75-5-303. Nondegradation policy. (1) Existing uses of state waters and the level of water quality necessary to protect those uses must be maintained and protected.

(2) Unless authorized by the department under subsection (3) or exempted from review under 75-5-317, the quality of high-quality waters must be maintained.

(3) The department may allow lower water quality through a feasibility allowance in high-quality waters when it has been affirmatively demonstrated by a preponderance of evidence to the department that:

(a) a feasibility allowance is necessary because there are no economically, environmentally, and technologically feasible modifications to the proposed project that would result in no degradation;

(b) the proposed project will result in important economic or social development in the area that the high-quality waters are located;

(c) existing and anticipated use of state waters will be fully protected; and

(d) the least degrading water quality protection practices determined by the department to be economically, environmentally, and technologically feasible will be fully implemented by the applicant prior to and during the proposed activity.

(4) The department shall issue a preliminary decision either denying or authorizing the feasibility allowance and shall provide public notice and a 30-day comment period prior to issuing a final decision. The department's preliminary and final decisions must include:

(a) a statement of the basis for the decision; and

(b) a detailed description of all conditions applied to a feasibility allowance, including, when applicable, monitoring requirements, required water protection practices, reporting requirements, effluent limits, designation of the mixing zones, the limits of the authorized feasibility allowance, and methods of determining compliance with the feasibility allowance.

(5) An interested person wishing to challenge a final department decision may request a hearing before the board within 30 days of the final department decision. The contested case procedures of Title 2, chapter 4, part 6, apply to a hearing under this section.

(6) Periodically, but not more often than every 5 years, the department may review feasibility allowances for state waters. Following the review, the department may, after timely notice and opportunity for hearing, modify the feasibility allowance if the department determines that an economically, environmentally, and technologically feasible modification to the development exists. The decision by the department to modify a feasibility allowance may be appealed to the board.

(7) The department may not issue a feasibility allowance for state waters that are classified as outstanding resource waters.

(8) The department shall adopt rules to implement this section.