Bill Text: WV HCR49 | 2025 | Regular Session | Introduced
Bill Title: Resolution relating to use of industrial sites and the potential impacts on downstream facilities
Spectrum: Partisan Bill (Republican 17-0)
Status: (Engrossed) 2025-02-19 - To Natural Resources [HCR49 Detail]
Download: West_Virginia-2025-HCR49-Introduced.html
HOUSE CONCURRENT RESOLUTION 49
(By Delegates G. Howell and Hillenbrand)
[February 18, 2025; ]
Requesting the Maryland General Assembly reject any legislation proposing to change the stream designation of the North Branch of the Potomac River from the mouth of the Savage River extending to the area of Pinto, Maryland, from a "Warm Water Aquatic Life" use to a "Cold Water Aquatic Life" use.
Whereas, The border between West Virginia and Maryland is defined primarily by the Potomac River with the Potomac River specifically following the southern, or low-water mark, on the West Virginia side of the river; and
Whereas, The Legislature finds that even though both states share the river geographically, the water itself belongs to Maryland; and
Whereas, The Legislature finds that the Maryland Department of the Environment is proposing to change the stream designation of the North Branch of the Potomac River from the mouth of the Savage River extending to the area of Pinto, Maryland, from a "Warm Water Aquatic Life" use to a "Cold Water Aquatic Life" use; and
Whereas, The Legislature finds that some of the areas of Beryl, Keyser, Rocket Center, and Seymour, West Virginia currently have sites for industrial development located off the North Branch Potomac River; and
Whereas, The Legislature finds that if the legislation passes, facilities that currently hold National Pollutant Discharge Elimination System (NPDES) permits for discharge into the affected waters will have the thermal impact of their discharges evaluated at the time of the next permit renewal cycle; and
Whereas, The Legislature finds that if the legislation passes, any new permit application will be required to meet the temperature criteria associated with the proposed existing use designation and permit requirements will be evaluated on a site-specific basis incorporating data on the proposed discharge, ambient background flow and water quality conditions around the discharge point, and thermal mixing criteria described in the regulation; and
Whereas, The Legislature finds that to meet the standards of the regulation, technologies such as cooling towers, heat exchangers and chillers will have to be installed to help new facilities reduce the thermal impacts of their discharges to comply with stricter temperature standards; and
Whereas, The passage of legislation proposing to change the stream designation of the North Branch of the Potomac River from the mouth of the Savage River extending to the area of Pinto, Maryland, from a "Warm Water Aquatic Life" use to a "Cold Water Aquatic Life" will add unnecessary costs on any industrial employer located in West Virginia; and
Whereas, Article I, Section 8, Clause 3 of the United States Constitution gives Congress broad power to regulate interstate commerce and restricts states from impairing interstate commerce; and
Whereas, the United States Supreme Court found in Sporhase v. Nebraska ex rel. Douglas, 458 U.S.941 (1982) that forbidding commercial exportation of groundwater from Nebraska was unconstitutional in that it violated the dormant commerce clause; and
Whereas, the United States Supreme Court found in Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) that Arizona's law limiting train length placed an unconstitutional burden on interstate commerce and that the law limiting trains imposed a burden far greater than necessary to achieve Arizona's legitimate interest in lowering the rate of train accidents, violating the dormant commerce clause; and
Whereas, The dormant commerce clause is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce; and
Whereas, The restriction affecting West Virginia's inability to provide input would unduly burden interstate commerce by Maryland by attempting to restrict West Virginia businesses on water discharge beyond the Federal EPA requirements; and
Whereas, the Attorney General serves as the chief legal officer for the State of West Virginia and speaks for the legal interests of the state; and
Whereas, the Attorney General also is entrusted with enforcing the laws of the State as they relate to consumer protection, unfair trade practices, constitutional protections, and other important areas; therefore, be it
Resolved by the Legislature of West Virginia:
Based on the aforementioned case law, the West Virginia Legislature requests that the Maryland General Assembly reject any legislation proposing to change the stream designation of the North Branch of the Potomac River from the mouth of the Savage River extending to the area of Pinto, Maryland, from a "Warm Water Aquatic Life" use to a "Cold Water Aquatic Life" use as it would violate the Interstate Commerce Clause of the United State Constitution and impose an unreasonable burden on interstate commerce and on the State of West Virginia; and, be it
Further Resolved, That the Legislature calls upon the Attorney General to immediately investigate the constitutionality of the Maryland legislation proposing to change the stream designation of the North Branch of the Potomac River from the mouth of the Savage River extending to the area of Pinto, Maryland, from a "Warm Water Aquatic Life" use to a "Cold Water Aquatic Life" use and seek any and all appropriate legal remedies to defend the rights of the State of West Virginia as it relates to interstate commerce; and be it
Further Resolved, That a copy of this resolution be sent to the West Virginia Attorney General; Governor Wes Moore of Maryland; Bill Ferguson, President of the Senate, Maryland General Assembly; Adrienne A. Jones, Speaker of the House, Maryland General Assembly; Maryland Senator Mike McKay; Maryland Delegate Jim Hinebaugh, Jr.; Maryland Delegate Jason C. Buckel; and Maryland Delegate Terry L. Baker.
