250 R.I. Code R. 250-RICR-150-05-1.21

Current through November 7, 2024

Section 250-RICR-150-05-1.21 - Modification of Water Quality Standards

A. Authority - The Director has the power and duty in accordance with § 1.2 of this Part and R.I. Gen. Laws § 46-12-3 to promulgate water quality standards.

B. Request for Modification - Any person may request that the Director modify a water quality standard. The request must include a preponderance of clear and scientifically valid evidence having a probative value to demonstrate that such modification is consistent with these regulations. In addition, a Use Attainability Analyses (UAA) must be conducted:

1. for a request to remove a designated use specified in Section 101(a)(2) of the Clean Water Act, 33 U.S.C. § 1251; or

2. to propose a subcategory of uses specified in Section 101(a)(2) of the Clean Water Act, 33 U.S.C. § 1251, which require less stringent criteria.

C. Promulgation of Modifications - If the Director determines that modification is appropriate the Director shall initiate promulgation of such modification in accordance with R.I. Gen. Laws Chapter 42-35.

D. General Standards for Conducting the Review - Water quality standards shall protect the public health, safety and welfare, enhance the quality of water and serve the purpose of the Clean Water Act.

1. The Director will take into consideration the conservation, protection, use and value of the waters for public water supplies, propagation of fish and wildlife, recreational purposes, agricultural, industrial, and other purposes, and for navigation.

2. The Director shall attempt to establish water quality standards which will result in the achievement of the national water quality goal specified in Secton 101(a)(2) (33 U.S.C. § 1251) of the Clean Water Act, wherever attainable. In determining whether such standards are attainable for any particular segment, the Director shall take into consideration environmental, technological, social, and economic factors.

3. Designation of uses which do not support the protection and propagation of fish and wildlife, and recreation in and on the water, Section 101(a)(2) (33 U.S.C. § 1251) of the Clean Water Act, may be granted if supported by a Use Attainability Analyses to the satisfaction of the Director.

4. The Director shall take into consideration the water quality standards of downstream waters and shall assure that water quality standards provide for the attainment of the water quality standards of downstream waters.

5. The Director shall adhere to the antidegradation principles of the Antidegradation Policy described in § 1.20 of this Part.

E. Modifications of Designated Uses - Modifying a designated use may result in modifying the applicable criteria of the affected/identified water segment, to criteria necessary to protect the new designated use of that affected/identified water segment. In no case may a criteria be modified if it would adversely affect existing uses or other designated uses.

1. Downgrading Designated Uses

a. In waters in which the designated use(s) is not the existing use(s), any person may request that the Director, or the Director may propose, that the designated use be downgraded, or may designate a partial use (§ 1.9(D) of this Part), only where it is demonstrated through the UAA process (except as noted in § 1.21(E)(1)(c) of this Part) by a preponderance of clear and scientifically valid evidence having a probative value to the satisfaction of the Director that attaining the designated use is not feasible because:

(1) Naturally occurring background pollutant concentrations or natural background conditions prevent the attainment of the use;

(2) Naturally occurring ephemeral, intermittent or low flow conditions or water levels not human-made or human-induced prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating state water conservation requirements to enable uses to be met;

(3) Human-made or human-induced conditions prevent the attainment of the use and cannot be remedied per item § 1.21(E)(1)(a)(6) of this Part, or would cause more environmental damage to correct than to leave in place;

(4) Existing dams, diversions or other types of permitted hydrologic modifications which meet all applicable permit and/or water quality certificate requirements preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the use;

(5) Physical conditions related to the naturally occurring features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality and not human-made or human-induced, preclude attainment of aquatic life protection uses; or

(6) Controls more stringent than those required by Sections 301(b)(1)(A) and (B) (33 U.S.C. § 1311) and 306 of the Clean Water Act (33 U.S.C. § 1316) for point source dischargers, and reasonable best management practices for nonpoint source dischargers, would result in substantial and widespread economic and social impact.

b. It must also be demonstrated to the Director's satisfaction that downgrading or altering the water quality use will not affect the quality of waters beyond the area in which §§ 1.21(E)(1)(a)(1) through (6) of this Part applies nor violate § 1.20 of this Part (Antidegradation of Water Quality Standards) of these regulations. The Director shall hold a public hearing on such downgrading requests that are determined to have merit.

c. For the following waters, a partial use designation of SA{b} may be proposed and will not be considered a downgrade and will not require a use attainability analysis, unless the Director determines it is necessary to comply with § 1.20 of this Part (Antidegradation of Water Quality Standards):

(1) SA waters along the western shore of Aquidneck Island located between a straight line extending northerly from the boundary of Lots 8 and 9, Portsmouth Town Map 17 to the end of Coddington Cove Breakwater in Middletown, that extend 500 feet seaward from the mean high water mark.

(2) SA waters along the western shore of Warwick Neck from the southern most point of the Harbor Light Marina parking lot to the northern side of the end of Randall Street, that extend 500 feet seaward from the mean high water mark.

(3) SA waters along the eastern shore of Horse Neck from the eastern most extension of Burr Avenue, to the eastern most groin at Oakland Beach, that extend 500 feet seaward from the mean high water mark.

(4) SA waters from the northernmost point along the east bulkhead wall in the small embayment on the south side on the Allens Harbor entrance channel to the extension of a line from nun buoy 10 through FG Buoy 11 to the shore at Quonset Point, that extend 500 feet seaward from the mean high water mark.

d. A designated use may not be downgraded if such uses will be attained by implementing effluent limits required under Sections 301(b) (33 U.S.C § 1311) and 306 (33 U.S.C. § 1316) of the Clean Water Act for point sources and by implementing cost-effective and reasonable best management practices for nonpoint source control.

2. Upgrading Designated Uses

a. Any person may request that the Director or the Director may propose to upgrade the classification of a water quality segment, including a request to designate a waterbody or waterbody segment as a Special Resource Protection Water (SRPW) or an Outstanding National Resource Water (ONRW).

b. Where current water use classifications specify water uses less sensitive than those which are presently being achieved, the Director shall propose to upgrade the classification of the waters in question to reflect the uses actually being attained.

c. The Director shall hold a public hearing on such requests that are determined to have merit.

(1) At the hearing, the applicant must prove by a preponderance of clear and scientifically valid evidence having probative value to the satisfaction of the Director that such a reclassification satisfies the standards of §§ 1.21(D) or 1.20 of this Part applies.

F. Modification of Criteria - Any person may request that the Director, or the Director may propose to modify an aquatic life water quality criteria. The request and development of site specific criteria shall be in accordance with § 1.29 of this Part. If the Director determines the criteria modification is appropriate, the Director shall promulgate such modification in accordance with R.I. Gen. Laws Chapter 42-35.

1. Modification of criteria of a water segment shall not result in a modification of the designated use of the water segment. Newly developed criteria must still protect the existing and designated uses of the water segment.

250 R.I. Code R. 250-RICR-150-05-1.21

Amended effective 12/28/2023