The Comment Period on Tier 3 Stream Nominations Is Now Underway

On May 12 the West Virginia Department of Environmental Protection published official notification in local newspapers that it is proposing to add three streams located primarily on private land in Preston County to the Tier 3 stream list.

Tier 3 designation would provide these streams on private land the highest level of protection under the antidegradation provisions of the federal Clean Water Act, and the three streams would be the first private-land streams designated since the Legislature adopted the new antidegradation provisions in 2008.

The three streams are Watkins Run, Fill Hollow Creek, and an unnamed tributary of Fill Hollow Creek, all located in Preston County. They are classic, pristine West Virginia native brook trout streams that fully deserve to be protected from future degradation.

You have until July 12, the end of the public comment period, to let DEP have your comments on adding these streams to the Tier 3 list. Here’s where to send your comments:

Written comments on this proposal must be sent by U.S. mail, postmarked or hand-delivered by July 12, 2010, directed to:

Scott Mandirola
Attention: Tier 3 Nomination
WV Department of Environmental Protection
601 57th Street, S.E.
Charleston, WV 25304

 

Comments may also be sent by e-mail to dep.comments@wv.gov.

 

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Background:

This proposal is based upon a nomination the DEP received on November 23, 2009, to add the entire lengths of Watkins Run, Fill Hollow Creek, and an unnamed tributary of Fill Hollow Creek to the Tier 3 list. The nomination was made by Ladd Williams on behalf of Friends of Laurel Mountain. In his nomination, Mr. Williams documents that the streams are “abundant with aquatic insects and native brook trout.” The nomination also documents, among other things, excellent water quality in the streams, and includes petitions signed by an overwhelming majority of the adjacent landowners in support of the designation. The entire nomination package may be viewed by visiting the Water Quality Standards home page on the DEP’s Web site: http://www.dep.wv.gov/wqs.

Watkins Run was previously nominated and adopted as a Tier 2.5 (Waters of Special Concern) stream by the West Virginia Legislature in May, 2005. EPA approved this nomination in September, 2006 and Watkins Run was the state’s only Tier 2.5 stream from September, 2006 to September, 2009, at which time EPA approved the DEP’s recommendation to eliminate the Tier 2.5 designation from its water quality standards rule and adopt the new Tier 3 provisions.

Tier 3 waters are also known as “Outstanding National Resource Waters” and are afforded a higher level of protection than Tier 1 and Tier 2 waters. Most native brook trout streams on public lands automatically qualify for Tier 3 protection. But streams primarily on private lands must be nominated for protection. Any interested party may nominate a water to be listed as an Outstanding National Resource Water. And DEP’s decision to list streams as Tier 3 waters no longer requires legislative approval.

There are eight qualification criteria to be considered in determining whether to assign an Outstanding National Resource Water designation to a stream, as follows:

Impact on private property owners
Whether the interests of all affected parties have been adequately represented during the nomination and designation process
Location of the water
Previous special designations
Existing water quality
Factors that indicate outstanding ecological value
Factors that indicate outstanding recreational or aesthetic value
Other factors determined by the Secretary, when applicable

Generally, nominations that fail to address at least three of the qualification criteria will be considered insufficient. The DEP has determined that Mr. Williams’ Tier 3 nomination satisfies the minimum criteria.

Streams granted Tier 3 status are to be maintained, protected, and improved where necessary. Any proposed new or expanded regulated activity that would degrade the water quality, other than temporarily, is prohibited. This requirement only applies to point source discharges, such as sewage treatment plant and industrial discharges. It does not apply to non-point source activities, such as timbering, farming, and oil and gas drilling, as long as best management practices are implemented and maintained.

WVRC has long campaigned on the Antidegredation and Tier 3 classification issue to protect the water quality of all the states rivers and streams. In 2008 the Legislature to eliminated the compromise Tier 2.5 antidegredation category, and finally initiated designation of Tier 3 waters across the state. Now is your chance to comment on these protections of our highest quality streams.

Please send in your comments to DEP before the July 12 deadline.

 

These Tier 3 designations are supported by the West Virginia Rivers Coalition,

and they may be contacted at:     WV_Rivers_Update@wvrivers.org    .............................................