Existing Use Determinations
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New! Public Comment Extension and Public Hearing for Proposed Existing Use Determination and Rationale Documents
In accordance with Code of Maryland Regulations (COMAR) 26.08.02.04-1 and the Cold Water Existing Use Determinations: Policy & Procedures which is incorporated by reference into this regulation, the Department of the Environment is sharing for public review and comment seven (7) proposed cold water existing use determination and rationale documents. NOTICE: A public hearing will be held for the North Branch Potomac River (Allegany) existing use determination and rationale document on December 2, 2024 from 5:30 p.m. - 7:30 p.m. The public comment period which opened on September 6, 2024 has been extended to December 9, 2024. To access the proposed documents and for information on where to submit public comments and the public hearing, please see the dropdown below titled "Completed and Proposed Existing Use Determinations". To register for the public hearing, click here. |
In addition to defining designated uses as part of water quality standards, the implementing regulations of the CWA, found in Code of Federal Regulations (CFR) Title 40 § 131.3(e), also establish the concept of an “existing use”, one of the foundational principles for antidegradation policy. Here, 40 CFR § 131.3(e) defines existing uses as “…those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards”. Federal regulations additionally discuss existing uses in 40 CFR § 131.12(a), part of the Code of Federal Regulations that establishes the basis for EPA and state’s Antidegradation Policy. Here the regulation asserts that “at a minimum…(1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” Existing uses therefore represent the highest level of use and water quality (necessary to support that use) that has been achieved since 1975. In this manner, existing uses function as the baseline or floor of water quality that must be maintained regardless of the codified designated use.
Maryland’s Code of Regulations (COMAR) also establishes protections for existing uses. Specifically, Maryland’s Antidegradation Policy regulation (COMAR regulation 26.08.02.04) echoes the federal regulations by saying “A. Waters of this State shall be protected and maintained for existing uses and the basic uses of water contact recreation, fishing, protection of aquatic life and wildlife, and agricultural and industrial water supply as identified in the Use Class designations.” and “B. Consistent with the Federal Act, existing uses and the level of water quality necessary to protect existing uses for any water body shall be maintained.”
Further, Maryland’s regulations provide Antidegradation Policy Implementation Procedures for the Tier I level of protection in COMAR 26.08.02.04-1 which state that “A. All waters of the State shall receive Tier I protection which requires the protection and maintenance of existing uses and designated uses.” and “B. Protections. Waters that have demonstrated an existing use that is not protected by the water quality criteria specified by the current designated use for this water body shall be protected so as to maintain the existing use and the water quality necessary to protect the existing use.”
MDE formed a Cold Water Advisory Committee composed of stakeholders and subject matter experts to assist the Department in developing MDE’s policy and procedures for identifying cold water existing uses and outlining steps designed to reduce regulatory uncertainty. This policy and procedures were formalized as the “
Cold Water Existing Use Determinations: Policy and Procedures” document that was incorporated by reference in COMAR 26.08.02.04-1.
Completed Existing Determinations
Recent data have shown that the current use classification of some Maryland surface waters was not protective of their existing use and specifically that of a cold water existing use. The existing uses of these streams are formally recognized by the Department and, as a result, some surface waters were reclassified to use Class III (or III-P) where data demonstrated that the Class III designated use and criteria were being attained. The following existing use determination documents provide justification for and describe the scale of existing use determinations and use classification changes where applicable. These determinations received public review and comment with the
2019 Triennial Review in March-April of 2022 and were made final in October 2022. MDE received EPA approval for the 2019 Triennial Review on June 28, 2023. These existing uses are also shown on
MDE’s Designated Use Map.
Proposed Existing Use Determinations (**Public Comment from September 6, 2024 - EXTENDED December 9, 2024** ** PUBLIC HEARING on December 2, 2024**)
These are existing use determination documents which are undergoing public review. A notice for the proposed existing use determinations will be published in the September 6, 2024 edition of the Maryland Register. The public comment period for the following proposed existing use determination documents began on September 6, 2024 and has been extended until December 9, 2024.
A public hearing has been requested for the North Branch Potomac River (Allegany) existing use determination and rationale document.
The public hearing will be held both virtually and in-person on Monday, December 2, 2024 from 5:30 p.m. to 7:30 p.m. To register to attend the public hearing, please fill out the online registration form (https://forms.gle/73oqFGAx9RVUadqSA) or email melinda.cutler@maryland.gov. To attend in-person, please indicate in-person attendance on the registration form; the in-person meeting location will be at the Westernport Branch Library, 66 Main St, Westernport, MD 21562.
The seven (7) proposed existing use determination and rationale documents currently available for public comment will also be included within the public comment period and public hearing for the 2025 Triennial Review of Water Quality Standards.
Ms Melinda Cutler
Watershed Protection, Restoration, and Planning Program
Maryland Department of the Environment
1800 Washington Boulevard
Baltimore, MD 21230-1720
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Last Updated 10/2024
