Two National Environmental Groups Move to Block Snake Eyes Development in Southern Morgan County

Residents of Morgan County are banding together in an effort to block the proposed Snake Eyes development in the southern part of the county — about twelve miles south of Berkeley Springs on 522.

The developer — Mountain Springs Public Utility — applied in 2005 to the West Virginia Department of Environmental Protection (DEP) to operate a wastewater treatment system to serve 1,900 people in the development.

After raucous public hearings in Morgan County in April 2012 featuring an overwhelming majority of citizens opposed to the development, the DEP approved the permit.

Then came Morgan County resident Paul Stern.

Despite being told it was a done deal, Stern filed an appeal in October 2012 with the state’s Environmental Quality Board seeking the permit’s revocation.

Then earlier this month, two national environmental groups — the Potomac Riverkeeper and Food & Water Watch — intervened in the case and filed a motion for summary judgment.

The motion was filed by Columbia Law School’s Susan Kraham and Edward Lloyd and Joe Lovett Appalachian Mountain Advocates.

In their filing, the groups argue that the DEP illegally granted the permit.

Under federal environmental law, if a developer is planning on dumping wastewater into Sleepy Creek — as the Snake Eyes developers are — they first must show how they will offset those wastes before the wastewater plant can be permitted.

The brief argues that the Snake Eyes developers didn’t secure their offsets and therefore the permit was illegally granted.

Stern says that if the developer wants to dump into Sleepy Creek, then they have to first find some means of offsetting the pollutants they would be dumping — for example, finding another developer who would stop dumping the same amount.

According to the brief, on February 23, 2010, Scott Mandirola, the director of the DEP’s Division of Water and Waste Management, informed the developer’s representative — Wade E. Clements — that the DEP could not process the permit request unless the applicant identified the required offsets under the West Virginia Offset Strategic Implementation Plan.

But then in July 2011, a representative of the developer — Josh Weiand — wrote to the DEP’s Yogesh Patel — that the developer “would like to have the permit issued now, and then obtain the offsets later, prior to discharge.”

Several days later, Weiand wrote again to Patel asking what his client could do to get the permit issued.

Patel wrote back — “Nothing, we will take care of it.”

Over the next month or so, DEP wrote more e-mails assuring the developer that the permit would be issued despite the fact that the offset requirement was not met.

The DEP indicated to the developer that because it planned to restrict the permit to a zero discharge for nutrients and to modify it later to allow discharge, it would not run afoul of the requirement that a permit cannot be issued without an available waste load allocation.

In their motion for summary judgement, the environmental groups argue that the permit “allows construction of a new wastewater treatment plant that will discharge nutrients, sediment, fecal coliform and other pollutants into Sleepy Creek — a water quality impaired tributary to the Potomac River and Chesapeake Bay — without identifying remaining available waste load allocations to allow for the new discharge.”

“The permit was thus unlawfully issued and undermines the goals of the Clean Water Act and the total maximum loads for Chesapeake Bay and Sleepy Creek,” they wrote.

When asked about why he’s fighting the development, Stern gives a number of answers.

“I live less than a mile from Snake Eyes and I would like to preserve the rural nature of Morgan County,” he says.

“It bugs the hell out of me that DEP is bending over backwards to please the developer when their own rules say that the developer has to find offsets first. Why are they doing the developer’s bidding — especially when their own person — the director of DEP — said they can’t do it without offsets first. Their initial reaction was — no you can’t do it. But then somewhere along the way they felt they had to bend over backwards to help the developer.”

The Environmental Quality Board has scheduled a hearing on the appeal April 11 in Charleston.

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