Title of Regulation: 9VAC25-260. Water Quality Standards (adding 9VAC25-260-275).

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

Public Hearing Information:

January 28, 2009 - 6 p.m. - Northampton High School Auditorium, 16041 Courthouse Road, Eastville, VA

Public Comments: Public comments may be submitted until 5 p.m. on February 20, 2009.

Agency Contact: Elleanore M. Daub, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4111, FAX (804) 698-4116, or email emdaub@deq.virginia.gov.

Basis: Federal and state legal authority to promulgate this proposed regulation exists in the Clean Water Act at § 303(c), 40 CFR Part 131 and § 62.1-44.15(3a) of the Code of Virginia.

The scope and objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. The Clean Water Act at § 303(c) (1) requires that the states hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards.

The scope of the federal regulations at 40 CFR Part 131 is to describe the requirements and procedures for developing, reviewing, revising and approving water quality standards by the states as authorized by § 303(c) of the Clean Water Act. 40 CFR Part 131 specifically requires the states to adopt criteria to protect designated uses.

The scope and purpose of the State Water Control Law is to protect and to restore the quality of state waters, to safeguard the clean waters from pollution, to prevent and to reduce pollution and to promote water conservation. The State Water Control Law at § 62.1-44.15(3a) of the Code of Virginia requires the board to establish standards of quality and to modify, amend or cancel any such standards or policies. It also requires the board to hold public hearings from time to time for the purpose of reviewing the water quality standards, and, as appropriate, adopting, modifying or canceling such standards.

The authority to adopt standards as provided by the provisions in the previously referenced citations is mandated, although the specific standards to be adopted or modified are discretionary to the Environmental Protection Agency and the state.

Purpose: This amended regulation is essential to the protection of health, safety or welfare of the citizens of the Commonwealth. Proper water quality standards protect water quality and living resources of Virginia's waters for consumption of shellfish, recreational uses and conservation in general.

The goals of the proposal are to provide additional water quality protection for clams and oysters in waters on the Eastern Shore of Virginia and to ensure that the wastewater management disposal alternative chosen for that area has less of an environmental impact than another alternative. The proposal is intended to reduce condemnations on the Eastern Shore so more waters may be protected for clam and oyster production.

Substance: The substantive provisions to the regulation include a new section, 9VAC25-260-275, that applies to new or expanding individual VPDES permit applications discharging to or affecting waters on the Eastern Shore. This section is initiated when applications for new or expanded VPDES discharges to Eastern Shore waters are not denied pursuant to 9VAC25-260-270 but still result in a shellfish condemnation. These applications must have an analysis that shows if a wastewater management alternative other than a surface water discharge would be feasible, produce less of an environmental impact, and not result in significant social and economic impacts to beneficial uses and to the locality and its citizens.

9VAC25-260-275 also inserts an allowable phased approach to the analysis to help reduce costs to the localities and other applicants. First the feasibility of each alternative can be analyzed. If technically feasible, then the environmental, socio-economic and mitigation opportunities can be analyzed.

9VAC25-260-275 also describes the three scenarios that can result from the analysis and how each scenario proceeds. The first scenario is that the VPDES surface water discharge is the "best" option (the only technically feasible option or the best option for the environment). In that case, the VPDES application proceeds. The second scenario is that an alternative proves to be the best option for the environment but results in adverse socio-economic impact. In that case, the VPDES application proceeds. The third scenario is that an alternative to VPDES is the best option for the environment and causes no significant adverse socio-economic impact. In that case, a good faith effort must be made to pursue the alternative. If the alternative is disapproved by the appropriate regulatory authority, then the VPDES application proceeds.

The Notice of Intended Regulatory Action for this action indicated amendments to 9VAC25-370 were being considered; however, no changes were proposed to the Policy for the Protection of Water Quality in Virginia’s Shellfish Growing Waters at 9VAC25-370.

Issues: The primary advantages to all aspects of the public are to help ensure protection of good water quality and reduce condemnations in Eastern Shore waters to promote clam and oyster growth for commercial and recreational uses. The primary disadvantages to the public, specifically businesses or localities applying for new or expanded discharges, is in the cost or impact of having to do an alternatives analysis if they fall under the requirements of this new section.

There are no advantages to the agency or Commonwealth. The disadvantage is that it will expend additional staff resources to implement this new requirement.

Eastern Shore localities must be aware of these requirements and consider these when planning for increased sewage disposal.

Requirements More Restrictive Than Federal: The requirement for a wastewater disposal management alternative analysis is more restrictive than applicable federal requirements. The rationale for the need was set forth by the Executive Office of the Commonwealth of Virginia to protect these sensitive good quality waters that are threatened by new or expanded wastewater discharges.

Localities Particularly Affected: There are localities particularly affected by this regulation as follows:

Accomack and Northampton counties and the towns of Accomac, Belle Haven, Bloxum, Cape Charles, Cheriton, Chincoteague, Eastville, Exmore, Hallwood, Keller, Melfa, Nassawadox, Onancock, Onley, Painter, Parksley, Saxis, Tangier, and Wachapreague.

Public Participation: In addition to any other comments, the board/agency is seeking comments on the costs and benefits of the proposal, the potential impacts of this regulatory proposal and any impacts of the regulation on farm and forest land preservation. Also, the agency/board is seeking information on impacts on small businesses as defined in § 2.2-4007.1 of the Code of Virginia. Information may include (i) projected reporting, recordkeeping and other administrative costs; (ii) probable effect of the regulation on affected small businesses; and (iii) description of less intrusive or costly alternative methods of achieving the purpose of the regulation.

Anyone wishing to submit written comments may do so at the public hearing or by mail, email or fax to Elleanore Daub, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4111, FAX (804) 698-4032 or email emdaub@deq.virginia.gov. Comments may also be submitted through the Public Forum feature of the Virginia Regulatory Town Hall website at www.townhall.virginia.gov. Written comments (including email) must include the name and address of the commenter. In order to be considered comments must be received by 5 p.m. on February 20, 2009.

A public hearing will be held on January 28, 2009, at 6 p.m., in the Northampton High School Auditorium, 16041 Courthouse Road, Eastville, VA. Both oral and written comments may be submitted at that time.

A formal hearing will be held at a time and place to be determined if a request for a formal hearing is received by the contact person listed above within 30 days of publication of the notice of public comment period in the Virginia Register of Regulations. The request for formal hearing is to include the information set forth in 9VAC25-230-130 B of the board’s Procedure Rule No. 1.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Water Control Board (board) seeks to amend the Water Quality Standards by designating special "shellfish aquaculture enhancement zones" on the Eastern Shore of Virginia. These zones would be granted additional protection by requiring applicants for permits to discharge into Eastern Shore waters to have completed a valid analysis of whether wastewater management alternatives other than a discharge would be technically feasible, produce less of an environmental impact, and not result in significant social and economic impacts to beneficial uses and to the locality and its citizens. If the analysis demonstrates that an alternative meets these criteria, then that alternative must be pursued for approval prior to the board taking action on the application to discharge into the shellfish aquaculture enhancement zone.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The goal of this proposed regulation amendment is to improve the sustainability of aquaculture, while at the same time, preventing the shifting of the potential pollution impact from surface water to ground water. This proposal is the result of a Governor’s initiative dating back to early 2006, and results from cooperation among the Secretaries of Natural Resources, Health and Human Resources, and Agriculture and Forestry.

The proposed change would modify criteria that are used to protect Eastern Shore waters that are used or could be used for shellfish aquaculture. If this amendment is promulgated, these waters which include all tidal rivers and creeks on the Eastern Shore (Accomack and Northampton Counties) including the tidal waters within the barrier islands on the eastern seaside of the Eastern Shore (does not include Atlantic Ocean waters) and all tidal rivers and creeks on the western bayside and including the Chesapeake Bay to a point one mile offshore from any point of land on the Eastern Shore would be designated as shellfish aquaculture enhancement zones.

The proposed requirement that discharge applicants seek alternative wastewater management methods if specified conditions are met would apply in situations where proposed discharges would result in shellfish condemnation by the Virginia Department of Health. In these situations, the applicant would need to first complete a valid analysis of whether wastewater management alternatives other than a discharge would be technically feasible. This phase would involve an assessment of the land availability for alternative treatment of surface water discharge and also the related soil composition and type. Such an assessment would cost approximately $30,000 and could vary based on the nature and size of expansion.¹ According to the Department of Environmental Quality applicants for discharge already do this when applying for discharge permits from DEQ. Thus the proposed technical feasibility analysis requirement would not in practice add cost.

If the technical feasibility analysis demonstrates that any of the identified alternatives are technically feasible, then the applicant is required to have an assessment of the environmental and socio-economic effects of adopting the select alternative technology conducted. Environmental analysis would include a review of groundwater impacts, swimming or recreational impacts and shellfish condemnations. Socio-economic impact analysis of any technically feasible alternative would include an analysis of the affordability of the land, technology, positive and negative tax revenue impacts to the locality, eco-tourism, recreation and aesthetics. Such an analysis that includes an accounting assessment of the technology options and mitigation measures and socio-economic welfare assessment for a typical proposed expansion of a locality’s wastewater discharge would cost the applicant approximately $35,000 to $55,000.²

If the alternatives analysis demonstrates that the proposed new or expanded discharge into the shellfish aquaculture enhancement zone is the only technically feasible alternative or produces the least environmental impact of all the technically feasible alternatives, then the permit application for discharge into the shellfish aquaculture enhancement zone is processed in accordance with the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31). If the analysis demonstrates that a technically feasible alternative produces less of an environmental impact than that associated with the proposed new or expanded discharge but results in significant adverse social and economic impacts to beneficial uses and to the locality and its citizens, then the permit application for discharge into the shellfish aquaculture enhancement zone is processed in accordance with the VPDES Permit Regulation. If the analysis demonstrates that a technically feasible alternative produces less of an environmental impact than that associated with the proposed new or expanded discharge and does not result in significant adverse social and economic impacts to beneficial uses and to the locality and its citizens, then processing of the VPDES application is suspended while the applicant makes a good faith effort to obtain approval from the appropriate regulatory authorities for the alternative. Processing of the application shall be resumed only if the alternative form of wastewater management is disapproved by the appropriate regulatory authorities.

To the extent that alternative wastewater management methods are found that are technically feasible, less environmentally harmful, and do not cause significant adverse social and economic impacts to beneficial uses and to the locality and its citizens, the requirement that these alternative wastewater management methods are pursued when specified conditions are met may produce significant benefit for the aquaculture industry, consumers of clams and oysters, and the general public who seek recreation in the shellfish aquaculture enhancement zone. Some firms who supply environmental, social and economic impact analysis may benefit as well.

Some local governments, private builders and developers will encounter the additional cost of having an assessment of the environmental and socio-economic effects of adopting the select alternative wastewater management method. If alternative wastewater management methods are found that are technically feasible, less environmentally harmful, and do not cause significant adverse social and economic impacts to beneficial uses and to the locality and its citizens are found in practice, then the benefits to the environment, the aquaculture industry, consumers of clams and oysters, and the general public who seek recreation in the shellfish aquaculture enhancement zone will likely outweigh the cost to discharge applicants of the assessment of the environmental and socio-economic effects of adopting the select alternative wastewater management method.

Businesses and Entities Affected. The proposed amendment affects any public or private entity that proposes new construction or expansion of existing facilities to discharge sanitary waste into estuarine waters in Accomack or Northampton Counties, or close enough to such waters as to create the potential for bacterial contamination if there were a treatment plant failure. The proposal also potentially affects environmental engineering firms, economic consulting firms, aquaculture firms, and the general public who seek recreation in the shellfish aquaculture enhancement zone.

Localities Particularly Affected. The proposed amendments particularly affect Accomack and Northampton counties and the towns of Accomac, Belle Haven, Bloxum, Cape Charles, Cheriton, Chincoteague, Eastville, Exmore, Hallwood, Keller, Melfa, Nassawadox, Onancock, Onley, Painter, Parksley, Saxis, Tangier, and Wachapreague.

Projected Impact on Employment. Aquaculture firms will likely benefit by the proposed requirements in that fewer portions of tidal waters that have potential for aquaculture may be rendered unsuitable for aquaculture. In the long run this may increase employment in that industry. Demand for services from environmental engineering firms and economic consulting firms will likely moderately increase due to the proposed requirement for analysis of environmental, social and economic impacts of technically feasible alternatives. Consequently there may be a small increase in employment for some of these firms.

Effects on the Use and Value of Private Property. Aquaculture firms will likely benefit by the proposed requirements in that fewer portions of tidal waters that have potential for aquaculture may be rendered unsuitable for aquaculture. In the long run this may increase the growth and collection of edible clams and oysters, increasing the size and value of the aquaculture industry in Virginia. Demand for services from environmental engineering firms and economic consulting firms will likely moderately increase due to the proposed requirement for analysis of environmental, social and economic impacts of technically feasible alternatives. Consequently there may be a small increase in the value of some environmental engineering firms and economic consulting firms.

Small Businesses: Costs and Other Effects. Small aquaculture firms will likely benefit by the proposed requirements in that fewer portions of tidal waters that have potential for aquaculture may be rendered unsuitable for aquaculture. Some small environmental engineering firms and economic consulting firms may benefit by having greater demand for their services due to the proposed requirement for analysis of environmental, social and economic impacts of technically feasible alternatives.

Some small builders and developers considering doing business on the Eastern Shore will encounter greater costs if the technical feasibility analysis demonstrates that any of the identified alternatives are technically feasible.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed requirements will increase costs for small builders and developers doing business on the Eastern Shore; but there are no obvious alternative methods that would reduce the adverse impact and still produce the desired policy of greater protection of the shellfish aquaculture enhancement zones.

Real Estate Development Costs. The proposed requirements will in some incidences increase real estate development costs on the Eastern Shore. When the technical feasibility analysis demonstrates that any of the identified alternatives are technically feasible, then the discharge applicant is required to have an assessment of the environmental and socio-economic effects of adopting the select alternative technology conducted under the proposed regulations. Such analysis would cost the applicant approximately $35,000 to $55,000.³

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

__________________________

¹ Cost estimate from Department of Environmental Quality

² Ibid

³ Cost estimate from Department of Environmental Quality

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

Summary:

The proposed amendments add a new section, 9VAC25-260-275, that is initiated when applications for new or expanded VPDES discharges to Eastern Shore waters are not denied pursuant to 9VAC25-260-270. If these discharges result in shellfish condemnations, then the applicant must analyze whether wastewater management alternatives other than a discharge would be feasible, produce less of an environmental impact, and not result in significant social and economic impacts to beneficial uses and to the locality and its citizens. If the analysis demonstrates that an alternative meets these criteria, then that alternative must be pursued for approval prior to the board taking action on the discharge alternative.

9VAC25-260-275. Protection of Eastern Shore tidal waters for clams and oysters.

A. This section applies to applications for individual Virginia Pollutant Discharge Elimination System (VPDES) permits authorizing new or expanded discharges to or otherwise affecting Eastern Shore tidal waters, which include all tidal rivers and creeks on the Eastern Shore (Accomack and Northampton counties) including the tidal waters within the barrier islands on the eastern seaside of the Eastern Shore (does not include Atlantic Ocean waters) and all tidal rivers and creeks on the western bayside and including the Chesapeake Bay to a point one mile offshore from any point of land on the Eastern Shore.

B. When such application proposes a new or expanded discharge that would not be denied pursuant to 9VAC25-260-270 but would result in shellfish water condemnation, then the application shall be amended to contain an analysis of wastewater management alternatives to the proposed discharge. An application shall be deemed incomplete until this analysis is provided to the department.

C. For purposes of this part, condemnation shall mean a reclassification of shellfish waters by the state Department of Health to prohibited or restricted (as defined by the U.S. Food and Drug Administration, National Shellfish Sanitation Program, Guide for the Control of Molluscan Shellfish, 2005, Section II, Model Ordinance, Definitions, and Chapter 4, Classification of Shellfish Growing Areas) thereby signifying that shellfish from such waters are unfit for market.

D. The alternatives analysis shall first identify and describe the technical feasibility of each wastewater management alternative to the proposed new or expanded discharge. If the analysis demonstrates that any of the identified alternatives are technically feasible, then the analysis shall further describe the environmental, social and economic impacts and opportunities to mitigate any adverse impacts for those alternatives.

E. If the alternatives analysis demonstrates that the proposed new or expanded discharge is the only technically feasible alternative or produces the least environmental impact of all the technically feasible alternatives, the application will be processed in accordance with 9VAC25-31 (VPDES Permit Regulation). If the analysis demonstrates that a technically feasible alternative produces less of an environmental impact than that associated with the proposed new or expanded discharge but results in significant adverse social and economic impacts to beneficial uses and to the locality and its citizens, the application shall be processed in accordance with 9VAC25-31. If the analysis demonstrates that a technically feasible alternative produces less of an environmental impact than that associated with the proposed new or expanded discharge and does not result in significant adverse social and economic impacts to beneficial uses and to the locality and its citizens, then processing of the VPDES application shall be suspended while the applicant makes a good faith effort to obtain approval from the appropriate regulatory authorities for the alternative. Processing of the application shall be resumed only if the alternative form of wastewater management is disapproved by the appropriate regulatory authorities.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC25-260)

Chesapeake Bay Program Analytical Segmentation
Scheme -- Revisions, Decisions and Rationales 1983-2003, EPA CBP/TRS 268/04, October 2004.

Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries, EPA 903-R-03-002, April 2003 and 2004 Addendum, October 2004.

Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability, EPA 903-R-03-004, October 2003 and 2004 Addendum, October 2004.

Guide for the Control of Molluscan Shellfish, 2005 (Section II. Model Ordinance and Chapter 4. Classification of Shellfish Growing Areas), U.S. Food and Drug Administration, National Shellfish Sanitation Program.