RULES AND REGULATIONS

Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 93]

Stream Redesignations (Newtown Creek, et al.)

[37 Pa.B. 11]
[Saturday, January 6, 2007]

   The Environmental Quality Board (Board) amends §§ 93.7, 93.9d, 93.9e, 93.9g, 93.9l, 93.9o, 93.9q and 93.9v to read as set forth in Annex A.

A.  Effective Date

   This final-form rulemaking is effective upon publication in the Pennsylvania Bulletin.

B.  Contact Persons

   For further information, contact Richard H. Shertzer, Chief, Division of Water Quality Standards, Bureau of Water Standards and Facility Regulation, 11th Floor, Rachel Carson State Office Building, P. O. Box 8467, 400 Market Street, Harrisburg, PA 17105-8467, (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 final-form rulemaking is available on the Department of Environmental Protection (Department) website at www.depweb.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 the Federal regulation in 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 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.

   The Department considers candidates for High Quality (HQ) or Exceptional Value (EV) Waters and all other designations in its ongoing review of water quality standards. In general, HQ and EV waters must be maintained at their existing water quality and permitted activities shall ensure the protection of designated and existing uses.

   Existing use protection is provided when the Department determines, based on its evaluation of the best available scientific information, that a surface water attains water uses identified in §§ 93.3 and 93.4 (relating to protected water uses; and Statewide water uses). Examples of water uses protected include the following: Cold Water Fishes (CWF), Warm Water Fishes (WWF), HQ and EV. A final existing use determination is made on a surface water at the time the Department takes a permit or approval action on a request to conduct an activity that may impact surface water. If the determination demonstrates that the existing use is different than the designated use, the water body will immediately receive the best protection identified by either the attained uses or the designated uses. A stream will then be ''redesignated'' through the rulemaking process to match the existing uses with the designated uses. For example, if the designated use of a stream is listed as protecting WWF but the redesignation evaluation demonstrates that the water attains the use of CWF, the stream would immediately be protected for CWF, prior to a rulemaking. Once the Department determines the water uses attained by a surface water, the Department will recommend to the Board that the existing uses be made ''designated'' uses, through rulemaking, and be added to the drainage lists of uses identified in §§ 93.9a--93.9z.

   These streams were evaluated in response to one petition, as well as requests from the Pennsylvania Fish and Boat Commission (FBC) and the Department as follows:

Petition: Pine Run (Chest Township Road District)
FBC: Messenger Run
Department: Indian Spring Run, Unnamed Tributary (UNT) to Lizard Creek, Newtown Creek and Indian Creek

   These amendments were developed as a result of aquatic studies conducted by the Department and the Commission. 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 upon 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 proposed rulemaking for the Newtown Creek, et al. package at its June 21, 2005, meeting. The proposed rulemaking was published at 35 Pa.B 4734 (August 20, 2005) with provision for a 45-day public comment period that closed on October 4, 2005. Comments were received from five commentators including the United States Environmental Protection Agency (EPA).

   The EPA Region 3 office supported the package in general. Three commentators supported the redesignation of Pine Run to EV.

   One commentator supported redesignating UNT 03876 to Lizard Creek as an EV water. This same commentator, however, also declared his opposition to plans for a quarry operation in the immediate vicinity of UNT 03876 to Lizard Creek. This comment is not relevant to this final-form rulemaking and was forwarded to the Department's Office of Mineral Resource Management for appropriate review and consideration.

F.  Summary of Changes to the Proposed Rulemaking

   No changes were made to the redesignations recommended in the proposed rulemaking. Minor revisions are included in Annex A which have occurred following the proposed rulemaking. The Board recommends an additional correction to § 93.7, Table 3 (relating to specific water quality criteria) for Dissolved Oxygen (DO₃) criteria. An erroneous reference is given to ''See the following table.'' This reference should be removed. Additionally, further clarification was added to the zone descriptions by identifying the river mile of the confluence for the unnamed tributaries listed in drainage lists D, L and O.

G.  Benefits, Costs and Compliance

   Benefits. Overall, the citizens of this Commonwealth will benefit from this final-form rulemaking because it reflects the appropriate designated use and maintains the most appropriate degree of protection for each stream in accordance with the existing use of the stream.

   Compliance costs. Generally, the changes 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 these revisions. Political subdivisions that add a new sewage treatment plant or expand an existing plant in these basins may experience changes in cost as noted in the discussion of impacts on the private sector.

   Persons conducting or proposing regulated activities shall comply with the regulatory requirements regarding designated and existing uses. For example, 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. Economic impacts would primarily involve the potential for higher treatment costs for new or expanded discharges to streams that are redesignated to a more protective use.

   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 final-form rulemaking is consistent with and based on existing Department regulations. The final-form rulemaking extends additional protection to selected waterbodies 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 expanded dischargers with water quality based effluent limitations are required to provide effluent treatment according to the water quality criteria associated with existing uses and revised designated water uses.

   Paperwork requirements. The final-form rulemaking should have no direct paperwork impact on the Commonwealth, local governments and political subdivisions or the private sector. This 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 dischargers 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 consideration of nondischarge alternatives is required for all new or expanded discharges to EV and HQ Waters.

H.  Pollution Prevention

   The water quality standards and antidegradation program are major pollution prevention tools because their 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

   These regulations 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 August 5, 2005, the Department submitted a copy of the notice of proposed rulemaking, published at 35 Pa.B. 4734, 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 November 29, 2006, 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 effective November 29, 2006, by IRRC.

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 and all comments were considered.

   (3)  These final-form amendments do not enlarge the purpose of the proposal published at 35 Pa.B. 4734.

   (4)  These final-form amendments are necessary and appropriate for the 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.

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 §§ 93.7, 93.9d, 93.9e, 93.9g, 93.9l, 93.9o, 93.9q and 93.9v 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 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 36 Pa.B. 7777 (December 16, 2006).)

   Fiscal Note: Fiscal Note 7-397 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

WATER QUALITY CRITERIA

§ 93.7. Specific water quality criteria.

*      *      *      *      *

TABLE 3

Parameter	Symbol	Criteria	Critical Use*
*      *      *      *       *
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.
*      *      *      *      *
	DO3	For the period February 15 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
*      *      *      *      *

DESIGNATED WATER USES AND WATER QUALITY CRITERIA

§ 93.9d. Drainage List D.

Delaware River Basin in Pennsylvania

Lehigh River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
3--Fireline Creek	Basin	Carbon	CWF	None
3--Lizard Creek	Basin, Source to T-922 Bridge	Schuylkill	CWF	None
3--Lizard Creek	Basin, T-922 Bridge to Confluence of UNT 03876 at RM 7.90	Carbon	TSF	None
4--UNT 03876 at RM 7.90	Basin	Carbon	EV	None
3--Lizard Creek	Basin, UNT 03876 to Mouth	Carbon	TSF	None
*      *      *      *      *

§ 93.9e. Drainage List E.

Delaware River Basin in Pennsylvania

Delaware River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
2--Neshaminy Creek	Non-Tidal Portion of Main Stem, RM 26.84 to Mouth	Bucks	WWF, MF	Add Tur1
*      *      *      *      *
3--Mill Creek	Basin, Watson Creek to Mouth	Bucks	WWF, MF	Add Tur1
3--Newtown Creek	Basin	Bucks	WWF, MF	Add Tur1
3--Core Creek	Basin, Source to Inlet of Lake Luxembourg	Bucks	CWF, MF	Add Tur2
*      *      *      *      *

§ 93.9g. Drainage List G.

Delaware River Basin in Pennsylvania

Delaware River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
4--East Branch Brandywine Creek	Main Stem, Shamona Creek to Confluence with West Branch	Chester	WWF, MF	None
*      *      *      *      *
5--Beaver Creek	Basin, East Brandywine- Caln Township Border to Mouth	Chester	TSF, MF	None
5--Valley Creek	Basin, Source to Broad Run	Chester	CWF, MF	None
*      *      *      *      *

§ 93.9l. Drainage List L.

Susquehanna River Basin in Pennsylvania

West Branch Susquehanna River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
4--Rogues Harbor Run	Basin	Clearfield	EV	None
3--Chest Creek	Basin, Rogues Harbor Run to Pine Run	Clearfield	CWF	None
4--Pine Run	Basin	Clearfield	EV	None
3--Chest Creek	Basin, Pine Run to Mouth	Clearfield	CWF	None
3--Miller Run	Basin	Clearfield	CWF	None
*      *      *      *      *
5--Cedar Run	Basin	Centre	CWF	None
5--UNT 23057 at RM 18.18 (locally Markles Gap Run)	Basin	Centre	HQ-CWF	None
5--Slab Cabin Run	Basin, Source to PA 26 at RM 9.0	Centre	HQ-CWF	None
*      *      *      *      *
4--Spring Creek	Main Stem, PA 550 Bridge to Mouth	Centre	HQ-CWF	None
5--UNTs to Spring Creek	Basins, PA 550 Bridge to Mouth	Centre	CWF	None
5--Logan Branch	Basin, Source to UNT 23007 at RM 7.16	Centre	CWF	None
6--UNT 23007 at RM 7.16 (locally McBrides Run)	Basin	Centre	HQ-CWF	None
5--Logan Branch	Basin, UNT 23007 to T 371 Bridge	Centre	CWF	None
5--Logan Branch	Main Stem, T-371 Bridge to Mouth	Centre	HQ-CWF	None
*      *      *      *      *

§ 93.9o. Drainage List O.

Susquehanna River Basin in Pennsylvania

Susquehanna River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
2--Pequea Creek	Main Stem, PA 897 to Mouth	Lancaster	WWF	None
*      *      *      *      *
3--Indian Spring Run	Basin, Source to SR 10 Bridge	Chester	EV	None
3--Indian Spring Run	Basin, SR10 to Confluence of UNT 07540 at RM 1.95	Lancaster	CWF	None
4--UNT 07540 at RM 1.95 to Indian Spring Run	Basin, Source to SR10 Bridge	Chester	HQ-CWF	None
4--UNT 07540 at RM 1.95 to Indian Spring Run	Basin, SR10 Bridge to Mouth	Lancaster	CWF	None
3--Indian Spring Run	Basin, UNT 07540 to Mouth	Lancaster	CWF	None
3--White Horse Run	Basin	Lancaster	WWF	None
*      *      *      *      *

§ 93.9q. Drainage List Q.

Ohio River Basin in Pennsylvania

Allegheny River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
4--Pell Run	Basin	Warren	CWF	None
4--Messenger Run	Basin	Warren	EV	None
4--Mead Run	Basin	Warren	CWF	None
*      *      *      *      *

§ 93.9v. Drainage List V.

Ohio River Basin in Pennsylvania

Monongahela River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
4--Indian Creek	Basin, Camp Run to Champion Creek	Fayette	HQ-CWF	None
5--Champion Creek	Basin	Fayette	CWF	None
4--Indian Creek	Main Stem, Champion Creek to Mouth	Fayette	CWF	None
5--UNTs to Indian Creek	Basins, Champion Creek to Mouth	Fayette	CWF	None
*      *      *      *      *

[Pa.B. Doc. No. 07-4. Filed for public inspection January 5, 2007, 9:00 a.m.]

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