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Utah UPDES Antidegradation Review (14-UT-f)

The Clean Water Act and the Utah Water Quality Act are designed to protect,maintain, and restore the quality of Utah’s waters. Utah’s water quality standards achieve this through:
  1. Designated uses (e.g., aquatic life, drinking water, recreation)
  2. Water quality criteria (both numeric and narrative)
  3. Antidegradation policy and procedures.

Antidegradation standards in Utah protect existing uses and maintain high water quality standards within the state. The water quality criteria create a floor below which uses become impaired. However, antidegradation policy protects waters where the quality is already better than the water quality criteria (i.e. non-impaired).

Utah's antidegradation policy (UAC R317-2-3) does not prohibit activities which degrade water quality unless the Water Quality Board has already deemed the specific waters to be of exceptional recreational or ecological significance (Category 1 or Category 2 waters). Activities which will affect Category 3 waters will have to go through antidegradation review to ensure that water quality will not be unnecessarily degraded. The Antidegradation policy creates a series of rules that ensure that when degradation of water quality is necessary for social and economic development, every feasible option to minimize degradation is explored. Also, the policy requires that alternative management options and the environmental and socioeconomic benefits of proposed projects are made available to concerned stakeholders.

Utah is currently drafting implementation guidance for antidegradation reviews. The Utah Division of Water Quality is required by Federal Code (40 CFR §131.12(a)) to develop an antidegradation policy and implementation procedures. The implementation procedures are being developed in a collaborative process with the Water Quality Standards Workgroup to identify procedures that would meet the intent of antidegradation rules, while minimizing unnecessary regulatory burdens.

UPDES Antidegradation Review Process

14-UT-f.1 – Is a Level I or Level II ADR Required

Antidegradation reviews (ADRs) are required, as part of the permitting process, for any action that has the potential to degrade water quality. Activities subject to ADRs include any activities that require a permit or water quality certification pursuant to federal law. ADR reviews for Category 3 waters are conducted at two levels, which are referenced in R317-2-3 as Level I and Level II reviews. See section 2 of the Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012

Level I reviews are intended to ensure that proposed actions will not impair “existing uses”. Level II ADRs assure that degradation is necessary and that the proposed activity is economically and socially important. Level II ADRs are required for any activity that is not temporary and limited in nature and is likely to result in degradation of water quality. The central tenet of these reviews is to ensure that the discharge is necessary, water quality standards will not be violated, and that alternatives to minimize degradation are considered. See section 3.1 of the Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012

Level I Antidegradation Reviews

Level I reviews are intended to ensure that proposed actions will not impair “existing uses”. Existing uses means those uses actually attained in a water body on or after November 28, 1975, whether or not they the water quality standards for designated uses. Neither State nor federal regulations permit impairment of an existing instream use, and the Level I review simply asks whether there are existing uses with protection requirements that are more stringent than the currently designated uses. Applicable classes of water uses can be found in R317-2-6. See section 3.2 of the Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012

Level II Antidegradation Reviews

A Level II ADR is required if the receiving water is designated with a 1C Drinking Water Source Use or the Executive Secretary determines that the discharge may have a major impact on water quality. Otherwise, all of the following conditions must apply before a Level II ADR is required for a proposed activity:

  1. It must be a new or expanded action
  2. It must be an action that is regulated by the DWQ, and
  3. The action must have a reasonable likelihood of degrading water quality

For more information on when a Level II ADR is required, contact the DWQ staff or see section 3.3 of the Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012. In addition, see Figure 1 of the Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012 for a chart that outlines the general process for determining whether a Level II ADR is required.

14-UT-f.2 to 14-UT-f.3 – Will the Proposed Project Impair Existing Water Uses

State and federal regulations do not permit the impairment of existing in-stream uses, even if the existing uses require stricter water quality standards than the designated uses for that water body. DWQ staff conduct Level I reviews as the first step in any permitting action by comparing the concentration predicted by the waste load analyses after mixing to the water criterion for the designated uses and more restrictive existing uses. The permit applicant is responsible for submitting adequate data for DWQ to conduct the Level I ADR. Water quality permits will not be issued if the proposed project will impair existing uses. See see section 3.2 of the Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012

14-UT-f.4 – Certification of Antidegradation Review

If the proposed project will not impair existing in-stream uses, the DWQ will certify that an antidegradation review has been completed and the developer may proceed with the project. The ADR documentation will be subject to public notice and review during the UPDES permit review process.

14-UF-f.5 - Identify Parameters of Concern

If a Level II ADR is required, the developer should first identify the parameters of concern with the proposed action. Only parameters in the discharge that exceed, or potentially exceed, ambient concentrations in the receiving water should be considered in selecting the parameters of concern. For more information on determining the parameters of concern, see section 4.0 of Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012.

14-UT-f.6 to 14-UT-f.7 – Work Plan (optional)

ADR issues should be considered as early in the permitting or design process as possible. Early planning also allows time to develop an optional work plan which clearly defines a scope of work for developing alternatives. The work plan minimizes miscommunication between DWQ staff and applicants and documents decision points critical to the ADR.

The work plan may be put out for public comment, at the applicant’s discretion, so that stakeholder concerns can be addressed early in the process, which is much easier and less time consuming than addressing concerns at the end of the permitting process.

Finally, early notification provides sufficient time for the DWQ and applicants to work together to ensure that sufficient data are available to generate defensible permit limits. The DWQ suggests that whenever possible applicants initiate ADR processes one year or longer prior to the desired date of a permit. The actual time required to complete the ADR is dependent on the complexity of the ADR.

DWQ will facilitate any optional public comment opportunities by making the documents available on DWQ’s website and the State of Utah Public Notice Website. Responding to comments for any optional public comment opportunities is the responsibility of the applicant. DWQ responds to comments for the mandatory public comment period prior to issuing the permit.

See section 3.5 of Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012.

14-UT-f.8 to 14-UT-f.9 – identify Parameters of Concern; Level II ADR (SEEI and Proposed Alternatives)

Alternative documentation required by the Level II ADR above the UPDES permit application requirements are a Statement of Social, Environmental, and Economic Importance (SEEI), and an alternatives analysis.

Statement of Social, Environmental, and Economic Importance (SEEI)

The SEEI evaluates the societal benefits of the proposed activity by documenting factors such as: employment, production, tax revenues, housing, and correction of other societal concerns (i.e., health or environmental concerns). This portion of the ADR provides the project proponent the opportunity to document that the overall benefits of the project outweigh any negative consequences to water quality. As a result, the project proponent is best served by making this portion of the ADR as thorough as possible. At a minimum this portion of the review should contain the following:

  1. A description of the communities directly affected by the proposed project, including factors such as: rate of employment, personal or household income, poverty level, population trends, increasing production, community tax base, etc.
  2. An estimate of important social and economic benefits that would be realized by the project, including the number and nature of jobs created and projected tax revenues generated.
  3. An estimate of any social and economic costs of the project, including any impacts on commercial or recreational uses.
  4. A description of environmental benefits of the project and associated mitigation efforts (if any). For instance, if a project would result in an increase in stream flow that would provide additional habitat and a net benefit to stream biota, this benefit would be documented in this section of the review.
  5. Documentation of local government support.

The Executive Secretary of DWQ will generally consider public projects to be necessary to accommodate social and economic growth unless compelling information exists to the contrary. DWQ may consult with local and State planning and zoning agencies to determine whether or not the project is consistent with the long‐term plans of affected communities. Information obtained from local planning groups may be compiled with other material obtained through the ADR process. The Executive Secretary will make a determination. Appeals to the Executive Secretary’s decision may be made consistent with the procedures for administrative appeals.

At a minimum the SEEI material will be submitted for public comment, along with all other Level II ADR materials, through the required public comment processes used for permit applications and renewals.

For more information on the SEEI development process and the necessary components of the review, see section 6.0 of Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012.

Alternatives Analysis

The developer should consider the alternatives included in R317-2-3.5 as shown below:

(a) innovative or alternative treatment options
(b) more effective treatment options or higher treatment levels
(c) connection to other wastewater treatment facilities
(d) process changes or product or raw material substitution
(e) seasonal or controlled discharge options to minimize discharging during critical water quality periods
(f) pollutant trading
(g) water conservation
(h) water recycle and reuse
(i) alternative discharge locations or alternative receiving waters
(j) land application
(k) total containment
(l) improved operation and maintenance of existing treatment systems
(m) other appropriate alternatives…

For the DWQ to fairly evaluate alternative treatments, the following information should be provided for each alternative process:

  1. A technical description of the treatment process, including construction costs and continued operation and maintenance expenses.
  2. The mass and concentration of discharge constituents, and a description of the discharge location.
  3. A description of the reliability of the system.
  4. A ranking of each alternative in terms of its relative ability to minimize degradation to the receiving water.
  5. A ranking of each alternative as to how adaptable it would be to potentially changing regulatory requirements.

For an example of how to rank and select the preferred alternative, see section 5.0 of Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012.

Once the preferred alternative is selected, an optional public comment period may conducted by being posted on the DWQ website and being noticed in the State of Utah Public Notice Website. If no optional reviews are conducted, the public has an opportunity to comment during the UPDES public comment period.

14-UT-f.10 – Preferred Alternative Agreement and Certification of Antidegradation Review

After the developer and DWQ complete the ADR process, DWQ will certify that an antidegradation review has been completed and the developer may proceed with obtaining the UPDES permit. DWQ will include as part of its certification a preferred alternative agreement whereby the developer will choose the appropriate alternative from the ADR process.

The completed ADR and all associated documentation will be made available for public comment through the processes required for UPDES permits.

However, the applicant may opt for earlier reviews upon completion of a work plan that defines the parameters of concern and the alternatives to be considered for the Level II ADR alternatives analysis. The primary purpose of these optional early reviews is to identify stakeholder project concerns early in the permitting process when the comments can be addressed most efficiently.

Public participation is an important part of the ADR process. Public notice of antidegradation review findings, solicitations of public comment and maintenance of antidegradation review documents as part of the public record help ensure that interested parties can be engaged and involved throughout the review process. In addition, intergovernmental coordination and review is required prior to any action that allows degradation of water quality of a surface water. Dee section 53.6 of Utah Antidegradation Review Implementation Guidance, Version 1.1, May 2012.

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Contact Information

Edit Utah Department of Environmental Quality
UPDES Antidegradation Review Contact 801.536.4374 nvonstackelberg@utahabbazabbagov Visit Website