PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CH. 93]
Stream Redesignations (Brushy Meadow Creek, et al.)
[33 Pa.B. 4165] The Environmental Quality Board (Board) proposes to amend §§ 93.9c, 93.9g, 93.9l, 93.9n, 93.9o, 93.9q and 93.9v to read as set forth in Annex A.
This proposal was adopted by the Board at its meeting on December 17, 2002.
A. Effective Date
These proposed amendments are effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.
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, 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 by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory and Regulatory Authority
This proposed 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 Federal Clean Water Act (33 U.S.C.A. § 1313) sets forth requirements for water quality standards and the Federal regulation at 40 CFR 131.32 (relating to Pennsylvania) sets forth certain requirements for portions of the Commonwealth's antidegradation program.
D. Background of the Proposed Amendments
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 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, such as wastewater treatment requirements, shall ensure the attainment of designated and existing uses for all waters.
The Department may identify candidates during routine waterbody investigations. Requests for consideration may also be initiated by other agencies, such as the Fish and Boat Commission (FBC). Organizations, businesses or individuals may submit a rulemaking petition to the Board.
These streams were evaluated in response to two petitions, as well as requests from the FBC and the Department's Southcentral Regional Office (SCRO), Northeast Regional Office (NERO) and Bureau of Water Supply and Wastewater Management (BWSWM) as follows:
Petitions: Crum Creek and Green Lick Run
FBC: Pine Creek
SCRO: Little Juniata River and Spring Creek
NERO: Brushy Meadow Creek and Waltz Creek
BWSWM: South Fork Beech CreekThese regulatory changes were developed as a result of aquatic studies conducted by the BWSWM and the FBC. 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. Based upon the data collected in these surveys, the Board recommends the designations described in this preamble and as set forth in Annex A.
Copies of the Department's stream evaluation reports for these waterbodies are available from Edward R. Brezina whose address and telephone number are listed in Section B.
The following is a brief explanation of the recommendations for each waterbody:
Brushy Meadow Creek--Brushy Meadow Creek is a tributary to Martins Creek at the Borough of Bangor in Northampton County. This basin is currently designated Trout Stocking--Migratory Fishes (TSF-MF). NERO collected fishery data that suggested that the lower portion of the stream supported trout, and requested that it be redesignated Cold Water Fishes (CWF). To confirm the year-round presence of cold water species, the Department and the FBC studied the stream in August. Various year classes of brown trout were found, indicating year-round presence and natural reproduction of trout. In addition, the migratory American eel was found in the lower portion of Brushy Meadow Creek. As a result of these findings, it is recommended that the main stem of Brushy Meadow Creek from the East Bangor dam to the mouth be redesignated CWF, MF. Any unnamed tributaries in this reach will retain the TSF--MF designation.
Waltz Creek--Waltz Creek is a tributary to Martins Creek near Bangor, Northampton County. This basin was surveyed to determine the correct aquatic life use designation because Waltz Creek was inadvertently omitted from Chapter 93 (relating to water quality standards). Fishery data collected by the Department and the FBC showed the presence of trout during both cold and warm weather months. The finding of trout below the legal length suggests natural reproduction. American eels were found during both field studies. Based on this data, it is recommended that the Waltz Creek basin be designated CWF, MF.
Crum Creek--The Willistown Conservation Trust petitioned the Board to redesignate the Crum Creek basin upstream from the Springton (Geist) Reservoir to EV. The study area is located in Chester and Delaware Counties. The Crum Creek basin is currently designated HQ-CWF from its source to the junction of Newtown, Edgmont and Willistown Townships, and CWF from there to the reservoir. Only one portion of the basin, the West Branch Crum Creek, scored more than 92% in comparison to the appropriate EV reference station, thus satisfying the regulatory criterion for redesignation as EV. It is recommended that the West Branch Crum Creek basin be redesignated as EV, and that the other sections of the study area retain their current use designations.
South Fork Beech Creek--The South Fork Beech Creek is a tributary to Beech Creek in the West Branch Susquehanna River basin in Centre County. The lower reach of the South Fork, from the confluence of Stinktown Run to the confluence with the North Fork Beech Creek was inadvertently omitted from Chapter 93. This portion of the basin was assessed to determine the proper aquatic life use designation. Fishery data collected by the Department revealed the presence of naturally reproducing brook and brown trout as well as the presence of other cold water species. It is recommended that the South Fork Beech Creek basin from Stinktown Run to the mouth be designated CWF.
While this evaluation was being conducted, the Department noticed that the unnamed tributaries to Beech Creek had also been omitted from the drainage list. This rulemaking proposes to add them with a CWF designation, which is the same designation as the main stem of Beech Creek.
Little Juniata River--The Department's SCRO requested evaluation of a portion of the Little Juniata River for redesignation from TSF to CWF. The study area consists of the main stem from the confluence of Logan Spring Run to the confluence of Spruce Creek. This river section is located in Tyrone and Snyder Townships in Blair County and Warriors Mark and Spruce Creek Townships in Huntingdon County. Brown trout were found at all four sampling stations in the study reach. The trout from the upper two stations appeared to be the result of fingerling stocking by the FBC. The presence of young-of-the-year trout at the two lower stations confirms natural reproduction. Due to the maintenance and propagation of trout in this reach, it is recommended that the designated use be changed from TSF to CWF.
Spring Creek--Spring Creek is a tributary of the Susquehanna River in Dauphin County. It arises near the Harrisburg East Mall, flows under Interstate 83 and flows through the urbanized Harrisburg area. It joins the Susquehanna River between Harrisburg and Steelton. Despite the urban setting for much of its length, Spring Creek supports a naturally reproducing population of brown trout. Blacknose dace, another cold water species, is also present. As a result of these findings, it is recommended that the Spring Creek basin be redesignated from Warm Water Fishes (WWF) to CWF.
Pine Creek--Pine Creek is a tributary to Oil Creek near Titusville. The watershed is located in Crawford and Warren Counties, and was evaluated at the request of the FBC. Pine Creek is currently designated CWF, except for Caldwell Creek which is designated HQ-CWF. Based on biological comparisons to EV reference stations, a number of use designation changes are recommended. The upper Pine Creek basin, from the source to Caldwell Creek, is recommended for redesignation from CWF to HQ-CWF based on biological condition score comparisons between 83% and 92% of reference. The upper portion of the Caldwell Creek basin, from the source to West Branch Caldwell Creek, is to retain the current HQ-CWF designation. The remainder of the Caldwell Creek basin, which includes the West Branch Caldwell Creek basin and the Caldwell Creek basin below the West Branch, is recommended for EV designation based on scoring more than 92% in comparison to reference conditions. It is recommended that the Pine Creek basin from Caldwell Creek to the mouth retain its CWF designation.
Green Lick Run--Green Lick Run is tributary to Jacobs Creek in Bullskin Township, Fayette County. This basin is currently designated WWF, and was evaluated for redesignation to EV in response to a rulemaking petition submitted by the Rural Area Concerned Citizens. As a result of biological sampling and 100% comparison to an EV reference, the upper portion of Green Lick Run, from the source to Latta Run, is recommended for redesignation to EV. A cold water fish community was found in the lower portion of the basin studied during this evaluation. As a result, Latta Run and the Green Lick Run basin from Latta Run to the T-753 bridge should be redesignated CWF.
In addition to these regulatory revisions, the Department discovered an error that occurred during rulemaking for the Class A Wild Trout Streams package. The entire main stem of Moshannon Creek was designated TSF. While redesignating the upper part of the Moshannon Creek basin, an entry for the remainder of the main stem was inadvertently deleted. An entry for the main stem from Roup Run to the mouth needs to be replaced to complete the Moshannon Creek listing. This entry, which shows that the lower main stem retains its TSF designation, is shown in Annex A, Drainage List L.
E. Benefits, Costs and Compliance
1. Benefits--Overall, the citizens of this Commonwealth will benefit from these recommended changes because they will reflect the appropriate designated use and maintain the most appropriate degree of protection for each stream in accordance with the existing use of the stream.
2. 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 this recommendation. 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 this preamble in the discussion of impacts on the private sector.
Persons conducting or proposing activities or projects that result in new or expanded discharges to streams must comply with the regulatory requirements relating to designated and existing uses. These 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 upgraded.
3. Compliance Assistance Plan--The regulatory revisions have 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. The revisions extend 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. 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 proposed amendments 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.
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 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 additional paperwork, would be required. Additionally, paperwork associated with demonstrating social and economic justification, and the nonfeasibility of nondischarge alternatives, may be required for new or expanded discharges to certain HQ Waters.
F. Pollution Prevention
The antidegradation program is a major pollution prevention tool because its 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.
G. Sunset Review
These proposed 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.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 13, 2003, 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 submitting the proposed rulemaking, IRRC and the Committees have been provided a detailed regulatory analysis form prepared by the Department, the General Assembly and the Governor prior to final publicaiton of the regulations.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed regulations 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-form publication of the regulations.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendments 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. Comments must be received by the Board by October 3, 2003. 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 October 3, 2003. 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 amendments will be considered. If sufficient interest is generated as a result of this publication, a public hearing will be scheduled at an appropriate location 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. Comments submitted electronically must also be received by the Board by October 3, 2003.
KATHLEEN A. MCGINTY,
ChairpersonFiscal Note: 7-380. 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
ANTIDEGRADATION REQUIREMENTS § 93.9c. Drainage List C.
Delaware River Basin in Pennsylvania
Delaware River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 2--Martins Creek Main Stem, Confluence of East and West Forks to Mouth Northampton TSF, MF None * * * * * 3--Brushy Meadow Creek (UNT 64106) Basin, Source to East Bangor Dam Northampton TSF, MF None 3--Brushy Meadow Creek Main Stem, East Bangor Dam to Mouth Northampton CWF, MF None 4--Unnamed Tributaries to Brushy Meadow Creek Basins, East Bangor Dam To Mouth Northampton TSF, MF None 3--Waltz Creek Basin Northampton CWF, MF None * * * * * § 93.9g. Drainage List G.
Delaware River Basin in Pennsylvania
Delaware River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 2--Crum Creek Basin, Source to [Junction of Newtown, Edgemont and Willistown Township Borders] West Branch Crum Creek Chester [- Delaware] HQ-CWF None 2--West Branch Crum Creek Basin Chester EV None 2--Crum Creek Basin, West Branch Crum Creek to Junction of Newtown, Edgemont, and Willistown Township Borders Chester - Delaware HQ-CWF None * * * * * § 93.9l. Drainage List L.
Susquehanna River Basin in Pennsylvania
West Branch Susquehanna River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 3--Moshannon Creek Basin, Source to Roup Run Clearfield-Centre HQ-CWF None 3--Moshannon Creek Main Stem, Roup Run To Mouth Clearfield-Centre TSF None * * * * *
4--Beech Creek [Basins Clinton-Centre CWF None] 5--South Fork Beech Creek Basin, Source to Stinktown Run Centre CWF None 6--Stinktown Run Basin Centre HQ-CWF None 5--South Fork Beech Creek Basin, Stinktown Run to Mouth Centre CWF None 5--North Fork Beech Creek Basin, Source to Confluence with South Fork Centre CWF None 4--Beech Creek Main Stem, Confluence of South and North Branches to Mouth Clinton-Centre CWF None 5--Unnamed Tributaries to Beech Creek Basins Clinton-Centre CWF None * * * * * § 93.9n. Drainage List N.
Susquehanna River Basin in Pennsylvania
Juniata River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 3--Little Juniata River Main Stem, Source to [South Bald Eagle Creek] Logan Spring Run Blair- Huntingdon TSF None 4--Unnamed Tributaries to Little Juniata River Basins, Source to [South Bald Eagle Creek] Logan Spring Run Blair WWF None * * * * *
5--Sink Run Basin Blair TSF None 4--Logan Spring Run Basin Huntingdon WWF None 3--Little Juniata River Main Stem, [South Bald Eagle Creek to Spruce Creek] Logan Spring Run to Confluence with Frankstown Branch Huntingdon [TSF] CWF None 4--Unnamed Tributaries to Little Juniata River Basins, [South Bald Eagle Creek to Spruce Creek] Logan Spring Run to Confluence with Frankstown Branch Huntingdon-Blair WWF None [4--Logan Spring Run Basin Huntingdon WWF None] 4--Elk Run Basin Blair WWF None 4--Gensimore Run Basin Huntingdon WWF None 4--Sinking Run Basin Huntingdon CWF None 4--Spruce Creek Basin Huntingdon HQ-CWF None [3--Little Juniata River Main Stem, Spruce Creek to Confluence with Frankstown Branch Huntingdon CWF None] [4--Unnamed Tributaries to Little Juniata River Basins, Spruce Creek to Confluence with Frankstown Branch Huntingdon WWF None] 4--McLain Run Basin Huntingdon WWF None * * * * * § 93.9o. Drainage List O.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 2--Paxton Creek Basin Dauphin WWF None 2--Spring Creek Basin Dauphin [WWF] CWF None * * * * * § 93.9q. Drainage List Q.
Ohio River Basin in Pennsylvania
Allegheny River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 4--Pine Creek [Main Stem] Basin, Source to Caldwell Creek Crawford [CWF] HQ-CWF None [5--Unnamed Tributaries to Pine Creek Basins Warren- Crawford CWF None 5--Campbell Creek Basin Warren CWF None 5--Dunham Run Basin Warren CWF None] 5--Caldwell Creek Basin, Source to West Branch Caldwell Creek [Crawford] Warren HQ-CWF None 6--West Branch Caldwell Creek Basin Crawford EV None 5--Caldwell Creek Basin, West Branch Caldwell Creek to Mouth Crawford EV None 4--Pine Creek Basin, Caldwell Creek to Mouth Crawford CWF None [5--Henderson Run Basin Crawford CWF None] * * * * * § 93.9v. Drainage List V.
Ohio River Basin in Pennsylvania
Monongahela River
Exceptions To Water Uses Specific Stream Zone County Protected Criteria * * * * * 4--Jacobs Creek Basin [from], Bridgeport Reservoir Dam to [Mouth] Green Lick Run Fayette- Westmoreland WWF None 5--Green Lick Run Basin, Source to Latta Run Fayette EV None 6--Latta Run Basin Fayette CWF None 5--Green Lick Run Basin, Latta Run to T-753 Bridge Fayette CWF None 5--Green Lick Run Basin, T-753 Bridge to Mouth Fayette WWF None 4--Jacobs Creek Basin, Green Lick Run to Mouth Fayette- Westmoreland WWF None * * * * *
[Pa.B. Doc. No. 03-1628. Filed for public inspection August 22, 2003, 9:00 a.m.]
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