EPA, DEP not doing their jobs?: WV groups sue over Lower Guyandotte watershed oversight

The Lower Guyandotte River watershed occupies most of West Virginia’s Cabell and Lincoln counties, as well as the northern third of Logan County and small portions of Putnam, Boone, Kanawha and Mason counties. Major tributaries in the Lower Guyandotte River watershed include:

• Mud River
• Trace Fork
• Middle Fork/Mud River
• Fourmile Creek
• Big Harts Creek
• Big Ugly Creek

Pollution reduction targets not determined

The Sierra Club, West Virginia Highlands Conservancy and West Virginia Rivers Coalition say the EPA didn’t establish the watershed’s total maximum daily loads for ionic toxicity. Total maximum daily loads (TMDL) determine a pollutant reduction target and allocate load reductions for pollution sources.

The groups say the TMDLs should have been triggered, in part, by the state Department of Environmental Protection not submitting to the EPA any ionic toxicity TMDLs for the watershed.

The lawsuit cites a 2017 federal court finding that because the DEP hadn’t submitted toxic maximum daily loads for waters biologically impaired due to ionic toxicity, the EPA had a duty to act. That 2017 court ruling noted that since 2006, the DEP had determined ionic toxicity was the stressor causing biological impairment in at least 179 streams but had stopped issuing TMDLs addressing biologic impairment regardless of the cause in 2012.

The ruling noted the DEP had contended it had insufficient information regarding pollutants and their associated impairment thresholds for biological TMDL development for ionic toxicity-stressed streams.

The DEP had designated “mining� as the source of biological impairment for streams that had undergone a stressor identification process that identified ionic toxicity as a significant stressor as early as 2008, the ruling notes.

In their lawsuit filed Monday, the environmental groups say the EPA has failed to develop its own ionic toxicity TMDL for Lower Guyandotte River watershed streams where required despite a duty to do so after the DEP said it had suspended biological impairment TMDL development in its EPA-approved 2022 TMDLs for the watershed.

The groups have asked the court to order the EPA to develop ionic toxicity TMDLs for streams in the Lower Guyandotte River watershed for which such TMDLs are required.

An EPA spokesperson deferred comment Monday to a U.S. Department of Justice spokesperson who declined to comment.

The EPA has identified over 1,600 miles of waterways throughout the state the agency has said should be added to a DEP list of waters for which pollution controls aren’t enough to meet state water quality standards.

In June, the EPA partially disapproved West Virginia’s list of those waters, finding the DEP failed to provide a “technical, science-based rationale for not using existing and readily available data and information� in developing its Section 303(d) list of waters. The list is named after the section of the federal Clean Water Act authorizing the EPA to help states list impaired waters.

An EPA spokesperson said last month the agency was evaluating stakeholder comments on waters the EPA proposed adding to the list.