North Dakota Administrative Code › Title 33.1 - Department of Environmental Quality › Article 33.1-16 - Control, Prevention, and Abatement of Pollution of Surface Water › Chapter 33.1-16-02.1 - Standards of Quality for Waters of the State › Appendix IV - NORTH DAKOTA ANTIDEGRADATION PROCEDURE

Current through Supplement No. 393, July, 2024
I. INTRODUCTION
This antidegradation implementation procedure delineates the
				  process that will be followed by the department of environmental quality for
				  implementing the antidegradation policy found in Standards of Quality for
				  Waters of the State,
				  chapter
				  33.1-16-02.1.
Under this implementation procedure, all waters of the state
				  are afforded one of three different levels of antidegradation protection. All
				  existing uses, and the water quality necessary for those uses, shall be
				  maintained and protected. Antidegradation requirements are necessary whenever a
				  regulated activity is proposed that may have some effect on water quality.
				  Regulated actions include permits issued under sections 402 (North Dakota
				  pollutant discharge elimination system) and 404 (dredge and fill) of the Clean
				  Water Act, and any other activity requiring section 401 water quality
				  certification. Nonpoint sources of pollution are not included. When reviewing
				  section 404 nationwide permits, the department will issue section 401
				  certifications only where it determines that the conditions imposed by such
				  permits are expected to result in attainment of the applicable water quality
				  standards, including the antidegradation requirements. However, it is
				  anticipated that the department will exclude certain nationwide permits from
				  the antidegradation procedures for category 1 waters on the basis that the
				  category of activities covered by the permit is not expected to have
				  significant permanent effects on the quality and beneficial uses of those
				  waters, or the effects will be appropriately minimized and temporary.
II. EXISTING USE PROTECTION FOR CATEGORY 1, 2, AND 3 WATERS
Existing use means a use that was attained in the water body
				  on or after 1967, whether or not it is included in the water quality standards.
				  This procedure presumes that attainment of the criteria assigned to protect the
				  current water body classification will serve to maintain and protect all
				  existing uses. However, where an existing use has water quality requirements
				  that are clearly defined, but are not addressed by the current classification
				  and criteria, the department will ensure that such existing uses are protected
				  fully, based on implementation of appropriate numeric or narrative water
				  quality criteria or criteria guidance. In some cases, water quality may have
				  improved in the segment since the classification was assigned, resulting in
				  attainment of a higher use. In other cases, the classification may have been
				  assigned based on inadequate information, resulting in a classification that
				  does not describe or adequately protect actual uses of the segment. In such
				  cases, the department will develop requirements necessary to protect the
				  existing uses and, where appropriate, recommend reclassification of the
				  segment.
III. ANTIDEGRADATION REVIEW PROCEDURE
The department will complete an antidegradation review for
				  all proposed regulated activities. The findings of these reviews will be
				  summarized using an antidegradation worksheet. A statement of basis for all
				  conclusions will be attached to the completed worksheet. The level of detail of
				  the review will depend upon the antidegradation protection applicable to the
				  various classes of water.
In conducting an antidegradation review, the division of
				  water quality will sequentially apply the following steps:
A. Determine which level of antidegradation applies.
B. Determine whether authorizing the proposed regulated
				  activity is consistent with antidegradation requirements.
C. Review existing water quality data and other information
				  submitted by the project applicant.
D. Determine if additional information or assessment is
				  necessary to make a decision.
E. A preliminary decision is made by the department and
				  subsequently distributed for public participation and intergovernmental
				  coordination.
* The content of public notices will be determined case by
				  case. In preparing a public notice, the department may address:
a) the department's preliminary antidegradation review
				  conclusions;
b) a request for public input on particular aspects of the
				  antidegradation review that might be improved based on public input (e.g.,
				  existing uses of a segment that needs to be protected);
c) notice of the availability of the antidegradation review
				  worksheet;
d) notice of the availability of general information
				  regarding the state antidegradation program; and
e) a reference to the state antidegradation policy.
* The antidegradation review findings will be available for
				  public comment; however, publication of a separate notice for purposes of
				  antidegradation is not necessary. For example, the antidegradation preliminary
				  findings may be included in the public notice issued for purposes of a North
				  Dakota pollutant discharge elimination system permit or Clean Water Act section
				  401 certification.
The department will ensure appropriate intergovernmental
				  coordination on all antidegradation reviews. At a minimum, the department will
				  provide copies of the completed antidegradation review worksheet and/or the
				  public notice to appropriate local, state, and federal government agencies,
				  along with a written request to provide comments by the public comment
				  deadline.
F. Comments are considered.
G. The department determines if the change in quality is
				  necessary to accommodate important economic or social development.
H. The department makes a final decision.
The level of antidegradation protection afforded each water
				  body in the state is consistent with beneficial uses of those water bodies.
				  Appendix I and appendix II of the Standards of Quality for Waters of the State
				  identify rivers, streams, and lakes in the state with their classification. The
				  classification shall be consistent with the following categories:
Category 1: Very high level of protection that automatically
				  applies to class I and class IA streams and class I, II, and III lakes, and
				  wetlands that are functioning at their optimal level. In addition, category 1
				  is presumed to apply to class II and class III streams. Particular class II and
				  class III streams may be excluded from category 1 if, at the time of the
				  antidegradation review, it is determined that one or both of the following
				  criteria are applicable:
1) there is no remaining assimilative capacity for any of the
				  parameters that may potentially be affected by the proposed regulated activity
				  in the segment in question, or
2) an evaluation submitted by the project applicant
				  demonstrates (based on adequate and representative chemical, physical, and
				  biological data) that aquatic life and primary contact recreation uses are not
				  currently being attained because of stressors that will require a long-term
				  effort to remedy. Evaluations in response to criterion #2 must include more
				  than an identification of current water quality levels. They must include
				  evidence of the current status of the aquatic life and primary contact
				  recreation uses of the segment.
Category 2: Class 4 and class 5 lakes and particular wetlands
				  after antidegradation review. In addition, class II and class III streams or
				  wetlands meeting one of the criteria identified above at the time of the
				  antidegradation review shall be included in category 2.
Category 3: Highest level of protection; outstanding state
				  resource waters.
Procedures for Category 1 Waters
Regulated activities that result in a new or expanded source
				  of pollutants to this category of water are subject to the review process,
				  unless the source would have no significant permanent effect on the quality and
				  beneficial uses of those waters, or if the effects will be appropriately
				  minimized and temporary.
* Proposed activities that would lower the ambient quality in
				  a water body of any parameter by more than fifteen percent, reduce the
				  available assimilative capacity by more than fifteen percent, or increase
				  permitted pollutant loadings to a water body by more than fifteen percent will
				  be deemed to have significant effects.
* The department will identify and eliminate from further
				  review those proposed activities that will have no significant effect on water
				  quality or beneficial uses. Category 1 reviews will be conducted where
				  significant effects are projected for one or more water quality parameters.
				  Findings of significant effects may be based on the following factors:
a) percent change in ambient concentrations predicted at the
				  appropriate conditions;
b) percent change in loadings for the individual discharge or
				  to the segment from all discharges;
c) reduction in available assimilative capacity;
d) nature, persistence, and potential effects of the
				  parameter;
e) potential for cumulative effects;
f) predicted impacts to aquatic biota; and
g) degree of confidence in any modeling techniques utilized.
* The applicant may be required to provide available
				  monitoring data or other information about the affected water body and/or
				  proposed activity to help determine the significance of the proposed
				  degradation for specific parameters. The information includes recent ambient
				  chemical, physical, or biological monitoring data sufficient to characterize,
				  during the appropriate conditions, the spatial and temporal variability of
				  existing background quality of the segment for the parameters that would be
				  affected by the proposed activity. The information would also describe the
				  water quality that would result if the proposed activity were
				  authorized.
The project applicant is required to provide an evaluation of
				  the water quality effects of the project. This evaluation may consist of the
				  following components:
1. Pollution prevention measures.
2. Reduction in scale of the project.
3. Water recycle or reuse.
4. Process changes.
5. Alternative treatment technology.
6. Advanced treatment technology.
7. Seasonal or controlled discharge options to avoid critical
				  water quality periods.
8. Improved operation and maintenance of existing
				  facilities.
9. Alternative discharge locations.
The primary emphasis of the category 1 reviews will be to
				  determine whether reasonable nondegrading or less-degrading alternatives to the
				  proposed degradation are available. The department will first evaluate any
				  alternatives analysis submitted by the applicant for adherence to the minimum
				  requirements described below. If an acceptable analysis of alternatives was
				  completed and submitted to the department as part of the initial project
				  proposal, no further evaluation of alternatives will be required of the
				  applicant. If an acceptable alternatives analysis has not been completed, the
				  department will work with the project applicant to ensure that an acceptable
				  alternatives analysis is developed.
Once the department has determined that feasible alternatives
				  to allowing the degradation have been adequately evaluated, the department
				  shall make a preliminary determination regarding whether reasonable
				  nondegrading or less-degrading alternatives are available. This determination
				  will be based primarily on the alternatives analysis developed by the project
				  applicant, but may be supplemented with other information or data. As a
				  rule-of-thumb, nondegrading or less-degrading pollution control alternatives
				  with costs that are similar to the costs of the applicant's favored alternative
				  shall be considered reasonable. If the department determines that reasonable
				  alternatives to allowing the degradation do not exist, the department shall
				  continue with the antidegradation review and document the basis for the
				  preliminary determination.
If the department makes a preliminary determination that one
				  or more reasonable alternatives exist, the department will work with the
				  applicant to revise the project design. If a mutually acceptable resolution
				  cannot be reached, the department will document the alternative analysis
				  findings and provide public notice of a preliminary decision to deny the
				  activity.
Although it is recognized that any activity resulting in a
				  discharge to surface waters may have positive and negative aspects, the
				  applicant must show that any discharge or increased discharge will be of
				  economic or social importance in the area. Where there are existing regulated
				  sources located in the area, the department will assure that those sources are
				  complying with applicable requirements prior to authorizing the proposed
				  regulated activity. New sources of a particular parameter will not be allowed
				  where there are existing unresolved compliance problems (involving the same
				  parameter) in the zone of influence of the proposed activity. The "zone of
				  influence" is determined as appropriate for the parameter of concern, the
				  characteristics of the receiving water body (e.g., lake versus river, etc.),
				  and other relevant factors. Where available, a total maximum daily load
				  analysis or other watershed-scale plan will be the basis for identifying the
				  appropriate zone of influence. The department may conclude that such compliance
				  has not been achieved where existing sources are violating their North Dakota
				  pollutant discharge elimination system permit limits. However, the existence of
				  a compliance schedule in the North Dakota pollutant discharge elimination
				  system permit may be taken into consideration in such cases. Required controls
				  on existing regulated sources need not be finally achieved prior to authorizing
				  a proposed activity provided there is reasonable assurance of future
				  compliance.
Procedures for Category 2 Waters
Regulated activities that result in a permanent or temporary,
				  new or expanded source of pollution to this category of water are permitted if
				  the following conditions are met:
1. The classified uses of the water would be
				  maintained.
2. The assimilative capacity of the water is available for
				  the parameters that would be affected by the regulated activity, and existing
				  uses would be protected as discussed in section II.
A decision will be made on a case-by-case basis, using
				  available data and best professional judgment. The applicant may be required to
				  provide additional information necessary for the department to characterize or
				  otherwise predict changes to the physical, chemical, and/or biological
				  condition of the water.
Procedures for Category 3 Waters
Outstanding state resource waters - Eligibility.
Outstanding state resource waters may be designated category 3 waters only
				  after they have been determined to have exceptional value for present or
				  prospective future use for public water supplies, propagation of fish or
				  aquatic life, wildlife, recreational purposes, or agricultural, industrial, or
				  other legitimate beneficial uses. The factors that may be considered in
				  determining whether a water body is eligible for inclusion in category 3
				  include the following:
a) location,
b) previous special designations,
c) existing water quality,
d) physical characteristics,
e) ecological value, and
f) recreational value.
Nomination.
Any person may nominate any waters
				  of the state for designation as outstanding state resource waters. The
				  nomination must be made in writing to the department, must describe its
				  specific location and present uses, and must state the reasons why the resource
				  has exceptional value for present or prospective future beneficial use.
Review process.
The department with cooperation
				  of the state water commission shall review any nomination to determine whether
				  the nominated waters of the state are eligible, clearly defined, and identify
				  beneficial uses of exceptional value for present or prospective future use. The
				  department of environmental quality with cooperation of the state water
				  commission shall provide as a part of its assessment:
1) a verification of the uses, properties, and attributes
				  that define the proposed "exceptional" value;
2) an evaluation of the current and historical condition of
				  the water with respect to the proposed value using the best data available;
				  and
3) an estimate of likely regulatory measures needed to
				  achieve the desired level of protection. If the identified waters of the state
				  are eligible, clearly defined, and appear to identify beneficial uses of
				  exceptional value for present or prospective future use, the department, and
				  the state water commission will solicit public comment and/or hold a public
				  hearing regarding the nomination. After reviewing the public comments and
				  views, the department jointly with the state water commission will make a
				  decision on whether to designate the defined water body as an outstanding state
				  water resource. If both the department and the state water commission agree
				  that the defined water body should be designated as an outstanding state water
				  resource, the department shall submit the recommendation to the department of
				  environmental quality advisory council as part of the water quality standard
				  revision process. The designation, if made, may be reviewed on a periodic
				  basis.
Implementation process.
Effects on category 3
				  waters resulting from regulated activity will be determined by appropriate
				  evaluation and assessment techniques and best professional judgment. Any
				  proposed regulated activity that would result in a new or expanded source of
				  pollutants to a segment located in or upstream of a category 3 segment will be
				  allowed only if there are appropriate restrictions to maintain and protect
				  existing water quality. Reductions in water quality may be allowed only if they
				  are temporary and negligible. Factors that may be considered in judging whether
				  the quality of a category 3 water would be affected include:
a) percent change in ambient concentrations predicted at the
				  appropriate critical conditions;
b) percent change in loadings;
c) percent reduction in available assimilative
				  capacity;
d) nature, persistence, and potential effects of the
				  parameter;
e) potential for cumulative effects; and
f) degree of confidence in any modeling techniques
				  utilized.
General Authority:
NDCC 61-28-04; S.L.2017,
					 ch.199, § 1
Law Implemented:
NDCC
					 61-28-04