(1) Agency: Department of Enviroiimental Protection (2) Agency Number:
IdentiGcationNumber: #7- 436 IRRC Number: 2"1"1! (3) Short Title: Stream Redesignations, Blue Eye Run, et al. (Water Quality Network (WQN) Package)
(4) PA Code Cite: 25 Pa. Code, Chapter 93
(5) Agency Contacts (List Telephone Number, Address, Fax Number and Email Address):
Primary Contact: Michele Tate; 717-783-8727; RCSOB, 400 Market Street, Harrisburg, PA 17105; mtate(a),state.pa. us
Secondary Contact: Kelly Heffner; 717-783-8727; RCSOB, 400 Market Street, Harrisburg, PA 17105; kheffner(a)state.pa.us
(6) Primary Contact for Public Comments (List Telephone Number, Address, Fax Number and Email Address) - Complete if different from #5:
Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105 Express Mail: Environmental Quality Board, Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301 Email: [email protected]
(All Comments will appear on IRRC'S website) (7) Type of Rulemaking (check applicable box): EZf Proposed Regulation • Final Regulation Q Final Omitted Regulation Q Emergency Certification Regulation; O Certification by the Governor Q Certification by the Attorney General (8) Briefly explain the regulation in clear and nontechnical language. (100 words or less)
This proposal modifies Chapter 93 to reflect the recommended redesignation of streams shown on the attached list. The changes include streams being considered for redesignation as Exceptional Value (EV) Waters. The changes provide the appropriate designated use for these streams to protect existing uses. These changes may, upon implementation, result in more stringent treatment requirements for new and/or expanded wastewater discharges to the streams in order to protect the existing and designated water uses.
(9) Include a schedule for review of the regulation including:
A. The date by which the agency must receive public comments: Comments must be received 45 days after the public comment period opens
B. The date or dates on which public meetings or hearings will be held: If sufficient interest is generated, a public hearing will be scheduled at an appropriate time and location.
C. The expected date of promulgation of the proposed regulation as a final-form regulation: It is anticipated that the final-form regulation will be promulgated in the fall of 2011. The publication date for the final rulemaking in the Pennsylvania Bulletin will be the effective date for the regulation and compliance with the final-form regulation will be required at that time.
D. The expected effective date of the final-form regulation: Fall of 2011 (see question #9C.)
E. The date by which compliance with the final-form regulation will be required: Fall of 2011 (see Question#9C.)
F. The date by which required permits, licenses or other approvals must be obtained: Permits or approvals that are issued or renewed after the effective date of the final-form regulation will comply with the final-form regulation.
(10) Provide the schedule for continual review of the regulation.
This regulation will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended. (11) State the statutory authority for the regulation. Include specific statutory citation.
These proposed amendments are made under authority of the following acts: The Pennsylvania Clean Streams Law, Act of June 22, 1937 (P.L. 1987, No. 394) as amended. 35 P.S.3 691.1 etseq. Section 1920-A of The Administrative Code of 1929, as amended, 71 P.S. § 510-20. 40 CFR §131.32 Section 303 of the Federal Clean Water Act, 33 U.S.C. §1313.
(12) Is the regulation mandated by any federal or state law or court order, or federal regulation? Are there any relevant state or federal court decisions? If yes, cite the specific law, case or regulation as well as, any deadlines for action.
Although this regulation is not specifically mandated by Federal or state law or regulations, Section 303 (c) of the federal Clean Water Act requires that states review their water quality standards and modify them, as appropriate, at least once every three years. This regulation is undertaken as part of the Department's ongoing review of Pennsylvania's water quality standards. There are no deadlines for action associated with the regulation. Until this regulation is adopted, however, it will be difficult to ensure that the Department is providing the appropriate designated uses of these streams.
(13) State why the regulation is needed. Explain the compelling public interest that justifies the regulation. Describe who will benefit from the regulation. Quantify the benefits as completely as possible and approximate the number of people who will benefit.
These regulations are needed to provide the appropriate designated use protection for the streams being revised to mirror the existing use. These amendments will minimize the potential for unwarranted additional treatment costs, or the risk of being under-protective, which could lead to jeopardizing the uses and continued availability of these aquatic resources. (14) If scientific data, studies, references are used to justify this regulation, please submit material with the regulatory package. Please provide full citation and/or links to internet source.
Please see attached report: Water Quality Network Reference Candidate Streams - Water Quality Standards Review, Stream Redesignation Evaluation.
(15) Describe who and how many will be adversely affected by the regulation. How are they affected?
The streams that are proposed for redesignation are already protected at their existing use, and therefore the designated use changes will have no impact on existing wastewater discharges. Persons proposing new or expanded activities or projects which result in discharges to these and/or other waters of the Commonwealth are required to provide effluent treatment according to the water quality criteria and designated and existing uses. This regulation will be implemented through the Department's permit and approval actions, (16) List the persons, groups or entities that will be required to comply with the regulation. Approximate the number of people who will be required to comply.
See Question #15. Persons proposing new or expanded activities or projects which result in impacts to these waters of the Commonwealth must comply with this regulation by providing the appropriate level of wastewater treatment for discharges or best management practices in these waters.
(17) Provide a specific estimate of the costs and/or savings to the regulated community associated with compliance, including any legal, accounting or consulting procedures which may be required. Explain how the dollar estimates were derived.
The streams proposed for redesignation are already protected at their existing use, and therefore the designated use revision will have no impact on existing waste discharges. This regulation may, upon implementation, affect new and expanded activities associated with these streams. For example, dischargers planning to add new, or expand existing, discharges to streams upgraded may experience higher treatment costs. The increased costs may take the form of higher engineering, construction, or operating costs for wastewater treatment facilities. It is not possible to precisely predict the actual change in costs since these are site-specific and depend upon the size of the receiving stream and many other factors. (18) Provide a specific estimate of the costs and/or savings to local governments associated with compliance, including any legal, accounting or consulting procedures which may be required. Explain how the dollar estimates were derived.
See Question 17.
No costs will be imposed directly upon local government by this regulation. However, there may, upon implementation, be additional indirect costs incurred by local governments that may take the form of engineering and consulting fees needed to review and possibly revise existing Act 537 sewage Facilities Plans and local ordinances.
(19) Provide a specific estimate of the costs and/or savings to state government associated with the implementation of the regulation, including any legal, accounting, or consulting procedures which may be required. Explain how the dollar estimates were derived.
See Questions 17 and 18.
This proposal is based on and will be implemented through existing Department programs, procedures, and policies. There are no additional implementation costs associated with this regulation. (20) In the table below, provide an estimate of the fiscal savings and costs associated with implementation and compliance for the regulated community, local government, and state government for the current year and five subsequent years. Current FY 3 4 2008-2009 2009-10 2oyo-n 2on-i 2 2oL-l 3 2013-2014 SAVINGS: $ $ $ $ $ $ Regulated Community Measurable Local Government
State Government Total Savings COSTS: Regulated Community Measurable Local Government
State Government " Total Costs REVENUE LOSSES: Regulated Community Measurable Local Government " State Government Total Revenue Losses
(20a) Provide the past three year expenditure history for programs affected by the regulation.
Program FY-3 Current FY 2005-2006 2006-2007 2007-2008 2008-2009 $87,897,000. $89,847,000. $98,582,000. $102,149,000 Prot.Operations (160) Env. Program $37,049,000. $36,868,000. $39,909,000. $41,800,000 Mgmt.(lGl) (21) Explain how the benefits of the regulation outweigh any cost and adverse effects.
Although it is not possible to approximate the change in costs, the Department believes that the benefits of providing the appropriate level of designated use protection and continued maintenance and availability of the Commonwealth's aquatic resources outweigh the potential costs or adverse effects of this proposal.
(22) Describe the communications with and input from the public and any advisory council/group in the development and drafting of the regulation. List the specific persons and/or groups who were involved.
Potentially affected municipalities were notified by letter of the stream evaluations and asked to provide any readily available data. In addition, data was requested from the public through a notice in the Pennsylvania Bulletin and newspaper notices. Pennsylvania Fish and Boat Commission (PFBC) and DEP staff reviewed the draft evaluation reports and concurred with the recommendations. The affected municipalities were notified of the availability of a draft evaluation report for their review and comment. The draft reports were posted on the Division of Water Quality Standards web page. There will be a public comment period of at least 45 days to receive comments, suggestions, or objections to this proposal. Public meetings and/or hearings will be scheduled if needed to receive additional comments or suggestions on specific recommendations in this proposal.
(23) Include a description of any alternative regulatory provisions which have been considered and rejected and a statement that the least burdensome acceptable alternative has been selected.
There were no alternative regulatory schemes to consider in order to apply the appropriate designated use in 25 Pa.Code, Chapter 93, Water Quality Standards, to mirror the existing uses of these aquatic resources.
(24) Are there any provisions that are more stringent than federal standards? If yes, identify the specific provisions and the compelling Pennsylvania interest that demands stronger regulations.
No. The proposed regulations are not more stringent than the companion federal standards allow.
(25) How does this regulation compare with those of other states? How will this affect Pennsylvania's ability to compete with other states?
Other states are also required to maintain water quality standards that include similar minimum antidegradation requirements, and to provide additional protection for surface waters that are considered ecologically significant and/or outstanding local resource waters.
These regulations should not put Pennsylvania at a competitive disadvantage with other states. These amendments are intended to provide the appropriate level of designated use protection for the streams (26) Will the regulation affect any other regulations of the promulgating agency or other state agencies? If yes, explain and provide specific citations.
No other regulations or State Agencies are affected by this proposal.
(27) Submit a statement of legal, accounting or consulting procedures and additional reporting, recordkeeping or other paperwork, including copies of forms or reports, which will be required for implementation of the regulation and an explanation of measures which have been taken to minimize these requirements.
No additional reporting, record keeping, or other paperwork will be required.
(28) Please list any special provisions which have been developed to meet the particular needs of affected groups or persons including, but not limited to, minorities, elderly, small businesses, and farmers.
There are no such provisions in this proposed regulation. Regulatory Analysis Form Attachment to Question #8
STREAM REDESIGNATIONS / CORRECTIONS Blue Eye Run, et aL Current Recommended Stream County Reach List Designation* Designation* East Branch Dyberry Creek Wayne HQ-CWF, MF Unnamed Tributary (UNT) Susquehanna Basin CWF EV.MF 29200 to Tunkhannock Creek I Basin, Source to Left Young Womans Creek Clinton Branch Young Womans HQ-CWF EV.MF
Mainstem, Source to second SR2002 Bridge Muncy Creek Sullivan BV, upstream of Sonestown at HF RM26.4 Basins, Source to second Unnamed Tributaries to Sullivan SR2002 Bridge upstream HQ-CWF Muncy Creek of Sonestown at RM 26.4 Lopez Pond Brook Sullivan HQ-CWF South Brook Sullivan HQ-CWF Rock Run Sullivan HQ-CWF Tublick Run Sullivan HQ-CWF Peters Creek Sullivan HQ-CWF Big Run Sullivan HQ-CWF Cherry Run Sullivan HQ-CWF Long Brook Sullivan HQ-CWF Basin, Source to eastern Spruce Run U.,o» boundary of Bald Eagle HQ-CWF EV.MF State Forest at RM 5.09 Basin, Source to SR0027 Blue Eye Run Warren Q CWF EV Middle Hickory Creek Warren HQ-CWF Basin, Middle Hickory East Hickory Creek Warren HQ-CWF EV Creek to Forest Hwy 119 Q
PROPOSED STREAM NAME CORRECTIONS THAT DO NOT AFFECT THE CURRENT DESIGNATED USE Stream County Proposed Correction Tadyuskung Creek Teedyuskung Creek Upper Tunkhanna Creek Monroe Upper Tunkhannock Creek Hokendagua Creek Northampton Hokendauqua Creek Mahanhon Creek Schuylkill Mahannon Creek UNT to East Branch Chester Creek at RM Chester Westtown Run 0.4 ("Goose Creek") G Woodley Hollow Clinton Woodley Draft Harrington Hollow Herrington Hollow Burdie Run Burdic Run Bayer Brook McKean Boyer Brook
* HQ = High Quality EV = Exceptional Value CWF= Cold Water Fishes MF = Migratory Fishes
** RM = River Mile UNT = Unnamed Tributary
Editor's Note: A basin-wide migratory fishes (MF) designation to drainage lists A through O and Z, is currently being considered along with the Triennial Review of Water Quality Standards. The MF designated use has been added to those waters which appear in the Annex of this proposed rulemaking to be consistent with the Triennial Review final rulemaking.
CDL-1 RECEDED FACE SHEET FOR FILING DOCUMENTS B9 JIM -5 AM 11= 26 WITH THE LEGISLATIVE REFERENCE BUREAU
(Pursuant to Commonwealth Documents Law) RE^EW COMMISSION DO NOT WRITE IN THIS SPACE
Copy below is hereby approved as to form and legality. Copy below is hereby certified to be true and Attorney General correct copy of a document issued, prescribed or promulgated by: g_ DEPARTMENT OF ENVIRONMENTAL PROTECTION M**ftP4 (De^pty Attorney General) ENVIRONMENTAL QUALITY BOARD DATE OF APPROVAlmL (AGENCY) (Deputy General Counsel) JUN §12009 (Chirf Poynnnl Indopondant Agency) DOCUMENT/FISCAL NOTE NO._ DATE OF APPROVAL I ldp[JIIUdUlo unx!) 1® Check if applicable. No Attorney General Approval DATE OF ADOPTION APRIL 21, 2009 or objection within 30 days after submission.
T# Check if applicable Copy not approved. Objections attached.
TITLE JOHN HANGER ACTING CHAIRPERSON
EXECUTIVE OFFICER CHAIRMAN OR SECRETARY
NOTICE OF PROPOSED RULEMAKING
DEPARTMENT OF ENVIRONMENTAL PROTECTION ENVIRONMENTAL QUALITY BOARD
BLUE EYE RUN, ET AL. (WATER QUALITY NETWORK (WON) PACKAGE)
25 Pa. Code, Chapter 93
NOTICE OF PROPOSED RULEMAKING DEPARTMENT OF ENVIRONMENTAL PROTECTION ENVIRONMENTAL QUALITY BOARD 25 Pa. Code, Chapter 93 Stream Redesignations Blue Eye Run, et al. (Water Quality Network (WON) Package)
Preamble
The Environmental Quality Board (Board) proposes to amend 25 Pa. Code §§93.9b, 93.9d, 93.9f, 93.9g, 93.9i, 93.91, 93.9p and 93.9q to read as set forth in Annex A.
This proposal was adopted by the Board at its meeting of April 21, 2009.
A. Effective Date
These amendments are effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information, contact Richard H. Shertzer, Chief, Division of Water Quality Standards, Bureau of Water Standards and Facility Regulation, 1 lth Floor, Rachel Carson State Office Building, P.O. Box 8467, 400 Market Street, Harrisburg, PA 17105-8467, 717-787-9637 or Michelle Moses, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P.O. Box 8464, Harrisburg, PA 17105-8464, 717-787-7060. Persons with a disability may use the AT&T Relay Service by calling 1-800-654-5984 (TDD-users) or 1-800-654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection (Department) Web site (http://www.depweb.state.pa.us).
C. Statutory and Regulatory Authority
This proposed rulemaking is being made under the authority of Sections 5(b)(l) and 402 of The Clean Streams Law (35 P.S. §§ 691.5 (b)(l) and 691.402), which authorize the Board to develop and adopt rules and regulations to implement the provisions of The Clean Streams Law, and Section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20), which grants to the Board the power and duty to formulate, adopt, and promulgate rules and regulations for the proper performance of the work of the Department. In addition, Section 303 of the Federal Clean Water Act (33 U.S.C. §1313) sets forth requirements for water quality standards and the federal regulation at 40 CFR § 131.32 (relating to Pennsylvania) sets forth certain requirements for portions of the Commonwealth's antidegradation program.
D. Background of the Proposed Amendments
Water quality standards are in-stream water quality goals that are implemented by imposing specific regulatory requirements (such as treatment requirements and effluent limits) on
Page 1 of7 individual sources of pollution. The Department may identify candidates for redesignation during routine waterbody investigations. Requests for consideration may also be initiated by other agencies. Organizations, businesses, or individuals may submit a rulemaking petition to the Board.
The Department considers candidates for High Quality (HQ) or Exceptional Value (EV) Waters and all other designations in its ongoing review of water quality standards. In general, HQ and EV waters must be maintained at their existing quality and permitted activities shall ensure the protection of designated and existing uses.
Existing use protection is provided when the Department determines, based on its evaluation of the best available scientific information, that a surface water attains water uses identified in regulations at 25 Pa. Code sections 93.3 and 93.4. Examples of water uses protected include the following: Cold Water Fishes (CWF), Warm Water Fishes (WWF), HQ and EV. A final existing use determination is made on a surface water at the time the Department takes a permit or approval action on a request to conduct an activity that may impact surface water quality or uses. If the determination demonstrates that the existing use is different than the designated use, the water body will immediately receive the best protection identified by either the attained uses or the designated uses. A stream will then be "redesignated" through the rulemaking process to match the existing uses with the designated uses. For example, if the designated use of a stream is listed as protecting WWF but the redesignation evaluation demonstrates that the water attains the use of CWF, the stream would immediately be protected for CWF, prior to a rulemaking. Once the Department determines the water uses attained by a surface water, the Department will recommend to the Board that the existing uses be made "designated" uses, through rulemaking, and be added to the list of uses identified in the regulation at 25 Pa. Code section 93.9.
The Department operates the Surface Water Quality Network (WQN) - a long-term, fixed station network of monitoring stations on rivers and streams throughout the state. This network was initially designed to monitor water quality conditions on a broad scale. Most stations are located on major streams with large drainage areas. However, recent water quality monitoring trends emphasize the importance of identifying and defining biological reference conditions characteristic of no or minimal disturbance. As part of the process to establish biological reference conditions, smaller watersheds with minimal land disturbance were added to the water quality network to collect data representative of reference water quality conditions and to support biological metric protocol development. WQN streams are selected from various areas across the state and monitored for five years. Following the close of the 5-year inventory period, the studied sites are replaced with a new set of stations.
After reviewing the WQN monitoring data, several of the stations displayed existing use stream conditions indicative of EV waters. Physical, chemical, and biological characteristics along with other information on these waterbodies were considered to determine the appropriateness of the current and recommended designations using applicable regulatory criteria and definitions. In reviewing whether waterbodies qualify as HQ or EV waters, the Department considers the criteria in § 93.4b (relating to qualifying as High Quality or Exceptional Value Waters). According to the Department's regulatory criteria, a Biological Condition Score (BCS) greater than or equal to 92% of the reference station score supports an EV designation (Title 25, § 93.4(b)(l)(v)).
Page 2 of? All reference streams were selected because they were representative of excellent EV conditions based on the macroinvertebrate community and were of similar stream types, comparable geologic settings, and reasonable proximity with respect to their compared candidate stream. Both the candidate stream and the reference streams were sampled within a similar time frame to minimize the effects of seasonal variation.
< All of the recommended ^designations in this proposed regulation for the WQN stations are candidates for EV, based upon data and appropriate regulatory criteria. All of the waterbodies in this regulatory package which are being recommended for EV qualify based on their BCS being greater than or equal to 92% of the reference station score. Copies of the Department's stream evaluation report for these waterbodies is available on the Department's website or from the contacts whose addresses and telephone numbers are listed in Section B. The Department recommends the Board adopt this proposed regulation as described in this preamble and as set forth in Annex A.
Also note that a basin-wide migratory fishes (MF) designation to drainage lists A through O and Z, is currently being considered as part of the Triennial Review of Water Quality Standards final rulemaking. The MF designated use has been added to those waters that appear in the Annex of this proposed rulemaking to be consistent with the Triennial Review final rulemaking, which may not be published as final in the Pa Bulletin by this April 2009 EQB meeting.
The following is a brief explanation of the recommendations for each waterbody:
East Branch Dyberry Creek - East Branch Dyberry Creek is a tributary to Dyberry Creek in the Delaware River drainage basin. The basin is located in Dyberry and Lebanon Townships, Wayne County. The majority of East Branch Dyberry Creek basin is located in State Game Land (SGL) 159. Land use in the floodplain is mostly deciduous forest with a dirt road. There is some agriculture and low-density residential development on the surrounding hillsides. East Branch Dyberry Creek basin is currenty designated HQ-CWF, MF and the Department recommends that the basin be redesignated EV, MF. Three stations on the East Branch Dyberry Creek were compared to Little Bush Kill and all 3 stations scored 100% of the reference station.
C/rzManW 7nWary fLWT) 2P200 fo 7zm6Wmoc& CraeA: - UNT 29200 to Tunkhannock Creek lies in the Susquehanna River watershed. The basin lies in Ararat, Gibson, Jackson, and Thompson Townships, Susquehanna County. The UNT Tunkhannock Creek basin is a mixture of deciduous forest along with agriculture, low-density residential development, and several roads. A small portion of the headwaters of one of the tributaries is located in SGL 236. UNT 29200 to Tunkhannock Creek mainstem is classified by the Pennsylvania Fish and Boat Commission as Class A wild trout waters. The Department recommends that the basin be redesignated from CWF to EV, MF. Wild Creek was the reference station fbr UNT 29200 to Tunkhannock Creek. UNT 29200 to Tunkhannock Creek scored 93% of the reference station
Young Womans Creek - Young Womans Creek is also a tributary to the West Branch Susquehanna River and flows through Chapman, Stewardson, and Brown Townships in Clinton, Potter, and Lycoming Counties, respectively. Most of the Young Womans Creek watershed is located within the Sproul State Forest. Land use in this basin is almost entirely forested with
Page 3 of? several roads and seasonal camps. Young Womans Creek basin is currently designated HQ- CWR Two stations on Young Womans Creek were compared to Cross Fork Kettle Creek and scored 93 and 100% of the reference station. The Department recommends that Young Womans Creek basin, from its source to and including Left Branch Young Womans Creek, be redesignated EV, MF.
Muncy Creek- Muncy Creek is a tributary to the West Branch Susquehanna River within the Susquehanna River basin. The Muncy Creek mainstem from its source to the second SR2002 Bridge upstream of Sonestown at RM 26.4 is currently designated as CWF. Elklick Run is a tributary to Muncy Creek in the affected area and is currently designated EV. All of the other tributaries (both named and unnamed) to the Muncy Creek from the source to the second SR2002 Bridge upstream of Sonestown at RM 26.4 are currently designated HQ-CWF. This portion of the Muncy Creek basin lies in Davidson and Laporte Townships in Sullivan County and is mostly forested except for a narrow corridor that runs along the main stem. This area contains a paved road and low-density residential development. The headwaters of Muncy Creek originate in SGL 13. Muncy Creek was compared to Little Fishing Creek and scored 100% of the reference station. The Department recommends that the headwaters of the Muncy Creek basin, from the source to the second SR2002 Bridge upstream of Sonestown at RM 26.4, be redesignated as EV, MF.
Spruce Run - Spruce Run flows through or along the boundaries of Hartley, Lewis, West Buffalo, White Deer and Buffalo Townships in Union County and then enters Buffalo Creek which is a tributary to the West Branch Susquehanna River. Nearly the entire watershed of Spruce Run is located in Bald Eagle State Forest. Land use in this basin is almost entirely forested with several roads and seasonal camps. The Spruce Run basin is currently designated HQ-CWF. Wild Creek was the reference station for Spruce Run. Spruce Run scored 100% of the reference station score. The Department recommends that Spruce Run basin, from its source to the eastern boundary of Bald Eagle State Forest at RM 5.09, be redesignated as EV, MF.
Blue Eye Run - Blue Eye Run flows through Columbus, Spring Creek and Pittsfield Townships in Warren County and is a tributary to the Brokenstraw Creek in the Ohio River Drainage basin. Blue Eye Run basin is currently designated CWF. Roughly one-half of the Blue Eye Run watershed is located in State Game Land (SGL) 143. West Branch Caldwell Creek was the reference station for Blue Eye Run. Blue Eye Run scored 95% of the reference station score. The Department recommends that the Blue Eye Run basin from its source to SR0027 Bridge be redesignated EV.
East Hickory Creek - East Hickory Creek is a tributary to the Allegheny River in the Ohio River watershed. East Hickory Creek basin from the source to Middle Hickory Creek has a designated use of EV. The remainder of the East Hickory Creek basin from and including the Middle Hickory Creek basin to the mouth is currently designated HQ-CWF. The East Hickory Creek basin from and including the Middle Hickory Creek basin to Forest Highway 119 is a candidate for redesignation to EV. The candidate portion of the basin flows through Watson and Limestone Townships in Warren County and is located in the Allegheny National Forest. Middle Hickory Creek enters East Hickory Creek in Limestone Township. The portion of the basin which is a candidate for redesignation is mostly forested with very little human disturbance except for hiking trails. East Hickory Creek was compared to West Branch Caldwell Creek. The
Page4of7 two stations in East Hickory Creek basin scored 95 and 100% of the reference station. The Department recommends that the East Hickory Creek basin from and including the Middle Hickory Creek basin to Forest Highway 119 should be redesignated from HQ-CWF to EV.
Other Changes - In addition to these recommended redesignations, the Department proposes corrections to eight stream names as they currently appear in Sections 93.9b, 93.9d, 93.9g, 93.91, and 93.9p. Tadyuskung Creek, a tributary to the Lackawaxen River in Drainage List B, will be corrected to Teedyuskung Creek. In Drainage List D, the stream names for Upper Tunkhanna Creek and Hokendagua Creek, both in the Lehigh River basin, will be corrected to Upper Tunkhannock Creek and Hokendauqua Creek. The current spelling of Mahanhon Creek, a tributary to the Schuylkill River in Drainage List F, will be corrected to Mahannon Creek. The Department is proposing to replace the stream name listing for UNT to East Branch Chester Creek at RM 0.4 ("Goose Creek") in Drainage List G with the correct name for this stream, which is Westtown Run. Three corrections are proposed in the West Branch Susquehanna River watershed in Drainage List L. Woodley Hollow, a tributary to Drury Run, is proposed to be corrected to Woodley Draft. Harrington Hollow and Burdie Run, both tributaries to Pine Creek will be corrected to Herrington Hollow and Burdie Run. In Drainage List P, Bayer Brook will be corrected to Boyer Brook. Boyer Brook is a tributary to Potato Creek.
E. Benefits, Costs and Compliance
1. Benefits - Overall, the Commonwealth, its citizens and natural resources will benefit from these recommended changes because they provide the appropriate level of protection in order to preserve the integrity of existing and designated uses of surface waters in this Commonwealth. Protecting water quality provides economic value to present and future generations in the form of clean water for drinking, recreational opportunities, and aquatic life protection. It is important to realize these benefits to ensure opportunity and development continue in a manner that is environmentally, socially and economically sound. Maintenance of water quality ensures its future availability for all uses.
2. Compliance Costs - The proposed amendments to Chapter 93 may impose additional compliance costs on the regulated community. These regulatory changes are necessary to improve total pollution control. The expenditures necessary to meet new compliance requirements may exceed that which is required under existing regulations.
Persons conducting or proposing activities or projects must comply with the regulatory requirements relating to designated and existing uses. Persons expanding a discharge or adding a new discharge point to a stream could be adversely affected if they need to provide a higher level of treatment to meet the designated and existing uses of the stream. These increased costs may take the form of higher engineering, construction or operating cost for wastewater treatment facilities. Treatment costs are site-specific and depend upon the size of the discharge in relation to the size of the stream and many other factors. It is therefore not possible to precisely predict the actual change in costs. Economic impacts would primarily involve the potential for higher treatment costs for new or expanded discharges to streams that are redesignated. The initial costs resulting from the installation of technologically advanced wastewater treatment
Page5of7 processes may be offset by potential savings from and increased value of improved water quality through more cost-effective and efficient treatment over time.
3. Compliance Assistance Plan - The regulatory revisions have been developed as part of an established program that has been implemented by the Department since the early 1980s. The revisions are consistent with and based on existing Department regulations. The revisions extend additional protection to selected waterbodies that exhibit exceptional water quality and are consistent with antidegradation requirements established by the Federal Clean Water Act and Pennsylvania Clean Streams Law. All surface waters in this Commonwealth are afforded a minimum level of protection through compliance with the water quality standards, which prevent pollution and protect existing water uses.
The proposed amendments will be implemented through the Department's permit and approval actions. For example, the National Pollutant Discharge Elimination System (NPDES) permitting program bases effluent limitations on the use designation of the stream. These permit conditions are established to assure water quality criteria are achieved and designated and existing uses are protected. New and expanded dischargers with water quality based effluent limitations are required to provide effluent treatment according to the water quality criteria associated with existing uses and revised designated water uses.
4. Paperwork Requirements - The regulatory revisions should have no direct paperwork impact on the Commonwealth, local governments and political subdivisions, or the private sector. These regulatory revisions are based on existing Department regulations and simply mirror the existing use protection that is already in place for these streams. There may be some indirect paperwork requirements for new or expanding dischargers to streams upgraded to HQ or EV. For example, NPDES general permits are not currently available for new or expanded discharges to these streams. Thus an individual permit, and its associated paperwork, would be required. Additionally, paperwork associated with demonstrating social and economic justification (SEJ) may be required for new or expanded discharges to certain HQ Waters, and consideration of nondischarge alternatives is required for all new or expanded discharges to EV and HQ Waters.
F. Pollution Prevention
The water quality standards and antidegradation program are major pollution prevention tools because the objective is to prevent degradation by maintaining and protecting existing water quality and existing uses. Although the antidegradation program does not prohibit new or expanded wastewater discharges, nondischarge alternatives are encouraged, and required when environmentally sound and cost effective. Nondischarge alternatives, when implemented, remove impacts to surface water and reduce the overall level of pollution to the environment by remediation of the effluent through the soil.
Page 6 of? G. Sunset Review
These proposed 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.
H Regulatory Review
Under Section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on June 5, 2009, the Department submitted a copy of these proposed amendments to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed regulations within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria that have not been met. The Act specifies detailed procedures for review of these issues by the Department, the General Assembly and the Governor prior to final publication of the regulations.
I. Public Comments
Written Comments - Interested persons are invited to submit comments, suggestions, or objections regarding the proposed amendments to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments must be received by the Board by August 4, 2009. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by August 4, 2009. The one page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the proposed amendments will be considered. If sufficient interest is generated as a result of this publication, a public hearing will be scheduled at an appropriate location to receive additional comments.
Electronic Comments - Comments may be submitted electronically to the Board at [email protected] and must also be received by the Board by August 4, 2009. A subject heading of the proposal and return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt. BY:
John Hanger Chairperson Environmental Quality Board
Page 7 of?
Editor's note: A basin-wide migratory fishes (MF) designation to drainage lists A through O andZ} is currently being considered as part of the Triennial Review of Water Quality Standards final rulemaking. This additional MF designation to the waters in drainage lists A through O and Z will become effective upon the final publication of the Triennial Review of Water Quality Standards in the Pennsylvania Bulletin. Publication of the Triennial Review of Water Quality Standards final rulemaking in the Pennsylvania Bulletin may be subsequent to the Board's consideration of this proposed regulation. When published, the MF designation will apply to all waters within the respective basins unless there are specific exceptions already noted for certain waterbodies or stream segments within one of these drainage lists. Drainage lists A through G are located within the Delaware River Basin. Drainage lists H through O are located within the Susquehanna River Basin. Drainage list Z is located within the Potomac River Basin. The MF designated use has been added to those waters which appear in the Annex of this proposed rulemaking to be consistent with the pending action in the Triennial Review final rulemaking.
ANNEXA TITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION Subpart C. PROTECTION OF NATURAL RESOURCES ARTICLE II. WATER RESOURCES
CHAPTER 93. WATER QUALITY STANDARDS
§93.9b. Drainage List B Delaware River Basin in Pennsylvania Lackawaxen River Exceptions Water Uses to Specific Stream County Protected Criteria
4—Van Auken Creek Wayne HQ-TSF, MF 3—Dyberry Creek [Basin, Source to Big Wayne HQ-CWF, MF
4—West Branch HQ-CWF, MF Dvberrv Creek 4—East Branch Wayne Dvberrv Creek 3—Dvberrv Creek Basin, Confluence of Wayne HQ-CWF, MF West Branch Dvberrv Creek and East Branch Dvberrv Creek to Biq
4—Big Brook Wayne 3—Dyberry Creek Basin, Big Brook to Mouth Wayne HQ-CWF, MF
3—[Tadyuskung] HQ-CWF, MF Teedyuskung Creek
Page 1 of 6 §93.9d. Drainage List D Delaware River Basin in Pennsylvania Lehigh River Exceptions Water Uses to Specific Stream County Protected Criteria
4—Upper [Tunkhanna] Basin Monroe HQ-CWRMF None Tunkhannock Creek
3—[Hokendagua] Northampton CWF.MF Hokendauqua Creek
§93.9f. Drainage List F Delaware River Basin in Pennsylvania Schuylkill River Exceptions Water Uses to Specific Stream Zone County Protected Criteria
3—[Mahanhon] Basin Schuylkill CWF, MF None Mahannon Creek
§93.9g. Drainage List G Delaware River Basin in Pennsylvania Delaware River Exceptions Water Uses to Specific Stream County Protected Criteria
2—Chester Creek Basin, Source to East Chester Branch Chester Creek 3—East Branch Chester Basin, Source to [UNT at Chester RM 0.4 ("Goose Creek")] Westtown Run 4—[UNT to East Chester WWF, MF Branch Chester Creek at RM 0.4 ("Goose Creek")] Westtown Run 3—East Branch Chester Basin, [UNT at RM 0.4] Chester Westtown Run to Mouth 2—Chester Creek Basin, East Branch Delaware TSF, MF Chester Creek to Rocky
Page 2 of6 §93.91. Drainage List I Susquehanna River Basin in Pennsylvania Susquehanna River Exceptions Water Uses to Specific Stream County Protected Criteria
2—Taques Creek Wyoming CWFJMF 2—Tunkhannock Creek [Main Stem, Source to Susquehannaf- CWF, MF Susquehanna- Wyoming] Wyoming County Border] Basin, Source to UNT 29200 at RM
[3—Unnamed Basins, Source to Susquehanna Tributaries to Susquehanna- Tunkhannock Creek Wyoming County
3—Bear Swamp Creek Susquehanna 3—Bell Creek Susquehanna 3—Leslie Creek Susquehanna 3—Partners Creek Susquehanna 3—Tower Branch Susquehanna 3—Millard Creek Susquehanna 3—UNT 29200 to Susquehanna Tunkhannock Creek at RM 36.08 2—Tunkhannock Creek Basin, UNT 29200 to Susquehanna CWF, MF East Branch Tunkhannock Creek 3—East Branch Basin, Source to Dundaff Susquehanna CWF.MF Tunkhannock Creek
3—East Branch Basin, Dundaff Creek to Susquehanna CWF, MF Tunkhannock Creek Mouth 2—Tunkhannock Creek Basin, East Branch Susquehanna- CWF, MF Tunkhannock Creek to Wyoming Susquehanna- Wyominq County
2—Tunkhannock Creek Main Stem, Wyoming TSFJVIF Susquehanna- Wyoming County Border to Mouth
Page 3 of6 §93.91. Drainage List L Susquehanna River Basin in Pennsylvania West Branch Susquehanna River Exceptions Water Uses to Specific Stream County Protected Criteria
4—Sandy Run Clinton HQ-CWF, MF 3—Dairy Run Basin, Sandy Run to Clinton HQ-CWF, MF Woodley [Hollow] Draft 4—Wood ley [Hollow] Clinton CWF, MF
3—Drury Run Basin, Woodley [Hollow] Clinton CWF, MF Draft to Mouth
3—Boggs Hollow Clinton 3—Young Womans Basin, Source to Left Clinton Branch Younq Womans
3—Young Womans Basin, Left Branch Younq Clinton HQ-CWF, MF Womans Creek to Mouth 3—Caldwell Run Clinton HQ-CWF, MF
4—[Harrington] HQ-CWF, MF Herrinqton Hollow
4—FBurdiel Burdic Run HQ-CWF. MF
3—Carpenters Run Basin Lycoming WWF, MF [3—Muncy Creek Main Stem, Source to US Sullivan 220 Bridge at Muncy
4—Unnamed Basins, Source to US 220 Sullivan HQ-CWF Tributaries to Muncy Bridge at Muncy Valley
4—Lopez Pond Brook Basin Sullivan HQ-CWF 4—South Brook Basin Sullivan HQ-CWF 4—Rock Run Basin Sullivan HQ-CWF 4—Tublick Run Basin Sullivan HQ-CWF 4—Peters Creek Basin Sullivan HQ-CWF 4—Big Run Basin Sullivan HQ-CWF 4—Cherry Run Basin Sullivan HQ-CWF 4—Elklick Run Basin Sullivan EV 4—Long Brook Basin Sullivan HQ-CWF 3—Muncv Creek Basin, Source to second Sullivan SR2002 Bridge upstream of Sonestown at RM 26.4
Page 4 of6 3—Muncv Creek Main Stem, Second Sullivan CWF, MF None SR2002 Bridge upstream of Sonestown at RM 26.4 to US 220 Bridge at Muncv Valley 4—UNTs to Muncv Basins, Second SR2002 Sullivan HQ-CWF, MF None Bridge upstream of Sonestown at RM 26.4 to US 220 Bridge at Muncv
4—Slip Run Basin Sullivan HQ-CWFJWF None
4—Beaver Run Basin Union CWFJMF None 4—Spruce Run Basin, Source to eastern Union EV, MF None boundary of Bald Eagle State Forest at RM 5.09 4—Spruce Run Basin, Eastern boundary Union HQ-CWFJMF None of Bald Eagle State Forest at RM 5.09 to Mouth 4—Little Buffalo Creek CWF, MF None
§93.9p. Drainage List P Ohio River Basin in Pennsylvania Allegheny River Exceptions Water Uses to Specific Stream County Protected Criteria
4—Walcott Brook Basin McKean 4—[Bayer] Boyer Brook Basin McKean HQ-CWF 4—Daly Brook Basin McKean HQ-CWF
§93.9q. Drainage List Q Ohio River Basin in Pennsylvania Allegheny River Exceptions Water Uses to Specific Stream Zone County Protected Criteria
4—Gar Run Basin Warren 4—Blue Eve Run Basin, Source to SR0027 Warren
4—Blue Eye Run Basin, SR0027 Bridge to Warren mouth
Page 5 of6 4—Little Brokenstraw Basin (all sections in PA) Warren Creek
3—Jones Run Bash Forest CWF None 3—East Hickory Creek Basin, Source to [Middle [Forest] EV Hickory Creek! Forest Warren Highway 119 [4—Middle Hickory Warren HQ-CWF
3—East Hickory Creek Basin, [Middle Hickory HQ-CWF Creek! Forest Highway 119 to Mouth 3—Siggens Run
Page 6 of 6 Pennsylvania Department of Environmental Protection Rachel Carson State Office Building P.O. Box 2063 Harrisburg, PA 17105-2063 June 5, 2009
Policy Office 717-783-8727
Kim Kaufman, Executive Director Independent Regulatory Review Commission 14th Floor 333 Market Street Harrisburg, PA 17101
Re: Proposed Rulemakings: Environmental Laboratory Accreditation (25 fa. CWe, Chapter 252) (#7-434)
Blue Eye Run, et al. (Water Quality Network (WQN) Package) (25 fa CWz, Chapter 93) (#7-436)
Dear Mr. Kaufman:
Enclosed are copies of two proposed regulations for review and comment by the Independent Regulatory Review Commission pursuant to Section 5(a) of the Regulatory Review Act. These proposed rulemakings are scheduled for publication in the Pennsylvania Bulletin on June 20, 2009, with a 30-day public comment period for the proposed Environmental Laboratory Accreditation rulemaking and a 45-day public comment period for the Blue Eye Run, et al. Water Quality Network Package. The Environmental Quality Board (EQB) adopted these respective proposals on April 21, 2009.
The Environmental Laboratory Accreditation proposed rulemaking includes amendments governing environmental laboratory accreditation at 25 Pa. Code Chapter 252, which affect any person, facility or group that performs testing or analysis on drinking water, non-potable water, and/or solid and chemical material environmental samples required by Department statutes or regulations. The majority of amendments in this proposal include modifications that clarify existing requirements to facilitate greater understanding and compliance among the regulated community with the Department's regulations. The proposal also includes adjustments to the current accreditation fees, as they do not adequately fund the Laboratory Accreditation Program as mandated by the Environmental Laboratory Accreditation Act (Act 90 of 2002). Specific changes to the fees attempt to not only simplify the fee structure, but to equally distribute the costs of the program over the regulated community. Lastly, the amendments also include several necessary standards for accreditation.
The Department worked with the Laboratory Accreditation Advisory Committee (LAAC) to amend Chapter 252 in a manner that ensures appropriate requirements for environmental laboratory accreditation. The LAAC met throughout 2008 to review and comment on the draft Chapter 252 amendments presented by the Department. On December 1, 2008, the LAAC unanimously voted to recommend the Chapter 252 amendments for presentation to the Board.
An Equal Opportunity Employer WWW.dep.State.pa.US Printed on Recycled Paper \A%) Kim Kaufman, Executive Director - 2 - June 5,2009
The Blue Eye Run, et al Water Quality Network Package includes revisions concerning the Designated Uses and Water Quality Criteria to all or part of the following waterbodies, as included in 25 fa CWe, Sections 93.9b, 93.9d, 93.9f, 93.9g, 93.9i, 93.91, 93.9p and 93.9q,: East Branch Dyberry Creek (Wayne County), UNT 29200 to Tunkhannock Creek (Susquehanna County), Young Womans Creek (Clinton County), Muncy Creek (Sullivan County), Spruce Run (Union County), Blue Eye Run (Warren County), and East Hickory Creek (Warren County). Data supporting the regulatory amendments included in this ralemaking were obtained through the Department's Surface Water Quality Network (WQN) - a long-term, fixed station network of monitoring stations on rivers and streams throughout the state. WQN reference sites are selected from various areas across the state and monitored in five year rotations for chemical and biological quality to describe best-attainable conditions. The waterbodies included in this proposed rulemaking displayed Existing Use stream conditions indicative of Exceptional Value (EV) waters. In addition to the revisions concerning Designated Uses, the rulemaking also includes proposed spelling corrections to designations in Sections 93.9b, 93.9d, 93.9f, 93.91, and 93.9p. In Section 93.9g, the Department also proposes to update the stream listing to include the correct name for Westtown Run. These corrections will not affect the current stream designations.
The Department will provide the Commission with the assistance required to facilitate a thorough review of these proposals. Section 5(d) of the Regulatory Review Act provides that the Commission may, within 30 days of the close of the comment period, covey its comments, recommendations and objections to the proposed regulation. The Department will consider any comments, recommendation or suggestions made by the Commission, as well as the Committees and public commentators, prior to final adoption of these regulations.
Please contact me at the number above if you have any questions or need additional information.
Sincerely,
Michele L. Tate Regulatory Coordinator
Enclosures 0120-FM-PY0011 8/2006 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION OFFICE OF POLICY TRANSMITTAL SHEET FOR REGULATIONS SUBJECT TO THE REGULATORY REVIEW ACT
ID. NUMBER: 7- 46U SUBJECT: 01 u*. Ey^ Ran,£± H Proposed Regulation • Final Regulation • Final Regulation with Notice of Proposed Rulemaking Omitted •- ) • 120-day Emergency Certification of the Attorney General • 120-day Emergency Certification of the Governor • Delivery of Tolled Regulation O a. • With Revisions Without Revisions FILING OF REGULATION SIGNATURE DESIGNATION Majority Chair, HOUSE COMMITTEE ON ENVIRONMENTAL RESOURCES & ENERGY Minority Chair, HOUSE COMMITTEE ON ENVIRONMENTAL RESOURCES & ENERGY Majority Chair, SENATE COMMITTEE ON V • [J&ij ENVIRONMENTAL RESOURCES & ENERGY Minority Chair, SENATE COMMITTEE ON 4, kMftU ENVIRONMENTAL RESOURCES & ENERGY f Loo\ INDEPENDENT REGULATORY REVIEW COMMISSION ATTORNEY GENERAL (for Final Omitted only) b\S\dt *h. djbUvurf, LEGISLATIVE REFERENCE BUREAU (for Proposed only)