WEST virginia legislature

2021 regular session

Introduced

House Bill 2980

By Delegates Doyle, Hansen, Thompson, Fleischauer and Walker

[Introduced March 08, 2021; Referred to the Committee on Health and Human Resources then the Judiciary]

A BILL to amend and reenact §22-12-2, §22-12-3, and §22-12-8 of the Code of West Virginia, 1931, as amended, all relating to providing for groundwater protection in karst terrain; defining karst terrain; providing specific requirements for agency action affecting karst terrain; and establishing rulemaking authority.

Be it enacted by the Legislature of West Virginia:

article 12. GROUNDWATER PROTECTION ACT.

§22-12-2. Legislative findings, public policy and purposes.

(a) The Legislature finds that:

(1) West Virginia has relatively pure groundwater resources which are abundant and readily available;

(2) Over 50 percent of West Virginia's overall population, and over 90 percent of the state's rural population, depend on groundwater for drinking water. Drinking water derived from groundwater in karst terrain involves a significantly greater risk of contamination than drinking water derived from other groundwater;

(3) A rural lifestyle has created a quality of life in many parts of West Virginia which is highly valued. Maintaining this lifestyle depends upon protecting groundwater to avoid increased expenses associated with providing treated drinking water supplies to rural households;

(4) West Virginia’s groundwater resources are geologically complex, with the nature and vulnerability of groundwater aquifers and recharge areas not fully known;

(5) Contamination of groundwater is generally much more difficult and expensive to clean up than is the case with surface water;

(6) Groundwaters and surface waters can be highly interconnected. The quality of any given groundwater can have a significant impact on the quality of groundwaters and surface waters to which it is hydrologically connected;

(7) A diverse array of human activities can adversely impact groundwater, making it necessary to develop regulatory programs that utilize a variety of approaches;

(8) Various agencies of state government currently exercise regulatory control over activities which may impact on groundwater. Coordination and streamlining of the regulatory activities of these agencies is necessary to assure that the state’s groundwater is maintained and protected through an appropriate groundwater protection program;

(9) Disruption of existing state regulatory programs should be avoided to the maximum extent practical;

(10) The maintenance and protection of the state’s groundwater resources can be achieved consistent with the maintenance and expansion of employment opportunities, agriculture, and industrial development; and

(11) A state groundwater management program will provide economic, social, and environmental benefits for the citizens of West Virginia now and in the future.

(b) Therefore, the Legislature establishes that it is the public policy of the State of West Virginia to maintain and protect the state’s groundwater so as to support the present and future beneficial uses and further to maintain and protect groundwater at existing quality where the existing quality is better than that required to maintain and protect the present and future beneficial uses. Such existing quality shall be maintained and protected unless it is established that (1) the measures necessary to preserve existing quality are not technically feasible or economically practical and (2) a change in groundwater quality is justified based upon economic or societal objectives. Such a change shall maintain and protect groundwater quality so as to support the present and future beneficial uses of such groundwater.

(c) The purposes of this article are to:

(1) Maintain and protect the state’s groundwater resources consistent with this article to protect the present and future beneficial uses of the groundwater;

(2) Provide for the establishment of a state groundwater management program which will:

(i) Define the roles of agencies of the state and political subdivisions with respect to the maintenance and protection of groundwater, and designate a lead agency for groundwater management;

(ii) Designate a state agency responsible for establishment of groundwater quality standards;

(iii) Provide for the establishment of standards of purity and quality for all groundwater;

(iv) Provide for the establishment of groundwater protection programs consistent with this article;

(v) Establish groundwater protection and groundwater remediation funds;

(vi) Provide for the mapping and analysis of the state's groundwater resources and coordination of the agencies involved; and

(vii) Provide for public education on groundwater resources and methods for preventing contamination;

(3) Provide such enforcement and compliance mechanisms as will assure the implementation of the state’s groundwater management program; and

(4) Assure that actions taken to implement this article are consistent with the policies set forth in §22-11-2 of this code.

§22-12-3. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(a) “Agency action” means the issuance, renewal or denial of any permit, license or other required agency approval, or any terms or conditions thereof, or any order or other directive issued by the Division of Environmental Protection, bureau of public health, Department of Agriculture or any other agency of the state or a political subdivision to the extent that such action relates directly to the implementation, administration or enforcement of this article.

(b) “Beneficial uses” means those uses which are protective of human health and welfare and the environment. Pollution of groundwater is not considered a beneficial use.

(c) “Board” means the state water resources environmental quality board.

(d) “Constituent” means any chemical or biological substance found in groundwater due to either natural or man-made conditions.

(e) “Director” means the director of the Division of Environmental Protection or such other person to whom the director has delegated authority or duties pursuant to sections six or eight, article one of this chapter.

(f) “Groundwater” means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

(g) “Groundwater certification” means an assurance issued by the director of the Division of Environmental Protection that a permit or other approval issued by a state, county or local government body regarding an activity that affects or is reasonably anticipated to affect groundwater complies with all requirements of this chapter, the legislative rules promulgated pursuant to this chapter in accordance with chapter twenty-nine-a of this code and any other requirements of state law, rules or agreements regarding groundwater.

(h) “Karst terrain” means those tax districts in West Virginia designated by the West Virginia Geological and Economic Survey to contain landscape formed primarily by the dissolution of soluble rock, such as limestone or dolostone, and characterized by sinkholes, sinking streams, closed depressions, subterranean drainage, and caves. 

(h)(i) “Person” means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry; sanitary district; public service district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

(i) (j) “Pollution” means the man-made or man-induced alteration of the chemical, physical, biological or radiological integrity of the groundwater.

(j) (k) “Preventative action limit” means a numerical value expressing the concentration of a substance in groundwater that, if exceeded, causes action to be taken to assure that standards of purity and quality of groundwater are not violated.

(k) (l) “Water” 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 (except farm ponds, industrial settling basins and ponds and water treatment facilities), impounding reservoirs, springs, wells, watercourses and wetlands.

§22-12-8. Groundwater certification.

(a) To ensure a comprehensive, consistent and unfragmented approach to the management and protection of groundwater, including evaluation of the cumulative effects of all activities that have the potential to impact on groundwater, the director shall oversee and coordinate the implementation of this article by each of the groundwater regulatory agencies through a groundwater certification program as hereby established.

(b) Every state, county or local government body which reviews or issues permits, licenses, registrations, certificates of other forms of approval, or renewal thereof, for activities or practices which may affect groundwater quality shall first submit to the director for review and approval an application for certification. Such application shall include a copy of the approval proposed by such body, including any terms and conditions which have been imposed by it. Upon receipt of this application, the director shall act within thirty days to determine whether to waive or exercise his or her certification powers. If no decision is made or communicated by the director within said 30 day period, groundwater certification is approved. If the director decides to exercise his or her certification powers, he or she may utilize additional time, not to exceed an additional 60 days, to further review the materials submitted or to conduct such investigations as he or she deems necessary.

(c)  No agency action or failure to act may result in a permit, license, registration, certificate or other form of approval or renewal thereof for activities or practices which may affect groundwater quality in karst terrain unless, at a minimum, the application contains:

(1) A groundwater contamination risk assessment report evaluating storm water runoff and sediment, below ground site conditions and the materials proposed to be used or consumed at the site;

(2) A design proposal for the appropriate storage and containment structures to mitigate the risk identified; and

(3) A water monitoring and contamination response plan, including procedures for the stoppage and restart of operations at the site.

Within one year of the effective date of this subsection, the Department of Agriculture, Bureau for Public Health and Department of Environmental Protection shall promulgate in accordance with the provisions of §29A-1-1 et seq. of this code such legislative rules as may be necessary to implement the authority granted them by this subsection. Such rules may exempt from the requirements of this subsection activities and practices having a de minimus effect on groundwater quality in karst terrain.

(c) (d) The director may waive, grant, grant with conditions, or deny groundwater certification. Groundwater certification, and all conditions required under such certification, shall become a condition on any permit, approval or renewal thereof, issued by any state, county or local government body. Where appropriate, the director may provide general groundwater certification for or may waive certification for classes or categories of activities or approvals.

NOTE: The purpose of this bill is to provide for groundwater protection in karst terrain; define karst terrain; provide specific requirements for agency action affecting karst terrain; and establish rulemaking authority.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.