3426 RULES AND REGULATIONS tion policy. Thus, water quality standards are instream Title 25—ENVIRONMENTAL water quality goals that are implemented by imposing PROTECTION specific regulatory requirements—such as treatment re- quirements, best management practices and effluent limi- ENVIRONMENTAL QUALITY BOARD tations—on individual sources of pollution. [ 25 PA. CODE CH. 93 ] This final-form rulemaking will revise the Chapter 93 water quality standards regulations. These regulatory Triennial Review of Water Quality Standards revisions will clarify requirements and update the regula- The Environmental Quality Board (Board) amends tions to be consistent with Federal guidance where Chapter 93 (relating to water quality standards). This indicated. This final-form rulemaking may affect persons final-form rulemaking fulfills the Commonwealth’s obliga- who discharge wastewater into surface waters of this tions under State and Federal laws to review and revise, Commonwealth or otherwise conduct activities which may as necessary, water quality standards that are protective impact such waters. of surface waters. The Department discussed this final-form triennial This final-form rulemaking was adopted by the Board rulemaking with the Water Resources Advisory Commit- at its meeting of November 19, 2019. tee (WRAC) on May 23, 2019. WRAC voted to concur with the Department’s recommendation to present the final- A. Effective Date form rulemaking to the Board. In addition, the Depart- This final-form rulemaking will be effective upon publi- ment provided to the Agricultural Advisory Board on cation in the Pennsylvania Bulletin. April 25, 2019, a regulatory review that included the draft final triennial review of water quality standards. B. Contact Persons For further information, contact, Thomas Barron, Bu- The regulation was adopted by the Board as a proposed reau of Clean Water, 11th Floor, Rachel Carson State rulemaking at its April 18, 2017, meeting, and was Office Building, P.O. Box 8774, 400 Market Street, Har- published at 47 Pa.B. 6609 (October 21, 2017) with a risburg, PA 17105-8774, (717) 787-9637; or Michelle Mo- provision for a 70-day public comment period that was ses, Assistant Counsel, Bureau of Regulatory Counsel, 9th scheduled to end December 29, 2017. The Board pub- Floor, Rachel Carson State Office Building, P.O. Box 8464, lished a correction to this proposed rulemaking at Harrisburg, PA 17105-8464, (717) 787-7060. Persons with 47 Pa.B. 6727 (October 28, 2017) to revise a printer error a disability may use the Pennsylvania AT&T Relay for one of the dates and locations of the public hearings Service at (800) 654-5984 (TDD users) or (800) 654-5988 as printed in the original preamble. The Board held (voice users). This final-form rulemaking is available on public hearings, for the purpose of accepting comments on the Department of Environmental Protection’s (Depart- the proposed rulemaking, on December 6, 8 and 14, 2017, ment) web site at www.dep.pa.gov (select ‘‘Public Partici- at the Department’s Regional Offices in Wilkes-Barre pation,’’ then ‘‘Environmental Quality Board’’). (Northeast Region—NERO), Harrisburg (Southcentral Region—SCRO), and Pittsburgh (Southwest Region— C. Statutory and Regulatory Authority SWRO), respectively. Public comments were received re- This final-form rulemaking is being made under the questing the public comment period be extended, and that authority of sections 5(b)(1) and 402 of The Clean an additional public hearing be held in the southeast area Streams Law (CSL) (35 P.S. §§ 691.5(b)(1) and 691.402), of this Commonwealth. This request was granted and which authorize the Board to develop and adopt rules and notice of this public comment period extension and addi- regulations to implement the CSL (35 P.S. §§ 691.1— tional public hearing was published at 47 Pa.B. 7852 691.1001), and section 1920-A of The Administrative Code (December 30, 2017). The additional public hearing was of 1929 (71 P.S. § 510-20), which grants to the Board the held on January 30, 2018, at the Department’s Southeast power and duty to formulate, adopt and promulgate rules Regional Office (SERO) in Norristown. The extended and regulations for the proper performance of the work of public comment period ended on February 16, 2018. the Department. In addition, sections 101(a)(2) and 303 of Comments were received from 776 commenters including the Federal Clean Water Act (CWA) (33 U.S.C.A. testimony from seven witnesses at the public hearings. §§ 1251(a)(2) and 1313) sets forth requirements for water Comments were received from the Independent Regula- quality standards. tory Review Commission (IRRC). The comments received on the proposed rulemaking are summarized in Section E. D. Background and Purpose The Department has considered all public comments Section 303(c)(1) of the CWA requires that states received on the proposed rulemaking in preparing this periodically, but at least once every 3 years, review and final-form rulemaking. revise as necessary, their water quality standards. This final-form rulemaking constitutes this Commonwealth’s Exceptions for fishable/swimmable waters current triennial review of its water quality standards. Part of the triennial review requires that states re- Pennsylvania’s water quality standards, which are codi- examine water body segments that do not meet the fied in Chapters 93 and 16 (relating to water quality fishable or swimmable uses specified in section 101(a)(2) toxics management strategy—statement of policy), are of the CWA. The Department evaluated two of the designed to implement the requirements of sections 5 and Commonwealth’s waterbodies where the uses are not 402 of the CSL and section 303 of the CWA. The water currently met: 1) the Harbor Basin and entrance channel quality standards consist of the designated and existing to Outer Erie Harbor/Presque Isle Bay (§ 93.9x (relating uses of the surface waters of this Commonwealth, along to Drainage List X)); and 2) several zones in the Dela- with the specific numeric and narrative criteria necessary ware Estuary (§§ 93.9e and 93.9g (relating to Drainage to achieve and maintain those uses, and an antidegrada- List E; and Drainage List G)). PENNSYLVANIA BULLETIN, VOL. 50, NO. 28, JULY 11, 2020 RULES AND REGULATIONS 3427 The swimmable use designation was deleted from the higher dissolved oxygen (DO) standards, and immediately Harbor Basin and entrance channel demarcated by protecting these zones for fish propagation. Commenters United States Coast Guard buoys and channel markers acknowledge the DRBC’s adoption of a resolution (DRBC on Outer Erie Harbor/ Presque Isle Bay because pleasure Res. No. 2017-4) committing DRBC to: conduct further boating and commercial shipping traffic pose a serious study on the inclusion of propagation as a designated use safety hazard in this area. This decision was further in Zones 3 and 4 and the upper portion of Zone 5 of the supported by a Use Attainability Analysis (UAA) study Delaware Estuary; prepare a schedule for completing a conducted by the Department of Environmental Re- full draft analysis of attainability within 3 1/2 years; and sources (DER) in 1985. Because the same conditions and issue a final rule and an implementation strategy within hazards exist today, no change is proposed to the desig- 6 years of the adoption of the resolution. The commenters nated use for Outer Erie Harbor/Presque Isle Bay. The also refer to the Delaware Riverkeeper Network’s petition water contact sports (WC) use remains excluded from the to the Board to upgrade Zones 3 and 4 of the Delaware designated uses for this portion of Lake Erie. Estuary to include resident and migratory fish popula- In April 1989, DER cooperated with the Delaware River tions. These commenters state, however, that neither of Basin Commission (DRBC) and the United States Envi- these processes should deter the Board from fulfilling its ronmental Protection Agency (EPA) on a comprehensive obligation under 40 CFR 131.10(h)(2)(ii) (relating to des- UAA study in the lower Delaware River and Delaware ignation of uses) to update the applicable designated uses Estuary. This study resulted in appropriate recommenda- during the current triennial review. They suggest the tions regarding the swimmable use, which the DRBC available data are sufficient to establish an existing use included in its regulations for water use classifications of fish propagation in Zones 3 and 4 and the upper and water quality criteria for portions of the tidal Dela- portion of Zone 5 of the Delaware Estuary, and therefore ware River in May 1991. The appropriate DRBC stan- the commenters suggest that the Board, when issuing its dards were referenced in §§ 93.9e and 93.9g in 1994. The final rule, should change the designated use of these WC use remains excluded from the designated uses for portions of the Delaware Estuary to match their existing river miles 108.4 to 81.8 because of continuing significant use. impacts from combined sewer overflows (CSO), and haz- As described in the preamble to the proposed rule- ards associated with commercial shipping and navigation. making, the demonstrated recovery in propagation for However, the Board received comments indicating there these Zones has occurred under the long-term implemen- are multiple instances where commenters have partici- tation of the current criteria. So, in the short term, the pated in and documented water contact and conducted existing DO criteria should provide adequate protection paddling and kayaking on this stretch