Senate Bill No. 381
(By Senators Ross, Anderson, Minard,
Snyder, Unger and Minear)
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[Introduced March 2, 2001; referred to the
Committee on Natural Resources;
then to the Committee on Finance
and then to the Committee on the Judiciary.]
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A BILL to amend and reenact section two, article three, chapter
sixty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to authorizing the
environmental quality board to promulgate a legislative rule
relating to requirements governing water quality standards.
Be it enacted by the Legislature of West Virginia:
That section two, article three, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO PROMULGATE
LEGISLATIVE RULES.
§64-3-2. Environmental quality board.
(a) The emergency rule relating to the environmental quality
board (requirements governing water quality standards, 46 CSR 1)
filed in the state register on the eighteenth day of October, one
thousand nine hundred ninety-nine, and subsequently refiled in the
state register on the fourteenth day of January, two thousand is
repealed and not authorized. The legislative rule filed in the
state register on the sixth day of August, one thousand nine
hundred ninety-nine, authorized under the authority of section
four, article three, chapter twenty-two-b of this code, modified by
the environmental quality board to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-first day of January, two thousand, relating
to the environmental quality board (requirements governing water
quality standards, 46 CSR 1), is authorized, with the following
amendment:
"On page ten, at the end of subdivision 6.2.d by adding a new
sentence to read as follows:
'The manganese human health criteria shall not apply where the
discharge point of the manganese is located more than five miles
upstream from a known drinking water source'."
(b) The legislative rule filed in the state register on the
first day of September, two thousand, authorized under the
authority of section four, article three, chapter twenty-two-b, of
this code, relating to the environmental quality board
(
requirements governing water quality standards
, 46 CSR 1), is
authorized with the amendment set forth below:
On page one by striking out the entire rule and inserting in
lieu thereof the following:
§46-1-1. General.
1.1. Scope. -- These rules establish requirements governing
the discharge or deposit of sewage, industrial wastes and other
wastes into the waters of the state and establish water quality
standards for the waters of the State standing or flowing over the
surface of the State. It is declared to be the public policy of
the State of West Virginia to maintain reasonable standards of purity and quality of the water of the State consistent with (1)
public health and public enjoyment thereof; (2) the propagation and
protection of animal, bird, fish, and other aquatic and plant life;
and (3) the expansion of employment opportunities, maintenance and
expansion of agriculture and the provision of a permanent
foundation for healthy industrial development. (See W. Va. Code §
22-11-2.)
1.2. Authority. -- W. Va. Code §22B-3-4
1.3. Filing Date. --
1.4. Effective Date. --
§46-1-2. Definitions.
The following definitions in addition to those set forth in W.
Va. Code §22-11-3, shall apply to these rules unless otherwise
specified herein, or unless the context in which used clearly
requires a different meaning:
2.1. "Ambient Concentration" is that measured value or level
of water quality downstream of the proposed or existing activity
(i.e., discharge point, but not in a mixing zone, for point
sources; runoff area for nonpoint source) for any parameter of
concern determined through EPA-approved or other methods accepted by the Chief, using collection and analytical methods in 40 CFR
136.
2.2. "Baseline Water Quality" is that ambient concentration
established at the time of an initial antidegradation review under
rules effective (date) for a stream or stream segment or any other
water(s) of the state.
2.3. "Board" is the Environmental Quality Board.
2.4. "Chief" is the Chief of the Office of Water Resources of
the West Virginia Division of Environmental Protection.
2.5. "Conventional treatment" is the treatment of water as
approved by the West Virginia Bureau for Public Health to assure
that the water is safe for human consumption.
2.6. "Cumulative" means a pollutant which increases in
concentration in an organism by successive additions at different
times or in different ways (bio-accumulation).
2.7. "Designated uses" are those uses specified in water
quality standards for each water body or segment whether or not
they are being attained. (See sections 6.2 - 6.6, herein)
2.8. "Director" is the Director of the West Virginia Division
of Environmental Protection.
2.9. "Dissolved metal" is operationally defined as that
portion of metal which passes through a 0.45 micron filter.
2.10. "Existing uses" are those uses actually attained in a
water body on or after November 28, 1975, whether or not they are
included in the water quality standards.
2.11. The "Federal Act" means the Clean Water Act (also known
as the Federal Water Pollution Control Act) 33 U.S.C. §§ 1251 -
1387.
2.12."High quality waters" are those waters whose quality is
equal to or better than the minimum levels necessary to achieve the
national water quality goal uses.
2.13. "Intermittent streams" are streams which have no flow
during sustained periods of no precipitation and which do not
support aquatic life whose life history requires residence in
flowing waters for a continuous period of at least six (6) months.
2.14. "Outstanding national resource waters" are those waters
whose unique character, ecological or recreational value or
pristine nature constitutes a valuable national or State resource.
2.15."Natural" or "naturally occurring" values or "natural
temperature" shall mean for all of the waters of the state:
2.15.a. Those water quality values which exist unaffected by
-- or unaffected as a consequence of -- any water use by any
person; and
2.15.b. Those water quality values which exist unaffected by
the discharge, or direct or indirect deposit of, any solid, liquid
or gaseous substance from any point source or non-point source.
2.16. "Non-point source" shall mean any source other than a
point source from which pollutants may reach the waters of the
state.
2.17. "Parameter of concern" means any parameter for which
numeric water quality criteria have been adopted in 46 CSR 1 and
any other parameter for which numeric criteria are not established
but where the discharge of such parameter has a reasonable
potential to either cause or contribute to a violation of the
narrative criteria outlined under 46 CSR 1, section 3.
2.18. "Persistent" shall mean a pollutant and its
transformation products which under natural conditions degrade
slowly in an aquatic environment.
2.19. "Point source" shall mean any discernible, confined and
discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock or vessel or other floating craft, from which
pollutants are or may be discharged. This term does not include
agricultural stormwater discharges and return flows from irrigated
agriculture.
2.20. "Regulated activity" includes 1) any activity that
requires a permit or a water quality certification pursuant to
state or federal law (e.g., Clean Water Act §402 NPDES permits,
Clean Water Act §404 dredge and fill permits, or any activity
requiring a Clean Water Act §401 certification), 2) any activity
subject to nonpoint source control requirements or regulations, and
3) any activity which is otherwise subject to state requirements
and regulations developed to protect water quality. The term
"proposed activity" means a proposed activity that is also a
regulated activity.
2.21. "Representative important species of aquatic life"
shall mean those species of aquatic life whose protection and
propagation will assure the sustained presence of a balanced
aquatic community. Such species are representative in the sense
that maintenance of water quality criteria will assure both the natural completion of the species' life cycles and the overall
protection and sustained propagation of the balanced aquatic
community.
2.22. The "State Act" or "State Law" shall mean the West
Virginia Water Pollution Control Act, W. Va. Code §22-11-1.