RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Stream Redesignation (East Branch Codorus Creek)
[33 Pa.B. 5418] The Environmental Quality Board (Board) by this order amends § 93.9o (relating to Drainage List O) to read as set forth in Annex A.
This order was adopted by the Board at its meeting of May 21, 2003.
A. Effective Date
This final-form rulemaking is effective upon publication in the Pennsylvania Bulletin.
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, Harrisburg, PA 17105-8464, (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, (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 and Regulatory 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 authorize 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 Final-Form Rulemaking
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 lower reaches of the East Branch Codorus Creek, including Lake Redman and Lake Williams, were evaluated in response to a rulemaking petition submitted by The York Water Company. The petition requested redesignation of the main stem of the East Branch Codorus Creek from the inlet of Lake Redman to the mouth from Cold Water Fishes (CWF) to Warm Water Fishes (WWF).
The Department's evaluation involved review of data in the petition and data obtained from the Fish and Boat Commission. The data shows that Lake Redman, Lake Williams and the East Branch Codorus Creek downstream from Lake Williams support a WWF community. The existence of a warm water fishery in Lake Redman has been documented since 1970. Surveys beginning in 1983 have shown a warm water community in Lake Williams. The warm water fishery in the lower main stem was documented in 1996. The hydrologic modification of the stream--the construction of the lakes--preclude attainment of the CWF use.
The Department's evaluation report is available from Edward R. Brezina whose address and phone number are listed in Section B.
E. Summary of Comments and Responses on the Proposed Rulemaking
The United States Environmental Protection Agency (EPA) Region 3 office provided the only comments on the proposed rulemaking. The EPA's comments were: ''The Department of Environmental Protection has documented to EPA's satisfaction that this redesignation is appropriate. In accordance with Federal regulation at 40 CFR 131.10(g), DEP has demonstrated that attaining the cold water fisheries designated use is not feasible because dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the use.''
F. Benefits, Costs and Compliance
Benefits--Overall, the citizens of this Commonwealth will benefit from this final-form rulemaking because it will reflect the appropriate designated use and maintain the most appropriate degree of protection for this stream. In addition, the York Water Company will benefit by being able to meet projected future water demands and ensuring an adequate water supply for its customers. The change in designation would allow water withdrawn from the Susquehanna River to be pumped, as needed, into Lake Redman for water supplies.
Compliance Costs--Generally, the final-form rulemaking should have no fiscal impact on or create additional compliance costs for the Commonwealth or its political subdivisions. No costs will be imposed directly upon local governments by this redesignation.
Persons conducting or proposing activities or projects that result in new or expanded discharges to streams must comply with the regulatory requirements relating to the designated use. 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.
Compliance Assistance Plan--The final-form rulemaking has been developed as part of an established program and is consistent with water quality standards 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 designated water uses.
The redesignations will be implemented through the Department's permit and approval actions. For example, the National Pollutant Discharge Elimination System permitting program bases effluent limitations on the use designation of the stream. 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.
Paperwork Requirements--This final-form rulemaking should have no direct paperwork impact on the Commonwealth, local governments, political subdivisions or the private sector. This final-form rulemaking is based on existing Department regulations.
G. Pollution Prevention
The water quality standards program is a major pollution prevention tool because the objective is to protect in-stream water uses.
H. Sunset Review
This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the final-form rulemaking effectively fulfills the goals for which it was intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 24, 2002, the Department submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 4866 (October 5, 2002), to the Independent Regulatory Review Commission (IRRC) and 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, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2), on August 27, 2003, the final-form rulemaking was deemed approved by the House and Senate Committees. The final-form rulemaking was deemed approved under section 5(g) of the Regulatory Review Act, effective August 27, 2008.
J. 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 proposed rulemaking published at 32 Pa.B. 4866.
(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.
K. 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 § 93.9o 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 review and approval 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.
KATHLEEN A. MCGINTY,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 33 Pa.B. 4643 (September 13, 2003).)
Fiscal Note: 7-379. 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 § 93.9o. Drainage List O.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Stream Zone County Water Uses
ProtectedExceptions To
Specific Criteria* * * * *
4--East Branch Codorus Creek Basin, PA 214 to Inlet of Lake Redman York CWF None 4--East Branch Codorus Creek Main Stem, Inlet of Lake Redman to Mouth York WWF None 5--Unnamed Tributaries to East Branch Codorus Creek Inlet of Lake Redman to Mouth York CWF None 5--Inners Creek Basin York CWF None 3--Willis Run Basin York WWF None * * * * *
[Pa.B. Doc. No. 03-2111. Filed for public inspection October 31, 2003, 9:00 a.m.]
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