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 60-5-3 - Antidegradation Review Process

Current through Register Vol. XLI, No. 28, July 12, 2024
3.1. As
				set forth in 47 CSR 2-4.1, the State's antidegradation policy requires that
				existing uses and the level of water quality necessary to protect the existing
				uses shall be maintained and protected. This requirement applies to all waters
				of the state.
3.2. Except where a
				water segment is specifically listed as a Tier 3 water, the following sections
				outline how the agency conducting the antidegradation review will determine the
				level of protection ("tier") assigned to the receiving water body associated
				with the activity subject to this rule.
3.3. Uses. The Secretary, in conducting an
				antidegradation review, must determine the existing uses of the receiving water
				body associated with the proposed activity. The Secretary shall determine the
				existing uses of the water body by identifying the uses set forth in 47 CSR 2-6
				that the water body currently supports, or has supported since November 28,
				1975. The regulated entity may be required to provide data sufficient for the
				permitting agency to determine the existing uses of the water
				segment.
3.4. Baseline water
				quality. Where baseline water quality has not been established for the water
				segment the regulated entity proposes to impact or has not been established for
				a parameter of concern that is reasonably expected to be discharged into the
				water segment as a result of the proposed regulated activity, the Secretary
				must determine the baseline water quality for the receiving water body. The
				Secretary may consider data for establishing the baseline water quality from a
				federal or state agency, the regulated entity, the public, or any other source,
				as long as the data are recent and reliable. If adequate data are not
				available, the agency may, in conjunction with the regulated entity or on its
				own initiative, establish a plan for obtaining the necessary data. The
				regulated entity may be required to provide baseline water quality for those
				parameters of concern that are reasonably expected to be discharged as a result
				of the regulated activity into the affected water segment to help the
				permitting agency determine the baseline water quality, the existing uses, and
				the applicable tier. The regulated entity may contact the Secretary prior to
				initiating a baseline water quality evaluation to seek concurrence with its
				determination of the parameters of concern for its proposed activity and its
				proposed sampling protocol.
3.5.
				Determination of tier. If the tier has not already been determined for the
				water segment the regulated entity proposes to impact, then after determining
				the baseline water quality for parameters of concern and the existing uses for
				a water body, the agency will determine which level of protection (i.e. "tier")
				applies to the receiving water body associated with the activity, as follows:
3.5.a. Water segments within a federally
				designated Wilderness Area, or otherwise included in 47CSR2-4.1.c, as well as
				other water segments specifically listed as an outstanding national resource
				water pursuant to subsection 7.1 shall receive Tier 3 protection.
3.5.b. Water segments not within a federally
				designated Wilderness Area, or otherwise included in 47CSR2-4.1.c. or listed
				pursuant to subsection 7.1. of this rule, shall receive Tier 1 protection, and
				shall receive Tier 2 protection if the water segment is determined, pursuant to
				subsections 5.1. through 5.3. of this rule, to be a high quality water for
				purposes of antidegradation review.
3.5.c. Water segments may be determined to
				receive only Tier 1 protection, pursuant to subsections 4.2. through 4.6. of
				this rule, for purposes of antidegradation review.
3.5.d. To the extent practicable, a list of
				water segments protected under Tier 3 will be maintained on the West Virginia
				Department of Environmental Protection's website.