PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CH. 93]
Stream Redesignation; East Branch Codorus Creek
[32 Pa.B. 4866] The Environmental Quality Board (Board) proposes to amend § 93.9o (relating to Drainage List O) to read as set forth in Annex A. This proposed rulemaking would redesignate a portion of the East Branch Codorus Creek from Cold Water Fishes (CWF) to Warm Water Fishes (WWF) to reflect the appropriate designated use for this stream.
This proposed rulemaking was adopted by the Board at its meeting of September 17, 2002.
A. Effective Date
This proposed rulemaking is effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information, contact Edward R. Brezina, Chief, Division of Water Quality Assessment and Standards, Bureau of Water Supply and Wastewater Management, 11th Floor, Rachel Carson State Office Building, P. O. Box 8467, (717) 787-9637; or Michelle Moses, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory and Regulatory Authority
This proposed rulemaking is made under the authority of sections 5(b)(1) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402), which authorize the Board to develop and adopt rules and regulations to implement the provisions of The Clean Streams Law and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which grants to the Board the power and duty to formulate, adopt and promulgate rules and regulations for the proper performance of the work of the Department. In addition, section 303 of the Federal Clean Water Act (33 U.S.C.A. § 1313) sets forth requirements for water quality standards and the Federal regulation in 40 CFR 131.32 (relating to Pennsylvania) sets forth certain requirements for portions of the Commonwealth's antidegradation program.
D. Background of the Amendment
The Commonwealth's Water Quality Standards, set forth, in part, in Chapter 93 (relating to water quality standards), implement the provisions of sections 5 and 402 of The Clean Streams Law and section 303 of the Federal Clean Water Act. Water quality standards are in-stream water quality goals that are implemented by imposing specific regulatory requirements (such as treatment requirements and effluent limits) on individual sources of pollution.
The lower reaches of the East Branch Codorus Creek, including Lakes Redman and Williams, were evaluated in response to a rulemaking petition submitted by the York Water Company. The petition requested redesignation of the main stem of the East Branch Codorus Creek from the inlet of Lake Redman to the mouth from CWF to WWF. The petition contained extensive data on water quality and the fishery in this portion of the basin, including Lakes Redman and Williams.
The Department's evaluation involved review of data in the petition and data obtained from the Fish and Boat Commission (Commission). The data shows that Lake Redman, Lake Williams and the East Branch Codorus Creek downstream from Lake Williams support a WWF community. The existence of a warm water fishery in Lake Redman has been documented since 1970. Surveys beginning in 1983 have shown a WWF community. The warm water fishery in the lower main stem was documented in 1996.
Based upon its review of the petition and the Departments' recommendation, the Board proposes to adopt the designations described in this Preamble and set forth in Annex A.
Copies of the Department's stream evaluation report for this waterbody are available from Edward R. Brezina whose address and phone number are listed in Section B.
The information presented in the report clearly indicates that the aquatic life existing use of the petitioned surface waters is WWF. The WWF existing use is less restrictive than its CWF designated use. In addition, the information in the report supports redesignation under § 93.4(b) (relating to Statewide water uses). This information indicates that the petitioned surface waters were designated in error in 1979 when the Board adopted the current regulatory CWF designated use. The Board is proposing that the less restrictive use be adopted based on the data that demonstrates the requirements of § 93.4(b) have been satisfied. Section 93.4(b) states that less restrictive designated uses than those currently designated for particular waters listed in §§ 93.9a--93.9z may be adopted when it is demonstrated that: (1) the designated use is more restrictive than the existing use; (2) the use cannot be attained by implementing effluent limits required under sections 301(b) and 306 of the Federal Clean Water Act (33 U.S.C.A. §§ 1311(b) and 1316) or implementing cost-effective and reasonable Best Management Practices for nonpoint source control; and (3) dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate the modification in a way that would result in the attainment of the use.
E. Benefits, Costs and Compliance
Executive Order 1996-1, ''Regulatory Review and Promulgation,'' requires a cost/benefit analysis of the proposed rulemaking.
1. Benefits--Overall, the citizens of this Commonwealth will benefit from this proposed rulemaking because it will reflect the appropriate designated use and maintain the most appropriate degree of protection for this stream. In addition, the York Water Company will benefit by being able to meet projected future water demands and ensuring an adequate water supply for its customers. The change in designation would allow water withdrawn from the Susquehanna River to be pumped, as needed, into Lake Redman for water supplies.
2. Compliance Costs--Generally, the proposed rulemaking should have no fiscal impact on, or create additional compliance costs for, the Commonwealth or its political subdivisions. No costs will be imposed directly upon local governments by this recommendation.
Persons conducting or proposing activities or projects that result in new or expanded discharges to streams shall comply with the regulatory requirements relating to the designated use. Treatment costs are site-specific and depend upon the size of the discharge in relation to the size of the stream and many other factors.
3. Compliance Assistance Plan--The proposed rulemaking has been developed as part of an established program and is consistent with water quality standards requirements established by the Federal Clean Water Act and The Clean Streams Law. All surface waters in this Commonwealth are afforded a minimum level of protection through compliance with the water quality standards, which prevent pollution and protect designated water uses.
The proposed rulemaking will be implemented through the National Pollutant Discharge Elimination System permitting program since the stream use designation is a major basis for determining allowable discharge effluent limitations. These permit conditions are established to assure water quality criteria are achieved and designated uses are protected. New and expanded discharges with water quality-based effluent limitations are required to provide effluent treatment according to the water quality criteria associated with designated water uses.
4. Paperwork Requirements--The proposed rulemaking should have no direct paperwork impact on the Commonwealth, local governments and political subdivisions or the private sector. This proposed rulemaking is based on existing Department regulations.
F. Pollution Prevention
The water quality standards program is a major pollution prevention tool because the objective is to protect in-stream water uses.
G. Sunset Review
The proposed rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 24, 2002, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment. In addition to the proposed amendment, IRRC and the Committees have been provided a detailed regulatory analysis form prepared by the Department, in compliance with Executive Order 1996-1. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed amendment, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by that portion of the proposed amendment to which an objection is made. The Regulatory Review Act specifies detailed procedures for review by the Department, the Governor and the General Assembly before publication of the final-form regulation.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477. Express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301. Comments submitted by facsimile will not be accepted. The Board must receive comments by November 19, 2002 (within 45 days of publication in the Pennsylvania Bulletin). Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by November 19, 2002. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the proposed amendment will be considered. If sufficient interest is generated as a result of this publication, a public hearing or meeting, or both, will be scheduled at an appropriate location to receive additional comments.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@state.pa.us. A subject heading of the proposal and return name and address must be included in each transmission. The Board must also receive comments submitted electronically by November 19, 2002.
DAVID E. HESS,
ChairpersonFiscal Note: 7-379. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 93. WATER QUALITY STANDARDS § 93.9o. Drainage List O.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Water Uses Exceptions To Stream Zone County Protected Specific Criteria * * * * * 4--East Branch Codorus Creek Basin, PA 214 to [mouth] Inlet of Lake Redman York CWF None 4--East Branch Codorus Creek Main Stem, Inlet of Lake Redman to Mouth York WWF None 5--Unnamed Tributaries to East Branch Codorus Creek Inlet of Lake Redman to Mouth York CWF None 5--Inners Creek Basin York CWF None * * * * *
[Pa.B. Doc. No. 02-1738. Filed for public inspection October 4, 2002, 9:00 a.m.]
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