West Virginia Code of State Rules › Agency 60 - Environmental Protection - Secretary's Office › Title 60 - LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION DIVISION OF WATER AND WASTE MANAGEMENT › Series 60-05 - Antidegradation Implementation Procedures › Section 60-5-4 - Tier 1 Protection

Current through Register Vol. XLI, No. 28, July 12, 2024
4.1.
				Existing uses and the level of water quality necessary to protect the existing
				uses shall be maintained and protected.
4.2. Tier 1 protection applies to all waters
				of the state. A water segment shall be afforded Tier 1 protection where the
				level of water quality is not sufficient to support recreation and wildlife and
				the propagation and maintenance of fish and other aquatic life, or where the
				water quality meets but does not exceed levels necessary to support recreation
				and wildlife and the propagation and maintenance of fish and other aquatic
				life.
4.3. In determining whether a
				water segment is afforded only Tier 1 protection, the agency will focus on
				whether the water segment is meeting or failing to meet minimum uses.
4.4. The Secretary will consider whether a
				water segment is listed on the state's 303(d) impaired waters list, but where
				the parameter(s) for which the water segment is listed does not result in that
				water segment's failure to attain minimum uses and where all other parameters
				exceed the quality necessary to support recreation and wildlife and the
				propagation and maintenance of fish and other aquatic life, the water segment
				will be afforded Tier 2 protection. Where the parameter(s) for which the water
				segment is listed does result in failure to attain minimum uses, such as an
				acid mine drainage-impacted water segment, that water segment will be afforded
				only Tier 1 protection.
4.5. All
				water segments listed on the state's 303(d) impaired waters list will be
				afforded only Tier 1 protection for the parameter(s) that resulted in the water
				segment being listed.
4.6. There
				also may be waters in the state where one or both of the fishable/swimmable
				uses are attained, but existing water quality is not "better than necessary" to
				support those uses (i.e., assimilative capacity does not exist for any of the
				parameters that would be affected by the proposed activity). Tier 1 protection
				is appropriate for such a water segment.
4.7. Where existing uses of the water body
				are impaired, there shall be no lowering of the water quality with respect to
				the parameters of concern that are causing the impairment. The agency shall
				consider nomination of such water body for the 303(d) list of water
				quality-impaired streams.
4.8.
				Where a proposed activity will result in a new or expanded discharge that would
				otherwise prevent attainment of an existing use in a water subject to Tier 1
				protection, the applicant may be allowed to satisfy antidegradation review
				requirements by implementing or financing upstream controls of point or
				nonpoint sources sufficient to offset the water quality effects of the proposed
				activity from the same parameters and insure an improvement in water quality as
				a result of the trade. The basis of the trade will be documented and will be
				consistent with the trading assessment procedure that has been approved by the
				Secretary. A trade may be made between more than one stream segment where
				removing a discharge in one stream segment directly results in improved water
				quality in another stream segment. In addition, (1) the effluent trade must be
				for the same parameter; (2) where uncertainty exists regarding the effluent
				trade, an adequate margin of safety will be required; (3) dischargers cannot
				claim offsets for water quality improvements that are required or will occur
				irrespective of the proposed new or expanded discharge; and (4) the trade must
				be enforceable.