Good by Tier 2.5?

The By Donald S. Garvin, Jr.
WVEC Legislative Coordinator

In a surprising turn of events late last week, both the Senate and the House Judiciary Committee actually eliminated the "Tier 2.5" category from the Antidegradation Implementation Rule.

You heard me right, folks. Tier 2.5 is gone, and there is now a new definition of Tier 3 that was adopted by House Judiciary.
Under the House language, Tier 3 streams are now "all Federally designated rivers under the "Wild and Scenic Rivers Act", 16 U.S.C. #1271 et seq.; all streams and other bodies of water in state parks and forests, waters in national parks and forests and waters designated under the "National Parks and Recreation Act of 1978 as amended; and pursuant to subsection 7.1. of 60CSR5, those waters whose unique character, ecological or recreational value, or pristine nature constitutes a valuable national or state resource."

The Tier 2.5 category is now gone in both the Antideg rule and the Water Quality rule, and the new Tier 3 definition was put into both rules. In addition, the additional trout streams that DEP had included in the updated B2 list were removed, leaving the definition of "trout waters" in tact, along with the old list of B2 streams.

My instant analysis is this: all streams on public lands in WV would now be Tier 3 automatically. Streams on private lands could be nominated for Tier 3 designation. And there will be no tier lists for the legislature to approve!.

Last year, DEP proposed 309 Tier 2.5 streams in the Antideg rule. A Senate Committee cut that to 38 streams. House Judiciary kept it at 309. The Speaker of the House and DEP Cabinet Secretary Stephanie Timmermeyer proposed 156 streams as a compromise, but lobbyists for the Farm Bureau, etal, wouldn't take it. The Speaker withheld the rule for final passage and none of the DEP rules passed. Timmermeyer said she would file the rules as "finalized" with the Secretary of State’s office (since the legislature did not act), but she did not.

This year, DEP proposed 156 Tier 2.5 streams (the compromise from last year). Just prior to the regular legislative session, the Interim Joint Legislative Rule-Making Review Committee restored the list to 309 streams.
Last week the Senate Natural Resources Committee amended the Antideg rule to include just 108 streams (a Farm Bureau proposed number). This week, Senate Finance Committee defeated an amendment to restore the list to 156 streams, and adopted the Natural Resources amendment (108 streams).

Then Senate Judiciary Committee voted to accept the amendments reducing the list to 108 streams. The Judiciary Committee voted to remove the additional trout streams that DEP had included in the updated B2 list (leaving the definition of "trout waters" in tact, along with the old list in Appendix A).
I think it is fair to say that Senate Judiciary Committee chairman Jeff Kessler (D-Marshall) was furious, because members had assured him they would support at least 156 streams (which obviously didn't happen). So he reported all the rest of the DEP rules to the Senate floor in a bundle, and reported the Antideg rule and the Water Quality Standards rule separately.

When the rules were sent to the floor of the full Senate, Senator Kessler spoke about how corrupt and unworkable the Tier 2.5 process had become, and offered an amendment that removed entirely the Tier 2.5 category from the Antideg rule. That amendment passed, and the Senate then passed the DEP rules bundle (SB 373), the Water Quality Standards rule (without the additional trout stream list), and the Antideg rule (without a Tier 2.5 category).

That brings us to yesterday, where in a move orchestrated by the Speaker of the House Richard Thompson (D-Wayne) and House Judiciary Committee chair Carrie Webster (D-Kanawha), the House Judiciary Committee amended back into the rules bundle (SB 373) both the Water Quality Standards rule and the Antideg rule, and included the new definition of Tier 3. 

So that’s where things stand at this hour.  Yesterday was a long day.  I was involved in “negotiating” meetings with an increasingly expanding list of lobbyists for the Dirty Water Coalition at 8:30 in the morning, and suffered through it most of the very long day.  The new rules bundle was reported to the House floor last night.

For those of you who may not like the new Tier 3 definition, or the removal of the Tier 2.5 category, don’t worry. There’s a week left in the legislative session, and the Dirty Water Coalition boys and girls are already lobbying hard to kill the rules.