Senate Bill No. 435
(By Senator Anderson)
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[Introduced March 24, 1997; referred to the Committee
on Natural Resources.]
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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, relating to the division of
environmental protection; and authorizing the director of
the division of environmental protection to issue
certifications under 33 U.S.C. Section 1341 of the federal
Clean Water Act.
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 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 insure 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. 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
(A) The applicant for the water quality certification is eligible for an Army Corp of Engineers Nationwide Permit 21 or 26
issued in accordance with 33 U.S.C. 1344 and 33 C.F.R. Part 330.
(B) The applicant's surface coal mining operation will not
disturb more than five hundred linear feet of stream depicted as
a blue-line on a U.S. Geological Survey 7-1/2' Quandrangle Map
(intermittent or continuous blueline) and will not impact waters
of the state which are wetlands of one acre or more in size.
(C) If the watershed above the toe of the farthest
downstream permanent structure authorized pursuant to Nationwide
Permit 21 or 26 is less than one square mile for the surface coal
mining operation meeting the criteria of paragraph (A) of this
subsection, the division shall issue a water quality
certification containing only the standard conditions set out in
paragraphs (A) and (B) of this subsection.
(i) 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.
(ii) 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.
(iii) Any riprap shall be of a composition that may 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.
(iv) Removal of riparian vegetation outside the boundaries
of a permanent structure shall be minimized.
(v) If the watershed above the toe of the farthest
downstream permanent structure authorized pursuant to Nationwide
Permit 21 or 26 is greater than or equal to four hundred eighty
acres for the surface coal mining operation meeting the criteria
of paragraph (A) of this subsection, the division may require a
water quality certification containing conditions in addition to
those standard conditions identified in this subsection for the
purpose of protecting water quality;
(D) The director may require mitigation as follows:
(i) 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.
(ii) 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.
(iii) The division 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 division.
(IViv) Upon completion of an agreement to conduct all
mitigation work 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 division 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.
(E) The division may not require a water quality
certification for a road crossing on the permitted area impacting
less then two hundred linear feet of waters of the state.
(F) The division 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.
(G) The division shall have ten working days to make a
determination that an application for a water quality
certification is administratively complete or to notify the
application in writing of specific deficiencies. The division
shall have thirty 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. If the division has not notified the
applicant of its final determination within thirty days of
receiving an administratively complete application, the water
quality certification shall be deemed waived.
(H) In no event may the mitigation amount exceed fifty
thousand dollars per acre of stream disturbed. Those moneys
shall be deposited in the stream restoration fund under the
jurisdiction of the bureau of the environment and subject to
legislative appropriation.
(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. 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.
NOTE: The purpose of this bill is set out procedures to be
followed by the Director of the Division of Environmental
Protection in issuing certifications required under the
provisions of 33 U.S.C. Section 1341 of the Federal Clean Water
Act.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.