RULES AND REGULATIONS

Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 93]

Stream Redesignations, Buck Hill Creek, et al.

[30 Pa.B. 3036]

   The Environmental Quality Board (Board) by this order amends §§ 93.9c, 93.9f, 93.9l, 93.9p and 93.9t to read as set forth in Annex A.

   This order was adopted by the Board at its meeting of April 18, 2000.

A.  Effective Date

   These amendments are 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 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-form rulemaking is available electronically through the Depart-ment of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).

C.  Statutory and Regulatory Authority

   This final-form rulemaking is being made under the authority of the following acts: sections 5(b)(1) and 402 of The Clean Streams Law (act) (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 act. In addition, the Federal regulation in 40 CFR 131.32 sets forth certain requirements for portions of the Commonwealth's antidegradation program.

D.  Background of the Amendments

   This Commonwealth's water quality standards, which are set forth in Chapter 93 (relating to water quality standards), implement the provisions of sections 5 and 402 of the act 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 High Quality (HQ) or Exceptional Value (EV) Waters designation in its ongoing review of water quality standards. In general, HQ and EV waters shall be maintained at their existing quality, and wastewater treatment requirements shall ensure the attainment of designated and existing uses. The Department may identify candidates during routine waterbody investigations. Requests for consideration may also be initiated by other agencies, such as the Fish and Boat Commission (Commission). In addition, organizations, businesses or individuals may submit a rulemaking petition to the Board.

   These streams were evaluated in response to a petition, as well as requests from the Commission and Department staff as follows:

   Petition:  Buck Hill Creek (Buck Hill Conservation Foundation).

   Commission:  Sinnemahoning Portage Creek and Cowley Run; South Branch Oswayo Creek; and Swamp Creek.

   Department:  Owl Creek and Roaring Run.

   Aquatic surveys were conducted by the Department's Bureau of Watershed Conservation. The physical, chemical and biological characteristics and other information on these waterbodies were evaluated to determine the appropriateness of the current and requested designations using applicable regulatory criteria and definitions. Based upon the data collected in these surveys, the Board has made the designations set forth 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 January 20, 1998, and it was published at 28 Pa.B 1635 (April 4, 1998) with provision for a 60-day public comment period that closed on June 3, 1998. Comments were received from a total of 34 commentators and the Independent Regulatory Review Commission (IRRC).

   Thirty-one of the public comments were in support of the proposed redesignation of the upper portion of Buck Hill Creek. These comments were provided by the general public, the Brodhead Watershed Association, the Buck Hill Falls Company, the Monroe County Conservation District and Concerned Citizens of Barrett Township.

   IRRC commented that the Department relies on the selection criteria in the ''Special Protection Waters Implementation Handbook'' to arrive at stream reclassifications and that the handbook is only a guidance document. They stated that the proposed redesignations should more appropriately cite statutes and regulations. The Pennsylvania Coal Association, the Pennsylvania Builders Association and IRRC indicated that the proposed redesignations were premature because the Department's antidegradation regulation was undergoing revision. Those revisions have been completed, with Board approval on May 19, 1999, and publication at 29 Pa.B. 3720 (July 17, 1999). The ''biological test'' used as the basis for the recommended redesignation of some streams in this package has been incorporated into the antidegradation regulation in § 93.4b(a)(2) and (b)(1)(v) (relating to qualifying as high quality or exceptional value waters).

   The Pennsylvania Builders Association and IRRC noted that two stations on Buck Hill Creek did not achieve the score necessary to qualify for EV and questioned the recommendation that the entire segment be redesignated as EV. The Department's recommendations for Buck Hill Creek were revised; segments with stations not scoring 92% or greater in comparison to the EV reference were not recommended for redesignation as EV. Because of the uniqueness of the resource, and the absence of an appropriate reference for a Glaciated Pocono Plateau stream emanating from wetlands, the Board found the segment except for the headwaters from the source of Buck Hill Creek to the Barrett/Coolbaugh Township Border to be worthy of EV protection as a ''surface water of exceptional ecological significance'' under the regulatory criteria in § 93.4b(b)(2).

   The Builders Association also commented that the Buck Hill Creek report described the results from grab water samples as generally better than criteria. The proposed redesignation was not based on water chemistry. It was based on a biological test comparing its community to that in an EV reference stream. The indigenous benthic macroinvertebrates are a good indicator of long-term water quality because these organisms have limited mobility and many have relatively long aquatic life stages. Water samples for chemical analysis were collected to provide a ''snapshot'' of water quality conditions, but the data are not intended to be a basis for the recommended redesignation.

   The Pennsylvania Coal Association expressed concern that the ''Exceptional Value'' designation is being misused as a weapon to delay or halt economic development. The Department evaluates candidate streams using the same protocols regardless of the reason for a redesignation request. Streams must meet the regulatory criteria to be proposed for redesignation to HQ or EV.

   Other comments were received regarding Sinnemahoning Portage Creek and Dunbar Creek. Two commentators expressed concern with the reference streams used. Dunbar Creek has been removed from the regulatory package in response to the comment. Another comment questioned how Sinnemahoning Portage Creek can be EV with elevated levels of copper and aluminum at one station. In response, chemical data are not used as the basis for redesignation. Moreover, not all of the metals were in a bioavailable form. Finally, one time chemical grab samples do not represent long-term stream conditions. The macroinvertebrate biology used as basis for redesignation to EV does reflect the long-term condition of the stream.

F.  Summary of Changes to the Proposed Rulemaking

   There have been three revisions since the proposed rulemaking was approved by the Board in January 1998. First, the proposed redesignation of Trout Run (Westmoreland County) has been removed from this package and will be considered as a separate final-form rulemaking. Second, the proposed redesignation of portions of Dunbar Creek (Fayette County) has been removed to allow for reevaluation. One of the reference stations used in the Dunbar Creek study was not designated EV.

   The third change consists of revisions to the recommended redesignation of the upper portion of Buck Hill Creek. At proposed rulemaking, the Buck Hill Creek basin from the source to Margaret's Falls (River Mile 1.73) was recommended for redesignation as EV even though two stations in that reach did not score at least 92% in comparison to the EV reference. The Board has classified the uppermost reaches as an EV stream based on its ''surface water of exceptional ecological significance'' and not on the biological (92%) reference criteria; the stream segments from UNT 05028 to UNT 05026, and Giscom Creek to mouth, retain their HQ-CWF designation. The Buck Hill Creek redesignation now includes a combination of HQ and EV segments.

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 are already protected at their existing use; therefore, the designated use changes will have no impact on treatment requirements. No costs will be imposed directly upon local governments by this recommendation. Political subdivisions that add a new sewage treatment plant or expand an existing plant in these basins may experience changes in cost as noted in the following discussion of impacts on the private sector.

   Persons conducting or proposing activities or projects that result in new or expanded discharges to streams must comply with the regulatory requirements relating to designated and existing uses. These persons could be adversely affected if they expand a discharge or add a new discharge point since they may need to provide a higher level of treatment 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 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. The stream redesignation involves no economic impacts; any potential economic impacts would primarily involve the potential for higher treatment costs for new or expanded discharges to streams that are upgraded.

   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 the act. 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 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 HQ or EV. For example, NPDES general permits are not currently available for new or expanded discharges to these 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 HQ 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 the antidegradation program does not prohibit new or expanded wastewater discharges, 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 final-form 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)), on March 23, 1998, the Departmentsubmitted a copy of the notice of proposed rulemaking, published at 28 Pa.B. 1635, 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.

   Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), these final-form regulations were deemed approved by the House and Senate Committees on May 22, 2000. IRRC met on May 25, 2000, 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 final-form regulations do not enlarge the purpose of the proposal published at 28 Pa.B. 1635.

   (4)  These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.

   (5)  These regulatory amendments do not contain any standards or requirements that exceed requirements of the companion Federal regulations.

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 §§ 93.9c 93.9f, 93.9l, 93.9p 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.

JAMES M. SEIF,   
Chairperson

   (Editor's Note:  The proposal to amend § 93.9v, included in the proposed rulemaking at 28 Pa.B. 1635, has been withdrawn by the Board. For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 30 Pa.B. 2965 (June 10, 2000). For the text of a Senate Resolution relating to the proposal to redesignate Trout Run, see 30 Pa.B. 3026 (June 17, 2000).)

   Fiscal Note:  7-333A. No fiscal impact; (8) recommends adoption. This final-form rulemaking was previously published as 7-333. This has now been split into 7-333A, which designates water uses and water quality criteria in various streams in Monroe, Lebanon, Berks, Montgomery, Cameron and Somerset Counties; and 7-333B which designates water uses and water quality criteria for Trout Run in Westmoreland County. This fiscal note applies to 7-333A.

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

§ 93.9c.  Drainage List C.

Delaware River Basin in Pennsylvania

Delaware River

				Exceptions
			Water Uses	To Specific
Stream	Zone	County	Protected	Criteria
*  *  *  *  *
3-Buck Hill Creek	Basin, Source to Unnamed Tributary (UNT) 05028 (RM 2.16)	Monroe	EV	None
4-Unnamed Tributary 05028 to Buck Hill Creek	Basin	Monroe	HQ-CWF	None
3-Buck Hill Creek	Basin, UNT 05028 to UNT 05026 (RM 1.88)	Monroe	HQ-CWF	None
4-Unnamed Tributary 05026 to Buck Hill Creek	Basin	Monroe	HQ-CWF	None
3-Buck Hill Creek	Basin, UNT 05026 to Griscom Creek	Monroe	EV	None
4-Griscom Creek	Basin	Monroe	HQ-CWF	None
3-Buck Hill Creek	Basin, Griscom Creek to Mouth	Monroe	HQ-CWF	None
*  *  *  *  *

§ 93.9f.  Drainage List F.

Delaware River Basin in Pennsylvania

Schuylkill River

				Exceptions
			Water Uses	To Specific
Stream	Zone	County	Protected	Criteria
*  *  *  *  *
4-Unnamed Tributaries to Tulpehockon Creek	Basins, T 560 to Tailwaters of Blue Marsh Reservoir	Berks	TSF	None
4-Owl Creek	Basin	Lebanon	WWF	None
*  *  *  *  *
4-Swamp Creek	Basin, Source to Dam in Bechtelsville (RM 15.5)	Berks	HQ-CWF, MF	None
4-Swamp Creek	Basin, Dam in Bechtelsville to Route 100 Bridge	Berks	CWF, MF	None
4-Swamp Creek	Basin, Route 100 Bridge to Mouth	Montgomery	TSF, MF	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-Sinnemahoning Portage Creek	Basin, Source to Cowley Run	Cameron	EV	None
6-Cowley Run	Basin	Cameron	EV	None
5-Sinnemahoning Portage Creek	Basin, Cowley Run to Mouth	Cameron	CWF	None
*  *  *  *  *

§ 93.9p.  Drainage List P.

Ohio River Basin in Pennsylvania

Allegheny River

				Exceptions
			Water Uses	To Specific
Stream	Zone	County	Protected	Criteria
*  *  *  *  *
4-South Branch Oswayo Creek	Basin	Potter	EV	None
*  *  *  *  *

§ 93.9t.  Drainage List T.

Ohio River Basin in Pennsylvania

Kiskiminetas River

				Exceptions
			Water Uses	To Specific
Stream	Zone	County	Protected	Criteria
*  *  *  *  *
7-Roaring Run	Basin, Source to Boswell Municipal Authority Dam	Somerset	EV	None
*  *  *  *  *

[Pa.B. Doc. No. 00-1036. Filed for public inspection June 16, 2000, 9:00 a.m.]

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