PROPOSED RULEMAKING
[25 PA. CODE CH. 93]
Stream Redesignations; Oysterville Creek, et al.
[32 Pa.B. 2219] The Environmental Quality Board (Board) proposes to amend §§ 93.9(a), 93.9f, 93.9g, 93.9n and 93.9o to read as set forth in Annex A.
This proposal was adopted by the Board at its meeting of March 19, 2002.
A. Effective Date
These proposed 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 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 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 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 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 this 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 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.
In addition to the stream redesignations in this proposed rulemaking, the Department proposes to add UNT (Unnamed Tributary) to the list of abbreviations in § 93.9(a) (relating to designated water uses and water quality criteria) that are used in the ''Zone'' column in the Drainage Lists. The addition of this abbreviation will provide clarity to the water quality standards and save space in the Drainage Lists.
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. The Department may identify candidates during routine water body investigations. Requests for consideration may also be initiated by other agencies, such as the Fish and Boat Commission (Commission). Organizations, businesses or individuals may submit a rulemaking petition to the Board.
These streams were evaluated in response to five petitions, as well as a request from the Commission as follows:
Petitions: Oysterville Creek (Berks County); West Branch Perkiomen Creek (Berks County); Unnamed Tributary to Chester Creek (Delaware County); Cove Creek (Bedford County); Trout Run (York County)
Commission: Unnamed Tributary to Rambo Run (York County)
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 qualfying as High Quality or Exceptional Value Waters).
No new field survey was conducted on Cove Creek. The recommended redesignation is the result of applying a modification of the implementation of the Percent Dominant Taxon biological metric to data previously collected. This change to implementation was published for public comment at 29 Pa.B. 3960 (July 24, 1999). All of the 18 comments received were in support of the change. Notice of the change in implementation was published at 29 Pa.B. 5149 (October 2, 1999). The impact of this change on Cove Creek is discussed as follows.
While preparing Annex A, the Department noticed that the Migratory Fishes (MF) use designation is applied to some portions of the Chester Creek basin and not to others. The Commission Area Fisheries Manager and the Department's Southeast Field Office were contacted and both indicated that there are no significant barriers to migration in the basin. The Board proposes to add the MF designated use so that it is applied to the entire Chester Creek basin.
Based upon the data collected in the field surveys and the other information noted previously, the Board recommends the designations described in this Preamble and 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 phone number are listed in Section B of this Preamble.
The following is a brief explanation of the recommendations for each water body:
Oysterville Creek--The petition from the Berks County Conservancy and the District Township Supervisors requested consideration of the stream for redesignation from Cold Water Fishes (CWF) to EV. The upper reaches of the basin (source to T-634) meet the biological test for EV designation in the antidegradation regulation and are recommended for designation as EV. The remainder of the basin (T-634 to mouth) meets the biological test for HQ-CWF designation, with the exception of Unnamed Tributary 01680, which is recommended to retain the CWF designation.
West Branch Perkiomen Creek--The petition submitted by the Berks County Conservancy and the District Township Supervisors requested consideration of a portion of the basin for redesignation from CWF to EV. The upper portion of the basin (source to SR 1022) is recommended to retain the CWF designation. The lower portion of the basin (SR 1022 to SR 2069) meets the biological test for EV designation in the antidegradation regulation and is recommended for redesignation.
Unnamed Tributary to Chester Creek--In response to a petition submitted by Frank Akutowicz, this watershed was evaluated for redesignation from Trout Stocking Fishes (TSF) designation to EV. The majority of this watershed is owned by Glen Mills School. Based on applicable regulatory criteria, the Department recommends that the Unnamed Tributary to Chester Creek basin retain the current TSF designation with the addition of Migratory Fishes (MF) based on the presence of American eel. In addition, it is recommended that the MF designation be added so that it applies to the entire Chester Creek basin.
Cove Creek--The recommendation for the Cove Creek basin from the T-433 bridge to the mouth is the result of a reevaluation of previously collected biological data. The original evaluation were done in response to a petition submitted by Friends of Cove Creek. Data from the lower part of the stream was reevaluated using a change to the implementation of the Percent Dominant Taxon biological metric. In the modification, if the dominant organism is pollution-sensitive the candidate receives the highest score for this metric even though the percentage would ordinarily result in a lower score. As a result of this change in implementation, lower Cove Creek scores 93% in comparison to the reference and is recommended for redesignation as EV.
Trout Run--The Trout Run basin is currently designated as Warm Water Fishes (WWF). The stream was evaluated for possible redesignation to EV in response to a petition from Greg McCarren and Jackie Greenfield. The upper portion of the basin (source to an unnamed tributary at RM 0.3) met the biological test for redesignation as HQ. In addition, cold-water fish species were found in the basin, so it should be designated CWF. It is recommended that the upper portion of the Trout Run basin be redesignated HQ-CWF and the remainder (unnamed tributary at RM 0.3 to mouth) be designated CWF.
Rambo Run--The Commission requested evaluation of an unnamed tributary to Rambo Run for possible redesignation from CWF to HQ-CWF. After consulting with the Department's Southcentral Field office, the entire Rambo Run basin was evaluated for HQ or EV designation. All stations sampled in the basin met the biological test for EV designation. The Board proposes that the entire basin be designated EV.
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 existing wastewater discharges. 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 costs.
Persons conducting or proposing activities or projects that result in new or expanded discharges to streams shall 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 water bodies that exhibit exceptional water quality and are consistent with antidegradation requirements established by the Federal Clean Water Act and The Clean Streams Law. 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 discharges 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 discharges 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 regulations effectively fulfill the goal 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, 2002, 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 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 that 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 final-form regulations.
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. The Board must receive comments by June 18, 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 June 18, 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 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. The Board must also receive comments submitted electronically by June 18, 2002.
DAVID E. HESS,
ChairpersonFiscal Note: 7-377. 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
ANTIDEGRADATION REQUIREMENTS § 93.9. Designated water uses and water quality criteria.
(a) The tables in §§ 93.9a--93.9z display designated water uses and water quality criteria in addition to the water uses and criteria specified in Tables 2 and 3. Designated uses shall be protected in accordance with Chapters 95 and 96 (relating to wastewater treatment requirements; and water quality standards implementation) and any other applicable State and Federal laws and regulations. The tables also indicate specific exceptions to Tables 2 and 3 on a stream-by-stream or segment-by-segment basis by the words ''add'' or ''delete'' followed by the appropriate symbols described elsewhere in this chapter. The county column in §§ 93.9a--93.9z indicates the county in which the mouth of the stream is located. Abbreviations used in the ''Zone'' column are as follows:
T--Township Road
LR--Pennsylvania Legislative Route
SR--Pennsylvania State Route
FAS--Federal Aid Secondary Highway
US--United States Federal Route
I-- [Interestate] Interstate Highway
RM--River Mile; river miles are used to indicate the distance from a point on the waterbody to its mouth and are based on the Department's River Mile Index
UNT--Unnamed Tributary
* * * * *
§ 93.9f. Drainage List F.
Delaware River Basin in Pennsylvania
Schuylkill River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 4--Oysterville Creek Basin, Source to T 634 Bridge (RM 2.6) Berks [CWF] EV None 4--Oysterville Creek Basin, T 634 Bridge to Confluence of UNT 01680 Berks HQ-CWF None 5--UNT 01680 to Oysterville Creek Basin Berks CWF None 4--Oysterville Creek Basin, UNT 01680 to Mouth Berks HQ-CWF None * * * * * 4--[Northwest] West Branch Perkiomen Creek Basin, Source to SR 1022 Bridge (RM 12.9) [Montgomery] Berks CWF None 4--West Branch Perkiomen Creek Basin, SR 1022 Bridge to SR 2069 Bridge (RM 8.0) Berks EV None 4--West Branch Perkiomen Creek Basin, SR 2069 Bridge to Mouth Montgomery CWF None * * * * * § 93.9g. Drainage List G.
Delaware River Basin in Pennsylvania
Delaware River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 2--Chester Creek Basin, Source to East Branch Chester Creek Chester TSF, MF None 3--East Branch Chester Creek Basin, Source to [Unnamed Tributary] UNT at RM 0.4 (''Goose Creek'') Chester TSF, MF None 4--[Unnamed Tributary] UNT to East Branch Chester Creek at RM 0.4 (''Goose Creek'') Basin Chester WWF, MF None 3--East Branch Chester Creek Basin, [Unnamed Tributary] UNT at RM 0.4 to Mouth Chester TSF, MF None 2--Chester Creek Basin, East Branch Chester Creek to Rocky Run Delaware TSF, MF None 3--Rocky Run Basin Delaware HQ-CWF, MF None [3] 2--Chester Creek Basin, Rocky Run to Confluence with West Branch Delaware TSF, MF None 3--West Branch Chester Creek Basin, Source to Green Creek Delaware TSF, MF None * * * * * § 93.9n. Drainage List N.
Susquehanna River Basin in Pennsylvania
Juniata River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 4--Cove Creek Basin[, Source to T 433 Bridge] Bedford EV None [4--Cove Creek Basin, T 433 Bridge to Mouth Bedford CWF None] * * * * * § 93.9o. Drainage List O.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 2--Codorus Creek Main Stem, Oil Creek to Mouth York WWF None * * * * * 3--Trout Run Basin, Source to UNT at RM 0.3 York [WWF]
HQ-CWF
None 4--UNT to Trout Run at RM 0.3 Basin York CWF None 3--Trout Run Basin, UNT at RM 0.3 to Mouth York CWF None * * * * * 3--North Branch Muddy Creek Basin, Source to [Confluence with South Branch] Rambo Run York CWF None 4--Rambo Run Basin York EV None 3--North Branch Muddy Creek Basin, Rambo Run to Confluence with South Branch York CWF None * * * * *
[Pa.B. Doc. No. 02-793. Filed for public inspection May 3, 2002, 9:00 a.m.]
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