W. Va. Code R. § 47-11A-3

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 47-11A-3 - Interpretation of the Waste Load Allocation Concept

3.1. The Special Rule, 47CSR11 includes miscellaneous provisions related to the NPDES program. In particular, section 6 of that rule contains provisions titled "Waste load allocations for sewage discharges." Subsection 6.1 of that rule clearly indicates that waste load allocations are provided only to assist in the planning of waste water treatment works while preparing a (NPDES)/Water Pollution Control Permit application. No where in the provisions of this subsection are any other rights provided the applicant other than as stated above. Furthermore, paragraph 3.4.b of 47CSR10, National Pollutant Discharge Elimination System (NPDES) Program, states that the issuance of a permit does not convey any property rights of any sort or any exclusive privilege.

3.2. Because an NPDES permit does not convey any special right or privilege, and that such permit can be revoked, suspended or modified; it is clear then that a calculation, such as the waste load allocation, used in planning the application for the permit can carry no greater right or privilege than the permit which finally results.

3.3. Accordingly then, a waste load allocation is no more than a calculation of the quantity of waste which can be discharged into a stream at a given location on a given date without violating the state's water quality standards provided for in 46CSR1, Requirements Governing Water Quality Standards. Further, the waste load allocation for a point on a stream could range from zero to the maximum allowable depending upon development/discharges, including nonpoint sources, industrial, mining and domestic discharges in the watershed. Waste load allocations then are not a right that runs with any particular piece of property.

3.4. The changing nature of a stream's ability to assimilate wastes, forces a wasteload allocation to be temporary. As a practical matter, a potential applicant for an NPDES Permit needs to know the discharge limitations to be imposed in the permit, so that an appropriate treatment facility can be designed.

W. Va. Code R. § 47-11A-3