Sec. 47-2-4 - Antidegradation Policy

§ 47-2-4. Antidegradation Policy

4.1. It is the policy of the State of West Virginia that the waters of the State shall be maintained and protected as follows:

4.1.a. Tier 1 Protection. Existing water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected. Existing uses are those uses actually attained in a water on or after November 28, 1975, whether or not they are included as designated uses within these water quality standards.

4.1.b. Tier 2 Protection. The existing high quality waters of the State must be maintained at their existing high quality unless the secretary determines, after satisfaction of the intergovernmental coordination of the State's continuing planning process as outlined in the Legislative Rule entitled "Antidegradation Implementation Procedures", 60CSR5, and opportunity for public comment and hearing, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. If limited degradation is allowed, it shall not result in injury or interference with existing stream water uses or in violation of State or federal water quality criteria that describe the base levels necessary to sustain the national water quality goal uses of protection and propagation of fish, shellfish and wildlife, and recreating in and on the water.

In addition, the secretary shall assure that all new and existing point sources shall achieve the highest established statutory and regulatory requirements applicable to them and shall assure the achievement of cost-effective and reasonable best management practices (BMPs) for non-point source control. If BMPs are demonstrated to be inadequate to reduce or minimize water quality impacts, the secretary may require that more appropriate BMPs be developed and applied.

4.1.b.1. High quality waters are those waters meeting the definition at section 2.8 herein.

4.1.b.2. High quality waters may include, but are not limited to, the following:

4.1.b.2.A. Streams designated by the West Virginia Legislature under the West Virginia Natural Stream Preservation Act, pursuant to W. Va. Code § 22-13-5; and

4.1.b.2.B. Streams listed in West Virginia High Quality Streams, Sixth Edition, prepared by the Wildlife Resources Section of the Division of Natural Resources (2011).

4.1.b.2.C. Streams or stream segments which receive annual stockings of trout but which do not support year-round trout populations.

4.1.c. Tier 3 Protection. In all cases, waters which constitute an outstanding national resource shall be maintained and protected and improved where necessary. Outstanding national resource waters include, but are not limited to, all streams and rivers within the boundaries of Wilderness Areas designated by The Wilderness Act, 16 U.S.C. § 1131, et seq.; all Federally designated rivers under the "Wild and Scenic Rivers Act", 16 U.S.C. § 1271, et seq.; all streams and other bodies of water in State Parks which are high quality waters or naturally reproducing trout streams; waters in National Parks and Forests which are high quality waters or naturally reproducing trout streams; waters designated under the "National Parks and Recreation Act of 1978", 16 U.S.C § 461, et seq.; and pursuant to the rule entitled "Antidegredation Implementation Procedures," 60CSR5, those waters whose unique character, ecological or recreational value, or pristine nature constitutes a valuable national or state resource.

Additional waters may be nominated for inclusion in that category by any interested party or by the secretary on the secretary's own initiative. To designate a nominated water as an outstanding national resource water, the secretary shall follow the public notice and hearing provisions as provided in the Procedural Rule Governing Site Specific Revisions to Water Quality Standards, 46CSR6.

4.1.d. All applicable requirements of section 316(a) of the Federal Act shall apply to modifications of the temperature water quality criteria provided for in these rules.

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