RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Stream Redesignations (Oysterville Creek, et al.)
[33 Pa.B. 5420] The Environmental Quality Board (Board) by this order amends §§ 93.9(a), 93.9f, 93.9g, 93.9n and 93.9o 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
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 for redesignation during routine waterbody 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:
Petitions: Oysterville Creek (Berks County); West Branch Perkiomen Creek (Berks County); Unnamed Tributary to Chester Creek (Delaware County); Cove Creek (Bedford County); and Trout Run (York County)
Commission: Rambo Run (York County)
The Department's Bureau of Water Supply and Wastewater Management conducted aquatic surveys on 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 on the data collected in these surveys, the Board has made the designations in Annex A.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Board approved the Oysterville Creek, et al. proposed rulemaking package at its March 19, 2002, meeting. The proposed rulemaking was published at 32 Pa.B. 2219 (May 4, 2002) with provision for a 45-day public comment period that closed on June 18, 2002. A request for a public hearing regarding Oysterville Creek and the West Branch Perkiomen Creek was received during the public comment period. A Board hearing was scheduled and an announcement was published at 32 Pa.B. 2994 (June 22, 2002), at which time the public comment period for these two streams was reopened. The public hearing was held in the Brandywine Heights High School in Topton (Berks County) on August 7, 2002, and the public comment period closed 2 weeks later, on August 21, 2002. Because of the public interest, the Department held a public informational meeting immediately preceding the hearing. The purposes of the meeting were to present information on the antidegradation program and the recommended redesignations of the two streams and to answer questions from the public.
Comments were received from 72 commentators and the Independent Regulatory Review Commission (IRRC) as a result of the public comment period and the public hearing. Comments were received concerning Cove Creek, Oysterville Creek, West Branch Perkiomen Creek, Rambo Run and Trout Run.
IRRC was concerned that no new biological sampling was conducted on Cove Creek. The recommended redesignation of the lower reaches of the stream to EV is based on a revised implementation method for the Percent Dominant Taxon metric. The lower portion of Cove Creek was not initially recommended for EV designation because of the dominance of a single species, a pollution-sensitive mayfly. Dominance by one taxon often indicates an aquatic community stressed by pollution. Both the Department and the Commission recognized that biological communities may be naturally dominated by one or two species or temporarily dominated by one or two taxa because their reproductive cycle has yielded large numbers of individuals over a very brief interval. The revised implementation gives this metric the highest score in a candidate stream reach if the aquatic community is dominated by a single taxon that is a pollution-sensitive species, because this condition does not indicate a pollution problem. The new scoring method was applied to the data already collected from lower Cove Creek.
A total of 50 commentators provided comments on Oysterville and West Branch Perkiomen Creeks. Of these, 38 were in favor of the proposed redesignation of portions of these basins, 8 were in opposition and 4 provided general comments. Those opposed were concerned with the possible costs of redesignation to landowners and the potential loss of property rights. The comment and response document explains that redesignation will primarily affect new or expanding point source discharges and that current activities will generally not be restricted.
There were 21 comments concerning the redesignation of Rambo Run. All supported the redesignation of the Rambo Run basin to EV.
Four commentators addressed Trout Run. Two specifically endorsed the redesignation, while the other two commentators questioned the change in the Department's recommendation from that proposed in 1997. The comment and response document explains that Trout Run was resurveyed using a more appropriate cold water reference stream. As a result, the biological condition score comparison for the upper portion of the stream fell in the regulatory range for HQ designation.
F. Summary of Changes to the Proposed Rulemaking
No changes were made to the redesignations recommended in the proposed rulemaking.
G. Benefits, Cost and Compliance
Benefits--Overall, the citizens of this Commonwealth will benefit from the final-form rulemaking because it will reflect the appropriate designated use and maintain the most appropriate degree of protection for each stream in accordance with the existing use.
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. 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 the final-form rulemaking. 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 must comply with the regulatory requirements regarding 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.
Compliance Assistance Plan--The final-form rulemaking has been developed as part of an established program that has been implemented by the Department since the early 1980s. The final-form rulemaking is consistent with and based on existing Department regulations. The final-form rulemaking extends 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. 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 redesignations will be implemented through the Department's permit and approval actions. For example, the National Pollutant Discharge Elimination System (NPDES) 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--The final-form rulemaking should have no direct paperwork impact on the Commonwealth, local governments, political subdivisions or the private sector. The final-form rulemaking is based on existing Department regulations and simply mirrors 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 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 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, 2002, the Department submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 2219, to 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 this 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. IRRC met on August 28, 2003, and approved the final-form rulemaking.
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, a public hearing was held and all comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposal published at 32 Pa.B. 2219.
(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 the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 93, are amended by amending §§ 93.9, 93.9f, 93.9g, 93.9n and 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 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.
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: 7-377. 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--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
Stream Zone County Water Uses
ProtectedExceptions To
Specific Criteria* * * * *
4--Oysterville Creek Basin, Source to T 634 Bridge (RM 2.6) Berks 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--Furnace Run Basin Berks CWF None * * * * * 4--West Branch Perkiomen Creek Basin, Source to SR 1022 Bridge (RM 12.9) 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 3--Perkiomen Creek Mainstem, Green Lane Reservoir Dam to Mouth Montgomery WWF, MF None * * * * *
§ 93.9g. Drainage List G.
Delaware River Basin in Pennsylvania
Delaware River
Stream Zone County Water Uses
ProtectedExceptions To
Specific Criteria* * * * *
2--Chester Creek Basin, Source to East Branch Chester Creek Chester TSF, MF None 3--East Branch Chester Creek Basin, Source to UNT at RM 0.4 (''Goose Creek'') Chester TSF, MF None 4--UNT to East Branch Chester Creek at RM 0.4 (''Goose Creek'') Basin Chester WWF, MF None 3--East Branch Chester Creek Basin, 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 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 4--Green Creek Basin Delaware CWF, MF None * * * * *
§ 93.9n. Drainage List N.
Susquehanna River Basin in Pennsylvania
Juniata River
Stream Zone County Water Uses
ProtectedExceptions To
Specific Criteria* * * * *
4--Cove Creek Basin Bedford EV None 4--Snakespring Valley Run Basin Bedford WWF None * * * * *
§ 93.9o. Drainage List O.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Stream Zone County Water Uses
ProtectedExceptions To
Specific Criteria* * * * *
2--Codorus Creek Main Stem, Oil Creek to Mouth York WWF None * * * * *
3--Dee Run Basin York WWF None 3--Trout Run Basin, Source to UNT at RM 0.3 York 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 2--Wildcat Run Basin York WWF None * * * * *
3--North Branch Muddy Creek Basin, Source to 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 3--South Branch Muddy Creek Basin, Source to Confluence with North Branch York HQ-CWF None * * * * *
[Pa.B. Doc. No. 03-2112. Filed for public inspection October 31, 2003, 9:00 a.m.]
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