RULES AND REGULATIONS

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 93]

Stream Redesignations (Little Bush Kill, et al.)

[32 Pa.B. 2691]

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

   This order was adopted by the Board at its meeting of February 19, 2002.

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 Water Supply and Wastewater Management, 11th Floor, Rachel Carson State Office Building, P. O. Box 8467, 400 Market Street, Harrisburg, PA 17105-8467, (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 final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).

C.  Statutory Authority

   This final-form rulemaking is being 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 authorizes the Board to develop and adopt rules and regulations to implement the 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 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. 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 for redesignation 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 Department staff as follows:

   Petitions: Little Bush Kill (Bushkill Falls); Lizard Creek (West Penn Township); Smithtown Creek (Smithtown Creek Watershed Association).

   FBC: Oswayo Creek

   Department: Buck Hill Creek and Slate Run (corrective amendments).

   Aquatic surveys were conducted by the Department's Bureau of Water Supply and Wastewater Management. 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 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 March 20, 2001, and it was published at 31 Pa.B. 2375 (May 5, 2001) with provision for a 45-day public comment period that closed on June 19, 2001. The proposed redesignation of Browns Run (Warren County) included in the package became controversial during the public comment period, and has been removed from the final-form rulemaking package.

   A total of six sets of comments were received on the proposed rulemaking, excluding Browns Run. Two provided comments on the proposed redesignation of the Little Bush Kill. Three were in response to the recommendation for Smithtown Creek. The Independent Regulatory Review Commission (IRRC) provided general comments on the redesignation process, the Little Bush Kill and Smithtown Creek (in addition to Browns Run).

   The Brodhead Chapter of Trout Unlimited supported the redesignation of portions of the Little Bush Kill to EV. Staff of the Pike County Conservation District expressed concern for the protection of the lower EV segment because there would be an HQ segment upstream. IRRC questioned the reasonableness of segmenting the Little Bush Kill designation. The ''biological test'' and percent comparison criteria are included in the antidegradation regulation. Two sampling stations in the middle portion of the basin did not score 92% or greater in comparison to the reference stations. In addition, no other EV qualifiers were found to apply to this stream reach. As a result, the Department cannot recommend it for EV designation. Section 93.4a (relating to antidegradation) protects EV waters from degradation. Discharge permits or other approval actions in the middle HQ portion of the Little Bush Kill basin will include protection for the downstream EV segment.

   Senator Joseph Conti, the Smithtown Creek Watershed Association (the petitioner) and the Tinicum Township supervisors expressed opposition to the Department's recommendation to retain the current designation of Smithtown Creek rather than redesignating it EV as requested in the petition. Tinicum Township included a consultant's report that critiqued the Department's evaluation and included stream survey data they believe demonstrates that Smithtown Creek meets the biological qualifier for EV designation. The consultant used sampling methods and biological metrics that differ from those applied by the Department. The Department has not received documentation to show that the metrics and scoring criteria used by the consultant have been completely analyzed for the purpose of evaluating candidates for EV designation in this Commonwealth. IRRC questioned the reference stations used in the evaluation of Smithtown Creek. The Department believes the reference stations used to evaluate Smithtown Creek represent best available biological conditions in this part of this Commonwealth and thus are appropriate. The Department's recommendation regarding Smithtown Creek has not been changed.

F.  Summary of Changes to the Proposed Rulemaking

   The proposed redesignation of Browns Run (Warren County) became controversial during the public comment period. It has been removed from this package and will be considered as a separate final-form rulemaking.

   The Department found a minor error in one of the Buck Hill Creek entries in the proposed rulemaking. The entry for the Buck Hill Creek basin from Griscom Creek to Buck Hill Falls should have noted the deletion of the word ''Mouth'' from the existing entry in the regulation, but did not. This has been corrected in the final-form regulations.

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.

   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 in the discussion of impacts on the private sector.

   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.

   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 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 expanding dischargers with water quality based effluent limitations are required to provide effluent treatment according to the water quality criteria associated with existing 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 may be required for new or expanded discharges to certain HQ waters, and the nonfeasibility of nondischarge alternatives will be required for new or expanded discharges to certain HQ and EV 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 they are 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

   This final-form rulemaking 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 April 23, 2001, the Department submitted a copy of the notice of proposed rulemaking, published at 31 Pa.B. 2375, 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 this final-form rulemaking, 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)), on April 15, 2002, this final-form rulemaking was deemed approved by the House and Senate Committees. IRRC met on April 19, 2002, and approved this final-form rulemaking 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)  This final-form rulemaking does not enlarge the purpose of the proposal published at 31 Pa.B. 2375.

   (4)  This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.

   (5)  This final-form rulemaking does not contain standards or requirements that exceed requirements of the companion Federal regulations.

L.  Order

   The Board, acting under authorizing statutes, orders that:

   (a)  The regulations of the Department, 25 Pa. Code Chapter 93, are amended by amending §§ 93.9c 93.9d, 93.9l and 93.9p 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.

DAVID E. HESS,   
Chairperson

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 32 Pa.B. 2287 (May 4, 2002).)

   Fiscal Note: Fiscal Note 7-362A 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

ANTIDEGRADATION REQUIREMENTS

§ 93.9c.  Drainage List C.

Delaware River Basin in Pennsylvania

Delaware River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
4--Sand Hill Creek	Basin	Monroe	HQ-CWF	None
4--Little Bush Kill	Basin, Source to Unnamed Tributary (UNT) 05067	Pike	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
*      *      *      *      *
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 Buck Hill Falls	Monroe	HQ-CWF	None
3--Buck Hill Creek	Basin, Buck Hill Falls to Mouth	Monroe	HQ-CWF, MF	None
3--Goose Pond Run	Basin	Monroe	HQ-CWF	None
*      *      *      *      *

§ 93.9d.  Drainage List D.

Delaware River Basin in Pennsylvania

Lehigh River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
3--Lizard Creek	Basin, Source to T-922 Bridge	Schuylkill	CWF	None
3--Lizard Creek	Basin, T-922 Bridge to Mouth	Carbon	TSF	None
3--Aquashicola Creek	Basin, Source to Buckwha Creek	Carbon	CWF, MF	None
*      *      *      *      *

§ 93.9l.  Drainage List L.

Susquehanna River Basin in Pennsylvania

West Branch Susquehanna River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
4--Slate Run	Basin	Lycoming	EV	None
4--Little Slate Run	Basin	Lycoming	HQ-CWF	None
*      *      *      *      *

§ 93.9p.  Drainage List P.

Ohio River Basin in Pennsylvania

Allegheny River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
3--Oswayo Creek	Basin, Source to Brizzee Hollow	Potter	CWF	None
4--Brizzee Hollow	Basin	Potter	HQ-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
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
4--Clara Creek	Main Stem	Potter	CWP	None
*      *      *      *      *

[Pa.B. Doc. No. 02-956. Filed for public inspection May 31, 2002, 9:00 a.m.]

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