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PA Bulletin, Doc. No. 96-759




[25 PA. CODE CH. 93]

Stream Redesignations; Pine and Elk Creeks

[26 Pa.B. 2192]

   The Environmental Quality Board (Board) by this order adopts amendments to § 93.9m (relating to Drainage List M) as set forth in Annex A.

   This order was adopted by the Board at its meeting of January 16, 1996.

A.  Effective Date

   This amendment is effective upon publication in the Pennsylvania Bulletin.

B.  Contact Persons

   For further information, contact Edward R. Brezina, Chief, Division of Assessment and Standards, Bureau of Water Quality Management, 10th Floor, Rachel Carson State Office Building, P. O. Box 8465, 400 Market Street, Harrisburg, PA 17105-8465, (717) 787-9637 or William J. Gerlach, 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).

C.  Statutory Authority

   This amendment is made under the authority of the following acts:  sections 5(b)(1) and 402 of The Clean Streams Law (act) (35 P. S. §§ 691.5(b)(1) and 691.402) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which grant to the Board the authority to develop and adopt rules and regulations to implement the provisions of the act.

D.  Background of the Amendment

   The Commonwealth's Water Quality Standards, which are set forth in part in Chapter 93 (relating to water quality standards), implement the provisions of sections 5 and 402 of the act and section 303 of the Federal Clean Water Act (33 U.S.C.A. § 1313). Water quality standards are in-stream water quality goals which are implemented by imposing specific regulatory requirements (such as treatment requirements and effluent limits) on individual sources of pollution.

   The Department of Environmental Protection (Department) considers waterbodies for special protection status and redesignation in its ongoing review of water quality standards. In general, special protection waters shall be maintained at their existing quality, and wastewater treatment requirements shall comply with § 95.1. Candidates may be identified by the Department based on routine waterbody investigations. Requests for consideration may also be initiated by other agencies, such as the Fish and Boat Commission, and the general public through a rulemaking petition to the Board.

   The Pine and Elk Creek basins were evaluated in response to a petition submitted to the Board by the Penns Valley Conservation Association. A copy of the Department's evaluation report was forwarded to the petitioner on April 8, 1994, in accordance with § 23.7 (relating to response to report). In response to comments received from the petitioner on May 8, 1994, the Department conducted additional review and evaluation of data. Based upon the data collected in these surveys and information gathered from Department records and other sources, the Board has made the designations described in Section F of this Preamble.

   Copies of the Department's aquatic survey evaluation report referred to in this Preamble are available from Edward Brezina whose address and telephone number are listed in Section B of this Preamble.

   In reviewing whether waterbodies are subject to the Special Protection Waters Program, and meet the definitions of ''High Quality Waters'' or ''Exceptional Value Waters'' in § 93.3 (relating to protected water uses), the Department is utilizing guidance titled ''Special Protection Waters Selection Criteria.'' This guidance appears in the Department's ''Special Protection Waters Implementation Handbook.''

E.  Summary of Comments and Responses on the Proposed Rulemaking

   Notice of the proposed rulemaking was published at 24 Pa.B. 5981 (December 3, 1994) and included provisions for a public hearing, which was held on January 25, 1995, at the Penns Valley High School, and a 65-day public comment period which concluded on February 6, 1995.

   The Board received comments from 4,763 commentators during the public comment period on the proposed redesignations, which included 75 witnesses presenting testimony at the public hearing. Individually composed written comments were received from 688 commentators, while another 4,075 written comments were received as one of 21 different form letters which supported the proposed redesignations of Pine and Elk Creek basins.

   The comments and testimony and the Department's responses are summarized as follows:

   A majority of the written comments and oral testimony received by the Board expressed support for an Exceptional Value (EV) waters designation for Pine and Elk Creek basins. A smaller portion of the commentators submitted comments and testimony in opposition to redesignating the basins as EV Waters. Eight of the witnesses presented opposing testimony during the public hearing, while 68 of the witnesses presented testimony which supports the EV Waters designation. Some of the witnesses also submitted written comments during the public comment period.

   Witnesses at the public hearing who presented testimony to support the proposed redesignation of Pine and Elk Creeks to EV described various recreational and ecological features and the regional economic importance of the Pine and Elk Creek basins. Most of the witnesses providing supportive testimony also suggested that the entire Pine Creek and Elk Creek basins, not just portions of the basins, should be redesignated as EV Waters.

   The Department recommendations are based on the results of the stream evaluations and comparison to the Special Protection Selection Criteria and applicable regulatory definitions. The segmentation of the basins' proposed designations as High-Quality-Cold Water Fishes (HQ-CWF) and EV Waters is the result of differences observed in the geomorphic characteristics and biotic communities throughout their course and the presence of the backward sedge, which is a rare and endangered semi-aquatic plant.

   Some commentators suggested that the Department recommended the current stream redesignation proposal to support designating the ConStone reserves as unsuitable for mining.

   The Department did not recommend the stream redesignation to support designating portions of the limestone resources as unsuitable for mining. The Areas Unsuitable For Surface Mining decisions are separate and distinct from the Special Protection Waters redesignation proceedings considered by the Board.

   Some of those opposing the redesignations were concerned about an alleged economic impact on communities which they claim result in decreased land values, increased taxes and additional planning and engineering fees associated with revisions to existing sewage and land use planning modules or increased costs associated with construction of new water and wastewater facilities or upgrading existing facilities. Others were concerned that the EV waters designation would restrict the use of their land and constitute a taking of property.

   The Department is not aware of any municipalities having raised taxes or of land values decreasing as a result of a stream being designated as EV waters. There have been indications that EV waters designations may, in fact, actually increase property values. It is possible that municipalities could experience increased costs due to additional planning and engineering fees associated with revisions to existing sewage and land use planning modules. The Department cannot accurately predict or anticipate all costs or expenditures directly associated with the redesignations since such decisions are very case-specific. The EV Waters designation does not prohibit property owners from conducting existing activities or other new activities that do not result in any measurable change in existing water quality in stream segments designated EV. Moreover, it is clear that the redesignations do not constitute a compensable taking of property.

   The farming community expressed concerns about what regulatory requirements would need to be met to satisfy the EV water designations. They and others felt that they should be better informed and that any proposal should be better circulated among the various groups it may effect. Education (on the issues) is necessary to better understand each other's problems.

   The Department does not propose any new restrictions on the existing farming operations within the basin because of the EV Waters designation. Farmers are already required to use best management practices and comply with the policies and regulations contained in Chapters 101, 102 and 105 (relating to special water pollution regulations; erosion control; and dam safety and waterway management). There should be no additional cost to the local farming community as a result of this redesignation.

   In addition, the Department participated in a public meeting on June 10, 1993, at the Penns Valley High School to specifically address the public's concerns and questions on the Pine and Elk Creeks redesignation. The Department has also conducted informational meetings and training in general about the Special Protection Waters Program and the Department's Implementation Handbook for various municipal planning organizations, conservation districts and other interested groups. The meetings were attended by many local government officials, developers, landowners, farmers, farming leaders and citizens with a general interest in the program or its implementation, or both.

   Several commentators suggested that the petitioner's and the Department's data did not fully support the proposed redesignations.

   The petitioner provided additional information and the Department collected additional water quality data to better document water quality conditions. The Department has incorporated discussion of the information and data, which further supports the proposed redesignations, into revisions of the evaluation report that is available for review.

   Some commentators believe that an EV designation is not necessary to protect the backward sedge, the Green Drake hatch and other sensitive species indigenous to the habitat because they are thriving under the current CWF designation.

   The Department agrees that the existing water quality appears to be protecting sensitive species. However, since CWF or even HQ-CWF, with social or economic justification (SEJ), allows for a lowering of existing quality, an EV designation (which does not allow SEJ) is necessary to maintain the existing water quality which is supporting the current ecosystem in the watershed.

   Some commentators were concerned about how the EV designation will affect the property owners that currently have onsite septic systems when public sewer is made available.

   The Department's evaluation of the Pine and Elk Creek watershed EV designation takes into consideration all existing activities as contributing to the overall, existing water quality, which includes the presence of onlot sewage systems. The proposed upgrade to EV Waters does not impact upon the use of these onlot systems as long as these systems are not malfunctioning or degrading existing water quality.

   Some commentators believed the proposed rule to redesignate these streams to EV waters was a misuse of the rulemaking process and was not in the public interest.

   The Department and Board have followed all established procedures and policies for processing petitions and rulemakings. This proposed rulemaking and public notice also included provisions for an extended public comment period, 65 days, and a public hearing. The final rule reflects the appropriate designation for each segment of the basin and is, therefore, in the public interest.

   The Independent Regulatory Review Commission (IRRC) expressed concern that the criteria outlined in the ''Special Protection Waters Implementation Handbook'' are being applied as regulations. IRRC requested that the Department explain exactly how it applies the standards in determining whether to make the recommendation advocated in a petition. In IRRC's view, if the criteria are generic standards which form the basis of a uniform, Statewide policy that is ministerially applied in all cases, rather than on a case-by-case basis, they should be promulgated as regulations.

   In addition, the Department must assess the impact and provide supporting justification if a change in designation will result in new regulatory requirements.

   The Department is not applying the Special Protection Selection Criteria as a regulation. The Selection Criteria policy constitutes the Department's interpretation of the regulatory definitions of ''High Quality Waters'' and ''Exceptional Value Waters'' in § 93.3. The selection criteria are part of an implementation guidance used by the Department to evaluate candidate streams for inclusion into the Special Protection program. There are portions of this guidance that are very case or site-specific and require analysis that is believed to be germane to only the candidate stream and should not be applied on a Statewide basis. The most notable feature of the evaluation is the comparison of the candidate stream selection criteria results to a reference stream's results. In order to have an appropriate comparison, selection of the reference stream is very important, and case-specific.

   In order to assess the impact of the proposed designation, the Department has provided a brief financial impact statement as part of this Preamble, and developed a regulatory analysis form as required by the Regulatory Review Act (71 P. S. §§ 745.1--745.15).

F.  Summary of Changes to the Proposed Rulemaking

   There are no changes made to the rulemaking proposal which was originally accepted by the Board and published in the Pennsylvania Bulletin.

G.  Benefits, Costs and Paperwork

   Executive Order 1982-2 requires a statement of the benefits of a recommended regulation, as well as the costs which may be imposed. It also requires a statement of the need for, and a description of, any forms, reports or other paperwork required as a result of the recommended amendments. These will be described in separate paragraphs for the Commonwealth, its political subdivisions and the private sector.

   1.  Commonwealth--The amendment should have no fiscal or paperwork impact on the Commonwealth.

   2.  Political Subdivisions--Generally, the amendment should have no fiscal or paperwork impact on political subdivisions. Except as noted in paragraph 3 of this Preamble, no costs will be imposed directly upon local government by these changes. However, indirect costs may result from revisions to Act 537 Sewage Facilities Plans due to consultant and other administrative fees. Political subdivisions which have current or proposed sewage treatment plants in the basin may experience changes in cost as noted this Preamble in discussion of impacts on the private sector.

   3.  Private Sector--Persons proposing activities or projects which result in discharges to streams must comply with the regulatory requirements relating to current stream designations. These persons could be adversely affected by the recommended changes that increase the level of protection provided to a stream, if they expand their discharge, or add a new discharge point, since they may need to provide a higher level of treatment for their new or expanded discharge. These increased costs take the form of higher engineering, construction or operating costs for wastewater treatment facilities. Treatment costs are site-specific and may 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. In addition, nonpoint source controls necessary to protect HQ and EV waters generally add to the cost of planning and development for new or expanded nonpoint source discharges.

   Overall, the citizens of this Commonwealth will benefit from these recommended designations because they will provide, in some cases, an added degree of protection for important public natural resources and, in all cases, the most appropriate degree of protection for each stream in question.

H.  Sunset Date

   Water Quality Standards regulations are reviewed every 3 years as part of the Department's Triennial Water Quality Standards Review mandated by section 303 of the Federal Clean Water Act; therefore, no sunset date has been set.

I.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of this proposed amendment on November 14, 1994, to IRRC and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments, as well as other documentation.

   In preparing these final-form regulations, the Department has considered the comments received from IRRC and the public. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking.

   This final-form regulation was deemed approved by the Committees on March 25, 1996, and was approved by IRRC on April 3, 1996, in accordance with section 5(c) of the Regulatory Review Act.

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 at 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 amendment does not enlarge the purpose of the proposal published at 24 Pa.B. 5981.

   (4)  This amendment is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.

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 § 93.9m 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 the legality and form as required by law.

   (c)  The Chairperson shall submit this order and Annex A to IRRC and the House and Senate 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.


   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 1885 (April 20, 1996).)

   Fiscal Note:  Fiscal Note 7-284 remains valid for the final adoption of the subject regulation.

Annex A






§ 93.9m.  Drainage List M

Susquehanna River Basin in Pennsylvania
Susquehanna River

Water UsesTo Specific
*      *      *      *      *
  2--Penns CreekBasin, Source to Pine CreekCentreCWFNone
    3--Pine CreekBasin, Source to Downstream Boundary of Hook Natural AreaCentreEVNone
    3--Pine CreekBasin, Downstream Boundary of Hook Natural Area to Stony RunCentreHQ-CWFNone
      4--Stony RunBasinCentreEVNone
    3--Pine CreekBasin, Stony Run to PA Route 45 BridgeCentreHQ-CWFNone
    3--Pine CreekBasin, PA Route 45 to Elk CreekCentreEVNone
      4--Elk CreekBasin, Source to Railroad CreekCentreHQ-CWFNone
        5--Railroad CreekBasinCentreEVNone
      4--Elk CreekBasin, Railroad Creek to SR 1012 at RM 5.9CentreHQ-CWFNone
      4--Elk CreekBasin, SR 1012 Bridge to MouthCentreEVNone
    3--Pine CreekBasin, Elk Creek to MouthCentreEVNone
  2--Penns CreekBasin, Pine Creek to Cherry RunUnionHQ-CWFNone

*      *      *      *      *

[Pa.B. Doc. No. 96-759. Filed for public inspection May 10, 1996, 9:00 a.m.]

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