RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 Pa. CODE CH. 93]
Triennial Review of Water Quality Standards
[35 Pa.B. 1197] The Environmental Quality Board (Board) is amending Chapter 93 (relating to water quality standards) to read as set forth in Annex A.
This order was adopted by the Board at its meeting of August 17, 2004.
A. Effective Date
This final-form rulemaking will go into effect 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, (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's) website (http://www.dep.state.pa.us).
C. Statutory Authority
This final-form rule is made under 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 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 the Federal regulations in 40 CFR 131.32 (relating to Pennsylvania) set forth certain requirements for portions of the Commonwealth's antidegradation program.
D. Background and Summary
Section 303(c)(1) of the Clean Water Act requires that states periodically, but at least once every 3 years, review and revise as necessary, their water quality standards. This final-form rulemaking constitutes the Commonwealth's current triennial review of its water quality standards.
The Commonwealth's water quality standards, which are codified in Chapter 93 and portions of Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), are designed to implement the requirements of sections 5 and 402 of The Clean Streams Law and section 303 of the Federal Clean Water Act. The water quality standards consist of the designated uses of the surface waters of this Commonwealth, along with the specific numerical and narrative criteria necessary to achieve and maintain those uses and antidegradation regulations. Water quality standards are in-stream water quality goals that are implemented by imposing specific regulatory requirements, such as treatment requirements and effluent limitations, on individual sources of pollution.
This final-form rulemaking revises Chapter 93. These regulatory revisions will clarify requirements, and update the regulations to be consistent with Federal regulatory changes when indicated, and preserve State-specific requirements to serve the citizens of this Commonwealth. This final-form rulemaking may affect persons who discharge wastewater into surface waters of this Commonwealth or otherwise conduct activities, which may impact those waters.
The Department's Water Resources Advisory Committee (WRAC), provided input on the proposed amendments at its November 13, 2002, and September 10, 2003, meetings. The proposed amendments were adopted by the Board as proposed rulemaking at its July 15, 2003, meeting. The proposed rulemaking was published at 33 Pa.B. 5190 (October 18, 2003) with provision for a 60-day public comment period that closed on December 17, 2003. The Board received 538 public comments. The comments received on the proposed rulemaking are summarized in Section E of this order.
The Board has considered all of the public comments received on its proposed rulemaking in preparing for these final-form regulations. The draft final-form regulations were discussed with and approved by WRAC on July 14, 2004, with additional clarifications to the dissolved oxygen criteria. The valuable input from the public and the collective knowledge and experience drawn from advisory committees and others on this proposal has been utilized to develop regulations which carefully balance the needs of citizens and the regulated community in assuring the protection of this Commonwealth's waters.
E. Summary of Comments and Responses on the Proposed Rulemaking
Comments were received from 538 commentators including the Independent Regulatory Review Commission (IRRC) as a result of the public comment period and the public hearing. Approximately 50% of the comments received involved § 93.2 (relating to scope). The proposed rulemaking recommended deletion of certain text in § 93.2(a) to correct any misinterpretation that the scope of Chapter 93 applies only to ''discharges'' or to ''point sources.'' The majority of scope comments were in support of clarifying the language in § 93.2 to include point sources as well as nonpoint sources. There were a few commentators that expressed concerns with the removal of language from the scope section.
The other major issue was the proposed change to the application of dissolved oxygen criteria in § 93.7 (relating to specific water quality criteria) to recognize the effects of natural stratification in lakes, ponds and impoundments. Several commentators supported the proposed change to the dissolved oxygen criteria. A few commentators expressed concerns pertaining to the application of the criteria, the stratification process and definitions of epilimnion and hypolimnion.
A detailed description of the comments and revisions to the proposal follows:
General
Many commentators requested that the Board not weaken the water quality standards. They expressed concern that the Commonwealth was going to reduce the protection of the waters of this Commonwealth. The Board responded to those comments by assuring commentators that the amendments to its regulations will not weaken the water quality standards but will clarify the protection of the waters of this Commonwealth. A comment was received concerning the application of water quality standards to wetlands. The Department has reviewed the water quality standards, and there was no new scientific information, policies or directives found that would require changes to the water quality standards as they apply to wetlands.
§ 93.1. Definitions.
A few commentators expressed concerns that the application of the dissolved oxygen criteria and the stratification process was not clear. Therefore, a definition for ''hypolimnion'' has been added to the final-form rulemaking to further clarify natural stratification.
§ 93.2. Scope.
The proposed change to the scope is one of the major issues that was raised by commentators. The proposed rulemaking recommended deletion of certain text in § 93.2(a) to correct any misinterpretation that the scope of Chapter 93 applies only to ''discharges'' or to ''point sources.'' The majority of the comments on the scope were in support of the proposed change that clarified its application to both point and nonpoint sources of pollution. There were a few commentators that expressed concerns with the proposed change to remove language from the scope. They have requested that the existing language be retained or that new language be added to insert ''point and nonpoint source'' before ''discharges.'' On final-form rulemaking, the Board is inserting new language that reads as follows: . . . and will be considered by the Department in ''implementing its authority under The Clean Streams Law and other statutes that authorize protection of surface water quality.'' This amendment will track current guidance and regulations for use of the standards in situations outside NPDES discharges. This change reaffirms the Department's longstanding position that the water quality standards in Chapter 93 are the standards that are used whenever the environmental statutes authorize the Department to make decisions or approvals relating to stream quality protection.
Questions have been raised regarding the relationship between 27 Pa.C.S. Chapter 31 (relating to conservation and natural resources) (act) and Chapter 93. The water withdrawal registration process required under the act does not expand the Department's existing authority to protect surface waters. Water withdrawal information gathered under that statute is for water planning purposes and the State Water Plan will be used for the purposes articulated by section 3116 of the act (relating to use of plan). Under multiple sections of the act it is clear that the planning statute does not authorize, diminish or expand existing authority of the Department to regulate, control or require permits for the withdrawal or use of water. See sections 3104 (4), 3111(c) and 3136(a) of the act (relating to administrative agreements with other agencies; plan contents; and relation to other laws.) By amending § 93.2 in this final-form rulemaking, the Department is not expanding its existing authority to protect surface waters. To clarify this point, a motion was made and approved at the Board's meeting on August 17, 2004, to amend this final rulemaking by adding the following language to the end of § 93.2(a): ''Nothing in this chapter shall be construed to diminish or expand the authority of the Department to regulate surface water quality as authorized by statute.''
§ 93.7. Specific water quality criteria.
The other major issue in the comments was the proposed change to the application of dissolved oxygen criteria in § 93.7 to recognize the effects of natural stratification in lakes, ponds and impoundments. Several commentators supported the proposed change to the dissolved oxygen criteria. A few commentators expressed concerns pertaining to the application of the criteria, the stratification process, and definitions of epilimnion and hypolimnion. In response to the comments and to WRAC suggestions, the language in the final form rulemaking at § 93.7, Table 3--Dissolved Oxygen is revised to further clarify natural stratification and how the process is applied and a new definition of ''hypolimnion'' is added to § 93.1.
Fishable/Swimmable Waters
Part of the triennial review requires that states reexamine water body segments that do not meet the fishable or swimmable uses specified in section 101(a)(2) of the Federal Clean Water Act. The Department evaluated the two Pennsylvania water bodies where the uses are not currently met: (1) the Harbor Basin and entrance channel to Outer Erie Harbor/Presque Isle Bay and (2) several zones in the Delaware Estuary.
The swimmable use designation was deleted from the Harbor Basin and entrance channel demarcated by United States Coast Guard buoys and channel markers on Outer Erie Harbor/ Presque Isle Bay because boat and shipping traffic pose a serious safety hazard in this area. This decision was based on a Use Attainability study in 1985. Because the same conditions exist today, no change to the designated use for Outer Erie Harbor/Presque Isle Bay is made.
The Department cooperated with the Delaware River Basin Commission (DRBC), Environmental Protection Agency (EPA) and other DRBC signatory states on a comprehensive Use Attainability study in the lower Delaware River and Delaware Estuary. This study resulted in appropriate recommendations relating to the swimmable use, which DRBC included in water use classifications and water quality criteria for portions of the tidal Delaware River in May 1991. Criteria for enterococcus and changes in application to the fecal coliform criteria in this area reflect the use. The appropriate DRBC standards are referenced in §§ 93.9e and 93.9g (relating to Drainage List E; and Drainage List G). The primary water contact use remains excluded from the designated uses for river miles 108.4 to 81.8 because of continuing significant impacts from combined sewer overflows.
F. Benefits, Costs and Compliance
1. Benefits--Overall, the citizens of this Commonwealth will benefit from these recommended changes because they provide the appropriate level of protection for the uses of surface waters in this Commonwealth.
2. Compliance Costs--This final-form rulemaking is not expected to impose any significant additional compliance costs on the regulated community. These regulatory changes are not expected to increase total pollutioncontrol expenditures over that which would otherwise be required under existing regulations.
3. Compliance Assistance Plan--This final-form rulemaking has 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.
This final-form rulemaking will be implemented in part through the National Pollutant Discharge Elimination System (NPDES) permitting program. No additional compliance materials are anticipated. Staff are available to assist regulated entities in complying with the regulatory requirements if any questions arise.
4. Paperwork Requirements--The regulatory revision should have no significant paperwork impact on the Commonwealth, its political subdivisions or the private sector.
G. Pollution Prevention
Water quality standards are a major pollution prevention tool because they protect water quality and designated and existing uses. This final-form rulemaking will be implemented through the Department's permit and approval actions. For example, the NPDES bases effluent limitations on the uses of the stream and assures water quality criteria are achieved and designated and existing uses are protected.
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 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 October 1 2004, the Department submitted a copy of the proposed rulemaking published at 33 Pa.B. 5190, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committee for review and comment.
Under section 5(c) of the Regulatory Review Act (71 P. S. § 745.5(c)), the Department provided IRRC and the Committees with copies of the comments received, as well as other documentation. The Board has considered all public comments in preparing this final-form rulemaking. Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), this final-form rulemaking was deemed approved by the House and Senate Committees on November 3, 2004. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 4, 2004, and approved the final-form rulemaking.
J. Findings of the Board
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 at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law. In addition, two Board hearings were held. All comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposal published at 33 Pa.B. 5190.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.
K. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 93, are amended by amending §§ 93.1, 93.2, 93.6, 93.7, 93.8, 93.9, 93.9a, 93.9b, 93.9c, 93.9d, 93.9e, 93.9f, 93.9i, 93.9l, 93.9m, 93.9o, 93.9q and 93.9s to read as set forth in Annex A, with ellipses referring to the existing text of the regulation.
(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 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 34 Pa.B. 6293 (November 20, 2004).)
Fiscal Note: Fiscal Note 7-386 remains valid for the final adoption of the subject regulations.
Annex
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
GENERAL PROVISIONS § 93.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * High Quality Waters--Surface waters having quality which exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water by satisfying § 93.4b(a).
Hypolimnion--The cooler, denser, lower layer in a naturally stratified lake, pond or impoundment.
* * * * * § 93.2. Scope.
(a) This chapter sets forth water quality standards for surface waters of this Commonwealth, including wetlands. These standards are based upon water uses which are to be protected and will be considered by the Department in implementing its authority under The Clean Streams Law and other statutes that authorize protection of surface water quality. Nothing in this chapter shall be construed to diminish or expand the authority of the Department to regulate surface water quality as authorized by statute.
(b) When an interstate or international agency under an interstate compact or international agreement establishes water quality standards regulations applicable to surface waters of this Commonwealth, including wetlands, more stringent than those in this title, the more stringent standards apply.
WATER QUALITY CRITERIA § 93.6. General water quality criteria
(a) Water may not contain substances attributable to point or nonpoint source discharges in concentration or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant or aquatic life.
(b) In addition to other substances listed within or addressed by this chapter, specific substances to be controlled include, but are not limited to, floating materials, oil, grease, scum and substances that produce color, tastes, odors, turbidity or settle to form deposits.
§ 93.7. Specific water quality criteria.
* * * * *
TABLE 3
Parameter Symbol Criteria Critical Use* * * * * *
Color Col Maximum 75 units on the platinum-cobalt scale; no other colors perceptible to the human eye. PWS Dissolved Oxygen The following specific dissolved oxygen criteria recognize the natural process of stratification in lakes, ponds and impoundments. These criteria apply to flowing waters and to the epilimnion of a naturally stratified lake, pond or impoundment. The hypolimnion in a naturally stratified lake, pond or impoundment is protected by the narrative water quality criteria in § 93.6 (relating to general water quality criteria). For nonstratified lakes, ponds or impoundments, the dissolved oxygen criteria apply throughout the lake, pond or impoundment to protect the critical uses. See the following table. DO1 For flowing waters, minimum daily average 6.0 mg/l; minimum 5.0 mg/l. For lakes, ponds and impoundments, minimum 5.0 mg/l. CWF
HQ-WWF
HQ-TSF
DO2 Minimum daily average 5.0 mg/l; minimum 4.0 mg/l. WWF DO3 For the period February 1 to July 31 of any year, minimum daily average 6.0 mg/l; minimum 5.0 mg/l. For the remainder of the year, minimum daily average 5.0 mg/l; minimum 4.0 mg/l. TSF DO4 Minimum 7.0 mg/l. HQ-CWF * * * * *
§ 93.8. Development of site-specific water quality criteria.
(a) The Department will consider a request for site-specific criteria for protection of aquatic life, human health or wildlife when a person demonstrates that there exist site-specific biological or chemical conditions of receiving waters which differ from conditions upon which the water quality criteria were based. Site-specific criteria may be developed for use only in place of current Statewide or regional (such as the Great Lakes systems) criteria. The request for site-specific criteria shall include the results of scientific studies for the purpose of:
(1) Defining the areal boundaries for application of the site-specific criteria which will include the potentially affected wastewater dischargers identified by the Department, through various means, including, but not limited to, the total maximum daily load (TMDL) process described in Chapter 96 (relating to water quality standards implementation) or biological assessments.
(2) Developing site-specific criteria which protect its existing use and designated use.
(b) Scientific studies shall be performed in accordance with the procedures and guidance in the Water Quality Standards Handbook (EPA 1994), as amended and updated, guidance provided by the Department or other scientifically defensible methodologies approved by the Department.
(c) Prior to conducting studies specified in subsections (a) and (b), a proposed plan of study shall be submitted to and approved by the Department.
(d) Signed copies of all reports including toxicity test data shall be submitted to the Department within 30 days of completion of the tests.
(e) If as a result of its review of the report submitted, the Department determines that a site-specific criterion is appropriate, the Department will, for site-specific changes to criteria in § 93.7 (relating to specific water quality criteria), prepare a recommendation to the EQB in the form of proposed rulemaking, incorporating that criterion for the water body segment. The site-specific changes to the criteria will become effective for the water body segment following adoption by the EQB as final rulemaking and publication in the Pennsylvania Bulletin.
(f) A person challenging a Department action under this section shall have the burden of proof to demonstrate that the Department's action does not meet the requirements of this section.
§ 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 Stream and the ''Zone'' columns are as follows:
FAS--Federal Aid Secondary Highway
I--Interstate Highway
LR--Pennsylvania Legislative Route
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 DEP's River Mile Index
SR--Pennsylvania State Route
T--Township Road
UNT--Unnamed Tributaries
US--United States Federal Route
* * * * *
§ 93.9a. Drainage List A.
Delaware River Basin in Pennsylvania
Delaware River
Stream Zone County Water Uses
ProtectedExceptions To
Specific
Criteria* * * * *
3--Sherman Creek Basin (all sections in PA), Source to Starboard Creek Wayne HQ-CWF None 4--Starboard Creek Basin (all sections in PA) Wayne CWF None 3--Sherman Creek Basin (all sections in PA), Starboard Creek to PA-NY State Border Wayne CWF None 3--Sherman Creek
(NY)4--UNTs to Sherman Creek Basins (all sections in PA), PA-NY State Border to Mouth Wayne CWF None 2--West Branch Delaware River Main Stem, PA-NY State Border to Confluence with East Branch Wayne CWF, MF See DRBC regulations--Water Quality Zone 1A * * * * * § 93.9b. Drainage List B.
Delaware River Basin in Pennsylvania
Lackawaxen River
Stream Zone County Water Uses
ProtectedExceptions To
Specific
Criteria* * * * *
3--West Branch Lackawaxen River Main Stem, Prompton Reservoir to Confluence with Dyberry Creek Wayne HQ-TSF, MF None * * * * * 4--Van Auken Creek Basin Wayne HQ-TSF, MF None * * * * *
§ 93.9c. Drainage List C.
Delaware River Basin in Pennsylvania
Delaware River
Stream Zone County Water Uses
ProtectedExceptions To
Specific
Criteria* * * * *
3--Unnamed Tributaries to Bush Kill Basins, Saw Creek to Mouth Monroe HQ-CWF None 3--Sand Hill Creek Basin Monroe HQ-CWF None 3--Little Bush Kill Basin, Source to Unnamed Tributary (UNT) 05067 Pike EV None 4--Unnamed Tributary 05067 to Little Bush Kill Basin Pike EV None 3--Little Bush Kill Basin, UNT 05067 to UNT 05059 Pike HQ-CWF None 4--Unnamed Tributary 05059 to Little Bush Kill Basin Pike EV None 3--Little Bush Kill Basin, UNT 05059 to UNT 05057 Pike EV None 4--Unnamed Tributary 05057 to Little Bush Kill Basin Pike HQ-CWF None 3--Little Bush Kill Basin, UNT 05057 to Mouth Pike EV None 1--Delaware River Main Stem, Tocks Island to Lehigh River Northampton WWF, MF See DRBC regulations--Water Quality Zone * * * * * § 93.9d. Drainage List D.
Delaware River Basin in Pennsylvania
Lehigh River
Stream Zone County Water Uses
ProtectedExceptions To
Specific
Criteria* * * * * 3--Nesquehoning Creek Main Stem, Tibbetts Pond Dam to Mouth Carbon CWF None * * * * *
4--UNT 04106 (locally First Hollow Run) Basin Carbon EV None 4--Jeans Run Basin Carbon HQ-CWF None * * * * * 3--Mauch Chunk Creek Basin, Source to SR 902 Bridge Carbon EV None 3--Mauch Chunk Creek Basin, SR 902 Bridge to Mouth Carbon CWF None 3--Beaverdam Run Basin Carbon CWF None * * * * *
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