RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Lake Redesignations
[35 Pa.B. 5806] The Environmental Quality Board (Board) amends §§ 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.
A. Effective Date
The final-form rulemaking is effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Richard Shertzer, Water Quality Assessment and Monitoring Section Chief, Bureau of Water Supply and Facility Regulation, 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 final-form rulemaking is available on the Department of Environmental Protection's (Department) website at www.dep.state.pa.us.
C. Statutory Authority
This final-form 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 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 purpose of these amendments is to provide the correct aquatic life use designation in the water quality standards for three Commonwealth lakes. In most cases within Chapter 93 (relating to water quality standards), 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). Because the impounded water is warmed by solar radiation, it is too warm to support fish species indigenous to a cold-water habitat. A lake such as this typically supports a Warm Water Fishery and is managed as such. 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. These 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 rulemaking are:
Blue Marsh Reservoir, Berks County
Lake Luxembourg, Bucks County
Walker Lake, Snyder CountyThe Department's Bureau of Water Supply and Facility Regulation reviewed fishery data on these three lakes from surveys conducted by the Commission, as well as chemical and physical data from a number of sources. A description of the conditions in each lake and the recommended use designations are as 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 Commission manages this lake as a warm water fishery 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 hybrid striped bass and walleye. Physical data indicate that water temperature often exceeds levels tolerated by cold-water fish species. It is recommended that Blue Marsh Reservoir be redesignated from TSF to Warm Water Fishes. 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 Commission has determined that this lake supports a warm water fish community 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. Physical data show temperatures inimical to survival of cold-water 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, Migratory Fishes (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 warm water fishery 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 cold-water fish species. It is recommended that the use designation of Walker Lake be changed from TSF to WWF. Tributaries to the lake will retain their CWF designation.
Section 93.4(b) (relating to Statewide water uses) of the water quality standards 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 warm water fish 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 warm water fisheries 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 amends §§ 93.9e, 93.9f and 93.9m to read as set forth in Annex A.
This final-form rulemaking also corrects a minor error found while preparing the amendments to Drainage List E. During rulemaking for the Regulatory Basics Initiative (RBI), criteria for turbidity were removed from Table 3 in § 93.7 (relating to specific water quality criteria). This was done because turbidity criteria were applied to only 18 surface waters in this Commonwealth. All of these waters are in the Neshaminy Creek basin in Drainage List E. The applicable turbidity criteria were added to Drainage List E during proposed rulemaking published at 28 Pa.B. 4431 (August 29, 1998) and listed as Tur3 and Tur4. The designations were changed to Tur1 and Tur2 in the final-form rulemaking published at 30 Pa.B. 6059 (November 18, 2000). The turbidity criterion for the lower segment of Mill Creek, from Watson Creek to Mouth, was not changed between proposed and final rulemaking due to an oversight. It was still listed as Tur3 but should have been changed to Tur1. This error is corrected in Annex A.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Board approved proposed rulemaking for these lake redesignations at its February 17, 2004, meeting. The proposed rulemaking was published at 34 Pa.B. 2067 (April 17, 2004) with provision for a 45-day public comment period that closed on June 1, 2004. No comments were received that related directly to the recommended redesignations.
The United States Environmental Protection Agency (EPA), Region 3 provided comments to the Board regarding data presentation in the lakes report and suggestions for the amendments. The Department worked with the EPA to address its suggestions. As a result, a separate report has been prepared for each lake that presents the lake data and recommendations in a format agreed to by the EPA. The EPA is supportive of these and future lake redesignations to properly designate waters. The recommended redesignations have not changed from the original single report or from the proposed rulemaking.
F. Benefits, Costs and Compliance
1. Benefits--Overall, the citizens of this Commonwealth will benefit from these 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 amendments 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 these amendments.
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 are 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 and existing 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 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 amendments should have no direct paperwork impact on the Commonwealth, local governments and political subdivisions or the private sector. These amendments are 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 and in-lake water uses. These designated use changes will ensure protection of the existing use in these lakes.
H. Sunset Review
These amendments 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.
I. 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 notice of proposed rulemaking, published at 34 Pa.B. 2067, 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 House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on August 24, 2005, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5(g) of the Regulatory Review Act, the final-form rulemaking was deemed approved by IRRC, effective August 24, 2005.
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 34 Pa.B. 2067.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in section C of this order.
(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 §§ 93.9e, 93.9f and 93.9m 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 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 35 Pa.B. 5068 (September 10, 2005).)
Fiscal Note: Fiscal Note 7-388 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
DESIGNATED WATER USES AND WATER QUALITY CRITERIA § 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 Tur1 3--Core Creek Basin, Source 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, 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--Bernhart Creek Basin 3--Tulpehocken Creek Basin, Source to T 560 near Ramona Lebanon CWF None 3--Tulpehocken Creek Main Stem, T 560 to Inlet of Blue Marsh Reservoir Berks TSF None 4--Unnamed Tributaries to Tulpehocken Creek Basins, T 560 to 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 Slackwater
of Blue Marsh ReservoirBerks 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 Slackwater of 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 LakeSnyder 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. 05-1946. Filed for public inspection October 21, 2005, 9:00 a.m.]
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