RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CH. 93 ]
Stream Redesignations (Fishing Creek, et al.)
[41 Pa.B. 4751]
[Saturday, September 3, 2011]The Environmental Quality Board (Board) amends §§ 93.9c, 93.9d, 93.9f, 93.9l and 93.9o.
This order was adopted by the Board at its meeting of May 18, 2011.
A. Effective Date
This final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Rodney A. Kime, 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 electronically through the Department of Environmental Protection (Department) web site at http://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 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 Clean Water Act (33 U.S.C.A. § 1313) sets forth requirements for water quality standards.
D. Background of the Amendments
Water quality standards are in-stream water quality goals that are implemented by imposing specific regulatory requirements (such as treatment requirements, effluent limits and best management practices) 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. 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 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 list of uses identified in § 93.9 (relating to designated water uses and water quality criteria).
The streams in this final-form rulemaking were all evaluated in response to petitions as follows:
Stream County Petitioner Buck Hill Creek Monroe Buck Hill Conservation Foundation Lehigh River (upper) Lackawanna, Monroe, Wayne, Luzerne North Pocono Citizens Alert Regarding the Environment (CARE) Little Lehigh Creek Lehigh, Berks Mid-Atlantic Environmental Law Center Gallows Run Bucks Gallows Run Watershed Association French Creek and Beaver Run Chester Green Valleys Association Tannery Hollow Run Cameron Cameron County Conservation District Fishing Creek Lancaster Patrick McClure Deer Creek and Little Falls York Shrewsbury Township These regulatory changes were developed as a result of aquatic studies conducted by the Bureau of Water Standards and Facility Regulation. 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 and information collected on these waterbodies, the Board has made the designations.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Board approved the proposed rulemaking for the Fishing Creek, et al. package at its July 13, 2010, meeting. The proposed rulemaking was published at 40 Pa.B. 5337 (September 18, 2010) with provision for a 45-day public comment period that closed on November 2, 2010. Supportive comments were received from 162 commentators who favored the redesignation of portions of the French Creek basin to exceptional value. Commentators listed many reasons for their support of the redesignation of the French Creek basin including the natural beauty of the basin, the recreational opportunities it provides, the importance of protecting aquatic life and wildlife, the importance to the spiritual and emotional well-being of people, flood control and clean water for people, the health of local communities and the importance to preserve the basin for future generations. Additionally, the United States Environmental Protection Agency (EPA) Region 3 commended the Department on its continuing effort to upgrade streams into its highest level of the Special Protection Waters Program. The EPA also noted that, if finalized, this package will redesignate 251.35 stream miles in this Commonwealth to EV status. The EPA otherwise had no comments. No opposing comments were received during the comment period. Additional remarks were received from the Chester County Water Resources Authority and the Chester County Board of Commissioners. Both indicated strong support of the redesignation of French Creek and Beaver Run to EV, Migratory Fishes and urged the Independent Regulatory Review Commission (IRRC) to approve the upgrade of French Creek and Beaver Run as recommended by the Board and the Department. This redesignation is consistent with and will help implement ''Watersheds—An Integrated Water Resources Management Plan for Chester County and its Watersheds'' and ''Landscapes 2.'' ''Watersheds'' is the water resources component of Chester County's comprehensive plan ''Landscapes 2.''
On August 31, 2010, the Department submitted a copy of the proposed rulemaking to IRRC and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment in accordance with section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)). IRRC did not raise any comments, recommendations or objections to any portion of the proposed rulemaking and changes were not made from the proposed rulemaking to this final-form rulemaking. Therefore, under section 5(g) of Regulatory Review Act, the final rulemaking will be deemed approved by IRRC.
F. Summary of Changes to the Proposed Rulemaking
Changes were not made to the redesignations recommended in the proposed rulemaking.
G. Benefits, Costs and Compliance
Benefits
Overall, the Commonwealth, its citizens and natural resources will benefit from these amendments because they provide the appropriate level of protection to preserve the integrity of existing and designated uses of surface waters in this Commonwealth. Protecting water quality provides economic value to present and future generations in the form of clean water for drinking, recreational opportunities and aquatic life protection. It is important to realize these benefits to ensure opportunity and development continue in a manner that is environmentally, socially and economically sound. Maintenance of water quality ensures its future availability for all uses.
Compliance Costs
The streams recommended for redesignation are already protected at their existing use. Therefore, the designated use revision will not impose increased compliance costs on the regulated community.
Persons conducting or proposing activities or projects shall comply with the regulatory requirements regarding designated and existing uses. Persons expanding a discharge or adding a new discharge point to a stream could be adversely affected if they need to provide a higher level of treatment or best management practices to meet the designated and existing uses of the stream. For example, these increased costs may take the form of higher engineering, construction or operating cost for point source discharges. Treatment costs and best management practices 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. The initial costs resulting from the installation of technologically advanced wastewater treatment processes and best management practices may be offset by potential savings from and increased value of improved water quality through more cost-effective and efficient treatment over time.
Compliance Assistance Plan
The amendments have been developed as part of an established program that has been implemented by the Department since the early 1980s. The amendments are consistent with and based on existing Department regulations. The amendments extend additional protection to selected waterbodies that exhibit exceptional water quality and are consistent with antidegradation requirements established by the Clean Water Act (33 U.S.C.A. §§ 1251—1387) 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 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 not have direct paperwork impact on the Commonwealth, local governments and political subdivisions or the private sector. These amendments are based on existing Department regulations and simply mirror 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 the 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, on August 31, 2010, the Department submitted a copy of the proposed rulemaking, published at 40 Pa.B. 5337, 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 House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documentation. The Department has considered all public comments in preparing this final-form rulemaking. Comments were not received on the proposed rulemaking from IRRC or the House and Senate Committees.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on July 20, 2011, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5(g) of the Regulatory Review Act, this final-form rulemaking was deemed approved by IRRC, effective July 20, 2011.
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) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 40 Pa.B. 5337.
(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 §§ 93.9d, 93.9f, 93.9l and 93.9o to read as set forth at 40 Pa.B. 5337 and by amending § 93.9c to read as in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order, 40 Pa.B. 5337 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, 40 Pa.B. 5337 and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required under the Regulatory Review Act.
(d) The Chairperson shall certify this order, 40 Pa.B. 5337 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.
MICHAEL L. KRANCER,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 41 Pa.B. 4265 (August 6, 2011).)
Fiscal Note: Fiscal Note 7-461 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 § 93.9c. Drainage List C.
Delaware River Basin in Pennsylvania
Delaware River
Stream Zone County Water Uses Protected Exceptions to Specific Criteria * * * * *
1—Delaware River Main Stem, Tocks Island to Lehigh River Northampton WWF, MF See DRBC regulations—Water Quality Zone 1D 2—UNTs to Delaware River Basins, Tocks Island to Brodhead Creek Monroe HQ-CWF, MF None 2—Brodhead Creek 3—Middle Branch Brodhead Creek Basin, source to confluence with Buck Hill Creek Monroe HQ-CWF, MF None 3—Buck Hill Creek Basin, Source to Griscom Creek Monroe EV None 4—Griscom Creek Basin Monroe HQ-CWF None 3—Buck Hill Creek Basin, Griscom Creek to Buck Hill Falls Monroe HQ-CWF None 3—Buck Hill Creek Basin, Buck Hill Falls to confluence with Middle Branch Brodhead Creek Monroe HQ-CWF, MF None 2—Brodhead Creek Mainstem, confluence of Middle Branch Brodhead Creek and Buck Hill Creek to LR 45060 (SR 2022) Bridge Monroe HQ-CWF, MF None 3—UNTs to Brodhead Creek Basins, confluence of Middle Branch Brodhead Creek and Buck Hill Creek to LR 45060 Bridge Monroe HQ-CWF, MF None 3—Goose Pond Run Basin Monroe HQ-CWF, MF None * * * * *
[Pa.B. Doc. No. 11-1500. Filed for public inspection September 2, 2011, 9:00 a.m.]
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