PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CH. 93]
Lake Redesignations
[34 Pa.B. 2067] The Environmental Quality Board (Board) proposes to amend §§ 93.9e, 93.9f and 93.9m (relating to drainage list E; drainage list F; and drainage list M) to read as set forth in Annex A.
This proposed rulemaking was adopted by the Board at its meeting of February 17, 2004.
A. Effective Date
This proposed rulemaking will be effective upon final-form 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, (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 proposed rulemaking is available on the Department of Environmental Protection's (Department) website: www.dep.state.pa.us.
C. Statutory and Regulatory Authority
This proposed rulemaking is 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 Proposed Rulemaking
Water quality standards are in-stream water quality goals that are implemented by imposing specific requirements (such as treatment requirements and effluent limits) on individual sources of pollution. The standards are codified in Chapter 93 (relating to water quality standards).
The purpose of this proposed rulemaking is to provide the correct aquatic life use designation in the water quality standards for three Commonwealth lakes. In most cases within Chapter 93, lakes have been classified according to the aquatic life use designation of their associated streams. In many of these cases, however, a lake is incapable of supporting the same use as the stream. One example of this is the presence of a lake in a basin designated for Cold Water Fishes (CWF). Becausethe impounded water is warmed by solar radiation, it is too warm to support fish species indigenous to a cold water habitat. This type of lake typically supports a Warm Water Fishery (WWF) and is so managed. This normal condition should be recognized in the drainage lists. In some cases, the Fish and Boat Commission (Commission) may stock a warm water lake with trout at certain times of the year to provide a put-and-take recreational fishery. Because trout cannot be supported year round, this is a seasonal fishery use. Those lakes should be designated Trout Stocking (TSF) to recognize this seasonal use. For both of these types of lakes, the designated use in the water quality standards should mirror the existing use.
The three lakes included in this proposed rulemaking are:
Blue Marsh Reservoir, Berks County
Lake Luxembourg, Bucks County
Walker Lake, Snyder CountyThe Department's Bureau of Water Supply and Wastewater Management reviewed fishery data on these three lakes from surveys conducted by the Commission, as well as physical data from a number of sources. A description of the conditions in each lake and the recommended use designations follows.
Blue Marsh Reservoir--Blue Marsh Reservoir is a multipurpose impoundment owned and operated by the United States Army Corps of Engineers and is located near Reading. The reservoir has never supported CWF species. The Commission manages this lake as a WWF through natural reproduction of species such as largemouth bass, white and black crappie, bluegill, channel catfish and carp. They also supplement the natural population with stocking of white-striped bass hybrids and walleye. The Commission has never stocked the reservoir with trout. Physical data indicate that water temperature often exceeds levels tolerated by CWF species. It is recommended that Blue Marsh Reservoir be redesignated from TSF to WWF. All tributaries to the lake will retain their current designations.
Lake Luxembourg--Lake Luxembourg is a primary feature in Bucks County's Core Creek County Park. The lake has never supported CWF species. The Commission has always managed the lake as a WWF that includes naturally reproducing populations of yellow perch, white and black crappie, bluegill and carp. Because the largemouth bass population is suboptimal, fingerlings are stocked. Channel catfish and walleye are stocked to supplement the population. The presence of American eel shows that Lake Luxembourg harbors Migratory Fishes (MF). Physical data show temperatures inimical to survival of CWF species. The Commission stocks adult trout in Lake Luxembourg several times each year for angler recreation. The designation of Lake Luxembourg should be changed from CWF, MF to TSF, MF. Tributaries to the lake will retain their CWF, MF designation.
Walker Lake--Walker Lake is owned and managed by the Commission and is located near Troxelville. This lake supports a WWF with reproducing populations of largemouth bass, white and black crappie, yellow perch, bluegill and carp. These species are supplemented by stocking of fingerling northern pike by the Commission.Lake water temperatures often exceed values that can support survival of CWF species. It is proposed that the use designation of Walker Lake be changed from TSF to WWF. Tributaries to the lake will retain their CWF designation.
As part of its continuing water quality management program and ongoing review of water quality standards, the Department recommends that the Board adopt the following amendments to §§ 93.9e, 93.9f and 93.9m as set forth in Annex A and summarized as follows:
Lake County List Present* Designation Recommended*
DesignationBlue Marsh Reservoir Berks F TSF WWF Lake Luxembourg Bucks E CWF, MF TSF, MF Walker Lake Snyder M TSF WWF *WWF = Warm Water Fishes
CWF= Cold Water Fishes
TSF = Trout Stocking
MF = Migratory FishesSection 93.4(b) (relating to Statewide water uses) requires that less restrictive uses may only be adopted when it is demonstrated that the designated use is more restrictive than the existing use, the use cannot be attained by implementing controls on point and nonpoint sources and one or more of a number of conditions exist. One of those conditions is that dams, diversions or other 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 the modification in a way that would result in attainment.
The Department's review of the Commission's fishery data determined that the designated fish and aquatic life use in these three lakes is more restrictive than the existing use in all cases. The warm water conditions and the resulting WWF communities are the result of impoundment of the streams. The impounded water is warmed by solar radiation.
All of the lakes are managed primarily as WWF and provide recreational angling opportunities. Lake Luxembourg is stocked with adult trout by the Commission to provide a seasonal recreational fishery. Blue Marsh Reservoir is operated as a flood control impoundment to reduce the potential for downstream property damage. All of these lakes provide benefits to the citizens of this Commonwealth. In addition, it is not feasible to remove these dams or to operate them in a way that would achieve attainment of the designated use in the impoundment. As a result, the Board proposes the redesignations described in this preamble and set forth in Annex A.
The Department's evaluation report for these lakes is available electronically through the Department's website. The report can also be obtained from Edward R. Brezina whose address and phone number are listed in Section B of this preamble.
The redesignations proposed in this rulemaking will be implemented through the Department's National Pollutant Discharge Elimination System (NPDES) permit and approval actions. Impacts on current or future NPDES permits associated with the lakes in this package are anticipated to be negligible, since effluent limitations in these permits are established to protect the water quality of the existing and revised designated water uses of the lakes in this rulemaking. Furthermore, the changes in designated and existing uses for these lakes will not compromise tributaries or downstream uses; they will remain protected from new and expanded permitted discharges.
In developing this proposed rulemaking, the Department discovered a minor error that resulted from a previous rulemaking. The turbidity criterion for the lower segment of Mill Creek, from Watson Creek to Mouth, was proposed as Tur3 at proposed rulemaking (see 28 Pa.B. 4431 (August 29, 1998)), but recommended for change to Tur1 at final rulemaking (see 30 Pa.B. 6059 (November 18, 2000)). However, due to an oversight, the change to Tur1 was not made. The error is corrected in Annex A.
E. Benefits, Costs and Compliance
1. Benefits--Overall, the citizens of this Commonwealth will benefit from these proposed changes because they will reflect the appropriate designated use and maintain the most appropriate degree of protection for each lake 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. No costs will be imposed directly upon local governments by this proposal.
Persons conducting or proposing activities or projects that could impact a lake must comply with the regulatory requirements relating to the designated use. For discharges, treatment costs are site-specific and depend upon the size of the discharge in relation to the size of the lake and many other factors.
3. Compliance Assistance Plan--The regulatory revisions have 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 (35 P. S. §§ 691.1--691.1001). 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 and existing water uses.
The proposed redesignations will be implemented through the Departments's permit and approval actions. For example, the NPDES permitting program bases effluent limitations on the use designation of the stream or lake. 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 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.
F. Pollution Prevention
The water quality standards program is a major pollution prevention tool because the objective is to protect in-stream and in-lake water uses. The proposed designated use changes will ensure protection of the existing use in these lakes.
G. Sunset Review
This proposed 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.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 7, 2004, the Department submitted a copy of the proposed rulemaking 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 rulemaking, IRRC and the Committees have been provided a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review of these issues by the Department, the General Assembly and the Governor prior to final publication of the regulations.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking 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 1, 2004. 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 1, 2004. 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 rulemaking will be considered. If sufficient interest is generated as a result of this publication, public hearings will be scheduled at appropriate locations 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 1, 2004.
KATHLEEN A. MCGINTY,
ChairpersonFiscal Note: 7-388. 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 § 93.9e. Drainage List E.
Delaware River Basin in Pennsylvania
Delaware River
Stream Zone County Water Uses Protected Exceptions To Specific Criteria * * * * *
3--Mill Creek Basin, Watson Creek to Mouth Bucks WWF, MF Add [Tur3] Tur1 3--Core Creek Basin, Source [PA Rte 620 Dam] to Inlet of Lake Luxembourg Bucks CWF, MF Add Tur2 3--Core Creek Lake Luxembourg Bucks TSF, MF Add Tur2 4--Unnamed Tributaries to Lake Luxembourg Basins, Source to Slackwater of Lake Luxembourg Bucks CWF, MF Add Tur2 3--Core Creek Basin, [PA Rte 620] Lake Luxembourg Dam to Mouth Bucks WWF, MF Add Tur1 3--Mill Creek Basin Bucks WWF, MF Add Tur1 * * * * *
§ 93.9f. Drainage List F.
Delaware River Basin in Pennsylvania
Schuylkill River
Stream Zone County Water Uses Protected Exceptions To Specific Criteria * * * * *
3--Tulpehocken Creek Basin, Source to T 560 near Ramona [Berks] Lebanon CWF None 3--Tulpehocken Creek Main Stem, T 560 to [Tailwaters] Inlet of Blue Marsh Reservoir Berks TSF None 4--Unnamed Tributaries to Tulpehocken Creek Basins, T 560 to [Tailwaters] Inlet of Blue Marsh Reservoir Berks TSF None 4--Owl Creek Basin Lebanon WWF None 3--Tulpehocken Creek Blue Marsh Reservoir Berks WWF None 4--Unnamed Tributaries to Blue Marsh Reservoir Basins, Source to Slackwater of Blue Marsh Reservoir Berks TSF None 4--Northkill Creek Basin, Source to I-78 Bridge Berks EV None 4--Northkill Creek Basin, I-78 Bridge to [Mouth] Slackwater of Blue Marsh Reservoir Berks CWF None 4--Licking Creek Basin, Source to Slackwater of Blue Marsh Reservoir Berks TSF None 4--Spring Creek Basin, Source to Furnace Creek Berks CWF None 5--Furnace Creek Basin, Source to Water Authority Dam Berks HQ-CWF None 5--Furnace Creek Basin, Water Authority Dam to Mouth Berks CWF None 4--Spring Creek Basin, Furnace Creek to Hospital Creek Berks CWF None 5--Hospital Creek Basin Berks TSF None 4--Spring Creek Basin, Hospital Creek to [Mouth] Slackwater of Blue Marsh Reservoir Berks TSF None [3--Tulpehocken Creek Basin, Blue Marsh Reservoir Berks TSF None] 3--Tulpehocken Creek Main Stem, Blue Marsh Reservoir Dam to T 921 Berks CWF None * * * * *
§ 93.9m. Drainage List M.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Stream Zone County Water Uses Protected Exceptions To Specific Criteria * * * * *
4--North Branch Middle Creek Main Stem, Source to Inlet of Walker Lake Snyder TSF None 5--Unnamed Tributaries to North Branch Middle Creek Basins, Source to Inlet of Walker Lake Snyder CWF None 4--North Branch Middle Creek Walker Lake Snyder WWF None 5--Unnamed Tributaries to Walker Lake Basins, Source to Slackwater of Walker Lake Snyder CWF None 5--Moyers Mill Run Basin, Source to Slackwater of Walker Lake Snyder CWF None 4--North Branch Middle Creek Main Stem, Walker Lake Dam to Mouth Snyder TSF None 5--Unnamed Tributaries to North Branch Middle Creek Basins, Walker Lake Dam to Mouth Snyder CWF None 5--Swift Run Basin Snyder HQ-CWF None 5--Stony Run Basin Snyder CWF None * * * * *
[Pa.B. Doc. No. 04-650. Filed for public inspection April 16, 2004, 9:00 a.m.]
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