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The following is a reprint from a Charleston Gazette Story by
award-winning reporter Ken Ward, Jr.
Farmers Get 80 More Days To Object To Stream Rules
Sunday March 10, 2002
By Ken Ward Jr.
STAFF WRITER
Last week, the Wise administration gave West Virginia farmers nearly three more months to try to block
new pollution restrictions on streams that run through their property.
Michael Callaghan, secretary of the state Department of Environmental Protection, extended the deadline
for landowners to object to the restrictions.
Under the state's new stream anti-degradation rules, DEP designated about 2,000 miles of streams to
receive special protection.
During the 2001 legislative session, Callaghan agreed to give farmers the ability to object to those
designations.
Originally, the deadline for those objections was March 15. Now, farmers have until June 3.
In a news release, DEP spokesman Andy Gallagher said the extension was granted because of the
"volume of objections received already."
By the time public meetings were held early last week in Hinton and Huntington, DEP had already
received more than 700 objection letters.
"Unfortunately, landowners in the affected areas have been misled to believe that the designation of the
streams will somehow greatly restrict the use of their property," the release quoted Callaghan as saying.
"In the vast majority of cases, that is just patently not true."
DEP officials blamed the large volume of letters on an organizing effort by the West Virginia Farm
Bureau.
On its Web site www.wvfarm
.org, the Farm Bureau warns its members that "new water regulations may strip your property rights."
"Plans you may have had for your property, and the expectations you and your heirs may have about
future use of the land, could become directly prohibited or prohibitively costly," the Web site says. "And
unless regulatory or legal action change the stream listing category at some future date, the effects on
your property rights are permanent."
Last year, West Virginia approved a plan to implement its stream anti-degradation policy. States were
supposed to have such plans more than 25 years ago.
Under federal law, anti-degradation policies are supposed to provide streams with an added layer of
protection above the state water quality standards.
Anti-degradation mandates that the current water quality of streams will generally not be lowered. Water
quality can be "degraded" only if a cost-benefit analysis shows that the jobs or other benefits outweigh
the environmental damage.
As part of its anti-degradation implementation plan, the DEP in February published a list of more than
400 streams that it says are clean enough to qualify for "Tier 2.5" protection.
The streams cited by DEP make up just 6 percent of the state's waterways, according to agency
officials. Most are located in a seven-county area in the eastern mountains around Randolph County.
Under the rules, these streams may not be degraded unless a cost-benefit analysis shows that proposed
pollution from a factory or a farm would be worth the damage caused.
However, landowners along streams designated by the state for Tier 2.5 protection may challenge the
designation.
Charles A. Wilfong, president of the West Virginia Farm Bureau, has urged his members to file
objections to the DEP Tier 2.5 list.
Wilfong himself has not filed an objection to any Tier 2.5 designation, DEP officials said last week.
According to Web site www.farmfirst.com, Wilfong and his father raise 1,300 cattle and 800 sheep on
4,200 owned and rented acres near Dunmore, Pocahontas County. They also grow hay and corn, the
site says.
Wilfong Farms is the third largest recipient in Pocahontas County of federal government farm subsidy
payments, according to the Environmental Working Group, a Washington-based organization.
Between 1996 and 2000, Wilfong Farms was paid more than $73,000 in subsidies, according to the
Environmental Working Group, which published a government database of subsidy payments on its Web
site, www.ewg.org.
State rules say that DEP must "where practicable" notify individual property owners of the Tier 2.5
designation. The rules add that DEP must provide a more general notice to all property owners through
"publication" of the Tier 2.5 list.
Farm Bureau officials, however, complain that DEP did not notify any individual landowners. Instead,
the agency published its list of proposed Tier 2.5 streams in local newspapers.
"Because there is so much at stake for these landowners, we sincerely hope that the DEP is not
intentionally discouraging objections," Farm Bureau Director Robert L. Williams said in a Feb. 19 letter
to Callaghan. "The burdensome objection process, as well as the short notice of the start of the objection
period, could lead one to believe that this in fact was your department's intent."
Jessica Welsh, a spokeswoman for the DEP Division of Water Resources, said the agency explored
sending individual notices. But, she said, agency lawyers found the process of title searches on properties
along the streams too time consuming to be practical.
Last week, Callaghan said, "once the landowner files an initial objection, the agency will provide
information on what caused that stream to be listed and will provide an additional 30 days for the
landowner to submit justification for having that stream removed.
"After we receive and evaluate all objections, DEP will determine if that stream remains or is removed
from the list."
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