Title of Regulation: 9VAC25-260. Water Quality Standards (amending 9VAC25-260-30).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 15, 2022.

Agency Contact: David Whitehurst, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 774-9180, FAX (804) 698-4178, or email david.whitehurst@deq.virginia.gov.

Basis: Section 62.1-44.15 of the Code of Virginia mandates and authorizes the State Water Control Board to establish water quality standards and policies for any state waters, consistent with the purpose and general policy of the State Water Control Law. The federal Clean Water Act at 33 USC § 1313 mandates the board to review and, as appropriate, modify, and adopt water quality standards. The corresponding federal water quality standards regulation at 40 CFR 131.6 describes the minimum requirements for water quality standards, which are use designations, water quality criteria to protect the designated uses and an antidegradation policy. Web address sites where citations can be found: The U.S. Environmental Protection Agency (EPA) Water Quality Standards (40 CFR 131.12) is the regulatory basis for EPA requiring the states to establish within the antidegradation policy the exceptional state waters (ESW) category and the eligibility decision criteria for these waters. EPA retains approval disapproval oversight, but delegates to the states the election and designation of specific water bodies as exceptional state waters.

Purpose: The section of Laurel Fork petitioned for ESW designation meets the eligibility criteria required for consideration. It exhibits high quality waters and unique associated riparian habitat. The proposed amendment is essential to protect the health, safety, and welfare of the citizens of the Commonwealth by preserving ESW waters for the enjoyment of future generations through the prohibition of new or increased point source discharges.

Substance: The proposed amendment to the antidegradation policy designates a portion of Laurel Fork for special protection as ESW. Upon permanent regulatory designation of a water body as an ESW, the quality of that water body will be maintained and protected by not allowing any degradation except on a very short term basis. No new, additional, or increased point source discharge of sewage, industrial wastes, or other pollution would be allowed into waters designated as ESW. In addition, no new mixing zones would be allowed in ESW, and mixing zones from upstream or tributary waters could not extend into the designated sections.

Issues: The primary advantage to the public is that these waters will be protected at their present high level of quality for the use and enjoyment of current and future generations of Virginians. A potential disadvantage to the public may be the prohibition of new or expanded permanent point source discharges imposed within the segment once the regulatory designation is effective. This would cause riparian landowners within the designated segment to seek alternatives to discharging to the designated segment and, therefore, to have additional financial expenditures associated with wastewater or storm water treatment. There is no disadvantage to the public or the Commonwealth that will result from the adoption of these amendments.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to a petition for rulemaking, the State Water Control Board (Board) proposes to designate a portion of Laurel Fork in Highland County, Virginia as Exceptional State Waters (ESW).

Result of Analysis. There is insufficient information to ascertain whether benefits will outweigh costs.

Estimated Economic Impact. In September 2016, the Board received a petition for rulemaking¹ requesting that the Board "designate a segment of Laurel Fork in Highland County, the majority of which is within the property boundary of Rifle Ridge Farm, LP as Exceptional State Waters." The Board now proposes to designate a segment of Laurel Fork "from the Rifle Ridge Farm property line near Collins Run (N38.49270, W79.66611) downstream to a point approximately 0.5 miles upstream from the confluence of Mullenax Run (N38.508322, W79.652757) as ESW. The petitioner, who owns Rifle Ridge Farm, initially requested ESW status for a longer stretch of Laurel Fork "from approximately 0.33 miles upstream of the confluence with Collins Run (Lat. N38.490051, Long. W79.666039) downstream to a point approximately 0.5 miles upstream from the confluence of Mullenax Run (Lat. N38.508322, Long. W79.652757)"² This longer stretch, however, ran partly through land owned by Tamarack of Highland, LLC. Because of concerns raised by Tamarack, LLC about possible adverse impacts to their property value and use, the Board's proposal limits the ESW designation only to Laurel Fork as it runs within the boundaries of Rifle Ridge Farm, LP.

Board staff reports, "Upon permanent regulatory designation of a water body as an ESW, the quality of that water body will be maintained and protected by not allowing any degradation except on a very short term basis. No new, additional or increased point source discharge of sewage, industrial wastes or other pollution will be allowed in waters designated as ESW. In addition, no new mixing zones³ would be allowed in ESW and mixing zones from upstream or tributary waters could not extend into the Exceptional State Waters sections." The Board found that the stretch of Laurel Fork that is the subject of this regulatory action met the criteria to be designated ESW because it was an "exceptional environmental setting" with "exceptional aquatic communities". Specifically, this nominated waterway was found to house a self-sustaining brook trout population.

Board staff reports that this action will provide a benefit by preserving this section of waterway in its current state. By filing the petition that lead to this regulatory action, the petitioner has indicated that he believes that the benefits of having the ESW designation for Laurel Fork within his land boundaries outweigh any costs that he might incur. Board staff reports that affected landowners might be adversely affected by the prohibition against new or additional point source discharge of pollution and further reports that affected landowners may incur increased direct costs associated with wastewater or storm water treatment. The ESW designation might also have the effect of limiting or eliminating land use and development adjacent to the designated stretch of Laurel Fork. Commenters at the NOIRA stage of this action, for instance, expressed concern that future energy development might be negatively impacted by this ESW designation. Board staff reports that there are no landowners upstream within the mixing zone length of the proposed ESW who currently have point source discharge permits. Landowners within the mixing zone length may be adversely impacted in the future if they have reason to seek point source discharge permits because they would not be able to discharge into the mixing zone.⁴ There is insufficient information about all possible benefits and costs for this action to ascertain whether benefits will outweigh costs.

Businesses and Entities Affected. This action will directly affect the owner of Rifle Ridge Farm. Although there are currently no point source permit holders within the mixing zone length of this proposed ESW, any landowners within that length have the potential to be adversely affected in the future.

Localities Particularly Affected. The waterway affected by this regulatory action is in Highland County, Virginia.

Projected Impact on Employment. This proposed regulatory change is unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. This proposed regulatory change will likely lower the market value of affected land as it limits land use.

Real Estate Development Costs. This proposed regulatory change would likely impede real estate development on land adjacent to the ESW.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Rifle Ridge Farm may incur additional costs on account of this regulatory action.

Alternative Method that Minimizes Adverse Impact. There is likely no alternative method that would both allow this designation as requested by the affected small business and minimize adverse impacts.

Adverse Impacts:

Businesses: Rifle Ridge Farm may incur additional costs on account of this regulatory action.

Localities: Localities in the Commonwealth are unlikely to see any adverse impacts on account of this proposed regulatory change.

Other Entities: No other entities are likely to be adversely affected by this proposed change.

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¹http://townhall.virginia.gov/l/ViewPTransmittal.cfm?petitionid=250&version=new

²See page two of the Agency's background document submitted at the NOIRA stage of this regulatory action here: http://townhall.virginia.gov/l/GetFile.cfm?File=C:\TownHall\docroot\103\4754\7824\AgencyStatement_DEQ_7824_v2.pdf

³DEQ's glossary defines mixing zone as "a segment of a river or stream where pollution from a point source mixes with water and may exceed the recommended concentrations for some pollutants". DEQ's glossary can be found at: http://www.deq.virginia.gov/Resources/Glossary/GlossaryM.aspx

⁴Board staff reports that alternatives to a point source permit might include installing a septic tank, pumping waste into a temporary receptacle and having it periodically hauled away or negotiating an easement to lay a pipe across neighboring land that would be outside of the mixing zone length. All of these options would have costs attached.

Agency's Response to Economic Impact Analysis: The Department of Environmental Quality has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The proposed amendment designates a portion of Laurel Fork in Highland County for special protection as exceptional state waters.

9VAC25-260-30. Antidegradation policy.

A. All surface waters of the Commonwealth shall be provided one of the following three levels, or tiers, of antidegradation protection. This antidegradation policy shall be applied whenever any activity is proposed that has the potential to affect existing surface water quality.

1. As a minimum, existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.

2. Where the quality of the waters exceed water quality standards, that quality shall be maintained and protected unless the board finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the Commonwealth's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the board shall assure water quality adequate to protect existing uses fully. Further, the board shall assure that there shall be achieved the highest statutory and regulatory requirements applicable to all new or existing point source discharges of effluent and all cost-effective and reasonable best management practices for nonpoint source control.

3. Surface waters, or portions of these, which provide exceptional environmental settings and exceptional aquatic communities or exceptional recreational opportunities may be designated and protected as described in subdivisions 3 a, b and c of this subsection.

a. Designation procedures.

(1) Designations shall be adopted in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and the board's public participation guidelines.

(2) Upon receiving a nomination of a waterway or segment of a waterway for designation as an exceptional state water pursuant to the board's antidegradation policy, as required by 40 CFR 131.12, the board shall notify each locality in which the waterway or segment lies and shall make a good faith effort to provide notice to impacted riparian property owners. The written notice shall include, at a minimum: (i) a description of the location of the waterway or segment; (ii) the procedures and criteria for designation as well as the impact of the designation; (iii) the name of the person making the nomination; and (iv) the name of a contact person at the Department of Environmental Quality who is knowledgeable about the nomination and the waterway or segment. Notice to property owners shall be based on names and addresses taken from local tax rolls. Such names and addresses shall be provided by the Commissioners of the Revenue or the tax assessor's office of the affected jurisdiction upon request by the board. After receipt of the notice of the nomination, localities shall be provided 60 days to comment on the consistency of the nomination with the locality's comprehensive plan. The comment period established by subdivision 3 a (2) of this subsection shall in no way impact a locality's ability to comment during any additional comment periods established by the board.

b. Implementation procedures.

(1) The quality of waters designated in subdivision 3 c of this subsection shall be maintained and protected to prevent permanent or long-term degradation or impairment.

(2) No new, additional, or increased discharge of sewage, industrial wastes or other pollution into waters designated in subdivision 3 c of this subsection shall be allowed.

(3) Activities causing temporary sources of pollution may be allowed in waters designated in subdivision 3 c of this subsection even if degradation may be expected to temporarily occur provided that after a minimal period of time the waters are returned or restored to conditions equal to or better than those existing just prior to the temporary source of pollution.

c. Surface waters designated under this subdivision are as follows:

(1) Little Stony Creek in Giles County from the first footbridge above the Cascades picnic area, upstream to the 3,300-foot elevation.

(2) Bottom Creek in Montgomery County and Roanoke County from Route 669 (Patterson Drive) downstream to the last property boundary of the Nature Conservancy on the southern side of the creek.

(3) Lake Drummond, located on U.S. Fish and Wildlife Service property, in its entirety within the cities of Chesapeake and Suffolk excluding any ditches and/or tributaries.

(4) North Creek in Botetourt County from the first bridge above the United States Forest Service North Creek Camping Area to its headwaters.

(5) Brown Mountain Creek, located on U.S. Forest Service land in Amherst County, from the City of Lynchburg property boundary upstream to the first crossing with the national forest property boundary.

(6) Laurel Fork, located on U.S. Forest Service land in Highland County, from the national forest property boundary below Route 642 downstream to the Virginia/West Virginia state line.

(7) North Fork of the Buffalo River, located on U.S. Forest Service land in Amherst County, from its confluence with Rocky Branch upstream to its headwaters.

(8) Pedlar River, located on U.S. Forest Service land in Amherst County, from where the river crosses FR 39 upstream to the first crossing with the national forest property boundary.

(9) Ramseys Draft, located on U.S. Forest Service land in Augusta County, from its headwaters (which includes Right and Left Prong Ramseys Draft) downstream to the Wilderness Area boundary.

(10) Whitetop Laurel Creek, located on U.S. Forest Service land in Washington County, from the national forest boundary immediately upstream from the second railroad trestle crossing the creek above Taylors Valley upstream to the confluence of Green Cove Creek.

(11) Ragged Island Creek in Isle of Wight County from its confluence with the James River at a line drawn across the creek mouth at N36°56.306'/W76°29.136' to N36°55.469'/W76°29.802' upstream to a line drawn across the main stem of the creek at N36°57.094'/W76°30.473' to N36°57.113'/W76°30.434', excluding wetlands and impounded areas and including only those tributaries completely contained within the Ragged Island Creek Wildlife Management Area on the northeastern side of the creek.

(12) Big Run in Rockingham County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of Big Run within the confines of Shenandoah National Park.

(13) Doyles River in Albemarle County from its headwaters to the first crossing with the Shenandoah National Park boundary and Jones Falls Run from its headwaters to its confluence with Doyles River and all tributaries to these segments of Doyles River and Jones Fall Run within the confines of Shenandoah National Park.

(14) East Hawksbill Creek in Page County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of East Hawksbill Creek within the confines of Shenandoah National Park.

(15) Jeremys Run in Page County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of Jeremys Run within the confines of Shenandoah National Park.

(16) East Branch Naked Creek in Page County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of East Branch Naked Creek within the confines of Shenandoah National Park.

(17) Piney River in Rappahannock County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of the Piney River within the confines of Shenandoah National Park.

(18) North Fork Thornton River in Rappahannock County from its headwaters downstream to the first crossing with the Shenandoah National Park boundary and all tributaries to this segment of the North Fork Thornton River within the confines of Shenandoah National Park.

(19) Blue Suck Branch from its headwaters downstream to the first crossing with the George Washington National Forest boundary.

(20) Downy Branch from its headwaters downstream to the first crossing with the George Washington National Forest boundary.

(21) North Branch Simpson Creek (Brushy Run) from its headwaters downstream to its confluence with Simpson Creek.

(22) Roberts Creek from its confluence with the Pedlar River upstream to its first crossing with the National Forest boundary.

(23) Shady Mountain Creek from its headwaters downstream to its confluence with the Pedlar River.

(24) Cove Creek from its headwaters downstream to the National Forest boundary.

(25) Little Cove Creek and its tributaries from the headwaters downstream to the National Forest boundary.

(26) Rocky Branch from its headwaters downstream to its confluence with the North Fork of the Buffalo River.

(27) North Fork of the Buffalo River from its confluence with Rocky Branch downstream to the National Forest Boundary.

(28) The Hazel River in Rappahannock County from its headwaters to the first downstream crossing with the Shenandoah National Park boundary and all tributaries within this segment within the confines of Shenandoah National Park.

(29) Little Stony Creek in Scott County from Bark Camp Lake dam to its confluence with Bakers Branch.

(30) North River in Augusta County from the Staunton Reservoir dam to the first crossing with National Forest lands boundary (near Girl Scout Camp May Flather).

(31) Laurel Fork in Highland County, from the Rifle Ridge Farm property line near Collins Run (N38.49270, W79.66611) downstream to a point approximately 0.5 miles upstream from the confluence of Mullenax Run (N38.508322, W79.652757).

B. Any determinations concerning thermal discharge limitations made under § 316(a) of the Clean Water Act will be considered to be in compliance with the antidegradation policy.