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.