RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Stream Redesignation (Browns Run)
[33 Pa.B. 5415] The Environmental Quality Board (Board) by this order amends § 93.9q (relating to Drainage List Q) to read as set forth in Annex A.
This order was adopted by the Board at its meeting of July 15, 2003.
A. Effective Date
This final-form rulemaking is effective 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, 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 final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory 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 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 Department considers candidates for High Quality (HQ) or Exceptional Value (EV) waters and all other use designations in its ongoing review of water quality standards. In general, HQ and EV waters shall be maintained at their existing quality, and permitted activities, such as wastewater treatment requirements, shall ensure the attainment of all designated and existing uses.
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.
Browns Run was evaluated in response to a request from the Commission, which requested that the stream be redesignated HQ-Cold Water Fishes (CWF).
Browns Run had been included in the French Creek, et al. proposed rulemaking package in January 1997, based on a field study conducted in 1994. During the public comment period on that proposed rulemaking, objections were raised to the recommendation for redesignation of most of the Browns Run basin to EV waters. These objections were based in part on the use of Cathers Run as the reference stream because it is designated HQ-CWF. It had been selected as the reference station because it was part of a ''reference network'' within the Water Quality Network, the Department's routine surface water monitoring system. The reference network contains streams minimally impacted by human activities. As a result of these public concerns, the Department agreed to resurvey Browns Run and compare it to a higher quality reference stream. The Department conducted the second field survey on June 2--4, 1998, and used East Hickory Creek, designated EV, as the reference. The redesignations in this final-form rulemaking are the result of this resurvey and comparison to the EV reference.
These aquatic surveys were conducted by the Department's Bureau of Water Supply and Wastewater Management. The physical 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 has revised the designations to read as set forth in Annex A.
The Department's stream evaluation report is available from Edward R. Brezina whose address and telephone number are listed in Section B of this preamble.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Board approved the proposed rulemaking on March 20, 2001, and it was published at 31 Pa.B 2375 (May 5, 2001) with provision for a 45-day public comment period that closed on June 19, 2001. A number of requests for a public hearing regarding Browns Run were received during the public comment period. A hearing was scheduled and announced at 31 Pa.B 3956 (July 21, 2001), at which time the public comment period for Browns Run was reopened. The public hearing was held in the Warren County Courthouse in Warren on September 4, 2001, and the public comment period closed 1 week later, on September 11, 2001.
Comments were received from 52 commentators and the Independent Regulatory Review Commission (IRRC) as a result of the public comment period and the hearing. Fifteen commentators expressed support for the redesignation. Opposing comments included concerns with economic impacts and personal rights because of the redesignation, the choice of a reference water and that redesignation may cause impacts to the water because of increased use. The comment and response document explains that the EV redesignation is based on the current quality of the water, protection of EV waters is accomplished through the Department's permitting and approval processes and current activities are not generally restricted.
No changes were made to the proposed rulemaking following the public comment period.
F. 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.
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 the discussion of impacts on the private sector.
Persons conducting or proposing activities or projects that result in new or expanded discharges to streams shall 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 predict the actual change in costs.
Oil and gas and timbering operations may be required to implement antidegradation Best Management Practices to protect water quality. These practices are site-specific, so it is not possible to determine a precise estimate of costs. In addition, permit application fees for individual rather than general permits for stream encroachments or erosion and sedimentation control will be required.
3. Compliance Assistance Plan--The regulatory revision has been developed as part of an established program that has been implemented by the Department since the early 1980s. The revision is consistent with and based on existing Department regulations. The revision 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 redesignation 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 expanding dischargers with water quality based effluent limitations are required to provide effluent treatment according to the water quality criteria associated with existing and designated water uses.
4. Paperwork Requirements--The regulatory revision should have no direct paperwork impact on the Commonwealth, local governments and political subdivisions or the private sector. This 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 may be required for new or expanded discharges to certain HQ waters, and the nonfeasibility of nondischarge alternatives will be required for new or expanded discharges to certain HQ and EV waters.
G. 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.
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 final-form rulemaking effectively fulfills the goals for which it was intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 23, 2001, the Department submitted a copy of the notice of proposed rulemaking, published at 31 Pa.B 2375, to IRRC and to 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, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation. In preparing the final-form rulemaking, the Department has considered all comments received from IRRC and the public. The Committees did not provide comments on the proposed rulemaking.
Under section 5.1(j.2) the Regulatory Review Act, this final-form rulemaking was deemed approved by the House and Senate Committees on September 11, 2003. IRRC met on September 12, 2003, and approved the final-form rulemaking in accordance with section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).
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) The final-form rulemaking does not enlarge the purpose of the proposal published at 31 Pa.B 2375.
(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 regulatory amendment 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 § 93.9q 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 Senate and House Environmental Resources and Energy 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 33 Pa.B. 4865 (September 30, 2003).)
Fiscal Note: 7-362. 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
ANTIDEGRATION REQUIREMENTS § 93.9q. Drainage List Q.
Ohio River Basin in Pennsylvania
Allegheny River
Stream Zone County Water Uses
ProtectedExceptions To
Specific Criteria* * * * *
3--Browns Run Basin, Source to Dutchman Run Warren EV None 4--Dutchman Run Basin, Source to T-413 Bridge Warren EV None 4--Dutchman Run Basin, T-413 Bridge to UNT 56501 Warren CWF None 5--UNT 56501 to Dutchman Run Basin, Source to UNT 56502 Warren CWF None 6--UNT 56502 to UNT 56501 Basin Warren EV None 5--UNT 56501 to Dutchman Run Basin, UNT 56502 to Mouth Warren CWF None 4--Dutchman Run Basin, UNT 56501 to Mouth Warren CWF None 3--Browns Run Basin, Dutchman Run to Morrison Run Warren CWF None 4--Morrison Run Basin Warren EV None 3--Browns Run Basin, Morrison Run to Mouth Warren CWF None 3--Glade Run Basin, Source to Concrete Channel Warren CWF None * * * * *
[Pa.B. Doc. No. 03-2110. Filed for public inspection October 31, 2003, 9:00 a.m.]
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