RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Water Quality Standards
[27 Pa.B. 5247] The Environmental Quality Board (Board) by this order amends §§ 93.9e, 93.9f, 93.9k, 93.9l, 93.9o, 93.9q and 93.9z to read as set forth in Annex A.
This order was adopted by the Board at its meeting of July 15, 1997.
A. Effective Date
These amendments are effective upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Edward R. Brezina, Chief, Division of Water Quality Assessment and Standards, Bureau of Watershed Conservation, (formerly the Division of Assessment and Standards, Bureau of Water Quality Management), 10th Floor Rachel Carson State Office Building, P. O. Box 8555, 400 Market Street, Harrisburg, PA 17105-8555, (717) 787-9637 or William J. Gerlach, 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 by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users) and request that the call be relayed. This proposal is available electronically through the Department of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
This final rulemaking is being made under the authority of the following acts: sections 5(b)(1) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which grant to the Board the authority to develop and adopt rules and regulations to implement the provisions of The Clean Streams Law. In addition, the Federal regulation at 40 CFR 131.32 (relating to Pennsylvania) sets forth certain requirements for portions of the Commonwealth's antidegradation program.
D. Background of the Amendment
Pennsylvania's Water Quality Standards, which are 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 (33 U.S.C.A. § 1313). Water quality standards are in-stream water quality goals which are implemented by imposing specific regulatory requirements (such as treatment requirements and effluent limits) on individual sources of pollution.
The Department considers candidates for Special Protection status and redesignation in its ongoing review of water quality standards. In general, Special Protection waters must be maintained at their existing quality, and wastewater treatment requirements must comply with § 95.1 (relating to general requirements). Candidates may be identified by the Department based on routine waterbody investigations. Requests for consideration may also be initiated by other agencies, such as the Fish and Boat Commission and by the general public through a rulemaking petition to the Board.
The Department evaluated the following streams in response to requests or petitions from the following:
Little Fishing Creek, Lick Run, Finley Run, and Shirley Run: Fish and Boat Commission
Letort Spring Run: Department's Southcentral Regional Office
Tinicum Creek: Tinicum Creek Watershed Association
Lofty Creek: Eugene J. Dougherty
Unami Creek: Marlborough Township Board of Supervisors
Pine Creek: Pine Creek Headwaters Protection Group and Tiadaghton Audubon Society
Sideling Hill Creek: Fulton County Conservation District
The physical, chemical and biological characteristics and other information on these waterbodies were evaluated in order to determine the appropriateness of the current designations. Aquatic surveys of these streams were conducted by the Department's Bureau of Water Quality Management and others. Based upon the data collected in these surveys and information gathered from Department records and other sources, the Board made changes to the proposed designations as described in Section F of this Preamble.
Copies of the Department's aquatic survey evaluation reports referred to above are available from Edward R. Brezina whose address and telephone number are listed in Section B of this Preamble.
In reviewing whether waterbodies are subject to the Special Protection Waters Program, and meet the definitions of ''High Quality Waters'' or ''Exceptional Value Waters'' in § 93.3 (relating to protected water uses), and applicable Federal regulations, the Department is utilizing guidance titled ''Special Protection Waters Selection Criteria.'' This guidance appears in the Department's ''Special Protection Waters Implementation Handbook.''
E. Summary of Comments and Responses on the Proposed Rulemaking
The proposed regulations were approved by the Board at its June 20, 1995, meeting, and notice of the proposed rulemaking was published at 25 Pa.B. 3111 (August 5, 1995). The proposal included provisions for a 60-day public comment period and a public hearing to receive additional written and oral testimony on the Unami Creek proposal, which was held on September 27, 1995, at the Tylersport Fire Company. The public comment period concluded on October 4, 1995. However, requests for a public hearing or meeting on the Letort Spring Run redesignation were received at the end of the regular public comment period. As a result, the Department agreed to hold a public meeting to discuss the Special Protection Waters designation program, and to respond to public concerns and receive additional information on the Letort Spring Run proposal. This meeting was held on December 4, 1995, at the South Middleton Township Municipal Office. Although the Board's public comment period had already closed on October 4, 1995, the Department accepted additional comments, suggestions and objections on the Letort Spring Run proposal until December 15, 1995.
The public comments and the Department's responses are summarized as follows:
The Board received comments from a total of 59 commentators during the public comment period. The Pennsylvania Farm Bureau provided comments on the entire proposed rulemaking package by generally opposing all EV redesignations. Two commentators provided comments on the Lofty Creek recommendation for no change (one supporting and one opposing). Thirty-eight commentators commented or testified on the Unami Creek EV proposal; twenty-two of these were witnesses at the Unami Creek public hearing. Eight commentators and 14 witnesses supported the EV designation, one was a neutral witness, and nine commentators and seven witnesses opposed the Unami Creek proposal. Seventeen commentators (four supporting, 11 opposing, one neutral, and one with an indeterminate position) provided comments on Letort Spring Run during the regular public comment permit. Two commentators supported the Sideling Hill Creek redesignation as EV.
The Independent Regulatory Review Commission (IRRC) provided comments on Letort Spring Run, Pine Creek and Unami Creek, which address issues that relate to clarity and reasonableness of the rulemaking. The Standing Committees did not provide any written comments on the proposed Tinicum Creek, et al rulemaking package.
Thirty commentators provided additional comments on Letort Spring Run during the December 4, 1995, public meeting and extended comment period (1 supporting and 29 opposing). The Department did not maintain a verbatim transcript of this public meeting. The Department conducted additional field survey work and stream evaluations on Pine Creek and Letort Spring Run in response to public comments and to provide additional information to further support or verify the proposed recommendations. The additional work on Pine Creek was performed by a staff biologist in the Department of Conservation and Natural Resources (DCNR), to verify the current status of the historic reference to broad-leafed water plantain being last documented in the basin during 1980. The biologist was able to confirm that this ''Pennsylvania Endangered'' species is still found near the same locations in the Pine Creek basin as reported in 1980, following several visits in August and September 1996. The Department also conducted additional water quality sampling on Letort Spring Run to verify the current condition of the water quality that had been questioned during the public comment period, at the public meeting and by IRRC. The additional sampling shows that the Letort Spring Run water quality is better than applicable water quality criteria, and supports excellent macroinvertebrate communities typical of limestone streams.
The Department believes that these redesignations are necessary to maintain the existing high quality of the streams. The Department does not propose any new regulatory restrictions on the existing dischargers or operations within these basins because of the HQ or EV Waters redesignations. The existing operations are currently required to obtain and maintain applicable Department permits, use best management practices where applicable, and must comply with the policies and regulations contained in The Clean Streams Law, and various chapters of the Pennsylvania Code. However, new or expanded discharge facilities or operations will be required to demonstrate that any proposed expansion or new operation will not have an adverse impact on the basin's water quality.
Several commentators and IRRC questioned the fiscal and economic impacts from these regulatory amendments, especially the EV redesignations. One commentator and witness at the Unami Creek public hearing chronicled the increased costs and bureaucratic effects of an EV designation on building and development in EV basins. This local developer estimated that it may cost him an additional $10,000 per lot for additional permitting fees/costs, engineering costs, construction modification and additional ground required for the silt basins necessary in an EV watershed. He also described his belief that a developer would be prohibited from doing even the simplest road or bridge repair or encroachment on a wetland because it will require additional permits, planning, engineering and regulatory restrictions.
The Department is unable to predict future costs or impacts, if any, that will be incurred by a new or expanding discharger as the result of an HQ or EV Waters redesignation. While the Department acknowledges that development in an HQ or EV watershed must be consistent with the designation, such designations do not prohibit development. The Department recommends that new or expanding dischargers pursue alternatives such as protective buffer zones, or multi-functional or strategic placement of facilities and physical features, and encourages creative planning and discharge alternatives; the Department will work with facility operators and developers in order to develop options that will help them comply with the regulatory requirements. These efforts to reduce pollution at the source, and thereby protect our important resources, are supported by the Department's Office of Pollution Prevention and Compliance Assistance.
F. Summary of Changes to the Proposed Rulemaking
Based upon questions raised during the public comment period and the development of this final rulemaking, relating to the appropriateness of the proposed Exceptional Value Waters (EV) designation for Unami Creek, the Department reexamined the factors that supported the EV recommendation. The high level of interest that was demonstrated by the affected public during the comment period has caused the Department to again reassess its original recommendation to the Board.
The proposal for EV Waters for portions of the Unami Creek basin was based on applicable regulatory criteria and EV Criteria IV.2--Outstanding Ecological Attributes and III.1--Regional/local Resource with Protective Mechanisms. As pointed out by a stakeholder in the basin, the reference streams to which Unami Creek was compared are not designated as EV Waters in Chapter 93, but are High Quality Waters. Determination of EV Waters under this circumstance makes it necessary to evaluate how much better than the reference station a candidate stream must be, rather than whether it compares equivalently to the reference stream. Scores for the sampling stations ranged from 59% to 112% of the reference station scores. The Department believes that these scores are sufficient to characterize Unami Creek as deserving the same designation (HQ) as the references, but not a higher (EV) designation.
Because of this reexamination of the factors supporting the redesignation of Unami Creek, the Department revises its previous recommendation to the Board, and supports redesignation of the Unami Creek basin as High Quality Waters.
Also, the Letort Spring Run evaluation was revised to incorporate the results of additional evaluations which were conducted by the Department. These revisions include revising the scope of EV protection on Letort Spring Run from the Route 34 bridge crossing to the abandoned railroad bridge at Letort Park. The proposed rule had recommended EV protection from the source to the southern boundary of Carlisle Borough. These changes are consistent with the Scenic River District established by South Middleton Township. Letort Spring Run from the source to the Route 34 bridge crossing will continue to be protected as HQ-CWF.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final regulations.
1. Benefits--Overall, the citizens of this Commonwealth will benefit from these recommended designations because they will provide, in some cases, an added degree of protection for important public natural resources and, in all cases, the most appropriate degree of protection for each stream in question.
2. Compliance Costs--Generally, these changes should have no fiscal impact on, or create additional compliance costs for the Commonwealth or its political subdivisions. Except as noted, no costs will be imposed directly upon local government by this recommendation.
However, indirect costs may result from revisions to Act 537 Sewage Facilities Plans due to consultant and other administrative fees. Political subdivisions which add a new sewage treatment plant or expand an existing plant in the basin may experience changes in cost as noted in the discussion of impacts on the private sector.
Persons proposing activities or projects which result in new or expanded discharges to streams must comply with the regulatory requirements relating to current stream designations. Persons could be adversely affected by the recommended changes that increase the level of protection provided to a stream if they expand their existing discharge, or add a new discharge point, since they may need to provide a higher level of treatment for their new or expanded discharge. These increased costs take the form of higher engineering, construction or operating costs for wastewater treatment facilities. Treatment costs are site-specific and may depend upon the size of the discharge in relation to the size of the stream and many other factors. It is therefore not possible to precisely predict the actual change in costs. In addition, nonpoint source controls necessary to protect High Quality and Exceptional Value Waters generally add to the cost of planning and development for new or expanded nonpoint source discharges. Economic impacts would primarily involve the potential for higher treatment costs for new or expanding dischargers to streams which are upgraded, and potentially lower treatment costs for dischargers to streams which are downgraded.
3. Compliance Assistance Plan--The rulemaking has been developed as part of an established program that has been implemented by the Department since the early 1980's. Additional central office or regional staff are not expected to be needed in order to implement the proposal. The redesignations are consistent with current policies and, therefore, no policy changes are anticipated. The final rulemaking extends additional protection to selected waterbodies that exhibit exceptional water quality and environmental features, and is consistent with antidegradation requirements established by the Federal Clean Water Act and Pennsylvania 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 existing water uses.
The final regulations will be implemented through the National Pollutant Discharge Elimination System (NPDES) permitting program since the stream use designation is a major basis for determining the allowable stream discharge effluent limitations. These permit conditions are established to assure the water quality criteria are achieved and the designated uses are protected. New and expanded dischargers with water quality based effluent limitations are required to provide effluent treatment according to the water quality criteria associated with the proposed revised designated water uses.
The Department has developed technical guidance to assist the potentially affected and regulated community in understanding the impacts and requirements of the Special Protection Stream Designation Process. The Special Protection Waters Implementation Handbook, (1992), provides guidance on the regulatory designation process, protection of candidate streams, and most importantly, general considerations for proposed new or expanded discharges to Special Protection Waters. This handbook also contains appendices which present management practices and technologies relevant for point and nonpoint source dischargers to Special Protection Waters. The Department has conducted various workshops, seminars and public meetings on the Special Protection Waters program. Public meetings have been held for specific stream redesignation concerns. Permitted point source discharges are regularly evaluated through discharger self-monitoring reports (DMRs) and DEP inspections, to assure they are complying with permit conditions. The Handbook sets forth recommended Best Management Practices (BMPs) for nonpoint sources.
4. Paperwork Requirements--The regulatory revisions should have no direct paperwork impact on the Commonwealth, local governments and political subdivisions, or the private sector. These regulatory revisions are based on existing Department programs and policies. There may be some indirect paperwork requirements for new or expanding dischargers to streams upgraded to Special Protection (HQ or EV). For example, NPDES general permits are not currently available for new or expanded discharges to Special Protection streams. Thus, an individual permit, and its associated additional paperwork, would be required. Additionally, paperwork associated with demonstrating social and economic justification (SEJ), and the nonfeasibility of nondischarge alternatives, may be required for new or expanded discharges to certain Special Protection waters.
H. Pollution Prevention
The antidegradation program, which applies to the quality of waters in streams designated as HQ and EV, is a major pollution prevention tool because its objective is to prevent degradation by maintaining and protecting existing water quality. Although new and expanded wastewater discharges are not prohibited by the antidegradation program, nondischarge alternatives are encouraged and required, when appropriate. Nondischarge alternatives, when implemented, remove impacts to surface water and reduce the overall level of pollution to the environment by remediation of the effluent through the soil.
I. Sunset Date
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of the notice of proposed rulemaking on July 25, 1995, to IRRC and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment. The notice was published at 25 Pa.B. 3111 (August 5, 1995). In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Standing Committees with copies of all comments received, as well as other documentation.
In preparing these final-form regulations, the Board has considered all comments received from IRRC and the public. The Standing Committees did not provide comments on the proposed rulemaking.
This final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committee on August 25, 1997. IRRC met on September 4, 1997, and deemed approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
K. Findings of the Board
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 25 Pa.B. 3111 (August 5, 1995).
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
L. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(1) The regulations of the Department of Environmental Protection, 25 Pa. Code Chapter 93, are amended by amending §§ 93.9e, 93.9f, 93.9k, 93.9l, 93.9o, 93.9q and 93.9z to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(2) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form, as required by law.
(3) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(4) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(5) This order shall take effect immediately.
JAMES M. SEIF,
Chairperson(Editor's Note: A proposal to amend §§ 93.9f, 93.9k, 93.9l, 93.9o and 93.9q, amended in this document, remains outstanding at 27 Pa.B. 1449 (March 22, 1997).) A proposal to amend §§ 93.9e, 93.9f, 93.9k, 93.9l, 93.9o, 93.9q and 93.9z, amended in this document, remains outstanding at 27 Pa.B. 1459 (March 22, 1997).) For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 4879 (September 20, 1997).)
Fiscal Note: Fiscal Note 7-290 remains valid for the final adoption of the subject regulations.
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 § 93.9e. Drainage List E.
Delaware River Basin in Pennsylvania
Delaware River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 2--Gallows Run Basin Bucks CWF None 2--Tinicum Creek Basin Bucks EV None * * * * * § 93.9f. Drainage List F.
Delaware River Basin in Pennsylvania
Schuylkill River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 4--Deep Creek Basin Montgomery TSF None 4--Unami Creek Basin Montgomery HQ-TSF None 4--Swamp Creek Basin Montgomery TSF None * * * * * § 93.9k. Drainage List K.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 3--Little Fishing Creek Basin, Source to Lick Run Columbia EV None 4--Lick Run Basin Columbia CWF None 3--Little Fishing Creek Basin, Lick Run to Mouth Columbia CWF None 3--Hemlock Creek Basin Columbia CWF None * * * * * 2--Roaring Creek Basin, Source to Lick Run Columbia HQ-CWF None 2--Roaring Creek Main Stem, Lick Run to Mouth Columbia-Montour TSF None 3--Unnamed Tributaries to Roaring Creek Basins, Lick Run to Mouth Columbia-Montour CWF None 3--Lick Run Basin Columbia HQ-CWF None * * * * * § 93.9l. Drainage List L.
Susquehanna River Basin in Pennsylvania
West Branch Susquehanna River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 5--Square Timber Run Basin Cameron HQ-CWF None 5--Sterling Run 6--Finley Run Basin, Source to Unnamed Tributary at RM 1.7 Cameron HQ-CWF None 6--Finley Run Basin, Unnamed Tributary at RM 1.7 to Confluence with Portable Run Cameron CWF None 6--Portable Run Basin, Source to Confluence with Finley Run Cameron CWF None 5--Sterling Run Basin, Confluence of Portable Run and Finley Run to Mouth Cameron CWF None * * * * * 3--Pine Creek Main Stem, South Branch Pine Creek to Marsh Creek Tioga EV None * * * * * § 93.9o. Drainage List O.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 3--Letort Spring Run Basin, Source to PA 34 Bridge Cumberland HQ-CWF None 3--Letort Spring Run Basin, PA 34 Bridge to Railroad Bridge at Letort Park Cumberland EV None 3--Letort Spring Run Basin, Railroad Bridge at Letort Park to Mouth Cumberland CWF None * * * * * § 93.9q. Drainage List Q.
Ohio River Basin in Pennsylvania
Allegheny River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 4--Thompson Creek Basin, Source to Shirley Run Crawford CWF Add TON 5--Shirley Run Basin Crawford HQ-CWF Add TON 4--Thompson Creek Basin, Shirley Run to Mouth Crawford CWF Add TON * * * * * § 93.9z. Drainage List Z.
Potomac River Basin in Pennsylvania
Potomac River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 2--Fifteen Mile Creek Basin (all sections in PA) Bedford WWF None 2--Sideling Hill Creek 3--West Branch Sideling Hill Creek Basin, Source to Confluence with East Branch Bedford EV None 3--East Branch Sideling Hill Creek Basin, Source to Confluence with West Branch Bedford EV None 2--Sideling Hill Creek Basin, Confluence of West and East Branches to PA-MD State Border Fulton EV None 3--Crooked Run Basin (all sections in PA) Fulton EV None 2--Sideling Hill Creek (MD) 3--Unnamed Tributaries to Sideling Hill Creek Basins (all sections in PA), PA-MD State Border to Mouth Fulton EV None 3--Bear Creek Basin (all sections in PA) Fulton EV None * * * * *
[Pa.B. Doc. No. 97-1618. Filed for public inspection October 10, 1997, 9:00 a.m.]
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