Conn. Agencies Regs. § 22a-426-8

Current through June 15, 2024

Section 22a-426-8 - Antidegradation standards and antidegradation implementation olicies

(a) Antidegradation Standards

(1) Existing and designated uses such as propagation of fish, shellfish and wildlife, recreation, public water supply, and agriculture, industrial use and navigation, and the water quality necessary for their protection are to be maintained and protected.

(2) Surface waters with an existing quality better than the criteria established in the Connecticut Water Quality Standards shall be maintained at their existing high quality, unless the Commissioner finds, after adequate opportunity for intergovernmental review and public participation, that allowing lower water quality is necessary to accommodate overriding economic or social benefits to the state and to the area in which the surface water is located that are determined by the Commissioner to exist after an analysis of the factors listed in subdivision (1) of subsection (g) of this section, and that existing and designated uses will be fully protected. Factors that may be given consideration when identifying High Quality Waters include but are not limited to the current biological condition, fisheries resources and recreational uses.

(3) For all new and existing discharges to high quality surface waters the Commissioner shall, at a minimum, require applicants to meet the highest applicable standards of performance promulgated pursuant to the 33 USC, Chapter 26 and the Connecticut General Statutes, and may require additional treatment measures if deemed necessary to prevent pollution and maintain high water quality. The Commissioner shall also require the use of appropriate Best Management Practices for control of discharges and activities to high quality surface waters.

(4) If the Commissioner designates a high quality surface water as an Outstanding National Resource Water pursuant to 40 CFR 131.12(a) the high water quality shall be maintained and protected. The lowering of water quality is prohibited for such surface waters except where activities limited in time and scope will result in only temporary and insignificant changes in water quality as determined by the Commissioner and the activities will not result in water quality less than necessary to protect existing and designated uses.

(b) Antidegradation Implementation Policies

(1) The procedures for review outlined in this policy apply to any discharge or activity that is affecting or may affect water quality in Connecticut, including but not limited to any existing, new or increased activity or discharge requiring a permit, water quality certificate or authorization pursuant to chapters 439, 440, 445 or 446i to 446k, inclusive of the Connecticut General Statutes. Such discharges or activities include, but are not limited to, point sources, contaminated ground water plumes, nonpoint sources (including atmospheric deposition), and dredging activity or discharge of dredged or fill materials to surface waters or any activity or discharge generated by the construction, operation or maintenance of facilities or requiring state authorization in accordance with 16 USC 1456.

(2) A discharge or activity is considered an increased discharge or activity if:

(A) A pollutant would be released as a result of the discharge or activity at an increased concentration or mass which may lower water quality;

(B) The discharge or activity would result in a increased biological, chemical or physical stress on the waterbody; or

(C) The area or volume of receiving water flow of a previously allocated zone of influence established and approved by the Commissioner for a discharge or activity would be increased to accommodate the discharge or activity.

(3) A discharge or activity which does not have a permit, water quality certificate or authorization from the Commissioner shall be deemed a new discharge or activity.

(c) The Commissioner shall not issue any permit, water quality certificate or authorization for a discharge or activity unless the Commissioner finds that all existing and designated uses as defined in section 22a-426-1 of the Regulations of Connecticut State Agencies will be fully protected and the discharge or activity is consistent with the designated uses established in the Connecticut Water Quality Standards for the class of water affected by the discharge or activity, any duly adopted Total Maximum Daily Load analysis and this section.

(d) In those cases where a thermal discharge is involved, the antidegradation evaluation and implementation shall be consistent with 33 USC 1326.

(e) Implementation of the antidegradation policy shall follow a tiered approach pursuant to 40 CFR 131.12 and consistent with the subsection (a) of this section. For the purposes of implementing the requirements of subsection (a) of this section, the following review tiers are established for the applicable waters as identified in the following table titled "Table of Antidegradation Review Tiers":

Table of Antidegradation Review Tiers
Category of Water	Tier of Antidegradation Review	Discharge or Activity
All Waters	Tier 1	All
High Quality Waters & Wetlands	Tier 1 and Tier 2	New or Increased
Outstanding National Resource Waters	Tier 1 and Tier 3	New or Increased

(f)Tier 1 Antidegradation Evaluation and Implementation Review

The Commissioner shall determine whether the discharge or activity is consistent with the maintenance, restoration, and protection of existing and designated uses assigned to the receiving water body by considering all relevant available data and the best professional judgment of department staff. All narrative and numeric water quality standards, criteria and associated policies contained in the Connecticut Water Quality Standards shall form the basis for such evaluation considering the discharge or activity both independently and in the context of other discharges and activities in the affected water body and considering any impairment listed pursuant to 33 USC 1313(d) or any Total Maximum Daily Load (TMDL) established for the water body.

(g)Tier 2 Antidegradation Evaluation and Implementation Review

(1) The Commissioner shall determine whether the new or increased discharge or activity will result in a significant lowering of water quality in a high quality water or any wetland by utilizing all relevant available data and the best professional judgment of department staff and considering the discharge or activity both independently and in the context of other discharges and activities in the affected water body and considering any Total Maximum Daily Load (TMDL) established for the water body. Under the following circumstances, the commissioner may determine that a proposed new or increased discharge or activity will not reasonably be expected to significantly lower water quality in high quality waters or wetlands:

(A) The discharge or activity is temporary, occurring over a period of days or months, not years;

(B) Water quality in the receiving water will be equal to or better than that which existed prior to commencement of the discharge or activity; or

(C) For new or increased discharges or activities resulting from stormwater the first inch of rainfall is not discharged to a surface water body and Best Management Practices deemed necessary to protect and maintain designated uses and meet state Standards and Criteria are implemented.

(2) If the Commissioner, after evaluation of the new or increased discharge or activity, determines that such discharge or activity will significantly lower water quality in a high quality water or wetland, the Commissioner shall not issue a permit, certificate or authorization unless the Commissioner finds that:

(A) There is no technically or economically feasible alternative to the discharge or activity; and

(B) Allowing lower water quality is necessary to accommodate overriding economic or social benefits to the state and in the area in which the receiving water is located and that are determined by the Commissioner to exist after an analysis of the factors listed in subdivision (6) of subsection (g) of this section and which the Commissioner has determined is clearly in the public interest.

(3) The Commissioner shall ensure that, notwithstanding a lowering of water quality, existing and designated uses will be fully protected and that the highest statutory and regulatory requirements will be achieved for all new and existing point source discharges and cost-effective and reasonable best management practices for nonpoint source and stormwater controls will be implemented consistent with subsection (a)(3) of this section.

(4) The applicant for a new or increased discharge or activity that would result in a significant lowering of water quality in a receiving surface water shall demonstrate to the Commissioner's satisfaction that appropriate alternatives have been adequately considered by performing an alternatives analysis. The alternatives analysis shall include:

(A) alternative locations for the proposed discharge or activity;

(B) reduction in scale of the proposed discharge or activity;

(C) pollution prevention measures which could eliminate or minimize the effects of the proposed discharge or activity;

(D) water use or recycle measures which could eliminate or minimize the effects of the discharge or activity;

(E) process changes or alternative technology which could minimize the effects of the proposed discharge or activity;

(F) improved operation and maintenance of existing facilities in order to minimize the effects of the proposed discharge or activity;

(G) alternative methods of treatment and advanced treatment beyond applicable technology requirements of 33 USC, Chapter 26;

(H) improved best management practices to reduce or minimize stormwater or nonpoint source pollution; and

(I) any other alternative required by the Commissioner to minimize the effects of the proposed discharge or activity.

(5) Evaluation of Alternatives

(A) If an alternative to the new or increased discharge or activity is identified that would not significantly lower water quality, such alternative approach shall be required provided the alternative is technically and economically feasible. Further evaluation of the discharge or activity under subsection (g) of this section shall not be required if a demonstration could be made to the Commissioner's satisfaction that the alternative to the new or increased discharge or activity would not result in a significant lowering of water quality.

(B) If an alternative to the proposed discharge activity is identified that would result in a reduction of the impact of such discharge or activity on water quality within the receiving water, but still significantly lower water quality, all technically and economically feasible alternatives and management practices shall be required and applied in the evaluation of overriding social and economic need pursuant to subdivision (6) of this subsection.

(C) If no technically or economically feasible alternative to the new or increased discharge activity is found that would render the impact of the proposed discharge or activity insignificant and not lower water quality in the receiving water, then the evaluation of overriding social and economic need shall be conducted pursuant to subdivision (6) of this subsection .

(6) Evaluation of Overriding Social or Economic Need

The applicant for a new or increased permit or activity which the Commissioner finds will cause a significant lowering of water quality shall demonstrate to the Commissioner's satisfaction the overriding economic or social benefits to the state and to the area in which the receiving water is located that will result from the discharge or activity. This evaluation shall be consistent with applicable federal guidance for economic evaluations and consider, but not be limited to:

(A) the loss or reduction of aquatic life, aquatic habitat including riparian vegetation, passive and active recreational value, and aesthetic value which may result from lower water quality;

(B) a description of the current level of water quality and the impact that the proposed action will have on water quality, including synergistic and cumulative effects;

(C) a cost-benefit analysis for the discharge or activity;

(D) any reduction in water quality which may interfere with, or become injurious to, existing or potential uses or inequitably impact any population groups;

(E) the effect of the project on other services or programs and identification of the appropriate agencies which have been notified of the proposed action;

(F) the potential for facility expansion, production increase or employment growth;

(G) direct and indirect income effects;

(H) increases in community tax base;

(I) industrial, commercial or residential growth in the community;

(J) correction of an environmental or public health problem; and

(K) a statement and discussion concerning the necessity of allowing lower water quality to accommodate important economic development.

(h)Tier 3 Antidegradation Evaluation and Implementation Review

The Commissioner shall determine whether the new or increased discharge or activity is consistent with the maintenance, restoration, and protection of existing and designated uses for the water body in accordance with subsection (f) of this section and that water quality in Outstanding National Resource Waters is maintained and protected. At a minimum, evaluation of potential impacts to water quality in Outstanding National Resource Waters shall be considered except if the activity or discharge:

(1) will improve water quality or is necessary for maintenance of current environmental conditions;

(2) is short term and temporary occurring over a period of days or months, not years; or

(3) Water quality in the receiving water will be equal to or better than that which existed prior to commencement of the new or increased discharge or activity.

(i)Public Participation Requirements

The Commissioner shall assure that public participation pursuant to 40 CFR 131.12(a)(2) is given for all actions for which a review for consistency with this section is conducted. The Commissioner shall also assure that the degradation in water quality will be reviewed by other applicable government agencies and that the public will be given an opportunity to comment. The public process shall be conducted in accordance with the public notice and hearing requirements of chapter 440 or 446k of the Connecticut General Statutes, 33 USC 1341 or 16 USC 1456, as applicable. Any such notice or notice of a hearing shall include the Commissioner's finding with regard to compliance with this section.

Conn. Agencies Regs. § 22a-426-8

Effective October 10, 2013