COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 163
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Originating in the Committee on Natural Resources;
reported January 30, 2004.]
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A BILL 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
that the state reserves a sovereign interest in the waters of
the state as a valuable public resource; declaring the state
shall claim and protect state waters for the use and benefit
of its citizens; providing for preservation of common law
rights and water as a natural resource; providing that a water
use survey 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 to
participate; requiring the secretary to use reasonable
alternatives for estimating usage; requiring persons participating in survey to submit accurate information;
authorizing the secretary to coordinate with the United States
geological survey; 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 common law 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, mineral extraction, preservation of fish
and wildlife habitat, maintenance of waste assimilation,
recreation, navigation and preservation of cultural and aesthetic
values.
(b) "Consumptive withdrawal" means any withdrawal of water
which reduces the supply of the water body from which it is
withdrawn or removed.
(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) "Maximum potential" means the maximum designed capacity of
a facility to withdraw water under its physical and operational
design.
(e) "Person" or "persons" means an individual, public and
private business or industry, public or private water service and
governmental entity.
(f) "Nonconsumptive withdrawal" means any withdrawal of water which is not consumptive as defined in this section.
(g) "Secretary" means the secretary of the department of
environmental protection or his or her designee.
(h) "Water resources", "water" or "waters" means any and all
water on or beneath the surface of the ground, whether percolating,
standing, diffused, contained 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 the waters of farm
ponds, industrial settling basins and ponds and waste treatment
facilities are excluded from the waters of the state.
(i) "Withdrawal" means the removal or capture of water from a
water resource of the state regardless of whether it is returned to
the water resource.
§22-25-3. Waters claimed by state; water resources protection
survey; need for study; reporting 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 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.
(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 survey year and the previous four years.
(c) Every person utilizing the state's water resources whose
average withdrawal from a single water resource during any single
month over a calender year 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 water. 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.
(d) The secretary shall make a good faith effort to obtain
survey 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 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 shall
provide any available information on stream flow conditions that
impact withdrawal rates.
(g) Persons required to participate in the survey 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.
(h) The secretary shall, to the extent reliable water
withdrawal data is readily available from sources other than
persons required to complete the survey, utilize that data to
fulfill the requirements of this section.
(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;
(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) 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 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 that may be a trade secret or
otherwise confidential 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) Confidential information does not include:
(1) Information identifying the general source of water
withdrawn; or
(2) Information reporting the total amount of water withdrawn
by a person or the total amount of water used for consumptive or
nonconsumptive use.
(d) Information designated as confidential and the written
justification shall be maintained in a file separate from the
general records related to the person.
(e) 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.
(f) Information designated as confidential may be released to
governmental entities, their employees and agents when compiling
and analyzing survey 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.
(g) 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 allow the person an
opportunity to respond to the request in writing within five days.
(h) 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.
(i) 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.
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 plan and policy.
(b) The expenses of the commission, including the cost of
conducting the survey 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 compliance.
(a) The water resources survey will provide critical
information for protection of the state's water resources and,
thus, mandatory compliance with the survey is necessary.
(b) Any person who fails to complete the survey, provides false or misleading information on the survey or fails to provide
other information as required by this article may be subject to a
civil administrative penalty not to exceed five thousand dollars.
Every thirty days after the initial imposition of the civil
administrative penalty, another penalty may be assessed if the
information is not provided.
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(NOTE: The purpose of this bill is to claim West Virginia's
water as a valuable resource of the state and to conduct a water
resources survey to collect water use data. The survey,
administered by the secretary of the department of environmental
protection, requires all persons that withdraw over seven hundred
fifty thousand gallons during any month in a calendar year to
report water usage data to the secretary. To ensure mandatory
compliance with the survey a civil administrative penalty may be
assessed. The legislature will oversee and fund the survey through
a joint commission. Upon completion of the survey, the department
of environmental protection shall prepare and submit a final report
discussing the results of the survey and providing recommendations
for future data needs and water resource protection.
§22-25-1 through §22-25-6 are new; therefore, strike-throughs
and underscoring have been omitted.)