Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 93]

Stream Redesignations (Brushy Meadow Creek, et al.)

   The Environmental Quality Board (Board) by this order amends 25 Pa. Code §§ 93.9c, 93.9g, 93.9l, 93.9n, 93.9o, 93.9q and 93.9v to read as set forth in Annex A.

   This order was adopted by the Board at its meeting of June 15, 2004.

A.  Effective Date

   These 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 final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) website 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 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 at 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 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.

   These streams were evaluated in response to two petitions, as well as requests from the Commission 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

      PFBC: Pine Creek

      SCRO: Little Juniata River and Spring Creek

      NERO: Brushy Meadow Creek and Waltz Creek

      BWSWM: South Fork Beech Creek

   These regulatory changes were developed as a result of aquatic studies conducted by the BWSWM 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.

   In addition, a corrective amendment is included to rectify an omission from the Class A Wild Trout Waters rulemaking, which was published as final rulemaking in 32 Pa.B 4695 (September 28, 2002). In redesignating the upper reaches of Lost Creek (Drainage List N), an entry for Little Lost Creek was inadvertently omitted. Little Lost Creek is designated Trout Stocking (TSF), and is reinserted into the drainage list in the annex as a corrective amendment.

E.  Summary of Comments and Responses on the Proposed Rulemaking

   The Board approved the proposed rulemaking for the Brushy Meadow Creek, et al. package at its December 17, 2002, meeting. The proposed rulemaking was published at 33 Pa.B. 4165 (August 23, 2003) with provision for a 45-day public comment period that closed on October 7. Comments were received from 12 commentators. The United States Environmental Protection Agency (EPA) Region 3 office supported the package in general.

   Nine commentators supported the redesignation of the West Branch Crum Creek to EV. They cited local efforts to protect water quality in the Crum Creek basin through conservation easements and ordinances to protect riparian buffer areas. They also noted the need to protect the Springton (Geist) Reservoir that serves as a public water supply. The Chester County Planning Commission and the Chester County Water Resources Authority noted that the redesignation of the West Branch Crum Creek to EV fits in with the county comprehensive plan.

   One commentator expressed concern about the potential impact of ash from the Harrisburg Incinerator on groundwater and water quality in Spring Creek and wanted the Department to address this issue in its study. No sampling was conducted during the redesignation evaluation to specifically assess the impacts of the incinerator on the creek because any effects from the incinerator are reflected in the existing quality of the stream and the aquatic community observed during the study. If the stream had shown signs of impairment, causes for the impairments would then have been investigated.

   The Commission commented that its assessment work at two sites on Waltz Creek in August 2002 developed data to support the inclusion of Waltz Creek on the Class A Wild Trout Streams (WTS) list. They recommended that the Board defer action on the redesignation of Waltz Creek until the Class A designation process has been completed. The Commission published notice at 34 Pa.B. 1643 (March 20, 2004) that proposed to add portions of Waltz Creek to its list of Class A WTSs. Formal action to designate a portion of Waltz Creek as a Class A WTS was taken at the Commission meeting on April 19-20, 2004, following the public comment period. The Department obtained the Commission inventory report for the lower reach of Waltz Creek and our independent review confirmed that the Class A wild brown trout criterion for a HQ Cold Water Fishes (CWF) water is met. As a result, the portion of Waltz Creek downstream from the confluence of Greenwalk Creek is recommended for designation as HQ-CWF, MF. This is a change from the CWF, MF designation in the proposed rulemaking.

F.  Summary of Changes to the Proposed Rulemaking

   The aquatic life use designation for the Waltz Creek basin from the confluence of Greenwalk Creek to the mouth has been changed to HQ-CWF, MF. The final designation is based on the Commission's action and Department's independent evaluation as described in Section E of this Preamble.

   A corrective amendment to reinsert Little Lost Creek into Drainage List N as TSF has been added.

G.  Benefits, Costs and Compliance

   1.  Benefits--Overall, the citizens of this Commonwealth will benefit from these amendments 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 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 below in the discussion of impacts on the private sector.

   Persons conducting or proposing regulated activities shall comply with the regulatory requirements relating to 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.

   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 Clean Streams Law and the Federal Clean Water Act. 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 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 expanding 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 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 programs 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

   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.

J.  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, published at 33 Pa.B 4165, 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.

   Under section 5(c) of the Regulatory Review Act, the Department provided IRRC and the Committees with copies of the comments received, as well as other documentation when requested. The Department has considered all public comments in preparing this final-form regulation. No comments were received on the proposed rulemaking from IRRC or the Committees.

   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 October 6, 2004. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 7, 2004, and approved the final-form rulemaking.

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 proposal published at 33 Pa.B 4165.

   (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 §§ 93.9c, 93.9g, 93.9l, 93.9n, 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 Environmental Resources and Energy 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 34 Pa.B. 5889 (October 23, 2004).)

   Fiscal Note:  7-380 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

ANTIDEGRADATION REQUIREMENTS

§ 93.9c. Drainage List C.

Delaware River Basin in Pennsylvania

Delaware River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
2--Martins Creek	Main Stem, Confluence of East and West Forks to Mouth	Northampton	TSF, MF	None
3--UNTs to Martins Creek	Basins, Confluence of East and West Forks to Mouth	Northampton	TSF	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--UNTs to Brushy Meadow    Creek	Basins, East Bangor Dam To Mouth	Northampton	TSF, MF	None
3--Waltz Creek	Basin, Source to Greenwalk Creek	Northampton	CWF, MF	None
4--Greenwalk Creek	Basin	Northampton	CWF, MF	None
3-- Waltz Creek	Basin, Greenwalk Creek to Mouth	Northampton	HQ-CWF, MF	None
3--Little Martins Creek	Basin	Northampton	CWF	None
*      *      *      *      *

§ 93.9g. Drainage List G.

Delaware River Basin in Pennsylvania

Delaware River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
3--Stony Creek	Non-Tidal Portions of Basin	Delaware	WWF, MF	None
2--Crum Creek	Basin, Source to West Branch Crum Creek	Chester	HQ-CWF	None
3--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
2--Crum Creek	Basin, Junction of Newtown, Edgemont and Willistown Township Borders to Springton Reservoir	Delaware	CWF	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
*      *      *      *      *
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--UNTs to Moshannon Creek	Basins, Roup Run to Mouth	Clearfield-- Centre	CWF	None
4--Roup Run	Basin	Centre	CWF	None
*      *      *      *      *
4--Marsh Creek	Basin	Centre	CWF	None
4--Beech Creek
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--UNTs to Beech Creek	Basins, Confluence of South and North Branches to Mouth	Clinton-- Centre	CWF	None
5--Rock Run	Basin	Centre	EV	None
*      *      *      *      *

§ 93.9n. Drainage List N.

Susquehanna River Basin in Pennsylvania

Juniata River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
4--Robinson Run	Basin	Huntingdon	WWF	None
3--Little Juniata River	Main Stem, Source to Logan Spring Run	Blair- Huntingdon	TSF	None
4--UNT to Little Juniata River	Basins, Source to Logan Spring Run	Blair	WWF	None
4--Spring Run	Basin	Blair	WWF	None
*      *      *      *      *
5--Sink Run	Basin	Blair	TSF	None
4--Logan Spring Run	Basin	Huntingdon	WWF	None
3--Little Juniata River	Main Stem, Logan Spring Run to Confluence with Frankstown Branch	Huntingdon	CWF	None
4--UNTs to Little Juniata River	Basins, Logan Spring Run to Confluence with Frankstown Branch	Huntingdon- Blair	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
4--McLain Run	Basin	Huntingdon	WWF	None
*      *      *      *      *
3--Lost Creek	Basin, SR 35 Bridge to Little Lost Creek	Juniata	CWF	None
4--Little Lost Creek	Basin	Juniata	TSF	None
3--Lost Creek	Basin, Little Lost Creek to Big Run	Juniata	TSF	None
*      *      *      *      *

§ 93.9o. Drainage List O.

Susquehanna River Basin in Pennsylvania

Susquehanna River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
2--Paxton Creek	Basin	Dauphin	WWF	None
2--Spring Creek	Basin	Dauphin	CWF	None
2--Yellow Breeches Creek	Main Stem, Source to LR 21012 (SR 1007)	Cumberland	HQ-CWF	None
*      *      *      *      *

§ 93.9q. Drainage List Q.

Ohio River Basin in Pennsylvania

Allegheny River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
4--Church Run	Basin	Crawford	CWF	None
4--Pine Creek	Basin, Source to Caldwell Creek	Crawford	HQ-CWF	None
5--Caldwell Creek	Basin, Source to West Branch Caldwell Creek	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
4--Benninghof Run	Basin	Venango	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--Jacobs Creek	Basin, Bridgeport Reservoir Dam to 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
4--Cedar Creek	Basin	Westmoreland	TSF	None
*      *      *      *      *

[Pa.B. Doc. No. 04-2025. Filed for public inspection November 12, 2004, 9:00 a.m.]

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