Title 25--ENVIRONMENTAL PROTECTION ENVIRONMENTAL QUALITY BOARD [25 PA. CODE CH. 93] Stream Redesignation; Kettle Creek et al. [26 Pa.B. 5370] The Environmental Quality Board (Board) by this order adopts amendments to §§ 93.91--93.9n and 93.9p to read as set forth in Annex A.
This order was adopted by the Board at its meeting of August 20, 1996.
A. Effective Date
These amendments are 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) and request that the call be relayed. This proposal is available electronically through the Department of Environmental Protection (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
These amendments are 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 at 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 considers candidates 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 (relating to general requirements). 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 (Commission), and the general public through a rulemaking petition to the Board.
The Department evaluated the following streams in response to requests from the Commission or the Wiconisco Watershed Association (WWA):
Kettle Creek, Cross Fork, Wallace Run, Lick Run, Laurel Run, Big Fill Run, and East Branch Tunungwant Creek: Commission
Rattling Creek: WWA (This request by the WWA was received and placed on the Department's stream list prior to adoption of the Board policy for processing petitions)
The physical, chemical and biological characteristics and other information on these waterbodies were evaluated in order to determine the appropriateness of the current designations. Aquatic surveys of these streams were conducted by the Department's Bureau of Water Quality Management and others. 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 reports 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 utilized 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
The amendments were approved by the Board at its December 20, 1994, meeting, and notice of the proposed rulemaking was published at 25 Pa.B. 3724 (September 9, 1995), which included provisions for a 45-day public comment period. The public comment period concluded on October 24, 1995.
The Board received comments from four commentators during the public comment period. One commentator supported the redesignation of the Kettle Creek basin (Clinton County) from HQ-TSF to EV Waters, while three other commentators opposed the proposed redesignations for the East Branch Tunungwant Creek basin in McKean County.
The Pennsylvania Independent Petroleum Producers, Inc. (PIPP) objected to the proposed changes to water quality standards of five streams in McKean County and the process of upgrading hundreds of Commonwealth streams. The commentator believes that streams in oil and gas producing regions generally have remained high quality and do not need to be redesignated. The commentator believes that special protection designation of these streams penalizes those who have been responsible stewards of the environment by imposing additional requirements on industry. Two State representatives from the McKean and Warren Counties districts submitted comments which included a copy of the comments from PIPP and indicated that they concur with their constituent's objections.
The Department believes that the special protection redesignations are necessary to maintain the existing high quality of the streams. The Department does not propose any new regulatory restrictions on the existing oil and gas production operations within the basin because of the HQ or EV Waters designations. The existing operations are currently required to obtain and maintain applicable Department permits, use best management practices and shall comply with applicable laws and regulations such as the act, the Oil and Gas Act (58 P S. §§ 601.101--601.605), the Oil and Gas Conservation Law (58 P. S. §§ 401--419), and Chapter 78 (relating to oil and gas wells) and Chapter 93. However, new or expanding oil and gas operations will be required to demonstrate that the proposed expansion or new operation will not have an adverse impact on the basins' water quality.
The Department is unable to predict all the future costs or impacts that will be incurred by an oil and gas operator as the result of an HQ and EV Waters redesignation. However, the Department encourages creative planning and discharge alternatives, and will work with the operators in order to develop options that will help them comply with the regulatory requirements.
F. Summary of Changes to the Proposed Rulemaking
There are no changes made to the stream recommendations that were in the proposed rulemaking which was originally approved by the Board and published in the Pennsylvania Bulletin. However, Annex A has been changed to clarify that the unnamed tributary at Gum Stump is also included in the EV Waters designation for the upper reach of the Wallace Run basin.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final regulations.
1. Benefits--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.
2. Compliance Costs--Generally, the changes should have no fiscal impact on, or create additional compliance costs for the Commonwealth or its political subdivisions. Except as noted in this Preamble, no costs will be imposed directly upon local government by this recommendation. However, indirect costs may result from revisions to Act 537 Sewage Facilities Plans due to consultant and other administrative fees. Political subdivisions which add a new sewage treatment plant or expand an existing plant in the basin may experience changes in cost as noted in this Preamble in the discussion of impacts on the 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 site 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 High Quality and Exceptional Value Waters generally add to the cost of planning and development for new or expanded nonpoint source discharges. Economic impacts would primarily involve the potential for higher treatment costs for new or expanding dischargers to streams which are upgraded, and potentially lower treatment costs for dischargers to streams which are downgraded.
3. Compliance Assistance Plan--The rulemaking has been developed as part of an established program that has been implemented by the Department since the early 1980's. Additional central office or regional staff are not expected to be needed in order to implement the proposal. The redesignations are consistent with current policies and, therefore, no policy changes are anticipated. The final rulemaking extends additional protection to selected waterbodies that exhibit exceptional water quality and environmental features, and is consistent with antidegradation requirements established by the Federal Clean Water Act and the act.
Surface waters in this Commonwealth are afforded a minimum level of protection through compliance with the water quality standards which prevents pollution and protects existing water uses.
The final regulations will be implemented through the National Pollution Discharge Elimination System (NPDES) permitting program since the stream use designation is a major basis for determining the allowable stream discharge effluent limitations. These permit conditions are established to assure the water quality criteria are achieved and the designated 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 the proposed revised designated water uses.
The Department has developed technical guidance to assist the potentially affected and regulated community in understanding the impacts and requirements of the Special Protection Stream Designation Process. The Special Protection Waters Implementation Handbook, (1992), provides guidance on the regulatory designation process, protection of candidate streams, and most importantly, general considerations for proposed new or expanded discharges to Special Protection Waters. This handbook also contains appendices which present management practices and technologies relevant for point and nonpoint source dischargers to Special Protection Waters. The Department has conducted various workshops, seminars and public meetings on the Special Protection Waters program. Public meetings have been held for specific stream redesignation concerns. Permitted point source discharges are regularly evaluated through discharger self-monitoring reports and Department inspections, to assure they are complying with permit conditions. The Handbook sets forth recommended best management practices for nonpoint sources.
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 programs and policies. There may be some indirect paperwork requirements for new or expanding dischargers to streams upgraded to special protection (HQ or EV). For example, NPDES general permits are not available for new or expanded discharges to special protection 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 special protection waters.
H. 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.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the notice of proposed rulemaking on August 29, 1995, 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. The notice of proposed rulemaking was published at 25 Pa.B. 3724. 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 the public. IRRC and the Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the Committees on September 23, 1996, and were deemed approved by the IRRC on October 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 the comments were considered.
(3) These amendments do not enlarge the purpose of the proposal published at 25 Pa.B. 3724.
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of the 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 §§ 93.9l--93.9n and 93.9p 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 upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
Chairperson(Editor's Note: A proposal to amend §§ 93.9l and 93.9n, amended in this document, remains outstanding at 26 Pa.B. 3637 (August 3, 1996).)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 5181 (October 26, 1996).)
Fiscal Note: Fiscal Note 7-288 remains valid for the final adoption of the subject regulations.
Annex ATITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION Subpart C. PROTECTION OF NATURAL RESOURCES ARTICLE II. WATER RESOURCES CHAPTER 93. WATER QUALITY STANDARDS § 93.91. Drainage List L.
Susquehanna River Basin in Pennsylvania West Branch Susquehanna River Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 3--Kettle Creek Basin, Source to Inlet of Kettle Creek Reservoir Clinton EV None 3--Kettle Creek Basin, Inlet of Kettle Creek Reservoir to Alvin Bush Dam Clinton HQ-TSF None * * * * * 4--Laurel Run Basin Centre EV None 4--Dicks Run Basin Centre CWF None 4--Dewitt Run Basin Centre CWF None 4--Wallace Run Basin, Source to Unnamed Tributary at Gum Stump Centre EV None 5--Unnamed Tributary at Gum Stump Basin Centre EV None 4--Wallace Run Basin, Unnamed Tributary at Gum Stump to Mouth Centre CWF None * * * * * 4--Greens Run Basin Centre CWF None 4--Lick Run Basin Centre HQ-CWF None * * * * * § 93.9m. Drainage List M.
Susquehanna River Basin in Pennsylvania Susquehanna River Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 2--Wiconisco Main Stem Dauphin WWF None 3--Unnamed Tributaries to Wiconisco Creek Basins, Source to US 209 Bridge at Loyalton Schuylkill-Dauphin CWF None * * * * * 3--Rattling Creek Basin, Source to Confluence of East and West Branches Dauphin EV None 3--Rattling Creek Basin, Confluence of East and West Branches to Mouth Dauphin HQ-CWF None * * * * * § 93.9n. Drainage List N.
Susquehanna River Basin in Pennsylvania Juniata River Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 5--Big Fill Run Basin, Source to T-606 Bridge Blair EV None 5--Big Fill Run Basin, T-606 Bridge to Mouth Blair HQ-CWF None * * * * *
§ 93.9p. Drainage List P.
Ohio River Basin in Pennsylvania Allegheny River Exceptions Water Uses To Specific Stream Zone County Protected Criteria * * * * * 3--Tunungwant Creek 4--East Branch Tunungwant Creek Basin, Source to Railroad Run McKean HQ-CWF None 5--Railroad Run Basin McKean EV None 4--East Branch Tunungwant Creek Basin, Railroad Run to T-331 Bridge McKean HQ-CWF None 4--East Branch Tunungwant Creek Basin, T-331 Bridge to Minard Run McKean CWF None 5--Minard Run Basin McKean EV None 4--East Branch Tunungwant Creek Basin, Minard Run to Confluence with West Branch McKean CWF None * * * * * [Pa.B. Doc. No. 96-1871. Filed for public inspection November 8, 1996, 9:00 a.m.]
