RECEIPT OF PETITION TO REDESIGNATE THE LITTLE LEHIGH CREEK
(LEHIGH COUNTY)
ENVIRONMENTAL QUALITY BOARD MEETING
APRIL 15, 2003 James R. N4ax, Esq.~ l3xecrttivc I)icecosr Sapecrrisirrg Attorney lyman C. Welch. Esq.~ MID-ATLANTIC ENVIRONMENTAL LAW CENTER (;t’neorl (iorrosel Defending the Mid-At/antic
James NI. Sttahltragcr, Esq.~ c/n Widener University School of Law StaffAttorney 4601 Concord Pike, P. 0. Box 7474, Wilmington, Delaware 19803-0474 lob C. Heinre, Lsq: 302-477-2167 I Fox: 302-477-2032 I www.maelc.org Associate Director
Mary A. Spinelli January 07, 2003 AelntioistrotiveAssistant
Adoairred its Peor,srlrattja 1111 AN 10 gr1 IVI Admitted its Maryland Admitted its Delaware — Admitted in Verniotat ~ENVR0NMNTA Q ALTY~0AiIv V’ m. ~, n. ~1 C’’ .~inaiun r t icssilc, ixtz~ani awl y yUOlUlIlaLOI Environmental Quality Board J)Q• l3ox 8477 l-larrisburg, PA 17 105-8477
Dear N~1s. Trostle:
Re: Petition to Redesignate the Little Lehigh Creek (Lehigh County)
I received ‘sour letter (181W December 24 )00~ regarding the Environmental Quality BoW’s L’VQB”) prelimirlary revle\v of the petition to redesignate the Little Lehigh Creek. This letter responds to TIQEI ‘s belief that the petition was deFicient for not meeting the requirements of Js IN’//IX1/Val/IiO Code ~ 232(1). Therefore, the following information has been provided to sailslv LLQ13sre(luest Icr additional in formation:
23.1(a)(2)(i) and (ii): The Little Lehigh Watershed Coalition (“Coalition”) requests that the EQB change the designated use of the Little Lehigh Creek under Title 25, Section 93 of the Pennsylvania Code from a High Quality (“J-IQ”), Cold Water Fishery (“CWF”) to an Outstanding National Resource Water (“ONRW”), Cold Water Fishery pursuant to 40 C.F.R ~ 131 32. See Petition at 3. Specifically, the Little Lehigh Creek currently is listed under Drainage L i 51~, ~ 0 08
Strealn Zone County Water Uses Exceptions To Protected Specific Criteria
3--Little Lehigh Basin, Source Lehigh HQ-CWF None Creek to Jordan Creek
3— —Little Lehigh i3asin. tordan Leh i 1-1Q-CW P None CreeL Creek to \‘louth
t’t,NTttt Or. rrr~rAIr too eCeeClaC< as&taretO eARLe toTe SOY-mOLD FOOt Page 2 January 07, 2003
The Coalition requests that DEP replace the “HQ” designation under “Water Uses Protected” with an “OJ’~RW’’ so that the S 93.’-- )d, as pertinent to the Little Lehigh Creek, reads:
Stream Zone County Water Uses Exceptions To Protected Specific Criteria
3--Little Lehigh Basin, Source Lehigh ONRW-CWE None Creek to Jordan Creek
3-- Little Lehigh Basin, Jordan Lehigh O>~RW-CWF None Creek Creek to Mouth
2. ~ 23.l(a)(5)(i): To clear tip any confusion, the request for redesignation applies only to the main stem of the Little Lehigh Creek and does not encompass any of the tributaries.
If ~OLl have any questions, please contact me at 302.477.2086.
S mccl
Stuhltrager E B p.o. box 8477 harrisburg, pa. 17105-8477 ct Ill 7)787-4526 Environmental QualriyBoard December 24, 2002
James Stuhitrager, Esquire Mid-Atlantic Environmental Law Center do Widener University School of Law 4601 Concord Pike, P. 0. Box 7474 Wilmington, DE 19803-0474
Dear Mr. Stuhltrager:
Re: Petition to Redesignate the Little Lehigh Creek (Lehigh County)
On December 6 I sent you a letteracknowledging receipt of your petition and indicated that I would respond to you by December 24 on whether the petition meets the requirements of the Environmental Quality Board’s (EQB) codified Policy for Processing Rulemaking Petitions. Under this policy, the Department of Environmental Protection (DEP) has the obligation to undertake a preliminary review of a petition, prior to submitting it to the EQB, to see if it meets certain conditions. DEP has undertaken its review under 25 Pennsylvania Code § 23.2 and has determined that the petition is not yet appropriate for submittal to the EQB because it does not meet the conditions of § 23.2(1).
Specifically, DEP does not believe that the petition is complete because it fails to delineate the scope of the requested rulemaking changes and the precise stream segments requested for redesignation. To address these deficiencies DEP, under § 23.3 of the policy, requests the following additional information:
1. ~ 23.1(a)(2)(il and (ii) Include suggested regulatory language that describes the action you are requesting, such as language regarding the adoption or amendment of regulations, or include specific citations to the regulations to be repealed (such as the specific stream segments listed in § 93.9d).
2. § 23.1(al(5)(i’j: It is unclear between the narrative form of the petition and the map whether the request encompasses only the main stem of Little Lehigh Creek or whether it includes all or certain tributaries to the main stem of Little Lehigh Creek.
Under § 23.3 of the policy you have 30 days to provide the additional information that DEP is requesting.
If you have any questions, please contact me at the above number or by e-mail at shtrostle(~state.pa.us
Sincerely,
t0N. .4 SharontF. Trostle Regulatory Coordinator (U n-c-sc LW Son-S . t.ttttt~~ P.. May, 1-sq.’ I:tactttit e L)irector
I em.ats ( . \Xelch, ESq. MID-ATLANTIC ENVIRONMENTAL LAW CENTER RL C E I V E D (;tttt to,! C otttasel Defending the Mid-Atlantic tames NI Stnhlarager,E~q. c/n Widener University School of Law Stat/f Aetatnt’y 4601 Concord Pike, P.O. Box 7474, Wilmington, Delaware t 9~O3td474 -- - - F’
Job I). Heinre, Eaq: 302-477-2167 I Fox: 302-477-2032 I ~ :c.a, a F - a’ Aoaociaate I)ieeceor at-c-
NIary A. Slainelli Administrative Assistant November21, 2002 Adtttittod itt lteatasvloaaaia Adatittetl itt \4,arylattd Adaat ttcd to IDeItwate o’tdtnt,tod itt ‘ta’erttttttto Mr. David Hess, Secretary Pennsylvania Department of Environmental Protection P.O. Box 2063 Harrisburg, PA 17 105-2063
Dear Secretary Hess,
Enclosed are 2 copies of a petition on behalfof the Little Lehigh Watershed Coalition, represented by the Mid-Atlantic Environmental Law Center, to redesignate the Little Lehigh Creek from a High Quality (HQ) water to an Outstanding National Resource Water (ONRW). According to section 23.1(b) oftitle 25 of the Pennsylvania Code, this petition is complete, requests action that can be taken by the EQB, and the requested action does not conflict with Federal law. Once the Department has made the determination that the petition meets the above conditions, we, the petitioner, anticipate notification in no more than 30 days after your receipt.
We look forward to hearing from your Department. If you have any questions about this petition, please contact me at (302) 477-2086. Thank you for your consideration.
Sincerely,
1/
James Stuhltrager, Esquire
Enclosures
Ft OX 0 V. L , t tFLF~O F 0-YR. F 00 KYS A PETITION TO DESIGNATE THE LITTLE LEHIGH CREEK AS AN OUTSTANDING NATIONAL RESOURCE WATER (“ONRW”)
INTRODUCTION
The Mid-Atlantic Environmental Law Center (“MAELC”) hereby petitions the Commonwealth ofPennsylvania to designate the Little Lehigh Creek as an Outstanding National Resource Water (“ONRW”). MAELC submits this petition on behalf ofthe Little Lehigh Watershed Coalition, a citizen group dedicated to the preservation of the Little Lehigh Creek and its surrounding area. The United States Environmental Protection Agency (“EPA”) has promulgated an anti-degradation regulation that provides an ONRW designation for waters in Pennsylvania so that the Commonwealth will be in compliance with all ofthe requirements of the Clean Water Act. 40 C.F.R. § 13 1.32(3) (Exhibit 1); Water Quality Standards For Pennsylvania, U.S.E.P.A. (Exhibit 4). This petition follows the format for stream redesignation that is provided by the Department ofEnvironmental Protection’s (“DEP”) draft guidance and the information regarding qualifiers for the ONRW designation from the Code of Federal Regulations. (Exhibits 1 & 4). The petition process for stream redesignation is set forth in Chapter 23 of Title 25 ofthe Pennsylvania Code. According to section 23.1 (b) ofTitle 25, the general petition procedures apply to all petitions “unless the EQB adopts specific procedures for a particular type of petition.” The petition process allows a person or organization that has reason to believe that the designated stream use is inappropriate, to request a stream redesignation.
In this petition, we request that the Environmental Quality Board (“EQB”) change the stream designation of Little Lehigh Creek from 1-ugh Quality (“HQ”) designation to an ONRW designation, based on the qualifiers listed in 40 C.F.R. 13 1.32(3) and the properties ofthe Creek. Tb DEP had already determined that the Little Lehigh Creek is a high quality water. The presence of the Delaware and Lehigh Canal National Heritage Corridor, the Heritage State Park, the Pool Wildlife Sanctuary, the ecologically significant wild brown trout population, and the recreationally significant fishing, canoeing, and hiking — coupled with the existing HQ designation — qualifies the Little Lehigh for ONRW in accordance with 40 C.F.R. 131.32. (Exhibit 1). Upon receipt of this stream redesignation petition, we anticipate that the DEP will follow the protocol set forth in the Pennsylvania Administrative Code for the processing of petitions to change a designated use. 25 Pa. Code 93.4d (Exhibit 80).
BACKGROUND
The Little Lehigh Creek is one of the most significant creeks in eastern Pennsylvania. The Little Lehigh Creek is picturesque with its clear water, green trails, covered bridges, and historical barns. It flows through a State Park, along a nationally recognized park trail, through a wildlife refuge, and by a Native American archeological site. The Little Lehigh Creek is of tremendous ecological significance with its diverse trout populations including an outstanding wild and self-reproducing brown trout population and associated high water quality necessary to sustain this fish population. It is a sanctuary for anglers, recreational users, and persons who appreciate its aesthetic beauty. The Creek also has many practical aspects, including supplying the City of Allentown’s drinkinu water.
1 The Little Lehigh Creek is close to a major metropolitan area, the Lehigh Valley, and is easily accessible to all residents. The Creek is also close to Philadelphia and its surrounding counties and constitutes an outstanding natural resource for all the citizens of Permsylvania. In particular, the Little Lehigh Creek is of significant importance to the members ofthe Little Lehigh Watershed Coalition, because it possesses outstanding recreational, ecological, and historical characteristics.
Unfortunately, the Little Lehigh Creek remains threatened by commercial, industrial, and residential development, agricultural activities, and point and non-point source discharges. Commercial, industrial, and residential development threatens the entire watershed when riparian vegetation is cleared and the area is graded to create a buildable landscape. When trees and topsoil are removed, the soil becomes exposed which results in increased erosion producing further sedimentation into the Little Lehigh Creek, which causes drainage, flow, depth, turbidity, and other problems. Uncontrolled agricultural activities, erosion, and sedimentation from stormwater runoff alters the pH and increases nitrates in the water, potentially destroying the native flora and fauna. Point source discharges affect the chemical and biological makeup ofthe water, including changes in temperature, metal levels, and increases in other pollutants. Polluted water threatens instream and riparian habitats and the ecosystem, creating an environment unsuitable for recreation, aesthetics, aquatic life, or as a water supply. However, the Little Lehigh Creek does not have to endure such degradation. Ifthe antidegradation policy of state and federal law are applied to the Little Lehigh Creek, this stream will continue to sustain essential life and remain important to recreational users. DEP has the authority to prevent an increase in existing stream discharges and to prohibit any further stream discharges into the Little Lehigh’s invaluable waters.
In accordance with EQB requirements, this petition is divided into seven parts. First, the Petition provides a description ofthe Little Lehigh Watershed Coalition. Second, the Petition describes the action requested. Third, the Petition provides the factual and legal contentions that support it. Fourth, the Petition identifies the types of persons, businesses, and organizations likely to be impacted. Fifth, the Petition includes information required for redesignation pursuant to Pennsylvania Clean Streams Law. Part Six lists the names of all the municipalities through which the Little Lehigh Creek flows. Finally, part Seven, is a map that plots the location of the Little Lehigh Creek and potentially effected persons.
PETITION
I. The petitioner’s name, address, and telephone number.
The Little Lehigh Watershed Coalition P0 Box 135 Emmaus, PA 18049
The Little Lehigh Watershed Coalition is a non-profit corporation dedicated to the protection of the Little Lehigh Creek, the watershed’s park system, and the environment in the Commonwealth ofPennsylvania. The Little Lehigh Watershed Coalition maintains a committed
2 membership of concerned citizens. The members are all recreational enthusiasts whose uses include birdwatching and fishing. One member is a wildlife artist who depends on the picturesque scenery and presence of wildlife for his works. Over several decades, they have enjoyed what the Little Lehigh Creek has to offer with their families and friends. These concerned citizens are committed to cultural history and the preservation of natural resources.
II. A description of the action requested in the petition.
The Little Lehigh Creek is an exceptional natural resource water that deserves the level of protection afforded by ONRW status. The Little Lehigh Watershed Coalition requests that the EQB approve this nomination and change the status ofthe Little Lehigh Creek from a High Quality, Cold Water Fishery under Title 25, Section 93 ofthe Pennsylvania Code to an ONRW pursuant to 40 C.F.R § 131.32.
111. The reason the petitioner is requesting this action from the EQB, including factual and legal contentions as well as supporting documentation which establish the petitioner’s justification for the requested action by the EQB.
Persons, watershed groups, organizations, and government agencies are granted the power to petition the Secretary of the Pennsylvania Department of Environmental Protection to redesignate streams under Chapter 23 of Title 25 ofthe Pennsylvania Code. The Little Lehigh Creek Watershed Coalition petitions the EQB to designate the Little Lehigh Creek as an ONRW based on the criteria provided in this petition. Classification ofthe Little Lehigh Creek as an ONRW is necessary to protect and maintain the outstanding resources ofthis waterbody, and there is no other effective process available that will achieve the necessary protection.
The Little Lehigh Watershed Coalition is requesting the change in status to gain the most stringent protections afforded by the EPA’s antidegradation policy. The policy is applicable to all waters in Pennsylvania and provides ONRW status when high quality waters are situated in either National or State parks, wildlife refuges, or have exceptional ecological or recreational significance. 40 C.F.R. § 131.32 (Exhibit 1). The ONRW status of protection is essential to prevent any further degradation ofthe outstanding properties of the Little Lehigh Creek. For example, EPA has stated that important creeks in Pennsylvania “are under new pressures from development.” EPA Launches Barbs along Tohickon Creek, THE PHILADELPHIA INQUIRER, Mar. 18, 2000, (Exhibit 13). To stop this trend, EPA has encouraged state and federal governments “to give communities the tools they need to protect them.” Id. The current HQ status is insufficiently protective because it allows further discharges and does not require the Little Lehigh Creek to be both “maintained and protected.” 40 C.F.R. § 131.32 (Exhibit 1); Roberti. Yarbrough, Pennsylvania DEP’s Water Quality Antidegradation Program, 1999, (Exhibit 6). This petition seeks to prevent further degradation of the Little Lehigh Creek.
Pennsylvania has three levels ofspecial waters protection. The lowest level ofspecial protection is High Quality (“HQ”). High Quality status is used to designate those surface waters whose quality exceeds the criteria necessary to support the propagation of fish, shellfish, and wildlife. In addition, the water must also support recreation both in and on the water. 25 Pa. Code § 93.1 (Exhibit 77). Although this standard should not be difficult to meet, in order to qualify for HQ status, the water must pass either a chemical orbiological test. 25 Pa. Code § 93.4b (Exhibit 78).’ One biological condition that alone will qualify a surface water as a HQ is the Class A wild trout stream qualifier. (Exhibit 78). The Little Lehigh Creek is designated both an HQ water and a Class A wild trout stream. (Exhibit 78).
The next level ofprotection is Exceptional Value (“EV”) status. EV waters have a similar surface quality as HQ, however to qualify for EV status, a water body must not only meet the requirements for HQ but also meet one of several other criteria. Included in these additional criteria is whether the water is located in a state or national park, a wild river, Federal wilderness area, recreational significance, or ecological significance.2 The significance ofeither of these statuses is that they provide a certain level ofprotection for water bodies in Pennsylvania by limiting the discharge by permit into their waters. (Exhibit 78).
The most stringent level ofantidegradation protection available is ONRW status. ONRW status does not allow any new or increased discharges. See Letter to Victoria Binetti, Chiefof Program Support, EPA Region III (Jun. 13, 1991) (Exhibit 7). Although ONRW is not explicitly contained in Pennsylvania’s Administrative Code, EPA has provided for this designation for Pennsylvania in the Code ofFederal Regulations.(Exhibit 1); Our Best Waters, Our Worst Efforts: Pennsylvania ~ Existing Program to Protect Waters ofPublic Lands Exists Only On Paper, The Raymond Proffitt Foundation, June 20, 2000 (Exhibit 2). Without an ONRW status in its antidegradation policy, Pennsylvania’s water quality standards would be incomplete and would fail to comply with the Clean Water Act. See Foundation Petitions Environmental Quality Board To Revise “Exceptional Value Waters” Regulations (Exhibit 3); Notice ofProposed Rulemaking Departinen t of Environmental Protection Environmental Quality Board: 25 PA. Code Chapters 92, 93, and 95 Water Quality Standards- Antidegradation, (Exhibit 5); Region III Water Quality Standards, Monitoring, and Reporting, EPA Office of Inspector General, Mar. 31, 1999 (Exhibit 9), Letter to Hon. James M. Seif, Secretary PADEP from Bradley M. Campbell, EPA Regional Administrator (Mar. 17, 2000) (Exhibit 10), EPA Oks New Water Regulation, Mar. 18, 2000 (Exhibit 11). Pursuant to a court order in Raymond Proffitt Found. v. EPA, 930 F.Supp. 1088 (E.D. Pa. 1996), EPA promulgated the current ONRW antidegradationpolicy that fullyprotects waters from discharge and degradation. (Exhibit 14). Under the regulation promulgated by EPA, ONRW status is appropriate for those Pennsylvania waters which are “identified as constituting an outstanding National resource, such as waters ofNational and State parks and wildlife refuges, and water of exceptional recreational and ecological significance.” 40 C.F.R § 131.32 (Exhibit 1).
DEP recognizes that the federally-promulgated ONRW status is in effect in Pennsylvania. DEP has stated that “EPA has promulgated water quality antidegradation regulations for Pennsylvania that are in effect today and will remain applicable until EPA fully approves the Pennsylvania regulation.” Pennsylvania’s Best Waters: A Resource Worth Protecting (Sept. 27, 2000) (Exhibit 15); See also Letter to Michael Siegel from James M. Seif, PADEP Secretary (Jul. 15, 1999) (Exhibit 12) (“[EPAI actually promulgated the federal regulations for Pennsylvania in .Ianuary 1997”). EPA has not yet fully approved Pennsylvania’s antidegradation
Of the state’s approximately 83,000 miles of surface waters, Pennsylvania has designated about 19,000 miles as HQ. (Exhibit 11 & Exhibit 18). 2 Pennsylvania has designated approximately 1,700 miles of surface waters as EV. (Exhibit 11 & Exhibit 18).
4 policy. Therefore, the federally-promulgated regulation for ONRW waters remains in effect. 40 C.F.R. § 131.32 (Exhibit 1).
The ONRW designation requires that the waters be ofhigh quality, which the Little Lehigh Creek has already done in its designation as an HQ. (Exhibit 1). In addition, to attain the protections from the ONRW status, the water needs to be identified as a National resource by having something special that qualifies it. A water that achieves such a status will be “maintained and protected”. 40 C.F.R. § 13 1.32(3), (Exhibit 1). The Little Lehigh Creek is the perfect candidate to receive the first Pennsylvanian designation ofan ONRW; not only does the Little Lehigh Creek flow through a National Park, a State Park, and a wildlife refuge, it is also of exceptional recreational significance with its outstanding trout sport-fishing and canoeing. Pool Wildlife Sanctuary and Wildlife Rehabilitation Center brochures (Exhibit 31); Letter to Jay Goldstein from Richard Snyder, Fish and Boat Commission Regarding: trout fishing (Exhibit 36); Delaware & Lehigh Canal National Heritage Corridor and Heritage State Park (Exhibit 52). In addition, the Little Lehigh Creek is of exceptional ecological significance because of its naturally reproducing wild brown trout and waterfowl populations. Little Lehigh Creek Stream Corridor Conservation Prqlect Stream Status Report, January 1994 (Exhibit 28); (Exhibit 36). The waters are also the primary source of drinking water for the growing City ofAllentown and flo\v through a nationally registered historical area that continues to give us insight into the local Native American population. An Assessment ofthe Archeological Resources In and Around the Keck Site (36Lh4) (Exhibit 56); Draft about City ofAllentown ~ Primary Source ofDrinking Water (Exhibit 67).
The Little Lehigh Creek deserves the highest level of antidegradation protection afforded under the law. Both HQ and EV status levels continue to allow discharges and loading increases into waters from both point and non-point sources. Our Best Waters, Our Worst Efforts: Pennsylvania ~ Existing Program to Protect Waters ofPublic Lands Exists Only On Paper, The Raymond Proffitt Foundation, June 20, 2000, (Exhibit 2). These discharges have the potential to be significant discharges. EPA has recognized that “Pennsylvania... needs to do more to protect its streams.” EPA Oks New Water Regulation, Mar. 18, 2000 (Exhibit 11). The Little Lehigh Creek is of such historical, national, recreational, ecological, and educational significance that any discharge into its waters would devalue this precious natural resource that exists here in the Commonwealth ofPennsylvania. The Commonwealth must act to protect this water.
ONRW status is the only way to provide the Creek with long-term quality protection, and to prevent future degradation. The Little Lehigh Creek is not without its problems, best evidenced by the fact it has been listed by DEP as an impaired stream. 1998 Section 303(d) List (Exhibit 23); Pennsylvania Map that includes impaired streams (Exhibit 24). In that listing, the Little Lehigh Creek is described as suffering from land development and agricultural pollution resulting from storrnwater runoff. This impaired status ofthe Little Lehigh Creek points to precisely why the ONRW designation trrtmps the HQ and the EV. The fact that the Little Lehigh Creek is listed as an impaired water does not inhibit it from gaining ONRW status; it is not a requirement that the waters have the highest quality water. In addition, a stormwater management plan has been implemented to help deal with the runoff. Letter from DEP Regarding: Little Lehigh Creek Watershed Storrnwater Plan Update (Exhibit 71); Little Lehigh Watershed Coalition Suit for Enforcement ofStorinwater Management Act (Exhibit 72).
5 Unfortunately, the water is also experiencing greater discharges due to the increasing commercial and residential use ofthe area. Letter from Little Lehigh Watershed Coalition (Aug. 18, 1999) (Exhibit 73); Letter and Attachments from Little Lehigh Creek Watershed Coalition Regarding: JDN Development Co., Inc. and the NPDES permit system (Aug. 9, 1999) (Exhibit 74). This urban growth has and will cause additional contamination ofthe Little Lehigh Creek and result in increased soil erosion unless further degradation is prevented. The ONRW designation will prevent additional future discharges and impairments, and focus restoration of existing water quality problems. An EV or HQ designation will not do this.
IV. The types of persons, businesses, and organizations likely to be impacted by the change in designation.
Current users, downstream users, and potential future users ofthe water body and the surrounding land are the types ofpersons, businesses and organizations likely to be impacted by the change in designation. Those potentially impacted include cities, townships, permit holders, environmental organizations, and recreational users. Among those potentially impacted, Little Lehigh Watershed Coalition has identified the following users of Little Lehigh Creek:
City of Allentown is the home to more than 137,000 persons who use the Little Lehigh Creek as their sole source of drinking water. (Exhibit 67).
Queen City Trout Fishery, the waters ofthe Little Lehigh flow through the fishery. Information from John Fasolka and Mike Gilbert, City of Allentown Park System (Exhibit 49).
NPDES permit holders who discharge into the waters ofthe Little Lehigh Creek. (A list ofpermit holders is listed in section 5(v)). See also Point source disehargers Watershed Assessment: Allentown, Pennsylvania Sept. 30, 1998, Table 5-1 (Exhibit 30).
Recreational users including fly-fish anglers, canoeists, hikers, walkers, joggers, photographers, family outings, bird-watchers
Pennsylvania Fish and Boat Commission designated protections to the Little Lehigh Creek to protect the wild brown trout population as well as the rainbow and brook trout populations. (Exhibit 33). In addition, the PA Fish and Boat Commission contributed their support to the Little Lehigh Creek Stream Restoration Project. (Exhibit 22).
Wildlands Conservancy is a non-profit organization located in Eastern Pennsylvania dedicated to preservation, conservation and environmental education. (Exhibit 31). They led the efforts in the Little Lehigh Stream Restoration Project. This project included efforts to establish a riparian buffer. (Exhibit 22).
Pool Wildlife Sanctuary is surrounded by the Little Lehigh Creek on three sides and is used by the animals in the sanctuary. (Exhibit 31). In addition, the Little Lehigh Creek Hydro- Modification, Streambank Restoration, Habitat Improvement and Riparian Buffer
6 Project was located on the property of the sanctuary and the Wildlands Conservancy. (Exhibit 22).
Kids Peace contributed support to the Little Lehigh Restoration Project, more specifically with water quality improvement, non point source pollution reduction and aquatic and wildlife habitat improvement. (Exhibit 22).
Valley Youth House helped to give their volunteer support to the Little Lehigh Creek Stream Restoration Project. The Youth Valley House regularly provides shelter, counseling, prevention, and life skill services to troubled young people and families. (Exhibit 22).
Parkland High School Grassroots Environmental Organization (GEO) gave their volunteer support to the Little Lehigh Creek Restoration Project. (Exhibit 22). GEO is a student awareness group that abides by the motto, “For our district, for our future.” (Exhibit 22).
Little Lehigh Chapter ofTrout Unlimited provided additional support to the Little Lehigh Creek Stream Restoration Project as well as the Little Lehigh Creek Hydro- Modification, Streambank Restoration, Habitat Improvement and Riparian Buffer Project. (Exhibit 22). Trout Unlimited’s mission is to conserve, protect and restore North America’s trout and salmon fisheries and their watersheds.
First Presbyterian Church supported through financial, technical, and/or volunteer support the Little Lehigh Stream Restoration Project. (Exhibit 22).
Rodale Press Inc. has contributed to the Little Lehigh Creek Hydro-modification, Streambank Restoration, Habitat Improvement and Riparian Buffer Project. (Exhibit 22).
Moravian College is a liberal arts college with approximately 1200 students from diverse backgrounds. Provided additional support for the Little Lehigh Streambank Fencing, Habitat Improvement and Riparian Buffer Improvement Project. (Exhibit 22).
The U.S. Fish and Wildlife Service contributed some financial, technical, and/or volunteer support to the Little Lehigh Stream Bank Fencing, Habitat Improvement and Riparian Buffer Improvement Project. (Exhibit 22).
The U.S. Department of Agriculture (Natural Resource Conservation Service) was a project partner for the Little Lehigh Stream Bank Fencing, Habitat Improvement and Riparian Buffer Improvement Project. (Exhibit 22).
Ducks Unlimited provided support to the Wildiands Conservancy in implementing the Little Lehigh Stream Bank Fencing, Habitat Improvement and Riparian Buffer Improvement Project. (Exhibit 22). Duck Unlimited’s mission is to conserve, restore, and manage wetlands and associated habitats for North America’s waterfowl.
7 Delaware Riverkeeper Network contributed to the Little Lehigh Stream Bank Fencing, Habitat Improvement and Riparian Buffer Improvement Project. (Exhibit 22). The Delaware Riverkeeper Network is a nonprofit, member organization that has worked since 1988 to strengthen citizen protection of the Delaware River and its tributary watersheds.
Pennsylvania Organization for Watersheds and Rivers (POWR) is a non-profit organization that is “dedicated to the protection, sound management and enhancement of the Commonwealth’s rivers and watersheds and to the empowerment oflocal organizations with the same commitment.’
Alliance for the Little Lehigh Watershed (ALLW) is a watershed coalition seeking to protect the water quality of the stream.
The 1-lighlands Coalition leads a grassroots movement to protect the Highland region’s water, beauty and life. More specifically, they have recognized the Little Lehigh Creek watershed as a critical treasure of Pennsylvania’s Highlands.
Pennsylvania Historical and Museum Commission: Bureau for Historic Preservation designated the Keck Site along the Little Lehigh Creek as a historic preservation site. (Exhibit 56).
Parcel Landowners who live adjacent to the main trunk of the Little Lehigh Creek in both Lehigh and Berks County. Parcel landowners adjacent to the main trunk ofthe Little Lehigh Creek in Berks County (Exhibit 20); Parcel landowners adjacent to the main trunk of the Little Lehigh Creek in Lehigh County, (Exhibit 21).
Raymond Proffitt Foundation commenced and prevailed in a lawsuit against the EPA for not meeting its mandatory duty to pronmlgate an ONRW status for Pennsylvania after the Commonwealth failed to meet the requirements set forth in the Clean Water Act. (Exhibit 14).
Little Lehigh Fly Shop is a small commercial venture that operates by the bank of the Little Lehigh and sells quality fly-fishing equipment. (Exhibit 33).
V. Additional Information for redesignation of streams under Chapter 93 (relating to water quality standards) and the Clean Streams Law (35 P.S. §§691 .1-691.1001).
Pennsylvania’s Clean Streams Laxv requires petitions for redesignation of streams to provide six categories of additional information. This additional information includes: (1) a delineation of the stream segment to be redesignated; (2) the current designated use; (3) the requested designated use; (4) available technical data on instream conditions; (5) existing and proposed point and nonpoint source discharges and their impact on water quality; and (6) information regarding the basis for designation as an ONRW.
8 1. A clear delineation ofthe watershed or stream segment to be redesignated, both in narrative form and on a map.
The Little Lehigh Creek is a major tributary of the Lehigh River and is located in the Delaware River Basin. It flows from Berks County, Pennsylvania toward Allentown and through its outskirts and eventually to the Delaware River. More specifically, the Creek begins near Woodside Avenue in Longswamp Township, in Berks County and meanders approximately 18 miles northeast through Lower Macungie and Salisbury Townships where it meets the Jordan River and eventually flows into the Lehigh River that eventually flows into the Delaware River. Little Lehigh Watershed Map (Exhibit 19).
2. The current designated use(s) of the Little Lehigh Creek.
The DEP has classified the protected uses of the Little Lehigh Creek as high quality, cold water fishery. 25 Pa. Code § 93.9(b) (Exhibit 75). High quality and cold water fishery are designated water quality criteria that are designed to protect water uses. 25 Pa. Code § 93.3 (Exhibit 76). Cold Water Fishes (“CWF”) designated use protects aquatic life through the maintenance and/or propagation of fish species, flora, and fauna indigenous to cold water habitats. (Exhibit 76). The High Quality designation, special protection symbol HQ, recognizes the need for special protection of waters with excellent water quality. (Exhibit 76).
3. The requested designated use(s) of Little Lehigh Creek.
The requested designated use of the Little Lehigh Creek is ONRW. ONRW designation allows waters that meet the national significance requirement to be “maintained and protected.” 40 C.F.R. § 131.32 (Exhibit I).
4. Available technical data on instream conditions for the following: water chemistry, the aquatic community (benthic macroinvertebrates and/or fishes) or instream habitat. If such data are not included, provide a description of data sources investigated.
Multiple watershed assessments, surveys, and tests have been completed and include the Little Lehigh Creek. These studies include information, monitoring, and tests on sedimentation, erosion and turbidity, potential pollutant sources, fecal contamination, pesticides, and nutrients. (Exhibits 28, 29, & 30). The Little Lehigh Creek has already met either the required biological or chemical requirements when it gained its status as a High Quality Water. “In general, the Little Lehigh Creek and its tributaries have moderate to high water quality.” Watershed Assessment: Allentown, Pennsylvania (Sept. 30, 1998) 15 (Exhibit 30). Also, the “[d]issolved oxygen levels in the Little Lehigh are generally acceptable for supporting an adult trout population.” Little Lehigh Creek Stream Corridor Conservation Project Stream Status Report, January 1994 (Exhibit 28). In addition, the Pennsylvania Natural Diversity Inventory has in the past indicated the presence of the federally listed endangered bog turtle along the Little Lehigh Creek. Little Lehigh Creek Stream Corridor Conservation Project Stream Status Report, January 1994 (Exhibit 28). See in general, Little Lehigh Creek Stream Corridor Conservation Project Stream Status Report, January 1994 (Exhibit 28); Priority Water Body Survey Report Water Quality
9 Standard Review: Lehigh River and Its Tributaries; Sept.- Oct. 1987 (Exhibit 29); Watershed Assessment. Allentown. Pennsylvania (Sept. 30, 1998) (Exhibit 30).
5. A description of existing and proposed point and nonpoint source discharges and their impact on water quality.
Potential and actual sources of pollution include “areas ofestablished contamination such as Superfund sites and toxic release or spill sites. Other potential sources include those that generate, store, or use contaminants that may pose a threat if not properly controlled. Examples include: National Pollutant Discharge Elimination System (NPDES) permittees, underground storage tanks (“USTs”), underground injection wells hazardous and non-hazardous waste management facilities, non point sources (such as runoffpesticides and nutrients from farmlands), and stormwater.” Watershed Assessment: Allentown, PA (Sept. 30, 1998) 2-3 (Exhibit 30).
In a 1994 study produced by the Wildlands Conservancy, an evaluation of the Little Lehigh Creek revealed that the primary problems of the Little Lehigh Creek are high nitrate levels, high temperature levels, and a heavy sediment load. Little Lehigh Creek Stream Corridor Conservation Prq/ect Stream Status Report, January 1994 (Exhibit 28) High nitrate levels have detrimental affects on aquatic life and human beings, especially when being used as a drinking water source. The increasing temperatures in the Little Lehigh pose an expected threat to the resident trout populations. “With the Lehigh Valley’s continued growth and development, sources of thermal pollution will continue to increase.” (Exhibit 28). Also, erosion and sedimentation are extremely damaging to aquatic life. Sedimentation covers the natural stream bottom that is essential to trout and other aquatic organisms’ habitats, preventing reproduction and contributing to suffocation. (Exhibit 28).
Other main threats to the Little Lehigh water quality are “increasing background levels of metals, nutrients, and organics from developed land uses, and to a lesser extent the threat ofmore acute releases from commercial and industrial sites if accidents occur.” (Exhibit 28).
See also Point source dischargers Table 5-1; Facilities Reporting to the Toxic Release Index Table 5-2; Superfund Sites Table 5-3; and Fecal Contamination Point Source Dischargers Table 6-2: Watershed Assessment: Allentown, Pennsylvania (Sept. 30, 1998)(Exhibit 30).
NT’DES PERMIT HOLDERS
FACILITY NAME ADDRESS ID NUMBER
Agway Petroleum Corp. P.O. Box 98 PA0070084 Erumaus, PA 18049
Air Products and Chemicals, Inc. 2801 Mitchell Ave. PA0011185 Allentown, PA 18103
10 Allen Organ Company Rr 100 PA0012203 Macungie, PA 18062
Atlas Minerals and Chemicals 1227 Valley Rd. PA0012998 Mertztown, PA 19539
BP Oil Macungie Terminal Tank Farm Rd. PA0041009 Macungie, PA 18062
Caloric Corp. Heffuer St. and Washington St. PAOO1 1754 Topton, PA 19562
Carpenter ER Co. Inc.! Olin Corp. 57 Olin Way PA0022063 Fogelsville, PA 18051
Carpenter Insulation Co. 57 Olin Way PAR23 2202 Fogelsville, PA 18051
Dorney Park! Wildwater Kingdom 3830 Dorney Park Rd. PA0053791 Allentown, PA 18104
Farm and Home Oil Co. Term 2 PA0062782 Macungie, PA 1853643062
F&M Assoc. Green Hills Wat Co. 1132W. Hamilton St. PAOO51811 Allentown, PA 18101
Leffier, Carlos, R. Inc. 5088 Indian Creek Rd. PA0055361 Emmaus, PA 18049
Mack Trucks Inc. 2100 Mack Blvd PA0053643 Allentown, PA 18103
Norseman Construction, Inc. P.O. Box 113 PA510Q247 Creamery, PA 19430
Packaging Corp. ofAmerica 7452 Cetronia Rd. Trexlertown, PA 18087
Ryder Truck Rental, Inc. 1327 Bulldog Dr. PA0053694 Allentown, PA 18104
Square D Co. Minor St. and 6~ PAOOS 1624 Emmaus, PA 18049
Stout, Henry 6427 Saddle Rd. PA0062766
11 New Tripoli, PA 1806
Stroh Brewery Rtes 22 and 100 PAR122203 Fogelsville, PA 18051
Topton Borough Municipal 44 W. Rd. I PA002071 1 Sewer Authority Mertztown, PA 19539
Travel Ports of America Inc. Upper Macungie Twp. PA0063495 PA, 18104
Tyler Pipe Ind-Fast Penn Foundry Rte. 100 and Church St. PAOO1 1916 Macungie, PA 18062
Tyler Pipe Rte. 100 and Church St. PAR202218 Macungie, PA 18062
Also, during the Cadmus group study ofthe Little Lehigh Creek, they noted sites ~f concern including a discharge pipe from the Devonshire Apartments that discharges into the Little Lehigh around Keck’s Bridge. They also noted the need for better stream corridor management by local golf courses including: the Lehigh Country Club, Brookside Country Club, and the Indian Creek GolfCourse. Watershed Assessment: Allentown, Pennsylvania (Sept. 30, 1998) Table 5-5 (Exhibit 30).
6. Information regarding any of the qualifiers used as a basis for designation as an ONRW used as basis for the requested designation.
O~NRW status is required t[w]here high quality waters are identified as constituting an outstanding National resource, such as waters of National and State parks and wildlife refuges, and xvater ofexceptional recreational and ecological significance.” 40 C.F.R. § 13 1.32(3) (Exhibit 1). The Little Lehigh Creek does not only have one of the ONRW qualifiers to make it eligible for the status, it has all of the qualifiers. These qualifiers intensify the Little Lehigh Creek’s importance and the need to protect its waters. The Little Lehigh Creek watershed contains the following qualifiers for the ONRW redesignation: (1) both a National and State Heritage Park; (2) a Wildlife Refuge; (3) ecological significance including wild brown trout; (4) recreational significance including a Native American Archeological site; and (5) other factors including drinking water, stream restoration efforts, and its picturesque beauty with National historic structures including covered bridges and barns.
i. The Little Lehigh Creek Flows Through Both a State Park and a National Park: Delaware-Lehigh State Heritage Park and the Delaware—Lehigh National Heritage Park Corridor.
The Little Lehigh Creek runs through lands that have been designated by the State and the Federal governments as a Heritage Park. The designation by both the State and Federal governments ofthese lands as Heritage Land is significant because it acknowledges the area for
12 its important history and rich and distinctive cultural and natural resources. Delaware & Lehigh Canal National Heritage Corridor and Heritage State Park (Exhibit 52). The local, state, and federal governments designate the land as such to preserve and protect it for the future. It is a cooperative effort by the community to share the responsibility to keep the area special. (Exhibit 52). This area specifically earned its title from its unique inheritance of settlement, industrial development, and recreational opportunities. (Exhibit 52). The Pennsylvania Heritage Parks Program is in place to promote heritage conservation programs as well as to “preserve, enhance and promote natural, recreational, cultural, and scenic resources.” 71 P.S. 1340.306 (Exhibit 51).
In addition, the Lehigh Parkway Heritage Trail has been nationally recognized as a part ofthe National Trail System and is designated as Trail Number 689, The Delaware-Lehigh National Con-idor. Trail Number and Name Sheet (Exhibit 46); New Releasefrom National Park Service: Lehigh Parkway Heritage Trail Becomes Part ofNational Trail System (Exhibit 48); Letter from U.S. Department of Interior (Exhibit 44). This trail includes several recreational activities such as bicycling, walking, hiking, horseback riding, fishing, picnicking, skiing, snowboarding, canoeing, and nature study. Delaware and Lehigh National Heritage Corridor: A Federal, State, and Local Partnership (Exhibit 41). The Park trail also has historic features including prehistoric Indian Sites and Colonial-era farm dwellings. (Exhibit 41). The corridor also has special events including ethnic music celebrations, walking tours through the communities and a museum. (Exhibit 41). See also Application For National Recreation Trail Designation.~ Lehigh Parkway Heritage Trail (Exhibit 42); Memorandum from Department of Interior Re: Current Listing through June, 1983 ofNational Recreation Trails in the Northeast (Jul. 19, 1983) (Exhibit 43); Letter to Carl Jester, Department of Interior (Jul. 29, 1981) (Exhibit 45); Lehigh Parkway Cited as National Trail, StmDAY CALL CHRONICLE, Aug. 8, 1982 (Exhibit 47); Information from John Fasolka and Mike Gilbert, City of Allentown Park System (Exhibit 49); 71 P.S. § 1340.3 19 (Exhibit 50); Greetings from the Governor’s Office (Exhibit 53); Information from Allen Sachse, Delaware—Lehigh National Heritage Corridor Commission (Exhibit 54).
ii. The Little Lehigh Creek Flows Through A Wildlife Refuge: Pool Wildlife Sanctuary.
The Pool Wildlife Sanctuary is a 72 acre wildlife habitat that features several nature trails, a bird blind, beehives, several ponds, an arboretum, and an environmental education center. Pool Wildlife Sanctuary and Wildlife Rehabilitation Center brochures (Exhibit 31). The Little Lehigh Creek surrounds the wildlife sanctuary on three sides and is relied upon to provide water for all ofthe wildlife. (Exhibit 31). The activities at the sanctuary include year—round educational programs including environmental programs, group field trips, nature activities, nature walks, special interest seminars, and monthly nature-club classes. (Exhibit 31). These programs cover a broad range oftopics such as conservation of natural resources and nature appreciation. (Exhibit 31). One of the nature hikes is along the floodplain ofthe Little Lehigh Creek and offers an opportunity to see it flood about once every five years. (Exhibit 31).
The trail along the creek also provides wildlife sightings including dragonflies and frogs in the spring and summer and insect larvae beneath the ice in the winter. (Exhibit 31). The Pool Wildlife Sanctuary also houses a wildlife rehabilitation center. (Exhibit 31). The Center is
13 dedicated to the care of injured, sick, and orphaned wildlife including birds, mammals, and reptiles. (Exhibit 31). Both the center and the sanctuary are nonprofit, member—supported organizations. (Exhibit 31). Their primary goals are to educate the public about wildlife conservation and the preservation ofhabitat. (Exhibit 31). To meet these goals, as well as to provide a creek that is a healthy and attractive place for the fish and waterfowl to dwell, it is imperative to preserve the Little Lehigh Creek. (Exhibit 31). Also, Leonard Parker Pool, who established the Sanctuary as a bequest in his last will and testament, intended for DEP to do everything in their power to protect the area. Excerpt from Leonard Parker Poole’s Last Will and Testament (Exhibit 32).
iii. The Little Lehigh Creek Has Tremendous Ecological Significance With Its Wild Brown Trout Population, Earning Portions of it the Designations ofHeritage Trout Angling Waters And Delayed Harvest Fly—Fishing Only.
The Pennsylvania Fish and Boat Commission has designated the Little Lehigh Creek as a Class A— Wild Trout Stream. Letter from Richard A. Snyder, Fish & Boat Commission (Dec. 20, 2000) (Exhibit 36). In addition, a one—mile stretch has been designated as Heritage Trout Angling Waters and an additional 1.8 miles has been designated as Delayed Harvest Fly—Fishing Only. Fly Fishing Little Lehigh Creek in Pennsylvania, FLYFISH1NGCONNECTION.COM (Exhibit 33); 2000 Summary ofFishing Laws and Regulations (Exhibit 34). These protected areas have both wild and stocked trout. Approximately 1,200 miles of waterways are certified as Class—A-- Wild Trout streams, a surface water classification “based on species—specific biomass standards, that supports a population ofnaturally produced trout of sufficient size and abundance to support a long—term and rewarding sport fishery.” 25 Pa. Code § 93.1 (Exhibit 77). Only 20 miles of watercourses throughout Pennsylvania have been certified as Heritage Trout Angling waters. Letter to Jay Goldstein from Richard Snyder, Fish and Boat Commission Regarding: trout fishing (Exhibit 36). Thus, this designation is extremely rare and significant. It requires the Little Lehigh Creek waters to be preserved and protected for its trout population. (Exhibit 33 & 34).
The Little Lehigh Creek contains a naturally reproducing wild brown trout population as well as good populations ofboth rainbow and brook trout. Heritage Trout Angling and Delayed Harvest Fly—Fishing areas limit angler harvest by only allowing the use oftraditional fly—fishing. (Exhibits 33 & 34). The Executive Director ofthe Fish and Boat Commission, with the approval of the Commission, makes such designations. 58 Pa. Code § 65.3 (Exhibit 79). Fly—fishing is a historical sport that allows a person solitude in the pristine waters that support trout. Ever-- Elusive City Fish: Been There, Done That, James Gorman, N.Y. TIMES (Exhibit 38).
To maintain and foster the trout population, the waters ofthe Little Lehigh Creek need to be protected and maintained from sedimentation and further degradation to aquatic habitats. Every mile ofthe Little Lehigh supports trout at some point in the year. Hotspots for Keystone State January Trout, Game and Fish Commission (Exhibit 39). In August of 1992, the Little Lehigh Creek had a higher concentration of trout than any other watercourse in Pennsylvania. Best Trout Streams in Pennsylvania (Aug.18, 1992) (Exhibit 37). Trout, as well as other fish, require a clean and plentiful water habitat. Water is thus a life—sustaining resource, and should be given the highest value and the highest level of protection. See also Comments to the Senate
14 Environmental Resources and Energy Committee on BehalfofPennsylvania Trout: Presented by Jack Williams (Sept. 27, 2000) (Exhibit 35); Hatch Chart July—Sept.: Little Lehigh Creek Emergence Chart (Exhibit 40).
iv. The Little Lehigh Creek Has Tremendous Recreational Significance With (a) Its Native American Site That is on the Historical Register And (b) Its Importance to its Area Visitors for Activities of Canoeing, Hiking, Bird—Watching, and Sport Fishing.
a. The Keck Archeological Site
The Little Lehigh Creek also runs along the Keck archeological site. At the Keck site, Indian artifacts such as projectile points are found and dated as originating as far back as 12 thousand years from the Paleo—Indian Period. An Assessment ofthe Archeological Resources In and Around the Keck Site (36Lh4) (Exhibit 56); Relics ofIndian & Early Settlers Found on the Keck Farm (Exhibit 65). Such sites are extremely rare. (Exhibit 56). The Keck Site was home to many Delaware Indians because it was rich with high—qualityjasper. (Exhibit 56). The area became eligible for listing in the National Register in 1978 and was placed on the Pennsylvania’s Historic Preservation Register in 1972. Letter from the Pennsylvania Historical and Museum Commission (May 30, 1972) (Exhibit 64); Letter from Barry Kent, State Archeologist (Mar. 30, 1978) (Exhibit 61). Many of the artifacts ire currently on display at the site. The preservation of this area is essential and the Little Lehigh Creek runs along the boundaries ofthis archeological site. See also Information from Brenda Barrett, Pennsylvania Historical and Museum Commission (Exhibit 55); Letter from the National Trust for Historic Preservation (Mar. 19, 1998) (Exhibit 57); Letter from the Department of the Army (May 27, 1998) (Exhibit 58); Pennsylvania ‘s First Mineral Industry (Exhibit 59); Letter from the Pennsylvania Historical and Museum Commission (Apr. 18, 1997) (Exhibit 60); Letter from Department ofEnvironmental Resources (Jul. 9, 1980) (Exhibit 62); Letter from the City ofAllentown (Jan. 6, 1982) (Exhibit 63); Indian Pat/is ofPennsylvania (Exhibit 66).
b. Canoeing, Hiking, Bird-watching, and Sport-fishing
In addition, the Little Lehigh Creek is a mecca for local and distant recreational users who come to the Creek to canoe, fish, hike, bird—watch, ski, snowboard, orjust enjoy the scenery. People from the adjoining municipalities utilize the areas in and surrounding the Little Lehigh Creek. The Philadelphia metropolitan area is only a short drive for busy urbanites looking for a beautiful, relaxing, and recreational destination to forget the daily grind for a few hours or even a day. The area will only remain and become increasingly attractive to recreational users if the waters of the Little Lehigh Creek are clean, safe, and pleasing to the eye.
Consequently, the recreational activity adds to the local economy. With such a wide variety of recreational activity, people from all over will travel to the area to enjoy the waters and the parks. For example, the area benefits economically from the trout fishing because people often come to the area to participate in its tranquil waters and frequent the local fly—fishing shops and patron local hotels and restaurants.
15 v. Other Factors/Qualifiers DEP may, Consider in an ONRW Redesignation Include the Creek’s Status as a Drinking Source and the Economic Investment in Protecting the Water of the Creek.
a. Primary Source ofDrinking Water For The City of Allentown.
The Little Lehigh Creek is the primary source ofdrinking water for the City of Allentown. The Creek supplies drinking water for approximately 137,000 people. (Exhibit 30); Draft about City of Allentown ‘s Primary Source ofDrinking Water (Exhibit 67). This water is in the form of approximately 7 million gallons per day ofcreek or surface water and approximately 10 million gallons per day ofgroundwater. (Exhibit 30). Therefore, limiting the degradation of water quality is an essential public health issue. Discharges by permit holders can directly affect the health of a growing urban population. (Exhibit 30). Contamination of the Little Lehigh Creek threatens the quality ofAllentown’s drinking water. (Exhibit 30). In addition, the surrounding rural areas rely on individual wells whose waters are affected by the Little Lehigh Creek. (Exhibit 30). To be used as a drinking water, the Little Lehigh Creek must meet the requirements ofPennsylvania’s Safe Drinking Water Act. (Exhibit 30). Cleaning up the contaminated water, finding and buying replacement water, or installing and implementing filtration systems are all much more expensive alternatives to preventing further degradation by protecting the source water, the Little Lehigh Creek. Protecting Drinking Water- County Partnerships that Work (Exhibit 68). The health and safety of human life should be a foremost goal for any government entity. See also Water Suppliers Water Quality Report, Bureau of Water Resources, City ofAllentown (Exhibit 70).
b. Efforts aiid Money To Restore The Stream.
Protecting the Little Lehigh Creek to the fullest extent is not only favorable for aesthetic and recreational reasons but also for economic reasons. The restoration of a stream is expensive. In the past five years, several efforts have been made to reduce pollution, reduce sedimentation, and to protect the aquatic habitat ofthe Little Lehigh Creek. Little Lehigh Watershed: Restoration Project Packet (Exhibit 22); Little Lehigh Hydro-Modflcation, Streambank Restoration, Habitat Improvement and R~parian Planting Project: July 2000 (Exhibit 25); Little Lehigh Creek Habitat Improvement Project and R~parian Buffer Project: EPA (Exhibit 26). Projects to improve the Little Lehigh Watershed include “Stream Bank Fencing, Habitat Improvement and Ripari an Buffer Improvement”, “HydroModification Streambank Restoration, Habitat Improvement and Riparian Buffer, “Habitat Improvement and Riparian Buffer”, and “Stream Restoration”. Little Lehigh Watershed: Restoration Project Packet (Exhibit 22). DEP funding for these projects has totaled more than $65,000. (Exhibit 22); DEP Letter Re: Watershed and Nonpoint Source Management Presentations State Conservation commission Meeting (10/5/98) (Exhibit 27). Such a strong effort to restore and protect this area should be maintained but can only be maintained by strong implementation ofthe highest level of antidegradation protection afforded by the law. Also, the City ofAllentown Bureau of Water Resources has received a Growing Greener Grant from DEP in the amount of$198,980 to
16 conduct a sedimentation study ofthe Little Lehigh Creek. City ofAllentown Press Release: City Receives $198, 980 Sedimentation Study Grant (Exhibit 69). It seems a waste of financial, technical, and volunteer support to continue to discharge pollutants into these waters.
vi. A general description of land use and development patterns in the watershed. Examples include the amount or percentage of public lands (including ownership) and the amount or percentage of various land use types (such as residential, commercial, industrial, agricultural, etc.).
Current land uses in the watershed include agricultural and residential development with increased use for commercial and residential development. The land use is predominately urban in the lower portion ofthe Little Lehigh Creek, mainly in Allentown, South Whitehall, Salisbury, and Emmaus. The mid—section ofthe Creek is located in the increasingly urban areas of Lower Macungie and Alburtis. Rural uses are predominant in the upstream areas of Longswamp and Maxatawny in Berks County and Upper Milford in Lehigh County. Little Lehigh Creek Stream Corridor Conservation Project, January 1994 (Exhibit 28).
Upstream from the intake pipe for the Allentown drinking water, the land use consists of 27% developed, 23% pasture and open, 30% raw crops, and 20% forested. Watershed Assessment: Allentown, PA (Sept. 30, 1998) 9--10(Exhibit 30). In addition, large amounts of land adjacent to the stream are maintained as open space with park and recreation areas.
VI. Names of all the municipalities through which the watershed or segment flows.
The Little Lehigh Creek is located in eastern Pennsylvania in Berks and Lehigh Counties. The stream originates in Longswamp Township in Berks County and flows east into Lehigh County. The stream then flows through Lower Macungie Township and into the City of Allentown. Its major tributaries are Toad Creek, Spring Creek, Swabia Creek, Liebert Creek, Cedar Creek, Jordan Creek, and Trout Creek. The Little Lehigh is a tributary ofthe Lehigh River and is part of the Delaware River Drainage Basin. (Exhibit 28, p. 3).
List ofMunicipalities Through Which the Watershed Flows (Exhibit 16).
Allentown, City of Richard Rasch, Department of Public Works 435 Hamilton Street Allentown, Pennsylvania 18101— 1699 610—437—7587
Emmaus, Borough of Mr. Craig Necly, Esq., Borough Council President 28 South 4~ Street Emmaus, Pennsylvania 1 8049 610--965-9292
17 Salisbury, Township of Mr. Carl Best, Zoning Officer or Mr. Gabriel Kalife, Township Municipal Building 200 South Pike Avenue Allentown, Pennsylvania 18103 61 0—797—4000
Upper Milford, Township of Susan J. Smith, Chairperson Board ofSupervisors P.O. Box 210 Old Zionsville, Pennsylvania 18068 61 0—966—3 223
Alburtis, Borough of Steve Hill, Borough of Council President 260 Franklin Street Alburtis, Pennsylvania 18011 610—966—4777
Lower Macungie, Township of
Macungie, Borough of Lynda Ippolito, President 21 Locust Street Macungie, Pennsylvania 18062 61 0—966—2503
Longswamp, Township of Donald Siegfried, Chairman Board of Supervisors P.O. Box 37 Mertzman, Pennsylvania 19539 610--682-7388
Topton Borough Mr. Kevin Tobias, Manager or Dale Cullin Board of Supervisors 205 South Callowhill Topton, Pennsylvania 19562 610—682—2541
VII. Map.
18 A map that provides the location ofLittle Lehigh Creek, potentially effected persons, and municipalities though which the Creek flows is provided in Exhibits 30, 81, 82, 83, 84, 85, 86.
CONCLUSION
For the foregoing reasons, Little Lehigh Watershed Coalition respectfully requests that the EQB designate the Little Lehigh Creek as an ONRW. The Little Lehigh Creek already satisfies the water quality criteria for HQ water and has all ofthe qualifiers that make it eligible to obtain ONRW status. The Little Lehigh Creek deserves ONRW status and the ONRW designation is necessary to protect the outstanding character and quality of the Little Lehigh Creek for future generations.
We anticipate that, upon receipt, the DEP will meet the public notice requirement for stream redesignation petitions by publishing in the Pennsylvania Bulletin and a local newspaper the EQB’s acceptance ofthis petition. 25 Pa. Code 93.4d (Exhibit 80). We expect that there will be a combined public meeting and fact—findinghearing as part of the review for the Little Lehigh Creek’s redesignation to ONRW. (Exhibit 80).
If you have any questions about this petition, please contact: James M. Stuhltrager, Esq. James May, Esq. Jennifer Murphy
Mid—Atlantic Environmental Law Center Widener University School ofLaw Environmental and Natural Resources Law Clinic
4601 Concord Pike Wilmington, DE 19803 (302)477-2086.
Thank you for your consideration ofthis petition.
19 A PETITION TO DESIGNATE THE LITTLE LEHIGH CREEK AS AN OUTSTANDING NATIONAL RESOURCE WATER (“ONRW”)
EXHIBITS
40 C.F.R. § 13 1.32(3) Exhibit I
Our Best Waters, Our Worst Efforts.~ Pennsylvania’s Existing Program to Protect Waters ofPublic Lands Exists Only On Paper, The Raymond Proffitt Foundation, June 20, 2000 Exhibit 2
Foundation Petitions Environmental Quality Board To Revise “Exceptional Value Waters” Regulations Exhibit 3
Water Quality Standards For Pennsylvania, U.S.E.P.A Exhibit 4
Notice ofProposed Rulemaking Department ofEnvironmental Protection Environmental Quality Board: 25 PA. Code Chapters 92, 93, and 95 Water Quality Standards— Antidegradation Exhibit S
Robert J. Yarbrough, Pennsylvania DEP’s Water Quality Antidegradation Program, 1999 Exhibit 6
Letter to Victoria Binetti, Chief of Program Support, EPA Region III (Jun. 13, 1991) Exhibit 7
The Alliance for Aquatic Resource Monitoring: Legal Action to Protect Our Waters Exhibit 8
Region III Water Quality Standards, Monitoring, and Reporting, EPA Office ofInspector General, Mar. 31, 1999 Exhibit 9
Letter to Hon. James M. Seif, Secretary PADEP from Bradley M. Campbell, EPARegional Administrator (Mar. 17, 2000) Exhibit 10
EPA 0/cs New Water Regulation, Mar. 18, 2000 Exhibit 11
Letter to Michael Siegel from James M. Seif, PA DEP Secretary (Jul. 15, 1999) Exhibit 12
EPA Launches Barbs along Tohic/con Creek, THE PHILADELPHIA INQUIRER, Mar. 18, 2000 Exhibit 13
Raymond Proffit Found. v. EPA, 930 F. Supp. 1088 (E.D. Pa. 1996) Exhibit 14
Pennsylvania’is Best Waters: A Resource Worth Protecting (Sept. 27, 2000) Exhibit 15
1 List ofMunicipalities Through Which the Watershed Flows Exhibit 16
Preamble To Re AdoptedInto the Beginning Of The Little Lehigh Cree/c Storm Water Management Plan Exhibit 17
Information from Mr. Robert Frey, Water Pollution Biologist at PA DEP ...Exhibit 18
Little Lehigh Watershed Map Exhibit 19
Parcel landowners adjacent to the main trunk of the Little Lehigh Creek in Ber/cs County Exhibit 20
Parcel landowners adjacent to the main trunk ofthe Little Lehigh Creek in Lehigh County Exhibit 21
Little Lehigh Watershed: Restoration Project Packet Exhibit 22
1998 Section 303(d) List Exhibit 23
PennsylvaniaMap that includes impaired streams Exhibit 24
Little Lehigh Hydro-Modfication, StreambankRestoration, Habitat Improvement and Ri~parian Planting Project: July 2000 Exhibit 25
Little Lehigh Creek Habitat Improvement Project and Rz~arian Buffer Project: EPA Exhibit 26
DEP Letter Regarding: Watershed and Nonpoint Source Management Presentations State Conservation Commission Meeting (Oct. 5, 1998) Exhibit 27
Little Lehigh CreekStream Corridor Conservation Project Stream Status Report, January 1994 Exhibit 28
Priority Water Body Survey Report Water Quality Standard Review: Lehigh River and Its Tributaries; Sept.- Oct. 1987 Exhibit 29
Watershed Assessment: Allentown, Pennsylvania (Sept. 30, 1998) Exhibit 30
Pool Wildlife Sanctuary and Wildlife Rehabilitation Center brochures Exhibit 31
Excerpt from Leonard Parker Poole’s Last Will and Testament Exhibit 32
Fly Fishing Little Lehigh Creek in Pennsylvania (http://flvfishingconnection.com/lehighcreek.html) Exhibit 33
2000 Summary ofFishing Laws and Regulations Exhibit 34
2 Comments to the Senate Environmental Resources and Energy Committee on BehalfofPennsylvania Trout: Presented by Jack Williams (Sept. 27, 2000) Exhibit 35
Letter to Jay Goldstein from Richard Snyder, Fish and Boat Commission Regarding: trout fishing Exhibit 36
Best Trout Streams in Pennsylvania (Aug. 18, 1992) Exhibit 37
Ever-Elusive City Fish: Been There, Done That, James Gorman, N.Y. TIMES Exhibit 38
Hotspotsfor Keystone State January Trout~ Game and Fish Commission.. ..Exhibit 39
Hatch Chart July-Sept.: Little Lehigh Cree/cEmergence Chart Exhibit 40
Delaware and Lehigh National Heritage Corridor: A Federal, State, and Local Partnershz~ Exhibit 41
Application For National Recreation Trail Designation: Lehigh Parkway Heritage Trail Exhibit 42
Memorandum from Department of Interior Regarding: Current Listing through June, 1983 ofNational Recreation Trails in the Northeast (Jul. 19, 1983) Exhibit 43
Letter from U.S. Department ofInterior (Apr.13, 1982) Exhibit 44
Letter to Carl Jester, Department ofInterior (Jul. 29, 1981) Exhibit 45
Trail Number and Name Sheet Exhibit 46
Lehigh Parkway Cited as National Trail, SUNDAY CALL CHRONICLE, Aug. 8,1982 Exhibit 47
New Release from National Par/cService: Lehigh Parkway Heritage Trail Becomes Part ofAfational Trail System Exhibit 48
Information from John Fasolka and Mike Gilbert, City ofAllentown Park System Exhibit 49
71 P.S. § 1340.319 Exhibit 50
71 P.S. 1340.306 Exhibit 51
3 Delaware & Lehigh Canal National Heritage Corridor and Heritage State Park Exhibit 52
Greetings from the Governor’s Office Exhibit 53
Information from Allen Sachse, Delaware-Lehigh National Heritage Corridor Commission Exhibit 54
Information from Brenda Barrett, Pennsylvania Historical and Museum Commission Exhibit 55
An Assessment ofthe ArcheologicalResources In and Around the Keck Site (36Lh4) Exhibit 56
Letter from the National Trust for Historic Preservation (Mar. 19, 1998) ....Exhibit 57
Letter from the Department of the Army (May 27, 1998) Exhibit 58
Pennsylvania ‘s First MineralIndustry Exhibit 59
Letter from the Pennsylvania Historical and Museum Commission (Apr. 18, 1997) Exhibit 60
Letter from Barry Kent, State Archeologist (Mar. 30, 1978) Exhibit 61
Letter from Department ofEnvironmental Resources (Jul. 9,1980) Exhibit 62
Letter from the City of Allentown (Jan. 6, 1982) Exhibit 63
Letter from the Pennsylvania Historical and Museum Commission (May 30, 1972) Exhibit 64
Relics ofIndian & Early Settlors Found On The KeckFarm Exhibit 65
Indian Paths ofPennsylvania Exhibit 66
Draft about City ofAllentown ‘s Primary Source ofDrinking Water Exhibit 67
Protecting Drinking Water- County Partnerships that Work Exhibit 68
City ofAllentown Press Release: City Receives $198,980 Sedimentation Study Grant Exhibit 69
Water Suppliers Water Quality Report, Bureau of Water Resources, City ofAllentown Exhibit 70
4 Letter from Department of Environmental Protection Regarding: Little Lehigh Creek Watershed Stormwater Plan Update Exhibit 71 Little Lehigh Coalition Suitfor Enforcement ofStormwater Management
Act Exhibit 72
Letter from Little Lehigh Coalition, Inc. (Aug. 18, 1999) Exhibit 73
Letter and Attachments from Little Lehigh Creek Coalition Regarding:
JDN Development Co., Inc. and the NPDES pennit system (Aug. 9, 1999).Exhibit 74 25 Pa. Code § 93.9d Exhibit 75
25 Pa. Code § 93.3 Exhibit 76
25 Pa. Code § 93.1 Exhibit 77
25 Pa. Code § 93.4b Exhibit 78
58 Pa. Code § 65.3 Exhibit 79
25 Pa. Code § 93.4d Exhibit 80
Lehigh CountyParks and Greenfields in the Little Lehigh Creek Watershed (Map) Exhibit 81
Natural Area Inventory Sites in theLittle Lehigh Watershed (Map) Exhibit 82
Land Cover in the Little Lehigh Creek Watershed (Draft) (Map) Exhibit 83
Geology of the Little Lehigh Watershed (Map) Exhibit 84
USGS DOQsfor the Little Lehigh Creek Watershed (Map) Exhibit 85
Little Lehigh Watershed (Map) Exhibit 86
5