U.S. Sen. Joe Manchin reintroduced two bills Thursday to commit over $1 billion in federal funding for reclamation projects and economic development in coal communities.
Manchin said the bills are critical investments for West Virginia towns that have suffered from the decline of the coal industry.
“For generations, West Virginia coal miners have made tremendous sacrifices and done the heavy lifting that powered our nation to greatness,” Manchin said. “Both the RECLAIM Act and the Abandoned Mine Land Reclamation Fee Extension Act are much needed investments in coal communities.”
Sen. Joe Manchin's Introduces AML Reclamation Free Extension Act of 2021 and RECLAIM Act of 2021
The RECLAIM Act would release $1 billion in federal funds to create jobs by cleaning up abandoned mines. The second bill would extend the abandoned mine land fee set to expire in September.
This fee funds ongoing reclamation projects on abandoned mine lands.
Manchin introduced the two bills with senators from Virginia, Ohio, and Pennsylvania.
The proposal is backed by both the largest coal miners union and environmental groups.
United Mine Workers of America President Cecil Roberts said Congress must act and pass both bills.
“The economic situation for many families and communities in the Appalachian coalfields is already catastrophic,” Roberts said. “Things will not get better by themselves.”
Angie Rosser, executive director of the West Virginia Rivers Coalition applauded the reintroduction of the two bills.
“Furthering the clean-up of abandoned mine lands is an opportunity to prevent disasters and create jobs in places hit hardest by coal’s decline,” Rosser said. “These measures couldn’t come at a more important time for our communities.”
The state agency tasked with regulating oil and gas permitting, inspections and the plugging of abandoned wells is facing a major budgetary shortfall and is expecting to cut staff by more than 35 percent.
James Martin, director of the Office of Oil and Gas for the West Virginia Department of Environmental Protection told members of the DEP Environmental Protection Advisory Council Tuesday that permit requests from the industry were down substantially this year. The Office of Oil and Gas receives the bulk of its funding from permitting fees.
“It’s going to be a big change for us,” Martin said. “I’ve never really experienced this, certainly during my time in state government nothing to this kind of degree.”
Martin said the office is expecting to cut staff “across the board” from roughly 40 to about 25 employees. That cut includes inspectors, he said.
The revenue shortfall is tied to a decline in new drilling activity. Last year, Martin said the agency had between 35 and 40 permit requests. In March and April the office saw just six and five permits, respectively. The oil and gas industry has been hit hard by the coronavirus pandemic.
Angie Rosser, director of the conservation group, the West Virginia Rivers Coalition, said the agency’s current financial challenges highlight why the Office of Oil and Gas needs to diversify its funding stream.
Last year, the Legislature failed to pass a series of bills that would have funneled more money toward the office.
Water Quality Standards
The advisory council, which was created by statute in 1994 to help advise the DEP on program and policy development, also voted to create a new subcommittee that will spend the next year reviewing the science surrounding a multi-year battle to update the state’s water quality standards.
The rules govern the amount of pollution that can be discharged into the state’s streams and rivers. WVDEP first proposed revising the human health criteria in the state’s water quality standards in 2018. The agency proposed updating standards for 60 pollutants in line with 2015 suggestions made by the U.S. EPA. Two-thirds of the updates limit the amount of certain chemicals that can be discharged into rivers and streams. One-third allowed more pollution to enter rivers and streams
The proposal sparked controversy, most notably pushback from the West Virginia Manufacturers Association. In 2019 the Legislature adopted a bill that required WVDEP to hold off on updating the standards until 2021 and go back to the drawing board.
This April, the agency said it would adopt 24 of the EPA’s proposed updates. That includes weakening some standards. Environmental groups asked the agency to strengthen all pollution criteria.
Laura Cooper, assistant director of the WVDEP’s Division of Water and Waste Management, told the council on Tuesday the agency is moving forward incrementally with the updates in the hopes it will ameliorate some of the previous controversy that plagued the water quality standards.
The new subcommittee would address the 70 remaining human health criteria. It would consist of WVDEP staff and members of the advisory council would meet monthly for one year and review the latest science on human health criteria.
“We’d engage in discussion, give open feedback to each other and listen to each other and discuss and really come up with what West Virginia sees as the policy that we want moving forward and be able to recommend something to the secretary by May of next year,” Cooper said. “Again, this is not an open ended thing. It’s just one more year to look at these with detail.”
Rosser, with the West Virginia Rivers Coalition, said the idea that WVDEP would continue to study the human health criteria after looking at the issue for years seemed like a stall tactic.
“We put a lot of resources and money to fully participate in these three years of public input and now we’re being asked to participate in another year,” Rosser said. “It puts us at a disadvantage. We don’t have the resources to hire additional staff to do this.”
A group of Democratic West Virginia lawmakers announced plans Monday to introduce legislation to regulate a group of toxic, man-made fluorinated chemicals.
Del. Evan Hansen, who represents most of Monongalia County, and a group of colleagues, said the “Clean Drinking Water Act” would address the release of per- and polyfluoroalkyl chemicals, also called PFAS chemicals. The class of chemicals includes C8, or PFOA, the chemical produced and dumped in the Parkersburg area for decades by chemical giant DuPont.
The effect of the chemical and related events were recently brought to the silver screen in the blockbuster film, “Dark Waters” starring Mark Ruffalo and Anne Hatheway.
Hansen said the bill, which is still being drafted, would require facilities that use or produce PFAS chemicals to disclose that information to the West Virginia Department of Environmental Protection. The DEP would be required to monitor these facilities and regulate their discharges of these chemicals into waterways. Currently, PFAS chemicals are unregulated nationwide.
The second component of the bill would set legally-enforceable drinking water limits, or Maximum Contaminant Levels, for some PFAS chemicals.
The legislation comes at a time when both U.S. Environmental Protection Agency and state regulators are increasingly testing for, finding and seeking regulations for these so-called “forever chemicals.”
In recent years, a growing number of communities have detected PFAS in their drinking water. The chemicals are widely used including in everything from pizza boxes to flame-retardant foam sprays and in nonstick and stain-resistant products like Teflon.
Ohio announced in September it would begin monitoring water systems near known contamination sites. In Berkeley County, federal researchers are currently studying residents’ exposure to C8 after it was found at a water treatment plant in Martinsburg. The contamination was likely due to groundwater contamination from the Shepherd Field Air National Guard Base, which used PFAS-laden firefighting foam.
Research conducted in the Mid Ohio Valley after DuPont’s settlement over C8 contamination linked chemical exposure to six diseases including thyroid disease, as well as testicular and kidney cancer.
“I think we owe it to the citizens of West Virginia, especially considering we were ground zero for the impacts of many of these chemicals, we owe it to the people of West Virginia to take matters into our own hands,” Hansen said.
The EPA is currently weighing how to set drinking water standards for PFOS and PFOA. A handful of states have set their own limits, much lower than the EPA’s current health advisory of 60 parts-per-trillion.
Hansen said if the bill is passed, West Virginia would examine both EPA’s decisions and state actions. He also noted he hopes to put safeguards in the legislation so that if contamination is found, rate payers and cash-strapped municipalities won’t be on the hook for paying for cleanup.
“What we are going to get out of this is the chance of transparency,” said Angie Rosser, executive director of the West Virginia Rivers Coalition, which supports the bill. “Companies will have to tell us what is in our water.”
Rosser and others said clean water is key to boosting the state’s economy.
“The people of our state know polluting industries drive away clean industries,” said Del. John Doyle, a Democrat from Jefferson County.
When asked about the bill’s chances of making its way through the Republican-controlled Legislature, Hansen said he recognized it could be a tough sell, but said he’s open to hearing any ideas from his colleagues across the aisle or other interested groups.
“I don’t think clean drinking water is a partisan issue,” he said.
During the 2020 session, Hansen, who is an environmental scientist, said he also intends to reintroduce a proposed amendment to the state’s Bill of Rights that would enshrine clean air, water and the preservation of the natural environment as constitutional rights for current and future generations.
The measure was introduced last session and had more than 30 co-sponsors. Two other states — Pennsylvania and Montana — have adopted a similar constitutional amendment. If passed, the environmental rights amendment would serve as a guiding principle for state leaders and regulatory agencies.
At the end of Vineyard Road in Falling Waters, West Virginia, there is an old, stone and brick structure on the Potomac River. This small, historic building is a hydroelectric power plant owned by Cube Hydro Partners based in Maryland. Beside the structure is ‘Dam #5.’
The dam, owned by the National Park Service, stretches the width of the river – from the West Virginia side to the Maryland side. It is 20 feet tall and was originally built in the 1830s.
While the dam provides electricity, it has also had an unintended consequence.
“Almost 85 percent of the American eel’s upstream habitat has been lost due to dams,” David Sutherland, coastal program biologist with the U.S. Fish & Wildlife Service, said. “So, there’s basically been a coastwide decline in American eel populations.”
Credit Liz McCormick / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
Dam #5 at Falling Waters, W.Va.
This decline in American eel is why Sutherland and other officials started an initiative 15 years ago called the American Eel Restoration Project. The project works to install things called “eelways” – like byways, but for eels.
An eelway is almost operational at Dam #5. It is an aluminum ramp that is 65 feet long, and it has been secured to the side of the power plant. The ramp will have water running through it, and eels will be able to climb it. Once they reach the top, they will slide down a PVC pipe into a 250-gallon water tank.
“We’ll either be able to monitor them; they’ll be captured in a mesh bag, or if the mesh bag isn’t in there, they’ll be able to migrate right through the tank and upstream through a pipe and then back to the river,” Sutherland said.
The eels are unharmed when caught, and they are always released, Sutherland said.
Credit Liz McCormick / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
The eelway will empty into this 250-gallon water tank. A pipe will connect the eelway to the tank, and then another pipe will connect the tank to the river.
The American eel lives most of its life in freshwater, and then migrates back into saltwater to lay their eggs. By the time the eels reach Dam #5 in Falling Waters, they’ve journeyed for 4 to 7 years from the Sargasso Sea, which is located in the Atlantic Ocean.
In the Potomac River, they will grow and mature. Sutherland said the further upstream eel can travel, the safer they are.
“Historically, 25 to 50 percent of the biomass in these headwater streams, upstream of Dam #5 here, used to be American eels. They’re primarily female eels; they metamorphose by the time they get up this far. They’re maturing, becoming silver eels and they’re ready to be out migrating with upwards of 9 million eggs.”
But without access to these headwater streams, these eels have been more susceptible to predators like flathead catfish, walleye, or blue catfish.
That’s why an eelway is important for their survival, especially if a historic dam like Dam #5 is unlikely to be removed.
Credit Liz McCormick / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
The top of the 65-foot-long eelway at Dam #5.
The American eel does more for our water than we might realize. American eel help to transport larvae of the freshwater mussel, which help to clean water.
A single mussel can filter 10-15 gallons of water every day, according to the U.S. Fish & Wildlife Service. But baby mussels can’t travel far without hitching a ride on a fish’s gills, and the American eel offers an appealing one.
“American eels are critical for the ecosystem services they provide, especially with their relationship to freshwater mussels,” Tanner Haid, Eastern Panhandle Field Coordinator for the West Virginia Rivers Coalition, said.
Haid points out that West Virginia is a headwater state, meaning the water here flows out to many other people in states around us.
He said it’s for this reason that opening more travel ways for American eel and by extension, freshwater mussels, is vital to keeping our water clean.
“No matter where you are in our state, our water is connected to tens of millions of people. So, we have to acknowledge that role and do everything we can to protect that water at the source, and do these sort of habitat restoration projects to protect critical species,” Haid said.
Credit Liz McCormick / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
The eelway is secured to the side of Cube Hydro’s power plant.
Once complete,the eelway at Dam #5 is expected to have cost about $150,000. That covers designing, construction, and installation. Sutherland said it will be the first year-round eelway in West Virginia.
5,000 to 10,000 eels are expected to migrate through it a year.
Dam #5’s eelway will also effectively open about 8,000 more river miles to the American Eel, according to Sutherland.
The eelway is expected to be operational by early spring 2020.
**Editor’s Note: This story was edited on Dec. 6, 2019 to correct the amount of water filtered daily by freshwater mussels.
On a recent hot, August weekend, about a dozen citizens spent three days along the route of the Mountain Valley Pipeline. Armed with cameras, smartphones and drones the volunteers traveled portions of the pipeline’s route under construction from Monroe to Doddridge counties.
“There was several things that we saw,” said Summers County resident and organic farmer Neal Laferriere.
Laferriere organized the three-day “violations blitz.” He said volunteers documented small problems like poorly-maintained erosion controls as well as much larger ones.
“Sediment-laden water in one situation was overflowing the controls and going directly into a creek,” he said. “So, definitely affecting the waterways of the state, which is a big violation.”
In total, the volunteers collected about 60 examples of what they deemed to be permit violations by the pipeline. Their efforts are part of a citizen monitoring program run by conservation group the West Virginia Rivers Coalition.
In 2012, West Virginia Rivers and Trout Unlimited created a program that trained volunteers how to monitor their local trout streams to determine if they were being affected by the state’s booming oil and gas industry. As more natural gas pipelines have been approved for construction in West Virginia, the program expanded to include pipeline construction monitoring.
“Pipeline construction releases a lot of sediment and sediment-laden water — muddy water — into what would otherwise be clear and pristine streams,” said Autumn Crowe, senior scientist with West Virginia Rivers. “That sediment, when it gets into the water body, it has multiple negative impacts on aquatic life and water quality.”
West Virginia Rivers collects the complaints and submits them to the West Virginia Department of Environmental Protection. The group worked with WVDEP’s enforcement department to develop the training materials.
Crowe said citizen monitoring, including this most recent “violations blitz,” fills an enforcement gap in West Virginia.
“What the vio-blitz was showing us is that there were multiple issues along the entire route that were not being addressed,” she said. “And if not for our volunteers, a lot of those issues would have gone unnoticed.”
Credit Courtesty Neal Laferriere
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Monitors observed this example of erosion control devices failing along the MVP’s route in Lewis County.
Regulation Challenges
As hydraulic fracturing or fracking has boomed in the Marcellus shale, so too has pipeline construction in Ohio, Pennsylvania, Virginia and West Virginia. Since 2015, federal regulators have approved the construction of 10 interstate natural gas pipelines through West Virginia.
The two most well-known projects — EQT’s Mountain Valley Pipeline and Dominion Energy’s Atlantic Coast Pipeline — are multi-billion dollar projects that are slated to carry billions of cubic feet of natural gas from Appalachia to the east coast and for export. Both projects have been besieged by lawsuits over issues ranging from forest crossings to water permits. Activists have locked themselves to equipment and protested in trees.
Unsafe construction practices have led to the temporary shutdown of some pipeline projects.
In the summer of 2017, construction of the Rover pipeline in West Virginia and Ohio and the Mariner East 2 pipeline in Pennsylvania was shut down by both state and federal authorities for haphazard construction.
Pennsylvania’s attorney general in March opened a criminal investigation related to the Mariner East pipelines. In December, Virginia’s Attorney General Mark Herring filed a civil suit against the Mountain Valley Pipeline citing more than 300 environmental violations.
“Just in terms of the resources that would be necessary to actually enforce compliance with all of our environmental laws, we don’t have those resources,” she said. “And it would frankly be very difficult to gather all those resources through government agencies.”
The regulatory challenge is further complicated by the fragmented way pipelines are regulated. Multiple federal agencies play a role as well as state environmental regulators in inspections and permitting.
The Federal Energy Regulatory Commission or FERC approves a pipeline’s route. The Pipeline and Hazardous Material Safety Administration is in charge of making sure it’s safely constructed and responding if there is an accident. The U.S. Army Corps of Engineers regulates construction impacts on wetlands and streams. And then state environmental agencies, like the West Virginia DEP, monitor the impacts of storm water on pipeline construction sites.
“I think anytime you have a fragmented legal system, it’s difficult for that system to work collectively well, and it also creates a lot of confusion among citizens who are wondering who to call,” Gosman said.
“Agencies have really had to run to catch up with the increased citizen attention as more wells are being drilled and fractured and as more pipelines are being built,” she said.
Resources remain an issue. In recent years Congress has given more money to the Pipeline and Hazardous Material Safety Administration for inspectors. They agency has approximately 160 pipeline safety inspectors covering construction across the county.
The West Virginia DEP has 10 positions in its Stormwater Construction Inspection Group, which is charged with inspecting all construction sites larger than one acre so as to ensure compliance with permits designed to prevent stormwater runoff. Currently, only eight of those positions are filled, according to WVDEP Spokesperson Terry Fletcher. The group has grown from three positions in 2005.
In an email, Fletcher said the agency is confident in its ability to ensure pipelines are in compliance with their permits and values input from citizens.
Laferriere, the citizen pipeline monitor, disagrees. The Mountain Valley Pipeline alone traverses 200 miles in West Virginia and he fears the agency doesn’t have the capacity to monitor it and others across the state.
Credit Mountain Valley Pipeline, LLC
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“They’re not doing a good enough job,” he said. “If we can go out and in three days find 60 violations here in West Virginia with a handful of people, how many violations, how many things are we missing? How many watersheds are being affected by this project that nobody’s aware of?”
In response, Fletcher noted WVDEP, as a state agency, “cannot simply create permanent, full-time positions without first having allocated funding for new positions, and then receiving approval from the state Division of Personnel.”
Gosman, at the University of Arkansas School of Law, said it’s likely citizen concerns over natural gas pipelines will continue to grow, and not just over whether they are being constructed safely, but if they’re needed at all, and whether they’re being proposed for the right places.
“We need to think holistically about pipelines, about where they’re placed, what it means to have an accident in that particular place,” she said. “What it means to have issues around stormwater and wetlands impacts in that particular place over the long term, rather than treat each of these particular issues construction, operation, emergency response as being separate.”
According to WVDEP’s online system, inspectors have investigated just a handful of the citizen complaints. No official violation notices have been issued.
After the 2014 Elk River chemical spill in the Kanawha Valley, the West Virginia Rivers Coalition created the Safe Water WV initiative. The idea is simple: to strengthen a community’s connection to their drinking water and encourage them to work together to better protect it.
A couple years ago, Jefferson and Berkeley Counties decided to build off that initiative in a unique way – using the conservation of farmland and Civil War battlefields as a model for drinking water protection.
About two miles from the heart of Shepherdstown is the site of the bloodiest battle in West Virginia during the American Civil War. More than 600 Union and Confederate soldiers died in a two-day battle in September 1862.
The Battle of Shepherdstown may have been small in comparison to other battles of the Civil War, but historians agree, the battle not only halted the Confederates’ northern invasion, but it also opened the door for President Abraham Lincoln to issue the Emancipation Proclamation.
Since 2011, the site of the Battle of Shepherdstown has been a protected historic landmark. The battle site also happens to be at a unique location – along the Potomac River. The Potomac provides drinking water to Shepherdstown residents, and other nearby areas.
“The Landmarks Commission owns about a half-mile of the Potomac River frontage,” Martin Burke said.
Credit Jefferson County Farmland Protection Board
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This map shows details of the attacks and soldier divisions during the Battle of Shepherdstown. A marker for the cement mill can be seen along the Potomac River.
“We formed the Safe Water Conservation Collaborative to bring together, for the very first time, water utilities, land conservation organizations, and watershed groups to take a collaborative approach to protecting drinking water using the conservation of land, and protecting land forever, to protect our drinking water sources,” Tanner Haid said.
Haid is the Eastern Panhandle Field Coordinator for the West Virginia Rivers Coalition.
The initiative focuses on using land conservation easements to protect drinking water. A conservation easement is a voluntary private or government contract with a landowner to protect land for ecological reasons – to improve water quality, maintain a historic site, or protect wildlife.
Haid said this approach makes drinking water protections stronger, because land conservation easements help to prevent potential contamination threats or development that could impact a source water intake.
In Jefferson County alone, there are more than 16,000 acres of battlefield land that have been identified, according to the Jefferson County Historic Landmarks Commission. Only 861 acres of that is currently protected.
Liz Wheeler is the Director of the Jefferson County Farmland Protection Board. Her organization administers conservation easements to protect historic farmland and battlefields in Jefferson County.
“When we protect land, we’re not just protecting cropland. We’re protecting woodland, we’re protecting streams, we’re protecting historic resources, so it fits into what we do; to be able to contribute to source water protection,” Wheeler said.
But the Safe Water Conservation Collaborative in the Eastern Panhandle doesn’t come without its challenges. Finding enough money to protect the land can be the biggest challenge, but so can educating landowners about their options if they qualify for a conservation easement or historic status.
Haid said, in the coming year, he and his team hope to identify and prioritize areas of land in the Eastern Panhandle not currently protected that are close to drinking water areas.
“And then in particular, closest to the water intake or the utilities who draw up the water, because those are the areas most threatened by development and actions that we take on our land that has an impact on our water quality,” Haid said.
Jefferson and Berkeley Counties are among the most successful in the state for land conservation, according to West Virginia Rivers. Together, these counties have protected more than 10,000 acres of land.
West Virginia Rivers said, so far, they haven’t collected data on how water quality has improved through the Safe Water Conservation Collaborative in the Eastern Panhandle, but over the past two years, they have signed up 30 partner organizations interested in the project.
The group hopes this model – to protect water by conserving land – isn’t just for the Eastern Panhandle but could be used across the state.
