RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Stream Redesignations (Hay Creek, et al.)
[29 Pa.B. 5999] The Environmental Quality Board (Board) by this order amends §§ 93.9f and 93.9t (relating to Drainage List F; and Drainage List T) to read as set forth in Annex A.
This order was adopted by the Board at its meeting of September 21, 1999.
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, 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). This final rulemaking is available electronically through the Department of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory and Regulatory 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 (35 P. S. §§ 691.1--691.1001). 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 Amendments
The Commonwealth's water quality standards, which are set forth in part in Chapter 93 (relating to water quality standards), implement 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 that 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 or redesignation in its ongoing review of water quality standards. In general, Special Protection waters (High Quality (HQ) and Exceptional Value (EV) waters) shall be maintained at their existing quality, and wastewater treatment requirements shall 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 (FBC), and by the general public through a rulemaking petition to the Board.
The Department evaluated the following streams in response to requests from Department and FBC staff:
Sugarcamp Run, Hay Creek and South Fork Little Conemaugh River: Department of Environmental Protection
Mill and Little Mill Creeks, Sandy Run, and Bens Creek: FBC
The physical, chemical and biological characteristics and other information on these waterbodies were evaluated to determine the appropriateness of the current designations. Aquatic surveys of these streams were conducted by the Department's Bureau of Watershed Conservation. In reviewing whether waterbodies are subject to the Special Protection Waters Programs the Department utilizes applicable regulatory criteria and definitions. Based upon the data collected in these surveys and information gathered from Department records and other sources, the Board has made the designations in Annex A.
Copies of the Department's stream evaluation reports for these waterbodies are available from Edward R. Brezina whose address and telephone number are listed in Section B of this Preamble.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Board approved the proposed rulemaking on June 17, 1997. The proposal was published at 27 Pa.B. 4094 (August 16, 1997) with provision for a 45-day public comment period.
The Board received a total of 130 comments on this proposed rulemaking. These comments were primarily concerned with the proposed redesignation of Hay Creek. In addition, some of the commentators, including the Independent Regulatory Review Commission (IRRC) provided general comments on the special protection waters program.
The following is a summary of the comments by IRRC and the public. The House and Senate Environmental Resources and Energy Committees did not provide comments on the proposed rulemaking.
A total of 124 of the 130 public comments were in support of the proposed redesignation of Hay Creek. These comments were provided by the general public, local and county governments, and environmental or sportsman's groups.
Four commentators questioned the scientific validity of the biological test used in recommending much of the Hay Creek basin for EV Waters designation and noted that some stations did not meet the 92% comparison to a reference station needed to qualify for EV. The Department believes that the recommended redesignation of Hay Creek is the result of a scientific evaluation including comparison of the aquatic community to that found in a reference stream that is designated EV Waters. Four of the five biological sampling stations on the main stem of Hay Creek scored greater than 92% of the EV reference stations used for the ecological significance evaluation, and thus qualify for EV protection. There was a short reach of stream that did not attain a metrics score which would qualify it as EV. It appeared that although water chemistry was adequate, suboptimal habitat conditions in this short segment affected the macroinvertebrate community and prevented it from attaining the necessary metrics score. This segment is not recommended for redesignation except to add the Migratory Fishes (MF) use designation.
Two commentators stated that the proposed EV designation was based in part on the presence of a threatened species in a very limited portion of the watershed. The original report did cite the presence of bog bluegrass as meeting one of the special protection waters selection criteria and used that presence as part of the justification for recommending a portion of the Hay Creek basin for EV designation. The revisions to the Commonwealth's antidegradation regulations, adopted by the Board on May 19, 1999, and published at 29 Pa.B. 3720 (July 17, 1999) do not include the presence of threatened and endangered species as a criterion for recommending a water body for inclusion in the special protection waters program. The use of this criterion as a basis for the recommended redesignation has been removed from the evaluation report.
One commentator felt the proposed redesignation was an attempt to block the efforts of a landowner and private corporation to develop within the Hay Creek basin and that the author of this proposal was opposed to the Haines and Kibblehouse development. The Department does not inquire into the motivation of those requesting redesignation of a surface water. A stream is evaluated under the same protocols regardless of the reasons for a redesignation request. The evaluation of Hay Creek was conducted following established Department protocols.
IRRC commented that the selection criteria found in the Special Protection Waters Implementation Handbook are only guidance and stated that references to these criteria lack clarity because they are not in regulation and the references in the Handbook are not clearly linked to the criteria in the regulation. They also noted that the definition of EV in Chapter 93 requires the stream to be an outstanding resource and goes on to describe several examples including waters of substantial recreational or ecological significance. Further, they commented that the benthic macroinvertebrate comparisons do not appear to directly relate to the criterion of establishing the stream as an outstanding resource as required by the regulation. The Department notes that the biological tests have been specifically incorporated into the revised antidegradation regulations in § 93.4b(a)(2) and (b)(1)(v) (relating to qualifying as High Quality or Exceptional Value Waters). Candidate waters are compared to a reference stream or watershed and must attain an integrated benthic macroinvertebrate score of at least 83% of the reference stream or watershed to qualify for HQ Waters protection. To attain EV protection under the biological test, the candidate must qualify for HQ designation and achieve a score of at least 92% of the reference.
These regulatory changes allow wastewater treatment requirements for dischargers to these streams to be consistent with the water uses to be protected. These regulatory amendments do not contain standards or requirements which exceed requirements of the companion Federal regulations.
F. Summary of Changes to the Proposed Rulemaking
One change from the proposed rulemaking is the removal of Pine Creek (Crawford and Warren Counties) from the package. During IRRC review of the revised antidegradation regulations, concern was expressed that some special protection candidate waters were compared to reference streams that are designated HQ Waters rather than EV Waters. Pine Creek was evaluated, in part, using HQ reference stations. The Department has removed Pine Creek from this package and will reevaluate it and submit its recommendations as proposed rulemaking in a future package.
The stream evaluation reports were revised as a result of the changes to the Commonwealth's antidegradation regulations. During this process, one of the recommendations for Hay Creek (Berks County) was changed. A majority of the Hay Creek basin had been recommended for redesignation to EV in the proposed rulemaking. One segment of Hay Creek which was proposed for EV protection is now recommended to retain its CWF designation with the addition of MF because it was determined to not attain a 92% biological metric score when compared to the reference station. This change affects the portion of the basin between Unnamed Tributary 63882 and Beaver Run.
The recommended designation for Sandy Run (Somerset County) was also changed from the proposed rulemaking. At the time the Sandy Run evaluation was conducted, the Department attempted to match the watershed drainage area of candidate and reference stations to the extent possible. Recent data and metrics evaluations have shown that this practice is not necessary. These evaluations indicate that stream order, stream gradient and alkalinity are the primary factors to consider when choosing a reference station. The biological metrics in the Sandy Run evaluation report were recalculated using one reference station, Blue Hole Creek. As a result of this reevaluation, the entire basin is now recommended to retain its High Quality-Cold Water Fishes (HQ-CWF) use designation.
During the report revisions, an inadvertent error was discovered in the recommended redesignation of Bens Creek (Cambria County). An unnamed tributary to Bens Creek (Stream Code 46100) should have been included with other streams/segments recommended to be redesignated from HQ-CWF to Cold Water Fishes (CWF) because of historic degradation by acid mine drainage. This error is corrected in the final rulemaking.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost /benefit analysis of the amendments.
1. Benefits--Overall, the citizens of this Commonwealth will benefit from these recommended changes because they will reflect the appropriate designated use and maintain the most appropriate degree of protection for each stream in accordance with the existing use of the stream.
2. Compliance Costs--Generally, the changes should have no fiscal impact on, or create additional compliance costs for the Commonwealth or its political subdivisions. The streams recommended for redesignation are already protected at their existing use, and therefore the designated use change will have no impact on treatment requirements. No costs will be imposed directly upon local government by this recommendation. Political subdivisions that 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 conducting or proposing activities or projects that result in discharges to streams shall comply with the regulatory requirements relating to designated and existing uses. These persons could be adversely affected if they expand the discharge or add a new discharge point since they may need to provide a higher level of treatment for the new or expanded discharge to meet the designated and existing uses of the stream. These increased costs may 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. Economic impacts would primarily involve the potential for higher treatment costs for new or expanded discharges to streams which are upgraded, and potentially lower treatment costs for discharges to streams which are downgraded.
3. Compliance Assistance Plan--The regulatory revisions have been developed as part of an established program that has been implemented by the Department since the early 1980s. The revisions are consistent with and based on existing Department regulations. The revisions extend additional protection to selected waterbodies that exhibit exceptional water quality and are 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 amendments will be implemented through the National Pollutant Discharge Elimination System (NPDES) permitting program since the stream use designation is a major basis for determining allowable stream discharge effluent limitations. These permit conditions are established to assure water quality criteria are achieved and designated and existing 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 existing uses and revised designated water uses.
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 regulations and simply mirror the existing use protection that is already in place for these streams. 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 is a major pollution prevention tool because its objective is to prevent degradation by maintaining and protecting existing water quality and existing uses. Although new or expanded wastewater discharges are not prohibited by the antidegradation program, nondischarge alternatives are encouraged and required, when environmentally sound and cost effective. 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 Review
These amendments 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)), on August 5, 1997, the Department submitted a copy of the notice of proposed rulemaking, published at 27 Pa.B. 4094, to IRRC and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment. Under section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing these final-form regulations, the Department has considered all comments received from IRRC and the public. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Committees on October 12, 1999. IRRC met on October 21, 1999, and approved the amendments in accordance with section 5.1(e) of the Regulatory Review Act.
K. Findings
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, 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 regulations do not enlarge the purpose of the proposal published at 27 Pa.B. 4094 (August 16, 1997).
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
L. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 93, are amended by amending §§ 93.9f and 93.9t to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) 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.
(c) 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.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
(Editor's Note: The proposal to amend §§ 93.9q and 93.9v, included in the proposed rulemaking at 27 Pa.B. 4094 has been withdrawn by the Board.)
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 29 Pa.B. 5777 (November 6, 1999).)
Fiscal Note: Fiscal Note 7-324 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 § 93.9f. Drainage List F.
Delaware River Basin in Pennsylvania
Schuylkill River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * *
3--Hay Creek Basin, Source to Unnamed Tributary (UNT) 63882 at River Mile 8.1 Berks EV None 4--Unnamed Tributary (63882)
to Hay CreekBasin Berks CWF, MF None 3--Hay Creek Basin, UNT 63882 to Beaver Run Berks CWF,MF None 4--Beaver Run Basin Berks HQ-CWF, MF None 3--Hay Creek Basin, Beaver Run to Birdsboro Boundary Berks EV None 3--Hay Creek Basin, Birdsboro Boundary to Mouth Berks CWF, MF None * * * * * § 93.9t. Drainage List T.
Ohio River Basin in Pennsylvania
Kiskiminetas River
Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * *
6--Bens Creek Main Stem, Confluence of South and North Forks to Mouth Cambria CWF None * * * * *
7--Mill Creek Basin, Source to SR 0271 Bridge Cambria EV None 7--Mill Creek Basin, SR 0271 Bridge to Mouth Somerset HQ-CWF None * * * * *
5--Little Conemaugh River Main Stem, Source to North Branch Little Conemaugh River Cambria CWF None 6--Bens Creek Basin, Source to Unnamed Tributary (UNT) 46100 at River Mile 1.20 Cambria EV None 7--Unnamed Tributary (46100)
to Bens CreekBasin Cambria CWF None 6--Bens Creek Basin, UNT 46100 to UNT 46099 at River Mile 0.74 Cambria EV None 7--Unnamed Tributary (46099) to Bens Creek Basin Cambria CWF None 6--Bens Creek Basin, UNT 46099 to Mouth Cambria CWF None * * * * * 6--South Fork Little Conemaugh River Basin, Source to Beaverdale Reservoir Dam Cambria EV None 6--South Fork Little Conemaugh River Main Stem, Beaverdale Reservoir Dam to UNT 45928 Cambria EV None 7--Unnamed Tributaries to South Fork Little Conemaugh River Basins, Beaverdale Reservoir Dam to UNT 45928 Cambria HQ-CWF None 7--Bottle Run Basin Cambria HQ-CWF None 7--Unnamed Tributary (45928) to South Fork Little Conemaugh River Basin Cambria HQ-CWF None 6--South Fork Little Conemaugh River Basin, UNT 45928 to SR 0869 Bridge Cambria HQ-CWF None 6--South Fork Little Conemaugh River Basin, SR 0869 Bridge to Beaverdam Run Cambria CWF None * * * * *
[Pa.B. Doc. No. 99-2003. Filed for public inspection November 24, 1999, 9:00 a.m.]
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