9 Va. Admin. Code § 25-260-10 - Designation of uses
A. All state
waters, including wetlands, are designated for the following uses: recreational
uses, e.g., swimming and boating; the propagation and growth of a balanced,
indigenous population of aquatic life, including game fish, which might
reasonably be expected to inhabit them; wildlife; and the production of edible
and marketable natural resources, e.g., fish and shellfish.
B. Subcategories of the propagation and
growth of a balanced indigenous population of aquatic life, including game fish
designated use for waters in the Chesapeake Bay and its tidal tributaries are
listed in this subsection.
1. Migratory Fish
Spawning and Nursery Designated Use: waters in the Chesapeake Bay and its tidal
tributaries that protect the survival, growth and propagation of the early life
stages of a balanced, indigenous population of anadromous, semi-anadromous,
catadromous and tidal-fresh resident fish species inhabiting spawning and
nursery grounds. This designated use extends from the end of tidal waters to
the downriver end of spawning and nursery habitats that have been determined
through a composite of all targeted anadromous and semi-anadromous fish
species' spawning and nursery habitats (see boundaries in U.S. Environmental
Protection Agency, 2004, Technical Support Document for Identification of
Chesapeake Bay Designated Uses and Attainability 2004 Addendum, Chesapeake Bay
Program Office, Annapolis, Maryland). This designated use extends horizontally
from the shoreline of the body of water to the adjacent shoreline, and extends
down through the water column to the bottom water-sediment interface. This use
applies February 1 through May 31 and applies in addition to the open-water use
described in this subsection.
2.
Shallow-water Submerged Aquatic Vegetation Designated Use: waters in the
Chesapeake Bay and its tidal tributaries that support the survival, growth and
propagation of submerged aquatic vegetation (rooted, underwater bay grasses).
This use applies April 1 through October 31 in tidal-fresh, oligohaline and
mesohaline Chesapeake Bay Program segments, and March 1 through November 30 in
polyhaline Chesapeake Bay Program segments and applies in addition to the
open-water use described in this subsection.
3. Open Water Aquatic Life Designated Use:
waters in the Chesapeake Bay and its tidal tributaries that protect the
survival, growth and propagation of a balanced, indigenous population of
aquatic life inhabiting open-water habitats. This designated use applies
year-round but the vertical boundaries change seasonally. October 1 through May
31, the open water aquatic life use extends horizontally from the shoreline at
mean low water, to the adjacent shoreline, and extending through the water
column to the bottom water-sediment interface. June 1 through September 30, if
a pycnocline is present and, in combination with bottom bathymetry and water
column circulation patterns, presents a barrier to oxygen replenishment of
deeper waters, this designated use extends down into the water column only as
far as the upper boundary of the pycnocline. June 1 through September 30, if a
pycnocline is present but other physical circulation patterns (such as influx
of oxygen rich oceanic bottom waters) provide for oxygen replenishment of
deeper waters, the open-water aquatic life designated use extends down into the
bottom water-sediment interface (see boundaries in U.S. Environmental
Protection Agency, 2004 Technical Support Document for Identification of
Chesapeake Bay Designated Uses and Attainability 2004 Addendum, Chesapeake Bay
Program Office, Annapolis, Maryland). This designated use includes the
migratory fish spawning and nursery and shallow-water submerged aquatic
vegetation uses.
4. Deep Water
Aquatic Life Designated Use: waters in the Chesapeake Bay and its tidal
tributaries that protect the survival and growth of a balanced, indigenous
population of aquatic life inhabiting deep-water habitats. This designated use
extends to the tidally influenced waters located between the upper and lower
boundaries of the pycnocline where, in combination with bottom bathymetry and
water circulation patterns, a pycnocline is present and presents a barrier to
oxygen replenishment of deeper waters. In some areas, the deep-water designated
use extends from the upper boundary of the pycnocline down to the bottom
water-sediment interface (see boundaries in U.S. Environmental Protection
Agency, 2004 Technical Support Document for Identification of Chesapeake Bay
Designated Uses and Attainability 2004 Addendum, Chesapeake Bay Program Office,
Annapolis, Maryland). This use applies June 1 through September 30.
5. Deep Channel Seasonal Refuge Designated
Use: waters in the Chesapeake Bay and its tidal tributaries that protect the
survival of a balanced, indigenous population of benthic infauna and epifauna
inhabiting deep-channel habitats. This designated use extends to the tidally
influenced waters at depths greater than the lower boundary of the pycnocline
in areas where, in combination with bottom bathymetry and water circulation
patterns, the pycnocline presents a barrier to oxygen replenishment of deeper
waters (see boundaries in U.S. Environmental Protection Agency, 2004 Technical
Support Document for Identification of Chesapeake Bay Designated Uses and
Attainability 2004 Addendum, Chesapeake Bay Program Office, Annapolis,
Maryland). This use applies June 1 through September 30.
C. In designating uses of a water body and
the appropriate criteria for those uses, the board shall take into
consideration the water quality standards of downstream waters and shall ensure
that its water quality standards provide for the attainment and maintenance of
the water quality standards of downstream waters.
D. The board may adopt subcategories of a use
and set the appropriate criteria to reflect varying needs of such subcategories
of uses, for instance, to differentiate between cold water (trout streams) and
warm water fisheries.
E. At a
minimum, uses are deemed attainable if they can be achieved by the imposition
of effluent limits required under §§ 301(b)(1)(A) and (B) and 306 of
the Clean Water Act and cost-effective and reasonable best management practices
for nonpoint source control.
F.
Prior to adding or removing any use, or establishing subcategories of a use,
the board shall provide notice and an opportunity for a public hearing under
the Administrative Process Act (§ 2.2-4000 et seq. of the Code of
Virginia).
G. The board may adopt
seasonal uses as an alternative to reclassifying a water body or segment
thereof to uses requiring less stringent water quality criteria. If seasonal
uses are adopted, water quality criteria should be adjusted to reflect the
seasonal uses; however, such criteria shall not preclude the attainment and
maintenance of a more protective use in another season.
H. The board may remove a designated use
which is not an existing use, or establish subcategories of a use, if the board
can demonstrate that attaining the designated use is not feasible because:
1. Naturally occurring pollutant
concentrations prevent the attainment of the use;
2. Natural, ephemeral, intermittent or low
flow conditions or water levels prevent the attainment of the use unless these
conditions may be compensated for by the discharge of sufficient volume of
effluent discharges without violating state water conservation requirements to
enable uses to be met;
3. Human
caused conditions or sources of pollution prevent the attainment of the use and
cannot be remedied or would cause more environmental damage to correct than to
leave in place;
4. Dams, diversions
or other types of hydrologic modifications preclude the attainment of the use,
and it is not feasible to restore the water body to its original condition or
to operate such modification in a way that would result in the attainment of
the use;
5. Physical conditions
related to the natural features of the water body, such as the lack of a proper
substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water
quality, preclude attainment of aquatic life protection uses; or
6. Controls more stringent than those
required by §§ 301(b) and 306 of the Clean Water Act would result in
substantial and widespread economic and social impact.
I. The board may not remove designated uses
if:
1. They are existing uses, unless a use
requiring more stringent criteria is added; or
2. Such uses will be attained by implementing
effluent limits required under §§ 301(b)(1)(A) and (B) and 306 of the
Clean Water Act and by implementing cost-effective and reasonable best
management practices for nonpoint source control.
J. Where existing water quality standards
specify designated uses less than those which are presently being attained, the
board shall revise its standards to reflect the uses actually being
attained.
K. The board must conduct
a use attainability analysis whenever:
1. The
board designates or has designated uses that do not include the uses specified
in § 101(a)(2) of the Clean Water Act; or
2. The board wishes to remove a designated
use that is specified in § 101(a)(2) of the Clean Water Act or to adopt
subcategories of uses specified in § 101(a)(2) of the Clean Water Act
which require less stringent criteria.
L. The board is not required to conduct a use
attainability analysis under this chapter whenever designating uses which
include those specified in subsection A of this section.
Notes
Statutory Authority
§ 62.1-44.15 of the Code of Virginia; 33 USC § 1251 et seq. of the federal Clean Water Act; 40 CFR Part 131.
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