PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CH. 93]
Stream Redesignations, Little Bush Kill, et al.
[31 Pa.B. 2375] The Environmental Quality Board (Board) proposes to amend §§ 93.9c, 93.9d, 93.9l, 93.9p and 93.9q to read as set forth in Annex A.
This order was adopted by the Board at its meeting of March 20, 2001.
A. Effective Date
These amendments will be 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, 10th Floor, Rachel Carson State Office Building, P. O. Box 8555, 400 Market Street, Harrisburg, PA 17105-8555, (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 by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory and Regulatory Authority
These proposed amendments are 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 sets forth certain requirements for portions of the Commonwealth's antidegradation program.
D. Background of the Amendments
Pennsylvania'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 (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 must be maintained at their existing quality. 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 (FBC). Organizations, businesses or individuals may submit a rulemaking petition to the Board.
These streams were evaluated in response to three petitions, as well as requests from the FBC and the Department staff as follows:
Petitions: Little Bush Kill (Bushkill Falls); Lizard Creek (West Penn Township); Smithtown Creek (Smithtown Creek Watershed Association).
FBC: Oswayo Creek and Browns Run.
Department: Buck Hill Creek and Slate Run (corrective amendments).
The Department's Bureau of Water Supply and Wastewater Management conducted aquatic surveys on five of these streams. 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. In reviewing whether waterbodies qualify as HQ or EV Waters, the Department considers the criteria in § 93.4b (relating to qualifying as High Quality or Exceptional Value Waters).
Based upon the data collected in these surveys, the Board recommends the designations described in this Preamble and set forth in Annex A. Corrective amendments for Buck Hill Creek and Slate Run are also included in Annex A.
Copies of the Department's stream evaluation reports for these waterbodies are available from Edward R. Brezina.
The following is a brief explanation of the recommendations for each waterbody:
Little Bush Kill--The petition from Bushkill Falls requested consideration of portions of the stream for redesignation from High Quality-Cold Water Fishes (HQ-CWF) designation to EV. The Department evaluated the entire basin. The upper and lower portions of the basin are recommended for designation as EV. The upper reaches of the basin (source to and including unnamed tributary (UNT) 05067) meet the biological test for EV designation in the antidegradation regulation, and also contain the Stillwater State Natural Area, another EV qualifier. The lower portion of the basin (UNT 05069 to mouth, excluding UNT 05057) also satisfies the biological test and flows through the Delaware Water Gap National Recreation Area. The remainder of the basin is recommended to retain the HQ-CWF designation.
Buck Hill Creek--Portions of the Buck Hill Creek basin were recently redesignated EV at 30 Pa.B. 3036 (June 17, 2000). Following publication of the final rulemaking, the petitioner notified the Department that the recommended Migratory Fishes (MF) use designation had not been included in the rulemaking. This was an inadvertent omission by the Department when segmenting the basin. A corrective amendment is included in this proposed rulemaking to add the MF use to the Buck Hill Creek basin from Buck Hill Falls to the mouth, as recommended in the Department's original evaluation report.
Lizard Creek--West Penn Township, Schuylkill County, petitioned the Board to provide HQ protection for the Lizard Creek basin from the source to the State Route 309 bridge. The entire basin is currently designated Trout Stocking (TSF). No portion of the basin studied satisfied any of the regulatory criteria for HQ designation. Sampling of the fish community revealed the presence of reproducing brook and brown trout upstream from Dorset Road. It is recommended that this portion of the basin be redesignated Cold Water Fishes (CWF). The remainder of the basin will retain the TSF designation.
Slate Run--The purpose of this corrective amendment is to simplify the Chapter 93 listing. The Slate Run basin was redesignated EV at 28 Pa.B. 4510 (September 5, 1998). The Department report for that redesignation used the previous Chapter 93 listing which contained several entries as the format for the recommendation. That format was carried over into Chapter 93. Since the entire basin is designated EV, only one entry in the drainage list is necessary.
Oswayo Creek--The FBC requested that the Oswayo Creek basin from the source to Clara Creek be considered for redesignation to HQ-CWF. Most of this basin is designated CWF, except for Brizzee Hollow which is HQ-CWF. The South Branch Oswayo Creek basin was redesignated to EV as part of the Buck Hill Creek package at 30 Pa.B. 3036 (June 17, 2000). The upper portion of the study basin, from the source to Brizzee Hollow, did not satisfy any of the regulatory criteria for redesignation as HQ or EV. The Brizzee Hollow basin did not qualify for EV protection. The remainder of the study basin, from Brizzee Hollow to Clara Creek (except the South Branch) is a Class A wild trout stream, and thus qualifies for an HQ designation.
Browns Run--Browns Run is currently designated CWF and was evaluated for redesignation to HQ-CWF at the request of the FBC. Portions of the basin meet the biological test for EV designation as specified in the antidegradation regulation. The sections recommended for redesignation to EV are: the Browns Run basin from the source to Dutchman Run; the Dutchman Run basin from the source to the T-413 crossing (Mead Township); the basin of UNT 56502; and the Morrison Run basin. The remainder of the basin will retain the current CWF designation.
Smithtown Creek--This UNT to the Delaware River (stream code 03211) is locally known as Smithtown Creek. Redesignation from the present TSF use to EV was requested in a petition from the Smithtown Creek Watershed Association. This stream did not satisfy any of the regulatory criteria for either HQ or EV designation. The current TSF designation should be retained.
E. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost /benefit analysis of the proposed 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, and 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 discussion of impacts on the private sector which follow.
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. 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 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 proposed 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 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, and the nonfeasibility of nondischarge alternatives, may be required for new or expanded discharges to certain HQ waters.
F. 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.
G. Sunset Review
These proposed amendments will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the amendments effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 23, 2001, the Department submitted a copy of the proposed amendments 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 submitting the proposed amendments, IRRC and the Committees have been provided a detailed regulatory analysis form prepared by the Department, in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' 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 amendments, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion of the proposed amendments 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 regulation.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendments 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. Comments must be received by the Board by June 19, 2001 (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 June 19, 2001. 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 amendments will be considered. If sufficient interest is generated as a result of this publication, a public hearing 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. Comments submitted electronically must also be received by the Board by June 19, 2001.
DAVID E. HESS,
Acting ChairpersonFiscal Note: 7-362. 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
§ 93.9c. Drainage List C.
Delaware River Basin in Pennsylvania
Delaware River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 4--Little Bush Kill Basin, Source to Unnamed Tributary (UNT) 05067 Pike [HQ-CWF] EV None 5--Unnamed Tributary 05067 to Little Bush Kill Basin Pike EV None 4--Little Bush Kill Basin, UNT 05067 to UNT 05059 Pike HQ-CWF None 5--Unnamed Tributary 05059 to Little Bush Kill Basin Pike EV None 4--Little Bush Kill Basin, UNT 05059 to UNT 05057 Pike EV None 5--Unnamed Tributary 05057 to Little Bush Kill Basin Pike HQ-CWF None 4--Little Bush Kill Basin, UNT 05057 to Mouth Pike EV None * * * * *
4--Griscom Creek Basin Monroe HQ-CWF None 3--Buck Hill Creek Basin, Griscom Creek to Buck Hill Falls Monroe HQ-CWF None 3--Buck Hill Creek Basin, Buck Hill Falls to Mouth Monroe HQ-CWF, MF None * * * * * § 93.9d. Drainage List D.
Delaware River Basin in Pennsylvania
Lehigh River
* * * * * 3--Lizard Creek Basin, Source to T-922 Bridge [Carbon] Schuylkill [TSF] CWF None 3--Lizard Creek Basin, T-922 Bridge to Mouth Carbon TSF None * * * * * § 93.9l. Drainage List L.
Susquehanna River Basin in Pennsylvania
West Branch Susquehanna River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 4--Slate Run Basin Lycoming EV None [5--Francis Branch Slate Run Basin, Source to Confluence with Cushman Branch Tioga EV None 5--Cushman Branch Basin, Source to Slate Run Tioga EV None 4--Slate Run Basin, Confluence of Francis and Cushman Branches to Mouth Lycoming EV None] * * * * * § 93.9p. Drainage List P.
Ohio River Basin in Pennsylvania
Allegheny River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 3--Oswayo Creek [Main Stem, Source to Honeoye Creek] Basin, Source to Brizzee Hollow [McKean] Potter CWF None [4--Unnamed Tributaries to Oswayo Creek Basins, Source to Honeoye Creek Potter CWF None 4--Tyler Hollow Basin Potter CWF None] 4--[Brazzee] Brizzee Hollow Basin Potter HQ-CWF None [4--Bryant Hollow Basin Potter CWF None] 3--Oswayo Creek Basin, Brizzee Hollow to South Branch Oswayo Creek Potter HQ-CWF None 4--South Branch Oswayo Creek Basin Potter EV None [4--Topeka Creek Basin Potter CWF None] 3--Oswayo Creek Basin, South Branch Oswayo Creek to Clara Creek Potter HQ-CWF None 3--Oswayo Creek Main Stem, Clara Creek to Honeoye Creek Potter CWF None 4--Unnamed Tributaries to Oswayo Creek Basins, Clara Creek to Honeoye Creek Potter CWF None * * * * * § 93.9q. Drainage List Q.
Ohio River Basin in Pennsylvania
Allegheny River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 3--Browns Run Basin, Source to Dutchman Run Warren [CWF] EV None 4--Dutchman Run Basin, Source to T-413 Bridge Warren EV None 4--Dutchman Run Basin, T-413 Bridge to Unnamed Tributary (UNT) 56501 Warren CWF None 5--UNT 56501 to Dutchman Run Basin, Source to UNT 56502 Warren CWF None 6--UNT 56502 to UNT 56501 Basin Warren EV None 5--UNT 56501 to Dutchman Run Basin, UNT 56502 to Mouth Warren CWF None 4--Dutchman Run Basin, UNT 56501 to Mouth Warren CWF None 3--Browns Run Basin, Dutchman Run to Morrison Run Warren CWF None 4--Morrison Run Basin Warren EV None 3--Browns Run Basin, Morrison Run to Mouth Warren CWF None * * * * *
[Pa.B. Doc. No. 01-778. Filed for public inspection May 4, 2001, 9:00 a.m.]
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