W. Va. Code R. § 64-3-14

Current through Register Vol. XLI, No. 35, August 30, 2024

Section 64-3-14 - Source Water Protection Program

14.1. This rule establishes a statewide program for development and implementation of source water protection and planning. This program is intended to protect water supply sources from contamination due to substances entering the groundwater or surface water bodies which are used as water supply sources by public water systems and public water utilities.

14.2. The requirements specified in this rule are minimum requirements and shall not prevent a public water utility or a public water system from taking additional steps to protect its wells, springs, wellfields, or surface water intakes.

14.3. Each existing public water utility which draws and treats water from a surface water supply source or a surface water influenced groundwater supply source shall submit to the commissioner an updated or completed source water protection plan for each of its public water system plants to protect its public water supplies from contamination. The schedule for submission of the source water protection plans is set forth in section 16 of this rule.

14.4. The West Virginia Source Water Protection Program consists of two types of delineations for the West Virginia waterways. These are a broad Watershed Delineation Area (WSDA) and a detailed Zone of Critical Concern (ZCC) delineation.

14.4.1. The WSDA includes the entire watershed area upstream from a public water utility intake structure, up to the boundary of the state borders, a topographic boundary and is the perimeter of the catchment area that provides water to the water supply intake. This delineation will use available hydrologic unit codes (HUC) based on the watershed network established by the United States Geological Survey (USGS). The WSDA is an area where a general inventory can be performed by the Public Water System. A more detailed inventory and management plan may be warranted based upon the type and number of existing potential sources of significant contamination (PSSC).

14.4.2. The ZCCis a corridor along the streams, lakes, and reservoirs within the WSDA that warrants a more detailed inventory and management of potential sources of significant contamination due to its proximity to the source water intake and to the susceptibility to potential contaminants.

14.4.2.a. ZCC delineations consist of the following:

14.4.2.a.1. Free flowing streams within the WSDA using the following configuration:

14.4.2.a.1.A. Width along the source stream is 1,000 feet from each bank of the principal stream and 500 feet from each bank of all tributaries draining into the principal stream.

14.4.2.a.1.A.1. For purposes of this rule, these terms have the following definitions:

14.4.2.a.1.A.1.(a).bank means the sides of a river or stream between which the water normally flows;

14.4.2.a.1.A.1.(b). the principal stream is defined as the stream where the source water intake for the public water utility is located; and

14.4.2.a.1.A.1.(c). tributaries are all other waterways flowing into the principal stream.

14.4.2.a.1.B. Length along the source stream is determined based on a five-hour time-of-travel using an estimated 90 percent high flow rate that is equaled or exceeded on 10 percent of the days during the period of record or up to the next upstream intake, where it is available. If high flow rate data is not available through a mathematical model to calculate flow time, then a five-mph flow rate is used.

14.4.2.a.2. Reservoirs or lakes within the WSDA using the following standards:

14.4.2.a.2.A. Width-1000 feet from each bank of the reservoir and 500 feet from each bank of the tributaries draining into the reservoir or lake.

14.4.2.a.2.B. Length along the source stream feeding into the reservoir or lake. The free flow stream segment will be delineated following the free flow stream procedure. If a lake or reservoir is encountered within the five-hour time-of-travel, the following delineation will take place: If the length of the lake or reservoir is less than or equal to the five-hour calculated time-of-travel distance from the intake, then the entire water body will be included. If the length of the lake or reservoir is greater than the calculated five-hour time-of-travel distance from the intake, then the section of water body within the five-hour time-of-travel distance will be used to establish the ZCC.

14.4.2.a.3. Ohio River Delineation-The Ohio River will use a tiered delineation system consisting of two protection zones for each Ohio River surface intake consisting of the following: Zone 1 --Zone of Critical Concern --The area adjacent to the Ohio River from one-quarter mile downstream of the intake to a distance of 25 miles (equivalent to a five-hour time-of-travel) upstream or the next upstream intake. The lateral extent of this zone extends one-quarter mile on both sides of the river and major tributaries. Zone 2 --Source Water --The entire portion of the Ohio River Basin upstream of the surface intake. This is equivalent to the West Virginia WSDA for the West Virginia waterways.

14.4.3. Conjunctive delineations will consist of the following for public surface water influenced groundwater supply sources:

14.4.3.a. The commissioner will determine whether a conjunctive delineation is required on a case by case basis;

14.4.3.b. The criteria that the state will use will be based on identification between selected parameters in the wells and in surface water in the nearby streams. Using this information, the commissioner will develop a statewide guidance standard for the designation; and

14.4.3.c. If a public water supply has been determined to be under the influence of surface water and its WHPA intersects the surface water body, then this system will be required to do a modified (full or partial) surface delineation in addition to the ground water delineation.

14.5. Every effort shall be made by the water utility to inform and engage the public, local governments, local emergency planners, local health departments and affected residents at all levels of the development of the protection plan.

14.6. The completed or updated plan for each affected plant, at a minimum, shall include the following:

14.6.1. A contingency plan that documents each public water utility's planned response to contamination of its public surface water supply source or its public surface water influenced groundwater supply source;

14.6.2. An examination and analysis of the public water system's ability to isolate or divert contaminated waters from its surface water intake or groundwater supply, and the amount of raw water storage capacity for the public water system's plant;

14.6.3. An examination and analysis of the public water system's existing ability to switch to an alternative water source or intake in the event of contamination of its primary water source;

14.6.4. An analysis and examination of the public water system's existing ability to close its water intake in the event the system is advised that its primary water source has become contaminated due to a spill or release into a stream, and the duration of time it can keep that water intake closed without creating a public health emergency;

14.6.5. The following operational information for each plant receiving water supplies from a surface water source shall include:

14.6.5.a. The average number of hours the plant operates each day, and the maximum and minimum number of hours of operation in one day at that plant during the past year; and

14.6.5.b. The average quantities of water treated and produced by the plant per day, and the maximum and minimum quantities of water treated and produced at that plant in one day during the past year;

14.6.6. An analysis and examination of the public water system's existing available storage capacity on its system, how its available storage capacity compares to the public water system's normal daily usage;

14.6.7. The calculated level of unaccounted for water experienced by the public water system for each surface water intake. The public water utility shall use the same method used in the Public Service Commission's rule, "Rules for the Government of Water Utilities," 150CSR7.5.6, to determine and report on their unaccounted for water. If the calculated percentage of unaccounted for water is in excess of 15 percent, the public water system shall describe all of the measures it is actively taking to reduce the level of water loss experienced in its system;

14.6.8. A list of the potential sources of significant contamination contained within the ZCC as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management in accordance with the provisions of W.Va. Code § 16-1-9c(b)(8).

14.6.8.a. Examples of land uses and activities which are considered to be potential sources of significant contamination may be further described in the guidance document to be published by the commissioner.

14.6.8.b. The exact location of the contaminants within the ZCC is not subject to public disclosure in response to a Freedom of Information Act request under W.Va. Code § 29B-1-1et seq.

14.6.8.c. The location, characteristics and approximate quantities of potential sources of significant contamination within the ZCC shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility.

14.6.8.d. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency that poses a potential threat to public health and safety.

14.6.8.e. Any public water utility may identify additional potential sources of significant contamination that are located outside of the ZCC if it deems those potential sources to be of concern to the integrity of the water supply.

14.6.9. If the public water utility's water supply plant is served by a single-source intake to a surface water source of supply or a surface water influenced source of supply, the submitted plan shall also include an examination and analysis of the technical and economic feasibility of each of the following options to provide continued safe and reliable public water service in the event its primary source of supply is detrimentally affected by contamination, release, spill event or other reason:

14.6.9.a. Constructing or establishing a secondary or backup intake which would draw water supplies from a substantially different location or water source;

14.6.9.b. Constructing additional raw water storage capacity, treated water storage capacity, or both, to provide at least two days of system storage, based on the plant's maximum level of production experienced within the past year;

14.6.9.c. Creating or constructing interconnections between the public water system with other plants on the public water utility system or another public water system, to allow the public water utility to receive its water from a different source of supply during a period its primary water supply becomes unavailable or unreliable due to contamination, release, spill event or other circumstance;

14.6.9.d. Any other alternative which is available to the public water utility to secure safe and reliable alternative supplies during a period its primary source of supply is unavailable or negatively impacted for an extended period; and

14.6.9.e. If one or more alternatives set forth in paragraphs 14.6.9.a. through 14.6.9.d. of this subdivision is determined to be technologically or economically feasible, the public water utility shall submit an analysis of the comparative costs, risks and benefits of implementing each of the described alternatives.

14.6.10. A management plan that identifies specific activities that will be pursued by the public water utility, in cooperation and in concert with the Bureau for Public Health, local health departments, local emergency responders, local emergency planning committee, and other state, county or local agencies and organizations to protect its source water supply from contamination, including, but not limited to, notification to and coordination with state and local government agencies whenever the use of its water supply is inadvisable or impaired, to conduct periodic surveys of the system, the adoption of best management practices, the purchase of property or development rights, conducting public education or the adoption of other management techniques recommended by the commissioner or included in the source water protection plan;

14.6.11. A communications plan that documents the manner in which the public water utility, working in concert with state and local emergency response agencies, shall notify the state and local health agencies and the public of the initial spill or contamination event and provide updated information related to any contamination or impairment of the source water supply or the system's drinking water supply, with an initial notification to the public to occur in any event no later than 30 minutes after the public water system becomes aware that the spill, release or potential contamination of the public water system poses a potential threat to public health and safety;

14.6.12. A complete and comprehensive list of the potential sources of significant contamination contained within the ZCC, based upon information which is directly provided or can otherwise be requested and obtained from the Department of Environmental Protection, the Bureau for Public Health, the Division of Homeland Security and Emergency Management and other resources; and

14.6.13. An examination of the technical and economic feasibility of implementing an early warning monitoring system.

14.6.14. Plans must be signed by a West Virginia Registered Professional Engineer (PE).

14.6.14.a. In the alternative, if the public water utility does not have a PE to sign its plan, it is acceptable to have the SWPP signed by the chief executive officer of a privately-owned water utility; or

14.6.14.b. In the alternative, if the public water utility does not have a PE to sign its plan, it is acceptable to have the SWPP signed by the board chairman or other presiding officer of a publicly owned water utility.

14.7. Any public water utility's public water system with a primary surface water source of supply or a surface water influenced groundwater source of supply that comes into existence on or after July 1, 2014, shall submit, prior to the commencement of its operations, a source water protection plan satisfying the requirements of subsection 14.6. of this section.

14.8. The commissionerwill review a plan submitted pursuant to this section and provide a copy to the secretary of the Department of Environmental Protection.

14.8.1. Within 180 days of receiving a plan for approval, the commissioner may approve, reject or modify the plan as may be necessary and reasonable to satisfy the purposes of this rule.

14.8.2. The commissioner will consult with the local public health officer and conduct at least one public hearing when reviewing the initial source water protection plan that has been updated or completed. The public hearings required by this rule may be scheduled in conjunction with one or more public water utilities in the same watershed and will be held after notice to the public in all affected locations.

14.8.3. The failure by any public water utility to comply with its source water protection plan approved pursuant to this rule is a violation of this rule and may be subject to penalties set forth in section 17 of this rule.

14.9. The commissioner may request a public water utility to conduct one or more studies to determine the actual risk and consequences related to any potential source of significant contamination (PSSC) identified by the plan, or as otherwise made known to the commissioner.

14.10. Any public water utility required to file a complete or updated plan in accordance with the provisions of this rule shall submit an updated source water protection plan at least every three years or when there is a substantial change in the potential sources of significant contamination within the identified ZCC.

14.11. Any public water utility required to file a complete or updated plan in accordance with the provisions of this section shall review any source water protection plan it may currently have on file with the bureau and update it to ensure it conforms with the requirements of this rule.

14.12. The commissioner's authority in reviewing and monitoring compliance with a source water protection plan may be transferred by the bureau to a nationally accredited local board of health.

W. Va. Code R. § 64-3-14