The United States Environmental Protection Agency has notified the West Virginia Department of Environmental Protection that it found nearly all of the new or revised provisions to the Requirements Governing Water Quality Standards under the state’s Title 47 Legislative Rule were consistent with the Clean Water Act.
Revisions to the rule include removing Tier 2.5 from the West Virginia Water Quality Standards (WVWQS), leaving a three-tiered antidegradation approach; making a number of changes to the human health criteria and aquatic-life-based criteria and changing variances in the West Virginia Waters section of the rule.
As revised, the three-tiered antidegradation regulation, which was passed by the Legislature during the 2008 session, is consistent with EPA’s antidegradation regulation. Antidegradation procedures identify the steps and questions that must be addressed when regulated activities are proposed that may affect water quality. The specific steps to be followed depend upon which tier or tiers of antidegradation apply.
Tier 1 maintains and protects existing uses and water quality conditions; Tier 2 maintains and protects “high quality” waters in which existing conditions are better than necessary to support fishing, swimming or other uses and water quality can be lowered using identified procedures; and Tier 3 maintains and protects water quality in outstanding national resource waters, and except for certain temporary changes, water quality cannot be lowered in such waters.
Human Health Criteria
The changes to human health criteria include updating numeric criteria for arsenic, benzene and selenium to make them consistent with the Maximum Contaminant Level for drinking water set by EPA under the Safe Drinking Water Act. There also are sixteen individual human health parameters added to Appendix E of the rule, all of these criteria are consistent with the EPA’s current National Recommended Water Quality Criteria under CWA section 304(a) for the protection of human health. The final change to the human health criteria involves updating the Fecal Coliform criterion to make it consistent with the Ohio River Valley Water Sanitation Commission (ORSANCO) Water Quality Standards. All of these rule changes were determined by EPA to meet the requirements of 40CFR 131.11 and are scientifically defensible.
Aquatic Life Based Criteria
Updates were made to cadmium, copper, nickel, silver, zinc and dissolved trivalent arsenic to make them consistent with the most resent EPA recommended criteria. Also, the dissolved aluminum chronic criterion for warm water aquatic life, which was approved as protective and consistent with the CWA in January of 2006 by EPA, was finalized in this rule. All of these rule changes were determined by EPA to be scientifically defensible and consistent with the CWA regulations.
Variances to West Virginia Waters
A variance in the CWA is a temporary modification to the designated use and associated water quality criteria that would otherwise apply to a river, stream or other body of water. Changes to the West Virginia Waters section of the rule include removing two variances that had expired, as well as removing a use-exclusion on the Youghiogheny River, which starts in Preston County and flows into Maryland and north into Pennsylvania.
Also, a variance to Ward Hollow of Davis Creek in Kanawha County, has been justified until 2010, and the use designations of 1,000 feet of Pats Branch have been changed. Based on review of these revisions and supporting evidence, the EPA has concluded that the revisions are consistent with federal requirements.
In its September 8 letter to the DEP, the EPA said it is deferring action on the proposed lake nutrient criteria at this time. The two agencies are working together to gather all additional and more recent data to complete the evaluation of the scientific defensibility of the lake nutrient criteria.
The DEP submitted the revisions to the EPA in August 2008. Now that the EPA has approved the changes, the DEP will begin implementing the new rule.
A link to the EPA’s letter can be found on the WVDEP’s website at the following link: 2009_09_16_07_57_00.pdf.