FOR IMMEDIATE RELEASE
Contact: Joseph W. Turner
Secretary-Treasurer
Raymond Proffitt Foundation
PO Box 723
Langhorne, PA 19047
215-945-1329
gateway@rayproffitt.org
Date: March 31, 2000
FOUNDATION PETITIONS ENVIRONMENTAL QUALITY
BOARD
TO REVISE "EXCEPTIONAL VALUE WATERS" REGULATIONS
This week the Raymond Proffitt Foundation, a conservation group based in southeastern Pennsylvania, formally petitioned that state’s Environmental Quality Board to revise the state’s "Exceptional Value Waters" regulations to give more protection to National Parks and Forests, and State Parks.
In July of last year, Pennsylvania submitted regulations to protect water quality (also known as the "antidegradation policy") for the US Environmental Protection Agency to review. On March 17, 2000, EPA failed to approve Pennsylvania’s regulations concerning "Exceptional Value Waters" because they were unclear on the level of protection given to National and State Parks. EPA gave the state two options: either change the regulations or spell out the protection in the state’s "implementation methods" to be submitted at a later date.
Late last year, the Foundation filed a 60-day "notice of intent" to sue EPA under the citizens’ suit provisions of the Clean Water Act if EPA approved Pennsylvania’s regulations. "The state wants our best waters to jump through a hoop that is not in the Federal regulation," said RPF Secretary-Treasurer Joseph W. Turner. RPF had successfully sued EPA twice in the 1990s over their failure to ensure Pennsylvania had an adequate program to protect water quality, known as the "antidegradation" program.
The PA Department of Environmental Protection now gives the designation to waters of National Parks and Forests and State Parks only if the agency in charge of the land provides "a "resource management plan" which contains measures that "expressly provide extraordinary long-term water quality protection." The state says that the regulation change of last year is nothing new but simply reflects the existing procedure spelled out in the current "implementation methods."
The Foundation’s petition lays out the case why a regulatory change is needed. The regulation:
• contains a requirement not found in the Federal regulation,
• shifts DEP’s burden onto other agencies,
• compels citizens wishing to protect waters to deal with the land management agency first, then petition DEP,
• might result in waters with similar quality receiving different
protection simply due to the whims of the
land management agency, and
• establishes one standard for government and another for citizens because
waters on private land are
not required to have such protection.
In addition, Turner says, "DEP did not provide any data or information on how this procedure has worked in the past. If it is an ‘existing’ procedure, how has it been working? EPA was supposed to review the regulations with the ‘implementation methods’ in hand, and if the state had done as it was required to do, or if EPA had insisted, we might already have the answers."
In their March 17 letter, EPA also expressed concern that the state said it did not expect the number of "EV" waters to increase, which concerns the Foundation as well. "For years, Pennsylvania has been trying to limit the number of streams getting additional protection, and this new regulation seems to be the latest attempt." Turner concluded. <<<<END>>>>
COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL QUALITY BOARD
PETITION FORM
I. Petitioner Information
A. Raymond Proffitt Foundation
B. P.O.
Box 723
Langhorne, PA 19047
C. 215-945-1329
D. March 27, 2000
II. Petition Information
A. The petitioner requests the Environmental Quality Board to:
Amend a regulation: Chapter 93.4b(b)
B.
The current Chapter 93.4b(b) does not meet the minimum Federal requirements.
In a March 17, 2000, letter, EPA Regional Administrator Bradley Campbell
approved
other provisions of Pennsylvania’s antidegradation policy, but withheld
approval of
Pennsylvania’s regulation concerning Exceptional Value waters.
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. In June, 1994, EPA disapproved Pennsylvania’s antidegradation program, but praised Pennsylvania’s definition as being "even broader than the Federal definition..." In DEP’s proposed rulemaking in response to the EPA disapproval (March 22, 1997), DEP continued to include these important public lands in the definition, although DEP wished to make their consideration for EV status "subject to a resource management plan," a requirement not included in the Federal regulation.
The "Advance Notice of Final Rulemaking" (January 23, 1999) indicated in the preamble that the waters of National Parks and National Forests were included in the definition. The regulatory definition (Chapter 93.1) was changed to merely reflect the fact that the substance of the definition was moved to 93.4b(b). That section, however, failed to include National Parks, National Forests, and State Parks as clear qualifiers for EV status. Despite the fact that the format of the proposed regulatory language was difficult to comprehend, some citizens noted the omission in the proposed regulation and commented to DEP that National Parks, National Forests and State Parks must be added to the definition. Others may have been misled by the preamble language and assumed that the DEP regulation was at least as inclusive as the Federal regulation.
DEP’s comment/response document on the ANFR (no date) indicated that "[t]he Department has added language to the final regulations which includes National Forests and Parks and State Forest and Park Natural Areas as Exceptional Value waters selection criteria." Unfortunately, that was not done. In fact, at its May 19,1999 meeting, the EQB approved a regulation that did not give consideration equivalent to the Federal regulation to National Parks and State Parks, and amended the preamble to that effect. A press report quoted a DEP source indicating that this was done in response to lobbying from extractive industries.
Although EPA has given DEP the option of revising the regulation or revising the "Special Protection Waters Implementation Handbook," the best remedy of this situation, for a number of reasons, is to adopt regulatory language that clearly indicates that waters of National Parks, National Forests, and State Parks are given consideration equivalent to the other public lands listed in §93.4b(b)(1)(I) and (ii), that is, without the additional requirement of "water quality protective measures in a resource management plan."
In the May 19, 1999, final rulemaking package, DEP and the Board claim that National Parks, National Forests, and State Parks are actually included in the regulation through 93.4b(b)(iii) (consideration of a water as an "outstanding national, state, regional, or local resource water"). The definition of "outstanding national, state, regional, or local resource water" found in 93.1 requires that a "national or state government agency has adopted water quality protective measures in a resource management plan" in order 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..."
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).
While perhaps a desirable goal, this is an additional requirement that is not in the Federal regulation, and therefore makes the state program less inclusive. The requirement that the measures "expressly provide extraordinary long-term water quality protection" sets a very high bar for this additional requirement. We respectfully remind the Board that a central reason of EPA’s June 1994 disapproval of Pennsylvania’s program was that the definition of "High Quality" waters included an additional requirement not found in the Federal regulation-- namely, "additional environmental features." EPA disapproved in June, 1994, after being sued in Federal court by the Raymond Proffitt Foundation over Pennsylvania’s less inclusive definition.
In addition, these "existing procedures" must have been instituted through the Handbook because they had no basis in the previous regulation. Apparently, through this regulation, the Board is attempting to have the regulation "catch up" to the restrictions that DEP has arbitrarily applied through the Handbook--a document that has, as far as we know, received little or no public comment or peer review. On this basis, the Board now has created two distinct paths for Federal and state waters, one less onerous than the other. While the Federal regulation envisions that a stream in a certain setting is attribute enough, the Board has made that contingent on possession of yet another attribute, namely, the "extraordinary long-term water quality protection." This additional requirement, it is not acceptable for the categories included in the Federal regulation.
Placing this additional requirement on some public land categories creates a number of problems. It places the protection of waters from pollution and degradation--clearly the obligations of DEP and the Board--onto Federal and state land management agencies that have no obligation similar to DEP’s and the Board’s. The Federal government has delegated implementation of these provisions of the Clean Water Act to DEP--not other agencies. With the "management plan" provision, DEP and the Board are making their protection contingent on the actions of other agencies.
Right now, citizens must petition the Board to consider upgrading streams, which has become a very time-consuming process. Must they now first petition, for example, the Department of Conservation and Natural Resources to implement a management plan with measures that afford "extraordinary" protection? Has DEP and the Board polled the land management agencies as to whether such measures exist, or can DEP supply them? Are there procedures for revising resource management plans to include the measures if the current plans do not contain them? Or has the Board passed a regulation that has a requirement that is impossible to meet?
Third, it creates a situation where waters with like attributes may very likely receive dissimilar protection. A stream flowing through one State Park may receive protection because of enlightened management, and a stream in another Park may have greater attributes, but will receive less protection. EPA regulations prohibit waters of similar quality receiving dissimilar protection.
Perhaps worst of all, this regulation creates a blatant double standard. DEP rejected (and rightly so) suggested revisions to the final rule that would have given property owners or local residents a "veto power" over an EV designation. Apparently, government agencies are exempt from DEP’s response from comments received concerning the 1997 proposed rulemaking:
[EV] designations cannot lawfully, under the CWA and federal antidegradation regulations at 40 CFR §131.12, be limited only to waters that flow through public lands or to those waters on private lands for which the landowners have agreed to such protection.
Clearly, DEP is correct in asserting that the attributes of the waterbody and not the attitudes of the owners drive the designation. Why, then, do the attitudes of the land management agency receive so much deference? Shouldn’t government be setting stewardship examples, and not exempting itself from the rules that citizens are expected to obey?
In summary, the current regulation does not meet the Federal minimum, shifts DEP’s and the Board’s obligations to other agencies with different missions, puts additional burdens on citizens, creates a situation where waters with similar attributes receive dissimilar protection, and exempts government from the rules by which everyone else lives. The Board can correct all that simply by revising the regulation.
C.
The petition consists of new regulatory language in Chapter 93.4b(b) that
corrects the
problems with the present regulation, and reflects the changes that DEP promised
the
public in the ANFR comment/response document (deletions indicated by strikeouts,
additions
indicated by underlined and CAPITALIZED).
93.4b. Qualifying as High Quality or Exceptional Value Waters.
*****
(b) Qualifying as an Exceptional Value Water. A surface water that meets one or more of the following conditions is an Exceptional Value Water:
(1) The water meets the requirements of subsection (a) and one or more of the following:
(I) The water is located in a NATIONAL PARK, NATIONAL FOREST, STATE PARK, National wildlife refuge or a State game propagation and protection area.
(ii) The water is located in a designated
State park natural area orState forest natural area, National natural landmark, Federal or State wild river, Federal wilderness area or National recreational area.
*****
D.
Persons, businesses and organizations will all be affected, the vast majority of
them in a positive
way. Yearly, the Pennsylvania state park system serves an estimated 37 million
visitors. This is
a tremendous outreach opportunity. Many of the visitors will be positively
affected as they enjoy
the clean waters of our parks and see government setting an example with
innovative methods
and practices to ensure that water quality is not degraded. The Allegheny
National Forest,
Pennsylvania’s only National Forest, lies within a day's drive of 1/3 of the
Nation's population.
And a waterbody, the Allegheny Reservoir, is 27 miles long with 90 miles of
shoreline, and is
the centerpiece of developed recreation on the Allegheny National Forest. The
ANF had an
estimated 3.9 million recreational visitor days in 1997.
Pennsylvania ranks in the top 10 states in the number of anglers and number of days fished. Many of these anglers use our public lands, especially the three categories at issue here. For example, Valley Creek, flowing through Valley Forge National Historical Park, is the closest wild trout stream to center city Philadelphia, and is very popular with local and out-of-town anglers.
Taxpayers may be affected as the practices of the land management agencies will have to be conducted in a way that maintains water quality. Some of the practices may cost more than current practices. Resource utilization on the Allegheny National Forest or other public lands may be affected if private users have to change their practices in order to protect the water quality of these public resources. These costs are generally passed on to consumers. Private citizens may be affected if they choose to conduct practices upstream of public lands which degrade water quality. Generally, however, if private citizens choose to conduct activities that do not have the potential to degrade water quality, they will not be negatively affected.
E.
The factual and legal basis for the petition is presented in section B and need
not be repeated
here. Supporting documentation for this petition includes (items marked with an
asterisk* are
likely readily available to DEP; please contact if otherwise):
March 17, 2000, letter from Bradley M. Campbell, EPA, to James Seif, DEP.*
40 CFR §131.32. Pennsylvania, and 40 CFR §131.12. Antidegradation Policy*
25 Pa. Code Chapter 93, Water Quality Standards, present and past versions*
June 6, 1994 letter from Peter H. Kostmayer, EPA to Arthur Davis, DEP*
May 19, 1999, "Final Rulemaking, Water Quality Amendments - Antidegradation" Environmental Quality Board*
Undated document, "The following changes were made as a result of the 5/19/99 EQB meeting"*
Comment/Response Document, Antidegradation ANFR, DEP web site*
Information from web sites of Allegheny National Forest, PA Department of Conservation and Natural Resource, and Valley Forge National Historical Park*
<<<<END>>>>
DEP Petition Policy http//www.dep.state.pa.us/dep/subject/involved/rule_petition.htm