(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.
(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.