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 60-5-5 - Tier 2 Protection (High Quality Waters)

Current through Register Vol. XLI, No. 28, July 12, 2024
5.1. A water segment shall be considered a
				Tier 2 high quality water where the level of water quality exceeds levels
				necessary to support recreation and wildlife and the propagation and
				maintenance of fish and other aquatic life.
5.2. Tier 2 waters need not exceed the level
				of quality needed to meet or exceed numeric criteria for every parameter. For
				example, a water segment listed on the state's 303(d) impaired waters list can
				qualify for Tier 2 protection, but where the impairment that caused the water
				segment to be listed results in failure to attain minimum uses, that water
				segment will be afforded only Tier 1 protection.
5.3. Where a water segment does not meet or
				exceed applicable water quality criteria for every parameter, the Secretary
				will determine whether the water segment will be afforded Tier 2 protection as
				part of the antidegradation review process using best professional judgment. In
				addition to data available for review, the Secretary may consider factors such
				as (1) existing aquatic life uses, (2) existing recreational or aesthetic uses,
				(3) existing water quality data for upstream segments or comparable segments,
				(4) biological score for the water segment, and (5) the overall value of the
				segment from an ecological, health and public use perspective.
5.4. Where insufficient information is
				available to determine which tier should apply, a regulated entity may seek a
				determination that a water segment should be afforded only Tier 1 protection by
				submitting water quality data consistent with guidance developed pursuant to
				subsection 3.9. of this rule showing that there is no remaining assimilative
				capacity for any parameter to be affected by its activity. In seeking such a
				determination, the impacts of all of the regulated entity's activities on the
				water segment must be considered.
5.5. Where there is insufficient information
				to establish which tier should apply, it is the intent of these procedures to
				apply Tier 2 protection to such waters until such time as sufficient water
				quality data is obtained to determine the appropriate level of protection. No
				presumption shall be made with regard to the actual quality of any waters as a
				result of such initial application.
5.6. Tier 2 antidegradation review.
5.6.a. Any regulated activity in a Tier 2
				water segment is required to go through the Tier 2 antidegradation review
				process where:
5.6.a.1. The regulated activity
				is a new or expanded activity that would significantly degrade water quality;
				or
5.6.a.2. The Secretary
				determines, upon renewal of a permit or certification, that other individual
				circumstances warrant a full review such as cumulative degradation resulting
				from multiple discharges within a watershed, degradation resulting from a
				single discharge over time, or degradation caused by a regulated facility's
				historic noncompliance with its permit.