RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CH. 93 ]
Blue Eye Run, et al. (Water Quality Network (WQN) Package); Stream Redesignations
[40 Pa.B. 1734]
[Saturday, April 3, 2010]
The Environmental Quality Board (Board) amends 25 Pa. Code §§ 93.9b, 93.9d, 93.9f, 93.9g, 93.9i, 93.9l, 93.9p and 93.9q to read as set forth at 39 Pa.B. 3043 (June 20, 2009).
This proposal was adopted by the Board at its meeting of December 15, 2009.
A. Effective Date
These amendments are effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information, contact Richard H. Shertzer, 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 Pennsylvania 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) web site (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 provisions of The Clean Streams Law (35 P. S. §§ 691.1—691.1001), 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. § 1313) sets forth requirements for water quality standards and the Federal regulation in 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, 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 quality or uses. 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 the regulation in § 93.9 (relating to designated water uses and water quality criteria).
The Department operates the Surface Water Quality Network (WQN), which is a long-term, fixed station network of monitoring stations on rivers and streams throughout this Commonwealth. This network was initially designed to monitor water quality conditions on a broad scale. Most stations are located on major streams with large drainage areas. However, recent water quality monitoring trends emphasize the importance of identifying and defining biological reference conditions characteristic of no or minimal disturbance. As part of the process to establish biological reference conditions, smaller watersheds with minimal land disturbance were added to the water quality network to collect data representative of reference water quality conditions and to support biological metric protocol development. WQN streams are selected from various areas across the State and monitored for 5 years. Following the close of the 5-year inventory period, the studied sites are replaced with a new set of stations.
After reviewing the WQN monitoring data, several of the stations displayed existing use stream conditions indicative of EV waters. Physical, chemical and biological characteristics along with other information on these waterbodies were considered to determine the appropriateness of the current and recommended 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). According to the Department's regulatory criteria, a Biological Condition Score (BCS) greater than or equal to 92% of the reference station score supports an EV designation. See § 93.4(b)(1)(v).
All reference streams were selected because they were representative of excellent EV conditions based on the macroinvertebrate community and were of similar stream types, comparable geologic settings and reasonable proximity with respect to their compared candidate stream. Both the candidate stream and the reference streams were sampled within a similar time frame to minimize the effects of seasonal variation.
All of the recommended redesignations in this final-form rulemaking for the WQN stations are candidates for EV, based upon data and appropriate regulatory criteria. All of the waterbodies in this regulatory package which are being recommended for EV qualify based on their BCS being greater than or equal to 92% of the reference station score. Copies of the Department's stream evaluation report for these waterbodies is available on the Department's web site or from the contacts whose addresses and telephone numbers are listed in Section B. Based upon the data and information collected on these waterbodies, the Board has made the designations as set forth in 39 Pa.B. 3043 (June 20, 2009).
A basin-wide migratory fishes (MF) designation was added to the Atlantic slope basin (drainage lists A—O and Z) as part of the Triennial Review of Water Quality Standards which was effective upon publication as a final rulemaking at 39 Pa.B. 2523 (May 16, 2009). The MF designation applies to all waters within the respective basins unless there were specific exceptions previously noted for certain waterbodies or stream segments within one of these drainage lists. Drainage Lists A—G are located within the Delaware River Basin. Drainage lists H—O are located within the Susquehanna River Basin. Drainage List Z is located within the Potomac River Basin. The MF designated use has been added to those waters to be consistent with the action in the Triennial Review final rulemaking at 39 Pa.B. 2523.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Board approved the proposed rulemaking for the Blue Eye Run, et al. (WQN) package at its April 21, 2009 meeting. The proposed rulemaking was published at 39 Pa.B. 3043 with provision for a 45-day public comment period that closed on August 4, 2009. The only commentator was the United States Environmental Protection Agency (EPA) Region 3 who commended the Department on its continuing effort to upgrade streams into its highest level of the Special Protection Waters Program, but otherwise had no comments.
On June 5, 2009, the Department submitted a copy of the proposed rulemaking published at 39 Pa.B. 3043 to the Independent Regulatory Review Commission (IRRC) and to the Senate and House Environmental Resources and Energy Committees (Committees) for review and comment in accordance with section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)). Neither IRRC nor the Committees raised any comments, recommendations or objections to any portion of the proposed rulemaking, and no changes were made from the proposed rulemaking to this final-form regulation; therefore under section 5(g) of Regulatory Review Act, the final rulemaking was deemed approved by IRRC.
F. Summary of Changes to the Proposed Rulemaking
No changes were made to the proposed rulemaking.
G. Benefits, Costs and Compliance
1. Benefits—Overall, the Commonwealth, its citizens and natural resources will benefit from these changes 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.
2. Compliance Costs—The amendments to Chapter 93 may impose additional compliance costs on the regulated community. These regulatory changes are necessary to improve total pollution control. The expenditures necessary to meet new compliance requirements may exceed that which is required under existing regulations.
Persons conducting or proposing activities or projects must comply with the regulatory requirements relating to 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. 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.
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 Pennsylvania 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 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.
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 (SEJ) 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 may reduce the overall level of pollution to the environment by remediation of the effluent through the soil.
I. Sunset Review
These 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.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act, on June 5, 2009, the Department submitted a copy of the proposed rulemaking published at 39 Pa.B. 3043, to IRRC and to the Senate and House Environmental Resources and Energy Committees (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. 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)), on February 24, 2010, this final-form regulation was deemed approved by the Committees. Under section 5(g) of the Regulatory Review Act, this final-form rulemaking was deemed approved by IRRC, effective February 24, 2010.
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) These final-form regulations do not enlarge the purpose of the proposal published at 39 Pa.B. 3043.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.
(5) These final-form regulations do not contain standards or requirements that exceed requirements of the companion Federal regulations.
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 93, are amended by amending §§ 93.9b, 93.9d, 93.9f, 93.9g, 93.9i, 93.9l, 93.9p and 93.9q to read as set forth at 39 Pa.B. 3043.
(b) The Chairperson of the Board shall submit this order and 39 Pa.B. 3043 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 39 Pa.B. 3043 to IRRC and the Committees, as required under the Regulatory Review Act.
(d) The Chairperson shall certify this order and 39 Pa.B. 3043 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.
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 1471 (March 13, 2010).)
Fiscal Note: Fiscal Note 7-436 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 10-587. Filed for public inspection April 2, 2010, 9:00 a.m.]
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