Current through Register Vol. XLI, No. 50, December 13, 2024
Section 46-6-4 - Reclassification of a Designated Use4.1. Circumstances allowing reclassification of a designated use. The Board may propose the reclassification of a designated use outlined in 46 CSR 6, which is not an existing use, from a stream or stream segment, or the establishment of subcategories of a use for a stream or stream segment if it can be demonstrated that attaining the designated use is not feasible because: a. Application of effluent limitations for existing sources more stringent than those required pursuant to Section 301 (b) and Section 306 of the Federal Act in order to attain the existing designated use result in substantial and widespread adverse economic and social impact; orb. Naturally-occurring pollutant concentrations prevent the attainment of the use; orc. Natural, ephemeral, intermittent or low flow conditions of water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges to enable uses to be met; or d. Human-caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place; ore. Dams, diversions or other types of hydrologic modifications 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; orf. Physical conditions related to the natural 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, preclude attainment of aquatic life protection uses.4.2. Application. Any person seeking the reclassification of a designated use from a stream shall file an application with the Board which shall include the information outlined in section 3.1 (a-h) herein, and shall further include the following: a. The designated use category or categories outlined in 47 C.S.R. 1 which apply to the stream and the alternate designated use category desired by the applicant;b. Identification of the criterion outlined in section 4.1 (a - f) herein which render the current designated use category unattainable; and c. An explanation of the specific circumstances on the stream and/or in the applicant's discharge or other discharges which render the designated use category unattainable.d. Any other information, requested in writing by the Board that is required in order to comply with the requirements of 40 CFR 131.10(j), regarding conducting a Use Attainability Analysis.4.3. Amendment of 46 CSR 1. If, upon review of an application and consultation with the Chief pursuant to '3.2 herein, the Board determines that the requested designated use reclassification is warranted, the Board shall propose the use reclassification as an amendment to 46 CSR 1, Requirements Governing Water Quality Standards. In doing so, the Board shall follow all of the requirements for legislative rulemaking in W. Va. Code '29A-3-1 et seq. and in sections 2 and 3.3 of this rule.