The Nevada Division of Environmental Protection (Division) has decided to not present Proposed Regulation R119-20 which sets forth a process for the State Environmental Commission to classify a surface water of the State or segment thereof as a water of extraordinary ecological, aesthetic or recreational value (EAW) and establishes provisions for antidegradation protection of Nevada surface water resources, to the SEC for adoption as a permanent regulation at the June 15th hearing. Instead, the regulatory petition will be changed to an Information Item on the June 15th hearing agenda to provide exposure and seek input from the commissioners related to the overall intent of the proposed regulation.
According to NDEP comments provided during the workshops and submitted later indicate further revisions and clarification are necessary to resolve several outstanding issues. NDEP has started to revise certain aspects of the proposed regulation in response to those helpful comments and suggestions that were provided. A couple of significant preliminary revisions that have been made by NDEP are:
EAW Nominations
Petitions to nominate a water as an EAW will follow one process which is to file the petition with the SEC pursuant to NAC 445B.886. NDEP will be seeking advice from the SEC at the June hearing on the extent and level of detail of information and material that would need to accompany a nomination petition. The nominating party would be responsible for assembling all information necessary to nominate a water for classification as an EAW and be responsible for any associated costs.
NDEP will also be seeking input from Commissioners as to what information and material would be expected to be included in a regulatory petition that would be developed if the SEC decided to initiate rulemaking proceedings on the nominated water. A LCB prepared regulation to classify (designate) the nominated water as an EAW would be heard at a subsequent SEC hearing. Although not explicitly stated in the regulation, the petition would follow the administrative rule-making process as is currently done for all water quality related regulations.
Antidegradation Provisions
NDEP is still proposing to retain tiers of antidegradation protection with the following changes:
Tier 2 – High quality water levels will be maintained and protected using the existing RMHQ program. The process of developing RMHQs would be adopted into the proposed regulation as a way for NDEP to satisfy antidegradation protection requirements when the level of water quality for a parameter is better than the water quality standard.
Tier 1 – Would be applicable to effluent-dominated waters (on a parameter-by-parameter basis) except when RMHQs exist for certain parameters. A definition for effluent-dominated water has been developed for inclusion in the proposed regulation.
Incorporating the concepts behind RMHQs into the regulation will allow some other major issues to be addressed such as: developing a threshold that defines a better water quality level (e.g., a certain % below the water quality standard level); evaluating the impacts of a discharge from the perspective of how the levels of water quality in the receiving water may be altered.
Other issues planned to be discussed internally before making revisions to draft regulation include: what situations trigger an antidegradation review during a permit renewal; who should do the antidegradation review for efficiency reasons; and how to address situations where water quality data may need to be collected to develop a RMHQ.
NDEP will also address other issues and matters as they work through the process of revising and refining R119-20. NDEP will be requesting a time extension from LCB for adoption of the draft regulation and will organize and schedule a meeting to discuss the changes as well as responses to comments submitted.
Proposed Regulation R119-20 is available at: https://hrbwa.com/wp-content/uploads/2022/03/NDEP-R119-20P.pdf
