November 4,1997
(Revised April 25, 2001)
GUIDANCE
FOR EXCEPTIONAL SURFACE WATERS DESIGNATIONS
IN ANTIDEGRADATION POLICY SECTION OF
VIRGINIA WATER QUALITY STANDARDS REGULATION (9 VAC 25-260-30.A.3)

PURPOSE OF GUIDANCE DOCUMENT

This document provides detailed guidance on implementation of the exceptional surface waters section (9 VAC 25-260-30.A.3) of the antidegradation policy of the Department of Environmental Quality's (Department) water quality standards regulation.' This implementation guidance includes four elements: decision criteria for designation of exceptional waters, the nomination and designation process for exceptional waters, restrictions on discharges to these
waters, and allowances for temporary lowering of water quality in these exceptional waters.

For guidance on the Department's implementation of the antidegradation policy for tier 1 and 2 surface waters in regulated activities such as permitting of discharges, please refer to the July 27, 1993 OWRM Guidance Memo No. 93-021, "Antidegradation Implementation Guidance for Surface Waters".2

DEPARTMENT CONTACT

Questions concerning this document should be addressed to Ms. Jean W. Gregory, Department of Environmental Quality, Water Quality Standards and Biological Monitoring Programs Unit, P. 0. Box 10009, Richmond, Virginia 23240-0009 at (804) 698-4113 or the DEQ in-state toll free number (1-800-592-5482). The street address is 629 East Main Street, Richmond, Virginia 23219. A questions and answers document on Virginia's exceptional waters
is available.3

BACKGROUND ON THE REGULATION

The Environmental Protection Agency (EPA) requires every state to include, as a component of the state's water quality standards regulation, a three tiered approach to maintaining and protecting various levels of water quality. This includes a requirement that the states establish a category of waters in the anti degradation policy section of the state water quality standards regulation equivalent to EPA's tier 3 Outstanding National Resources Waters. Clean Water Act section 303(d)(4)(B)4 and EPA's water quality standards regulation (40CFR131.32) are the statutory and regulatory basis for EPA requiring the states to establish these antidegradation categories.

The State Water Control Board (Board) adopted, effective May 20, 1992, water quality standards amendments which included a revised section of the antidegradation policy which established an Exceptional Waters category whereby waters equivalent to EPA's Tier 3 Outstanding National Resources Waters could be listed for protection and maintenance of their current exceptional status. Some minor changes to this section were adopted by the Board at their September 25, 1997 meeting in response to suggestions made by the EPA during their triennial review of the water quality standards regulation. One water body, North Creek in Botetourt County, has been designated, effective April 30, 1997, as an exceptional water in Virginia.

In 1996 the General Assembly amended the Code of Virginia (§62.1-44.14:4.B) to require the Board, upon receipt of an exceptional waters nomination, to notify each locality in which the waterway or segment lies and to provide notice to impacted property owners. The Code specifies that localities shall be provided sixty days in which to comment on the consistency of the nomination with the locality's comprehensive plan. These requirements were incorporated by the Board into the water quality standards regulation effective March 19, 1997. At its December 12, 1996 meeting, the Board directed staff to provide impacted property owners the same 60 day opportunity for comment.

In 1997, the General Assembly further amended the Code of Virginia⁶ to clarify that the Board "shall make a good faith effort" to provide notice to impacted "riparian" property owners and that the notice to riparian property owners shall be based on names and addresses taken from local tax rolls provided by the Commissioners of the Revenue or the tax assessor's office of the affected jurisdictions.

CRITERIA FOR EXCEPTIONAL WATERS

Section 9 VAC-25-260-30.A.3 of the antidegradation policy establishes the criteria which candidate water bodies must meet to be designated as exceptional surface waters. This section of the water quality standards regulation states that surface waters, or portions of a water body, designated and protected under this category must provide exceptional environmental settings and either exceptional recreational aquatic communities or exceptional recreational opportunities.

This regulation provides the authority for the Department to classify certain unique and special surface waters of the State as Exceptional Waters upon finding that such waters have exceptional recreational or aquatic community significance and that the waters have exceptional environmental settings. Surface waters will be subject to Exceptional Waters protection
requirements (Sections 9 VAC 25-260-30.A.3.b and 9 VAC 25-260-20.B. 6. a) only where an Exceptional Waters designation has been assigned by the Board through the state rulemaking procedures.

The following factors are to be considered in determining whether a nominated water body meets the eligibility decision criteria.

Exceptional Environmental Settings

The purpose of this category is to list those features which singly or in combination make a water body physically attractive. In order to meet the mandatory requirement that a water body nominated for exceptional waters status provide an exceptional environmental setting, one or more of the following factors must apply:

1. the water possesses outstanding scenic beauty resulting from the natural features of the basin such as its topography, geology, ecology or physiography, or

2. the water has already received designation as a national wild and scenic river, or

3. the water represents an important component of a state or national park, forest, or wildlife refuge, or

4. the water includes remote, primitive or relatively undeveloped areas with public access by motorized vehicle restricted or unavailable.

In addition to providing an exceptional environmental setting, the candidate water body must either contain exceptional aquatic communities or exhibit exceptional recreational opportunities.

Exceptional Aquatic Communities

In order to demonstrate that a water body nominated for exceptional waters status contains an exceptional aquatic community, one or more of the following factors must apply:

1. the water supports an exceptional wild or natural fishery, or
2. the waters are designated as Class I or Class n wild natural trout streams according to the Virginia Department of Game and Inland Fisheries classification system (which is also referenced in the Department's 9 VAC 25-260-370.B and 9 VAC 25-260-390 et seq.), or
3. the water contains an exceptional high diversity of aquatic species as categorized by the appropriate protocol for that water body type and species, such as the 95th percentile of the Rapid Bioassessment Protocol n Method for measuring macroinvertebrate diversity in streams (Section IV, Biological Evaluations, in EPA's Technical Support Manual: Water Body Surveys and Assessments. November, 1983, USGPO 1984-0-421-0821515).

Exceptional Recreational Opportunities

In order to demonstrate that a water body nominated for exceptional waters status exhibits exceptional recreational opportunities, the water must support recreational activities which do not require modification of the existing natural setting such as: fishing, canoeing, rafting, kayaking, tubing, birding, hiking, backpacking with primitive camping, or the like.

NOMINATION AND DESIGNATION PROCESS

Any person may petition the Department of Environmental Quality, per § 9-6.14:7.1.A. of the Code of Virginia, i.e., the Administrative Process Act (APA), to request the regulatory designation of a surface water as an Exceptional Water under 9 VAC 25-260-30.A.3.c. The APA requires the Board to consider and respond to the petition within 180 days (Figure 1).

The State Water Control Board is solely responsible for designating eligible waters for inclusion in 9 VAC 25-260-30.A.3.C as exceptional waters. In determining whether to designate a water in 9 VAC 25-260-30.A.3.C, the Board evaluates the surface water according to:

1. the eligibility criteria set out in Section 9 VAC 25-260-30.A.3 of the water quality standards regulation,
2. responses from notifications sent to each locality in which the waterway or segment lies and to impacted riparian property owners (per § 62.1-44.15:4.B notification requirements of the Code of Virginia), and
3. public comments received during the public participation process.

The designation of an Exceptional Water is treated as a regulatory amendment to the

water quality standards and is adopted by the Board in accordance with the provisions of the APA and the Department's Public Participation Guidelines.7 The designation once effective, would be listed in 9 VAC 25-260-30.A.3.C.

water body as an exceptional water may be submitted to the Department of Environmental Quality at any time by sending a written request (and preferably two additional copies of this written request but failure to provide extra copies will not be a basis for deeming the application incomplete) to the following address: Ms. Jean W. Gregory, Department of Environmental Quality, P.O. Box-10009,-Richmond, Virginia 23240-0009. The petitioner shall provide all information required by section 9 VAC 25-10-20 C of the agency Public Participation Guidelines, which includes:

1. Name of petitioner;
2. Petitioner's mailing address and telephone number;
3. Petitioner's interest in the proposed action;
4. Recommended regulation or addition, deletion or amendment to a specific regulation or regulations
5. Statement of need and justification for the proposed action;
6. Statement of impact on the petitioner and other affected persons; and
7. Supporting documents, as applicable.

1. The name of the water body or segment proposed for designation,
2. Written description of the upstream and downstream boundaries of the water proposed for designation and an accompanying map (preferably a photocopy of a USGS topographic map) which delineates these boundaries, and
3. Written documentation of the eligibility of the water under the three criteria specified in 9VAC 25-260-30.A.3 and described within this document.

The Department may request additional supporting information from the petitioner.

Upon receipt of a petition nominating a waterway or segment of a waterway for designation as an exceptional water, the Board staff will make an initial completeness review. Once the petition is determined complete, the Board will officially receive the petition at the next scheduled Board meeting. An incomplete petition shall be denied and returned to the nominator with an indication of the deficiencies. Resubmittal of a nomination shall be deemed to be a new nomination. For those nominations which are deemed complete, the Board shall notify each locality in which the waterway or segment lies and make a good faith effort to provide notice to impacted riparian property owners per the requirements of Section 62:1-44.1.14:4.B of the Code of Virginia.

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 designation; (iii) the name of the person making the nomination; and (iv) the name of a contact person at DEQ who is knowledgeable about the nomination and the waterway or segment. The Department has elected to provide this written notice by first class mail in the form of a letter. list shall be retained in the nomination file of the names and addresses of all localities and riparian property owners notified.

At the time of written notification to localities and riparian property owners, the Department will send a press release to the local newspapers . A copy of the petition will be sent to the local library of the closest town and additional copies for viewing will be available in the Department's regional office in which the nominated water body is located and the central office of the Department.

After the Board's official receipt of the notice of the nomination, localities and impacted riparian property owners shall be provided sixty days to provide written comment on the consistency of the nomination with the locality's comprehensive plan. The Director or his designee will summarize all comments received from the localities and impacted property owners in a report to the Board for consideration whether they will authorize a NOIRA. The comment period established by § 62.1-44.14:4.B of the Code of Virginia shall in no way impact a locality's ability to comment during any additional comment periods established by the Board.

Before the close of this initial comment period, the Department's staff will make a site visit to verify the eligibility of the nominated water body.

Identification of Riparian Property Owners for Initial Notification

For the purposes of the regulation, "property owners" includes all owners of property and does not distinguish whether the owner is a private individual or entity, or a governmental entity. For the purposes of this regulation "riparian property owners" are owners whose land abuts (i.e., is located adjacent to the banks of) the designated water body or area. The notice to riparian property owners shall be based on names and addresses taken from local tax rolls provided by the Commissioners of the Revenue or the tax assessor's office of the affected jurisdictions at the request of the Department.

Designation Process

Initial Eligibility Evaluation: The Department will evaluate whether each nomination meets basic eligibility requirements outlined in Section 9 VAC 25-260-30.A.3 before proceeding to public hearing. This initial decision regarding eligibility of a water body for consideration for designation under the Exceptional Waters category will be based solely on the decision criteria in the regulation. If the Department's staff determine that supporting documentation for nomination of a particular water body as exceptional waters is inadequate, they will notify the nominating party of the need for additional information. Where there is sufficient information to determine eligibility, the Board will either initiate a NOERA for public comment on the proposed nomination public hearings to classify waters as Exceptional Waters, ensuring that copies of the NOIRA are sent to the petitioner, localities and riparian property owners, or will inform the petitioner that the waters do not meet the criteria for exceptional waters with an explanation for the basis for this decision. This Board determination shall be made within 180 days of official receipt of the petition (Figure 2).

Prohibition on New or Expanded Sources. After the effective date of an Exceptional Waters designation, no permanent new or expanded point source discharges are allowed directly to the segment designated as Exceptional Waters. This prohibition on new or expanded mixing zones is found in Section 9 VAC 25-260-20.B.6.a of the water quality standards regulation in response to an EPA Region m requirement¹⁰ and applies to new sources, expansion of existing sources in which treatment levels are maintained, and expansion of existing sources in which treatment levels are increased to maintain existing pollutant loading levels. Regardless of effluent quality, any new or expanded direct source is prohibited. This prohibition includes permanent permitted storm water discharges.

Sources Upstream or Tributary to Exceptional Waters

New or expanded point source discharges are allowed to waters upstream or tributary to exceptional waters as long as the mixing zone for the discharge will not extend into the exceptional waters segment (because Section 9 VAC 25-260-20.B.6.a prohibits new or expanded mixing zones in waters listed in 9 VAC 25-260-30.A.3.C). This requirement ensures that new or expanded point sources to waters upstream or tributary to exceptional waters do not result in a lowering of water quality in the exceptional waters segment. The applicant may be required to provide information sufficient to evaluate the potential effects of the proposed activity on downstream exceptional waters. The information that will be required in a given situation will be identified on a case-by-case basis by the Department's staff.

Mixing Zones.

Section 9 VAC 25-260-20.B.6.a of the water quality standards regulation11 prohibits new or expanded mixing zones in exceptional waters segments.

TEMPORARY AND LIMITED EFFECTS

Activities that would result in a temporary and limited effect on exceptional waters water quality may be authorized (9 VAC 25-26-30.A.3.b.3). The decision regarding whether effects will be temporary and limited will be handled on a case-by-case basis based on the following factors: (a) length of time during which water quality will be lowered, (b) likelihood for long-term water quality benefits to the segment (e.g., as may result from dredging of contaminated sediments), (c) degree to which achieving applicable water quality standards during the proposed activity may be at risk, and (d) potential for any residual long-term influences on existing uses.

CONTROL OF NONPOINT SOURCE IMPACTS

If a water body is designated as an Exceptional Water, nonpoint source control measures must conform to the highest standards of Best Management Practices currently available.

ENDNOTES

1. Section 9 VAC 25-260-30.A.3 of the antidegradation policy of the water quality standards regulation
2. July 27, 1993 OWRM Guidance Memo No. 93-021, "Antidegradation Implementation Guidance for Surface Waters"
3. Department of Environmental Quality Questions and Answers on Exceptional Waters for 9 VAC 25-260-30.A.3 Effective May 20, 1992 with 1997 Amendments
4. Clean Water Act section 303(d)(4)(B)
5. EPA's water quality standards regulation (40CFR131.32)
6. Code of Virginia (§62.1-44.14:4.B)
7. DEQ Public Participation Guidelines
8. Department of Environmental Quality Notification Letter to Localities and Riparian Property Owners
9. Draft Press Release
10. Environmental Protection Agency. Water Quality Standards for Pennsylvania. Summary of Final Rule and Response to Major Comments. Item C.3. Federal Register 61(237); 64818
11. Section 9 VAC 25-260-20.B.6.a of the water quality standards regulation.