded from the
waters of the state.
(j) "Watershed" means a hydrologic unit utilized by the United
States department of interior's geological survey, adopted in 1974,
as a framework for detailed water and related land-resource planning, denoted by an eight digit hydrologic unit code, and by
which West Virginia is, as of the effective date of the act,
divided into thirty-two separate hydrologic units.
(k) "Withdrawal" means the removal or capture of water from a
water resource of the state regardless of whether it is consumptive
or nonconsumptive: Provided, That water encountered during coal,
oil, gas or other mineral extraction and diverted, but not used for
any purpose and not a factor in low flow conditions for any surface
water or groundwater, is not deemed a withdrawal.
§22-25-3. Waters claimed by state; water resources protection
survey; need for study; registration requirements;
agency cooperation; information gathering.
(a) The waters of the state of West Virginia are hereby
claimed as valuable public natural resources held by the state for
the use and benefit of its citizens. The state shall manage the
quantity of its waters effectively for present and future use and
enjoyment and for the protection of the environment. Therefore, it
is necessary for the state to determine the nature and extent of
its water resources, the quantity of water being withdrawn or
otherwise used and the nature of the withdrawals or other uses:
Provided, That no provisions of this article may be construed to
amend or limit any other rights and remedies created by statute or
common law in existence on the date of the enactment of this
article
.
(b) The secretary shall conduct a water resources survey of
consumptive and nonconsumptive surface water and groundwater withdrawals in this state. The secretary shall determine the form
and format of the information submitted, including the use of
electronic submissions. The survey shall collect information
covering the years two thousand three, two thousand four and two
thousand five.
The secretary shall establish a statewide
registration program to monitor large quantity users of water
resources of this state beginning in two thousand six.
(c) Beginning in the year two thousand three, every person
utilizing the state's water resources whose withdrawal from a water
resource during any month exceeds seven hundred fifty thousand
gallons, except those who purchase water from a public or private
water utility or other service that is reporting its total
withdrawal, shall provide all requested information regarding
withdrawals of the water resource. Multiple withdrawals of water
from a particular water resource that are made or controlled by a
single person and used at one facility or location shall be
considered a single withdrawal of water. Water withdrawals for
self-supplied farm use and private households will be estimated.
Water utilities regulated by the public service commission pursuant
to article two, chapter twenty-four of the code are exempted from
providing information on interbasin transfers to the extent those
transfers are necessary to provide water utility services within
the state.
(d) The secretary shall make a good faith effort to obtain
survey and registration information from persons who are
withdrawing water from an in-state water resource but who are located outside the state borders.
(e) All state agencies that have a regulatory, research or
other function relating to water resources, including, but not
limited to, the state
geological and economic survey
, the division
of natural resources, the public service commission, the bureau for
public health, the commissioner of the department of agriculture,
the office of emergency services, Marshall university and West
Virginia university may enter into interagency agreements with the
secretary and shall cooperate by: (i) Providing information
relating to the water resources of the state; and (ii) providing
any necessary assistance to the secretary in effectuating the
purposes of this article. The secretary shall determine the form
and format of the information submitted by these agencies.
(f) Persons required to participate in the survey and
registration shall provide any reasonably available information on
stream flow conditions that impact withdrawal rates.
(g) Persons required to participate in the survey and
registration shall provide the most accurate information available
on water withdrawal during seasonal conditions and future potential
maximum withdrawals or other information that the secretary
determines is necessary for the completion of the survey or
registration: Provided, That a coal-fired electric generating
facility shall also report the nominal design capacity of the
facility, which is the quantity of water withdrawn by the
facility's intake pumps necessary to operate the facility during a
calendar day.
(h) The secretary shall, to the extent reliable water
withdrawal data is reasonably available from sources other than
persons required to provide data and participate in the survey and
registration, utilize that data to fulfill the requirements of this
section. If the data is not reasonably available to the secretary,
persons required to participate in the survey and registration are
required to provide the data. Registered persons that report
withdrawals on an annual basis for a period of three consecutive
years are not required to register further withdrawals unless the
amount withdrawn annually varies by more than ten percent from the
three year average. Altering locations of intakes and discharge
points that result in an impact to the withdrawal of the water
resource by an amount of ten percent or more from the consecutive
three year average shall also be reported.
(i) The secretary shall report regularly to the joint
legislative oversight commission on state water resources to advise
the commission of the progress of the survey as well as any
problems that may be encountered in conducting the survey and to
make recommendations on policy and statutory changes that may be
needed.
(j) Upon completion of the survey, the secretary shall file a
final report with the joint committee on government and finance no
later than the thirty-first day of December, two thousand six. In
preparing the final report the secretary shall consult with the
commissioner of the department of agriculture, the bureau for
public health, the division of natural resources and the public service commission. The final report shall include the following:
(1) To the extent the information is available, the location
and quantity of all surface water and groundwater resources in this
state;
(2) A discussion of the consumptive and nonconsumptive
withdrawals of surface water and groundwater in this state;
(3) A listing of each person whose consumptive or
nonconsumptive withdrawal during any single month during the
calender year exceeds seven hundred fifty thousand gallons,
including the amount of water used, location of the water resource,
the nature of the use, location of each intake and discharge point
by longitude and latitude where available and, if the use involves
more than one watershed or basin, the watersheds or basins involved
and the amount transferred;
(4) A discussion of any area of concern regarding historical
or current conditions that indicate a low flow condition or where
a drought or flood has occurred or is likely to occur that
threatens the beneficial use of the surface water or groundwater in
the area;
(5) Current or potential in-stream or off-stream uses that
contribute to or are likely to exacerbate natural low flow
conditions to the detriment of the water resource;
(6) Discussion of a potential groundwater well network that
provides indicators that groundwater levels in an area are
declining or are expected to decline excessively;
(7) Potential growth areas where competition for water resources may be expected;
(8) Any occurrence of two or more withdrawals that are
interfering or may reasonably be expected to interfere with one
another;
(9) Discussion of practices or methods persons have
implemented to reduce water withdrawals; and
(10) Any other information that may be beneficial in
adequately assessing water availability and withdrawal and in
determining the need for and the preparation of water resources
plans.
(k) In addition to any requirements for completion of the
survey established by the secretary, the survey must accurately
reflect both actual and maximum potential water withdrawal. Actual
withdrawal shall be established through metering, measuring or
alternative accepted scientific methods to obtain a reasonable
estimate or indirect calculation of actual use.
(l) Upon completion of the survey, the secretary shall make
recommendations to the joint legislative oversight commission
created in section five of this article relating to the need to
implement a water quantity management strategy for the state or
regions of the state where the quantity of water resources are
found to be currently stressed or likely to be stressed due to
emerging beneficial or other uses, ecological conditions or other
factors requiring the development of a strategy for management of
these water resources. The report shall include
an analysis of the
costs and benefits upon persons potentially impacted by
the implementation of a water quantity management strategy
.
(m)
The secretary may propose rules pursuant to article three,
chapter twenty-nine-a of this code as necessary to implement the
survey and registration requirements of this article.
(n) The secretary is authorized to enter into cooperative
agreements with the United States geological survey to obtain
federal matching funds, conduct research and analyze survey and
registration data and other agreements as may be necessary to carry
out his or her duties under this article.
§22-25-4. Confidentiality.
(a) Information required to be submitted by a person as part
of the water withdrawal survey and registration that may be a trade
secret, contain protected information relating to homeland security
or be subject to another exemption provided by the state freedom of
information act may be deemed confidential. Each such document
shall be identified by that person as confidential information.
The person claiming confidentiality shall provide written
justification to the secretary at the time the information is
submitted stating the reasons for confidentiality and why the
information should not be released or made public. The secretary
has the discretion to approve or deny requests for confidentiality
as prescribed by this section.
(b) In addition to records or documents that may be considered
confidential under article one, chapter twenty-nine-b of this code,
confidential information means records, reports or information, or
a particular portion thereof, that if made public would:
(1) Divulge production or sales figures or methods, processes
or production unique to the submitting person;
(2) Otherwise tend to adversely
affect the competitive
position of a person by revealing trade secrets, including
intellectual property rights; or
(3) Present a threat to the safety and security of any water
supply, including information concerning water supply vulnerability
assessments.
(c) Information designated as confidential and the written
justification shall be maintained in a file separate from the
general records related to the person.
(d) Information designated as confidential may be released
when the information is contained in a report in which the identity
of the person has been removed and the confidential information is
aggregated by hydrologic unit or region.
(e) Information designated as confidential may be released to
governmental entities, their employees and agents when compiling
and analyzing survey and registration information and as may be
necessary to develop the legislative report required by this
section or to develop water resources plans. Any governmental
entity or person receiving information designated confidential
shall protect the information as confidential.
(f) Upon receipt of a request for information that has been
designated confidential and prior to making a determination to
grant or deny the request, the secretary shall notify the person
claiming confidentiality of the request and may allow the person an opportunity to respond to the request in writing within five days.
(g) All requests to inspect or copy documents shall state with
reasonable specificity the documents or type of documents sought to
be inspected or copied. Within ten business days of the receipt of
a request, the secretary shall: (1) Advise the person making the
request in writing of the time and place where the person may
inspect and copy the documents which, if the request addresses
information claimed as confidential, may not be sooner than twenty
days following the date of the determination to disclose, unless an
earlier disclosure date is agreed to by the person claiming
confidentiality; or (2) deny the request, stating in writing the
reasons for denial. If the request addresses information claimed
as confidential, then notice of the action taken pursuant to this
subsection shall also be provided to the person asserting the claim
of confidentiality.
(h) Any person adversely affected by a determination regarding
confidential information under this article may appeal the
determination to the appropriate circuit court pursuant to the
provisions of article five, chapter twenty-nine-a of this code.
The filing of a timely notice of appeal shall stay any
determination to disclose confidential information pending a final
decision on appeal. The scope of review is limited to the question
of whether the portion of the records, reports, data or other
information sought to be deemed confidential, inspected or copied
is entitled to be treated as confidential under this section. The
secretary shall afford evidentiary protection in appeals as necessary to protect the confidentiality of the information at
issue, including the use of in camera proceedings and the sealing
of records when appropriate.
§22-25-5. Joint legislative oversight commission on state water
resources.
(a) The president of the Senate and the speaker of the House
of Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of the water resources survey
and registration. This commission shall be known as the "Joint
Legislative Oversight Commission on State Water Resources" and
shall regularly investigate and monitor all matters relating to the
water resources survey and the need for a water resources strategy
and policy.
(b) The expenses of the commission, including the cost of
conducting the survey and monitoring any subsequent strategy and
those incurred in the employment of legal, technical,
investigative, clerical, stenographic, advisory and other
personnel, are to be approved by the joint committee on government
and finance and paid from legislative appropriations.
(c) The secretary shall report, at a minimum of quarterly, in
sufficient detail for the commission to monitor the water resources
survey and to develop recommendations resulting from the survey.
The secretary shall submit an annual report to the commission by
the thirty-first day of December each year. The secretary shall also file a final report on the water resources survey no later
than the thirty-first day of December, two thousand six.
§22-25-6. Mandatory survey and registration compliance.
(a) The water resources survey and subsequent registry will
provide critical information for protection of the state's water
resources and, thus, mandatory compliance with the survey and
registry is necessary.
(b) Any person who fails to complete the survey or register,
provides false or misleading information on the survey or
registration, fails to provide other information as required by
this article may be subject to a civil administrative penalty not
to exceed five thousand dollars to be collected by the secretary
consistent with the secretary's authority pursuant to this chapter.
Every thirty days after the initial imposition of the civil
administrative penalty, another penalty may be assessed if the
information is not provided. The secretary shall provide written
notice of failure to comply with this section thirty days prior to
assessing the first administrative penalty.