Introduction

     The Federal Clean Water Act requires each state to develop water quality standards, including an "antidegradation policy" that is supposed to keep clean waters clean. A state’s antidegradation policy must be as protective as the Federal policy. There are three levels or "tiers" in the Federal policy, and the Tier 3 waters, also known as "Outstanding Natural Resource Waters, get the highest protection. The water quality must be maintained under all circumstances. Waters protected under Tiers 1 and 2 can be degraded.

                    The Federal policy for Tier 3 waters is straightforward (40 CFR 131.12(a)(3)):

"Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected."

Pennsylvania’s antidegradation policy was disapproved by EPA in 1994, and Federal regulations were promulgated. Pennsylvania submitted a new policy in 1999, but EPA did not approve the Tier 3 portion (Pennsylvania’ Tier 3 waters are better known as "Exceptional Value Waters" or simply "EV" waters). EPA is concerned about the way Pennsylvania will consider the waters of National and State Parks for the highest status.

     Pennsylvania has a long history of granting its highest water quality protection to the waters of public lands. The past definition of Exceptional Value waters included (among other public lands) National Parks, National Forests and State Parks. The current regulation, first released in an "Advance Notice of Final Rulemaking" (January 23, 1999) bifurcated the lands mentioned in the Federal definition. DEP would consider high quality waters of National Wildlife Refuges as EV candidates. But waters of National and State Parks (along with other public lands not included in the Federal regulation), needed more for EV status. A water would only qualify if it is an "outstanding national, state, regional, or local resource water". The definition of "outstanding national, state, regional, or local resource water" found in Chapter 93.1 requires that a "national or state government agency has adopted water quality protective measures in a resource management plan" in order for a water to qualify as an EV water. The Board explains this complicated requirement in the preamble of the final regulation, describing definitions found in the regulation:

A definition of "Outstanding National, State, Regional, or Local Resource Water" has been added... The outstanding national and state waters which will qualify under this definition include those waters which do not otherwise qualify as national and state resources under §93.4(b)(1)(I), (ii), and (vi). The national and state elements of this definition are further fleshed out in a definition of "water quality protective measures in a resource management plan..." (emphasis added).

A new definition of "Water Quality Protective Measures in a Resource Management Plan" is added which provides for outstanding national and state waters to qualify as EV waters, the water must 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. The definition incorporates the Department’s existing procedures for national and state waters qualifying for EV status...(emphasis added).

     DEP claimed in the rulemakings that this regulatory change reflected "existing procedures," apparently referring to the "Special Protection Waters Implementation Handbook." Because we believe that the regulatory change creates an unnecessary hurdle, we petitioned the Environmental Quality Board to change the regulation. In the meantime, we decided to poll the land-management agencies to determine how well the "existing procedures" were working.

Methods

We developed a short questionnaire (attached) that could be answered with "yes" or "no" and a few short answers. The questions were focused on the regulatory change and the specific language, as well as contact between DEP and the agency. The transmittal letters and questionnaires were sent to the head of, or directors in, the state agency or specific National Park or Forest. We sent the questionnaire to the following:

Bureau of State Parks,

Pennsylvania Department of Conservation and Natural Resources

State Forester,
Pennsylvania Department of Conservation and Natural Resources

Pennsylvania Fish and Boat Commission

Pennsylvania Game Commission

United States Forest Service, Allegheny National Forest

United States Park Service, Gettysburg National Historical Park

United States Park Service, Valley Forge National Historical Park

Results

     We were able to solicit a response from all except the Allegheny National Forest and the Bureau of State Parks. Most agencies responded via a knowledgeable staff person. The reply from the PA Department of Conservation and Natural Resources was received from the State Forester, Dr. James Grace, of the Bureau of Forestry. There was no indication that State Park lands were similar to State Forests, and the response (and cover letter) we received from Dr. Grace were specific to State Forests. We assume, therefore, that Dr. Grace’s responses apply only to State Forest lands and not State Park lands.

     The agency responses are most easily given as a discussion about each italicized question (a complete blank questionnaire and transmittal letter are attached to the end of the report). For "yes/no" questions, no reply was generally considered to be a "no."

1. Are you aware of the Commonwealth’s "Special Protection Waters" (antidegradation) program?

Are you aware of the mention of certain public lands in both the state and Federal regulations?

2. Are any waters on your lands currently designated as "Exceptional Value waters?"

"Yes"-- three; "No"-- one (Gettysburg); "Unknown"--one (Fish and Boat Commission; would require a comparison of Chapter 93 to property list. The PFBC listed one specific property that is EV).

All four, with the exception of Forestry, with EV waters answered yes. Forestry did not reply.

Does it 1) protect water quality, and 2) does it provide greater protection than would your normal stewardship activities (i.e., do you do anything different in these watersheds)?

                   2) "Yes" -- PFBC, Valley Forge; "No"--PGC; "N/A"-- Gettysburg; no answer -- Forestry.

This is the first of the more crucial questions that was not answered by Forestry.

3. Were you aware of the regulatory change? If so, how?

Agencies were aware through various means such as reg-neg, WRAC, the Pa. Bulletin and other agencies. No one mentioned DEP or the EQB.

Were you contacted by DEP or the EQB at any time during the development of the regulations (roughly, 1997-1999)?

"Yes"--PFBC; "No"--Gettysburg, Valley Forge; "Not certain"--PGC; "We were involved in the process of development of regulations"--Forestry.

4. Are you aware of the provisions in the "Special Protection Waters Implementation Handbook" that pertain to redesignation of waterbodies on your lands?

Did DEP (or the old DER) inform you of these provisions, either during the development of the handbook (roughly 1991-1992), or after the first edition was released (1992)?

"Yes"/"Yes"--PFBC, PGC; "No"/"No"--Valley Forge, Gettysburg; "Yes"/"Yes. We were involved in their development."--Forestry. This is indicative of a pattern where agencies with a Harrisburg presence are contacted and others are not. The PGC said they were informed by receiving a copy of the Handbook.

5. Has the EQB/DEP/DER ever provided to your agency examples of the necessary water quality protective measures to satisfy the Handbook (or the new regulation; presumably the same, since the regulation reflects the Handbook procedure)?

"Yes"--PFBC, Forestry; "No"--PGC, Valley Forge, Gettysburg. Not surprising considering the effort that the PFBC puts into water resources, and Forestry’s participation on reg-neg. The other agencies were simply not contacted, although the new regulation puts a considerable burden on them.

Have they discussed with you what is meant by "extraordinary" or "long-term?"

"No"--PFBC, PGC, Valley Forge, Gettysburg; no answer--Forestry. These are crucial regulatory terms inserted into the regulations by the EQB via DEP’s proposal. Yet, no one has communicated these definitions to the relevant agencies. The reason for DEP’s lack of contact is unknown.

6. Does your agency have the technical expertise to develop and implement water quality protective measures?

"Yes"--PFBC, PGC, Forestry, Valley Forge; At the agency level but not at the Park-- Gettysburg.

Have you discussed with the EQB/DEP/DER any generic water quality protective measures (as opposed to site-specific) that you might employ, to see if they would qualify?

"Yes"--Forestry; "No"--PFBC; PGC; Valley Forge; Gettysburg. Forestry’s answer may be reflected in their overall Bureau plan, where one of the objectives is to "maintain water quality." Whether that meets the regulatory requirements is unknown.

Have you discussed any particular site-specific cases?

7. Is there a way in which your "resource management plans" for your lands be amended to include the type of water quality protection as described in the regulation?

"Yes"--all.

Is there a way in which citizens can request such an amendment?

"Yes"--PFBC, PGC. "Yes, as part of the public input process for development of State Forest Resource Management Plans."--Forestry; "Yes, but it is not easy"--Valley Forge; "Yes, through public comment during the planning process"--Gettysburg.

Forestry’s answer implies that each State Forest Management Plan must be revised. Valley Forge’s answer points out that the process will vary from agency to agency and may be a complex process in any case.

8. Overall, has the process worked well for conferring the EV designation to waters on your lands (note: there have not been many designations since the EPA disapproved Pennsylvania’s program in June, 1994)?

"No"--Valley Forge; "No, it takes too long. PFBC has outstanding requests pending since 1983."--PFBC; "Uncertain"--PGC; "N/A, there are no EV or potential EV designations within the Park boundaries."--Gettysburg; no answer--Forestry.

Do you feel that such a process as described in the regulation will work well in the future (please elaborate)?

"Yes and No. Some aspects of the regs will work well while others are unknown since policy is still being developed."--PFBC; "Not certain."--PGC; "No--too complicated; too limiting."--Valley Forge; "N/A"--Gettysburg; no answer--Forestry.

Valley Forge’s answer may be a reflection of the fact that the Valley Creek watershed became EV in the 90s, after a long effort, and that there is frustration with the gaps in the protection afforded the stream. Forestry’s non-response is puzzling given their answers to previous questions that indicated they and DEP were developing regulations together. They are intimate with the program but yet can’t answer how well it works on the ground? The PFBC, with the most to gain or lose, probably best sums up the uncertainty that will always accompany new regulations.

Would you make any changes to the designation process of, or the protection afforded to, EV waters (please elaborate).

"Yes, EV for all Class A wild trout streams."--PFBC; "No"--PGC; "No suggestions at this time"--Forestry; "Add waters of National Parks to definition of EV"--Valley Forge; "N/A"--Gettysburg.

     It does not appear that DEP has actively engaged the agencies about the new regulation. Key regulatory terms, such as "extraordinary" and "long-term" are still not defined--certainly for these agencies, and perhaps altogether. Since the DEP submittal, the agency is supposed to be working on "implementation methods." Why isn’t DEP communicating with the relevant land- management agencies? But this is supposed to be an "existing" process. Why don’t the affected agencies have some idea of this part of the program? Just how long has it been "existing?"

     Forestry’s answers imply that they have worked closely with DEP on some issues. But their reliance on the "reg-neg" is suspect because a search of the DEP web site revealed no documents where this was an issue. In fact, the reg-neg process devoted little time to Tier 3 compared to the other aspects of the program. It is obvious, however, that the Bureau does devote much time to water quality issues -- the current proposed revisions to the statewide Forestry plan include "maintain water quality" as an objective. It’s knowledge of or participation in DEP’s program is less clear. But at least Forestry responded. DCNR was silent on State Parks, which are specifically mentioned in the Federal regulation. We have to assume that State Parks is not engaged in this program.

     DEP represented the regulatory changes to both the public and the EQB as a reflection of the existing process. Their lack of communication, as indicated by these results, show that for whatever reason, the "existing process" exists only on paper and perhaps the minds of a few DEP employees. And even if it were well developed, the question of whether or not this is more restrictive than the Federal regulation would remain.

     We assert that DEP’s position that land management agencies must first act before DEP can act is overly restrictive. The Federal regulation clearly spells out which waters of which public lands are considered Tier 3 waters. It is the job of the state agency charged with implementing the Clean Water Act--not the jobs of other agencies or citizens.

     The purpose of this study was simpler: to see how much disruption to the existing program would occur if the regulations were changed. This poll indicates that no disruption to the existing process would occur whatsoever because the "existing" process is nothing more than conceptual. Because a regulatory change would affect the existing program very little if at all, the EQB should not be inhibited to change the regulation on those grounds.

From: Joseph W. Turner
Secretary-Treasurer
Raymond Proffitt Foundation

Subject: Exceptional Value Waters

Date: March 30, 2000

Greetings. The Raymond Proffitt Foundation is a 501(c)(3) non-profit organization concerned with water quality and the health of our watersheds. Recent regulatory changes in Pennsylvania will formalize the way the PA Department of Environmental Protection designates EV waters on certain public lands. Since this is an approach that has been in place (via policy and guidance) for eight years, we are polling public land managers to gauge the past effectiveness of this approach in designating waters found on certain categories of public lands, and what it might mean in the future. Enclosed please find a survey that we have designed to help us do just that. We would appreciate if the appropriate member of your staff would take a few minutes to complete the survey and mail it back in the postage-paid addressed envelope. I will also be sending the survey via e-mail in a few days; if responding electronically is more convienient, please do so.

Thank you in advance.

Distribution list:

Forest Supervisor
Allegheny National Forest
U.S. Forest Service

Superintendent
Gettysburg National Historical Park
National Park Service

Superintendent
Valley Forge National Historical Park
National Park Service

Director
Bureau of State Parks
Department of Conservation and Natural Resources

State Forester
Bureau of State Forests
Department of Conservation and Natural Resources

Executive Director
Pennsylvania Fish and Boat Commission

Executive Director
Pennsylvania Game Commission

In July, 1999, new regulations took effect that govern how the Commonwealth may designate most waterbodies in National Parks, National Forests, State Parks, State Forests, State Game Lands, and Fish and Boat Commission lands as "Exceptional Value Waters" (EV). The new regulations affect most state and Federal lands in the Commonwealth. Before the Environmental Quality Board will consider a waterbody for EV designation, the land management or steward agency must first develop a "resource management plan" for their lands that "expressly provides for extraordinary long-term water quality protection measures" (25 Pa. Code, §93.1; relevant copies of regulations and preamble attached). When developing the regulations, the EQB (and the Department of Environmental Resources (DEP)), stated that the new regulations reflect the "existing way in which such waters are designated" (the old regulation simply listed various public lands in the definition of EV waters). Presumably, that refers to the "Special Protection Waters Implementation Handbook," first published by DEP in 1992.

The Raymond Proffitt Foundation has been interested in the protection of Pennsylvania’s best water resources for some time and is now attempting to establish how effectively the new regulations (reflecting the existing procedures) will afford protection to waters of public lands. This raises some questions that can be better answered by your agency than by DEP or the EQB, and we respectfully request some information from you that will assist us in our research. While the questions are designed to be answered with a simple "yes, no, or don’t know," please feel free to explain any answers or add any general comments at the bottom, as our purpose is to get an accurate picture.

Agency:

Date:

1. Are you aware of the Commonwealth’s "Special Protection Waters" (antidegradation) program?

Are you aware of the mention of certain public lands in both the state and Federal regulations?

2. Are any waters on your lands currently designated as "Exceptional Value waters?"

Do you believe the designation(s) is necessary?

Does it 1) protect water quality, and 2) does it provide greater protection than would your normal stewardship activities (i.e., do you do anything different in these watersheds)?

3. Were you aware of the regulatory change? If so, how?

Were you contacted by DEP or the EQB at any time during the development of the regulations (roughly, 1997-1999)?

4. Are you aware of the provisions in the "Special Protection Waters Implementation Handbook" that pertain to redesignation of waterbodies on your lands?

Did DEP (or the old DER) inform you of these provisions, either during the development of the handbook (roughly 1991-1992), or after the first edition was released (1992)?

5. Has the EQB/DEP/DER ever provided to your agency examples of the necessary water quality protective measures to satisfy the Handbook (or the new regulation; presumably the same, since the regulation reflects the Handbook procedure)?

Have they discussed with you what is meant by "extraordinary" or "long-term?"

6. Does your agency have the technical expertise to develop and implement water quality protective measures?

Have you discussed with the EQB/DEP/DER any generic water quality protective measures (as opposed to site-specific) that you might employ, to see if they would qualify?

Have you discussed any particular site-specific cases?

7. Is there a way in which your "resource management plans" for your lands be amended to include the type of water quality protection as described in the regulation?

Is there a way in which citizens can request such an amendment?

8. Overall, has the process worked well for conferring the EV designation to waters on your lands (note: there have not been many designations since the EPA disapproved Pennsylvania’s program in June, 1994)?

Do you feel that such a process as described in the regulation will work well in the future (please elaborate)?

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