Section 93.4c. Implementation of antidegradation requirements

(a) Existing use protection.

(1) Procedures.

(i) Existing use protection shall be provided when the Department’s evaluation of information (including data gathered at the Department’s own initiative, data contained in a petition to change a designated use submitted to the EQB under § 93.4d(a) (relating to processing of petitions, evaluations and assessments to change a designated use), or data considered in the context of a Department permit or approval action) indicates that a surface water attains or has attained an existing use.

(ii) The Department will inform persons who apply for a Department permit or approval which could impact a surface water, during the permit or approval application or review process, of the results of the evaluation of information undertaken under subparagraph (i).

(iii) Interested persons may provide the Department with additional information during the permit or approval application or review process regarding existing use protection for the surface water.

(iv) The Department will make a final determination of existing use protection for the surface water as part of the final permit or approval action.

(2) Endangered or threatened species. If the Department has confirmed the presence, critical habitat, or critical dependence of endangered or threatened Federal or Pennsylvania species in or on a surface water, the Department will ensure protection of the species and critical habitat.

(b) Protection of High Quality and Exceptional Value Waters.

(1) Point source discharges. The following applies to point source discharges to High Quality or Exceptional Value Waters.

(i) Nondischarge alternatives/use of best technologies.

(A) A person proposing a new, additional or increased discharge to High Quality or Exceptional Value Waters shall evaluate nondischarge alternatives to the proposed discharge and use an alternative that is environmentally sound and cost-effective when compared with the cost of the proposed discharge. If a nondischarge alternative is not environmentally sound and cost-effective, a new, additional or increased discharge shall use the best available combination of cost-effective treatment, land disposal, pollution prevention and wastewater reuse technologies.

(B) A person proposing a new, additional or increased discharge to High Quality or Exceptional Value Waters, who has demonstrated that no environmentally sound and cost-effective nondischarge alternative exists under clause (A), shall demonstrate that the discharge will maintain and protect the existing quality of receiving surface waters, except as provided in subparagraph (iii).

(ii) Public participation requirements for discharges to High Quality or Exceptional Value Waters. The following requirements apply to discharges to High Quality or Exceptional Value Waters, as applicable:

(A) The Department will hold a public hearing on a proposed new, additional or increased discharge to Exceptional Value Waters when requested by an interested person on or before the termination of the public comment period on the discharge.

(B) For new or increased point source discharges, in addition to the public participation requirements in § § 92a.81, 92a.82, 92a.83 and 92a.85, the applicant shall identify the antidegradation classification of the receiving water in the notice of complete application in § 92a.82 (relating to public notice of permit applications and draft permits).

(iii) Social or economic justification (SEJ) in High Quality Waters. The Department may allow a reduction of water quality in a High Quality Water if it finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the Commonwealth’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. A reduction in water quality will not be allowed under this subparagraph unless the discharger demonstrates that the High Quality Water will support applicable existing and designated water uses (other than the high quality and exceptional value uses) in § 93.3, Table 1 (relating to protected water uses).

(2) Nonpoint source control. The Department will assure that cost-effective and reasonable best management practices for nonpoint source control are achieved.

(c) Special provisions for sewage facilities in High Quality or Exceptional Value Waters.

(1) SEJ approval in sewage facilities planning and approval in High Quality Waters. A proponent of a new, additional, or increased sewage discharge in High Quality Waters shall include an SEJ impact analysis as part of the proposed revision or update to the official municipal sewage facilities plan under Chapter 71 (relating to administration of sewage facilities planning program). The Department will make a determination regarding the consistency of the SEJ impact analysis with subsection (b)(1)(iii). The determination will constitute the subsection (b)(1)(iii) analysis at the National Pollutant Discharge Elimination System (NPDES) permit review stage under Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), unless there is a material change in the project or law between sewage facilities planning and NPDES permitting, in which case the proponent shall recommence sewage facilities planning and perform a new social or economic justification impact analysis.

(2) SEJ for sewage facilities in High Quality Waters correcting existing public health or pollution hazards. A sewage facility, for which no environmentally sound and cost-effective nondischarge alternative is available under subsection (b)(1)(i)(A), proposed to discharge into High Quality Waters, which is designed for the purpose of correcting existing public health or pollution hazards documented by the Department, and approved as part of an official plan or official plan revision under § 71.32 (relating to Department responsibility to review and act upon official plans), satisfies the SEJ requirements in subsection (b)(1)(iii).

(3) Public participation requirements for official sewage facilities plans or revisions to official plans in High Quality or Exceptional Value Waters. A proponent of a sewage facility in High Quality or Exceptional Value Waters seeking approval of an official plan or revision shall comply with the public participation requirements in § 71.53(d)(6) (relating to municipal administration of new land development planning requirements for revisions).

The provisions of this § 93.4c adopted July 16, 1999, effective July 17, 1999, 29 Pa.B. 3720; corrected July 30, 1999, effective July 16, 1999, 29 Pa.B. 4063; amended July 19, 2013, effective July 20, 2013, 43 Pa.B. 4080. Immediately preceding text appears at serial pages (343945) to (343946) and (352675) to (352676).

Notation

Authority

The provisions of this § 93.4c issued under sections 5(b)(1) and 402 of The Clean Streams Law (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); amended under sections 5(b)(1) and 402 of The Clean Streams Law (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).

Cross References

This section cited in 25 Pa. Code § 92a.48 (relating to industrial waste permit); 25 Pa. Code § 92.61 (relating to public notice of permit application and public hearing); 25 Pa. Code § 93.4a (relating to antidegradation); 25 Pa. Code § 96.3 (relating to water quality protection requirements); 25 Pa. Code § 102.4 (relating to erosion and sediment control requirements); and 25 Pa. Code § 102.8 (relating to PCSM requirements).