The Raymond Proffitt Foundation
P.O. Box - 723
Langhorne, PA 19047-0723
17 June 2000
Dear EQB Member:
One of the agenda items for
the Board’s June 20,2000 meeting is consideration of the petition of the
Raymond Proffitt Foundation to modify the recently-passed water quality
standards. We filed the petition because we believe that the "Exceptional
Value Waters" regulation passed last year by the Board does not meet the
minimum Federal requirement. DEP plans on recommending that the EQB not
accept our petition, so we ask you to read this letter carefully, especially
because this letter contains some new information.
The present regulation places additional requirements before certain types of public lands are even considered for a possible EV designation. Specifically, waters of National Parks and Forests and waters of State Parks must, according to the present regulation, "be the beneficiary of measures in a state or federally adopted resource management plan which expressly provide extraordinary long-term water quality protection of a watershed corridor." This requirement is not mandated by the Federal regulation, and makes Pennsylvania’s regulation less protective than the Federal. EPA is required by law to disapprove antidegradation regulations that are not at least as stringent as the Federal regulation. EPA’s approval of this particular regulation is pending. We note that EPA disapproved Pennsylvania’s regulation in 1994, in part because, like here, a High Quality designation required some extra "feature" unlike the Federal regulation.
When the regulation was passed last year, DEP said that the change to the regulation represented the Department’s current practice. After filing our petition, we decided to poll the land-management agencies to determine how well the current practice is working. The results of our poll were not included in our petition and are attached. The results are briefly summarized below in a few sentences.
In summary, it is an overstatement to claim that the regulation represents "current practice," unless there is no intention of implementing the regulation. The regulation has been in place almost one year, and the procedure much longer, according to DEP. Yet, DEP has not spoken to resource managers in a number of agencies affected by the regulation. Certainly the 1994 EPA disapproval required attention by DEP staff. But now, with the regulation in place, DEP should be developing the all-important antidegradation implementation methods. Where the methods affect the programs of other agencies, a collaborative effort is the best way to ensure that the program is viable. There is no evidence of that occurring now or in early 1999, when DEP represented this as a "current practice."
DEP has discussed the "current practice" with one state agency, and one Bureau of another, but did not discuss the regulation with two other agencies (one state and one Federal). It does not appear that DEP made any particular effort to include agencies with whom they do not routinely communicate.While DEP has discussed generic water quality protective measures with some (not all) agencies, they have not discussed the definition of two significant regulatory terms, "extraordinary" and "long-term," with any agency.
Citizens can request that land-management agencies place water quality protective measures into resource management plans, but in some cases it is difficult. In any event, it makes the process even more cumbersome.
While the Bureau of Forestry says they helped draft the regulations during the special protection waters "reg-neg," there is nothing on this topic in any reg-neg document on the DEP web site. Neither the conservation stakeholders’ nor the regulated community’s final report mentions the topic.
DCNR did not reply to our survey except through Forestry and it is the waters of State Parks that is at issue. Unlike Forestry, State Parks has nothing on their web site or in their rules or regulations on water quality. We can only conclude that DEP and State Parks have not communicated on the topic.
EPA failed to approve this portion of the water quality standards because the protection afforded these public lands is not clear. DEP stated that they can deal with EPA’s concerns in the "implementation methods." But the regulatory requirement for the land management agency to implement "extraordinary long-term water quality protection" would remain, effectively treating the public lands mentioned in the Federal regulation in two separate ways. Because the process is not at all developed, it could be argued that DEP and the EQB have enacted this regulation simply to discourage or close altogether this particular path for waters of certain public lands to be considered for EV status.
In another recent DEP rulemaking (Chapter 92), DEP originally had language encouraging --not requiring-- wastewater dischargers to use pollution prevention measures. The language was unacceptable to the regulated community so the provision was dropped by DEP before final rulemaking. This is a similar situation because "extraordinary long-term water quality protection" by the land-management agency is desirable but not required in the corresponding Federal regulation. Because a change can be made to the innocuous pollution prevention regulation at the request of the regulated community, DEP and the EQB should be able to change this regulation so that minimum Federal standards are unequivocally met. Changing the regulation would not result in any disruption to the current program because the current program only exists as words on paper.
Please remember that this does not make all the subject waters EV -- it merely changes one available path for consideration by the EQB. If the land-management agency, for whatever reason, was opposed to EV status, the EQB will be able to give appropriate consideration to their views. Our petition spells out other reasons why the regulation should be changed. Please give the waters of our public lands the consideration they deserve. Please vote to accept this petition, or better still, initiate or support a motion to accept our proposed regulatory language as proposed rulemaking. Thank you.
Sincerely,
Joseph W. Turner
Secretary-Treasurer