RAYMOND PROFFITT FOUNDATION REVISED COMMENTS ON PENNSYLVANIA'S PROPOSED ANTIDEGRADATION REGULATIONS

PART 2 of 3

(Note: Sections II, III and IV were previously published as PART 1.

Part 3 will contain a Sample Letter that may be sent to DEP)

I. INTRODUCTION

The following comments are on behalf of the Raymond Proffitt Foundation and the Delaware Riverkeeper Network. These comments replace the comments submitted at the DEP public meeting held on February 10, 1999, at the DEP Southeastern Office.

If Pennsylvania makes the changes requested in this letter, then the Raymond Proffitt Foundation and the Delaware Riverkeeper Network will give "conditional approval" to the proposed regulations. After a period of no more than three years the revised regulations should be evaluated to determine if they have indeed kept Pennsylvania's clean streams clean.

V. DEP'S REQUEST FOR COMMENTS ON CHEMICAL PARAMETERS AND CONTACTING LANDOWNERS

A. Chemical parameters

First, DEP has asked for comments on the chemical parameters to be used in evaluating a stream under the chemistry test. We would refer DEP to our two guidelines in answering these questions. Federal antidegradation laws allow a stream to be HQ when it exceeds water levels necessary to support the propagation of fish, shellfish, and wildlife and recreation in and on the water. This should be a very easy standard for a stream to meet in Pennsylvania, since we have so many high quality waters.

This federal standard looks at different ways of measuring the value of a stream. The waterbody could be wonderful for fishing, but not so good for swimming or boating. The stream could be just the opposite: great for water skiing, but no fish. A stream could be a valuable resource for wildlife, but not near human habitation or use. In other words, the federal standard has envisioned different uses of a stream that would qualify for HQ.

DEP, however, is requiring all streams to pass every test for all uses. Two of the parameters, nitrate plus nitrate nitrogen and manganese, are used to protect drinking water. They do not adversely affect the ability of the stream to support propagation of fish. Therefore, a stream that was being proposed for HQ because of a healthy fish population would be denied that designation if it did not meet parameters unnecessary for fish propagation.

We would recommend that DEP formulate specific parameters for specific uses, rather than use the current shotgun approach. In the above example, these two parameters would be eliminated if HQ is sought because of fish. If, on the other hand, a stream is proposed HQ because it is a source of drinking water, then the above parameters should be included.

The response from DEP at the public meeting that a good fishing stream could always qualify under the biological criteria is not an acceptable answer. Each requirement should stand on its own and should meet the twin guidelines of meeting minimum federal requirements and keeping clean waters clean.

B. Contacting landowners

DEP also wanted comments on its provision requiring petitioners requesting upgrades to provide a list of adjacent landowners. We would object to this requirement as too burdensome on the public. Streams such as Valley Creek in Chester County may have thousands of landowners. When DEP issues a permit it is only required to publish notice in the Pennsylvania Bulletin, or sometimes in a local newspaper. The same standard should apply to the public.

VI. COMMENTS ON SPECIFIC REGULATIONS

A. Antidegradation applies to activities, not just to discharges The biggest single correction that must be made is that DEP must reformat its antidegradation language so that it covers more than just discharges.

The United States Supreme Court and Pennsylvania's Environmental Hearing Board have held that antidegradation applies to diminution of water quantity. Reductions in water quantity from dewatering operations or drying up of streams in valley fills by eliminating recharge areas are just two glaring examples of how non- discharge activities can destroy the Commonwealth's streams. Antidegradation applies to activities, not just to discharges.

DEP can correct this major problem in one of two ways. First, in subsections 93.4a (b), (c) and (d), it can recite the exact language found in the federal regulations for Pennsylvania. That language does not limit antidegradation to discharges, but applies to any activities.

The second way DEP can correct this fatal flaw is by keeping the above sections as they are written, but rewriting other sections of its regulations to include activities as well as discharges. Subsection 93.4c (b) (1) would be changed to read: "(1) Point source discharges and other activities - The following applies to point source discharges and other activities to . . . waters." Next, all the subsections that use the phrase "discharge" would be changed to either "activities," or the phrase "and other activities" would be added. Subsections' 93.4c (b) (1) (iii) is the most important one that needs this change. It should contain similar language and read: "new, additional, or increased discharge or other activity." In addition, the phrase "unless the discharger demonstrates" would be changed to "unless it is demonstrated."

B. Qualifying streams for EV designation

Another glaring problem occurs in Section 93.4b (b) (1), where DEP has excluded "National and state parks" from the requirements for EV. This is language that is in the federal requirements, and cannot be excluded.

We understand that DEP may not want to give EV protection to a HQ water merely because it flows through a park. But federal antidegradation requires that such a stream receive EV protection; that is the law. We would agree with this concept because more people would use a stream that is flowing through a park than if it flowed through some isolated pristine area. Thus, this concept gives more protection to a stream used by people for recreation---and that is the purpose of antidegradation protection. Valley Forge Park would be eliminated from this proposed deletion, and that is unacceptable.

C. Qualifying streams for HQ designation

A major problem we have with qualifying waters as HQ lies in verifying that the requirements to be met are, in fact, reasonable requirements. In the federal language, a stream must only "exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water." If a stream's water quality was only slightly better that what would be necessary to support the propagation of warm water fish, then it would qualify. Most unpolluted streams would probably fall in that category.

1. Chemical parameters

The chemical test is a long-term test, but DEP does not say how long. In our meeting, DEP said that it was still determining the length of time to meet this requirement. This lack of specificity does not give us comfort.

We also have commented on using specific parameters for specific streams. Please see those comments in Section III. A., above.

2. Biological parameters

The biological test, likewise, raises concern. We do not know if 83% is too high or too low. We would suggest that DEP delete the use of a specific number in these regulations, and instead use that number in its policy. We would further suggest that DEP use the 83% number for three years to see how well it works for qualifying HQ streams. DEP could then issue a report at the end of three years that demonstrates the effectiveness of its numbers.

If the report demonstrates that 83% is a good number, then DEP could make the change permanent by proposing it as regulation during the next Triennial Review. This way, all sides of the issue would have facts on which to base their evaluation. Right now, neither the environmental community nor the regulated community know whether 83% is a workable number.

We believe that if DEP is going to ask the public to support absolute numbers, then DEP must provide the scientific justification for that data. So far, we have only seen conclusions, not research.

If, however, DEP insists on using the 83% level for its biological parameters, then we would still like to see a report in three years. It is important that the public know whether this system is working.

In addition, we would expect that if a stream is not impaired, then it should qualify for special protection. If we start to see many streams fail the biological test, yet not be listed on the 303d list for impaired streams, then we will know that the 83% number is too high. If the 83% number is too high, then we would expect DEP to offer a lower number at the next Triennial Review.

D. All wild trout streams should be High Quality In

Section 93.4b (a) (2) (ii), DEP limits HQ protection to Class A Wild Trout Stream. We believe that all wild trout streams should qualify as HQ. After all, trout are an indicator of a healthy stream.

E. Existing Use protection should include more data Section 93.4c (a) (1) (i) should be rewritten to say the following: "(including, but not limited to, data . . . action)." This will allow data from other sources, such as other agencies, to be used in evaluating the existing use of a stream.

This additional language also will allow data from activities that may affect stream quality, but are not discharges or approvals. Valley fills, for example, might not fit under the current definition of what data will be examined.

F. The public should not be required to submit comments to the applicant The public should only be required to submit comments to the DEP. Requiring the public to submit comments to the applicant will have a chilling effect on public participation. Relations between the public and an applicant are frequently not good, and sometimes almost violent. The public would feel safer submitting comments to government, and such comments would have a better chance of reaching government. After all, it is government that must review the comments.

G. The SEJ language does not meet federal requirements for public participation and intergovernmental review

The federal requirements require "public participation and intergovernmental review." Section 93.4c (b) (1) (iii) only requires "full satisfaction of the intergovernmental coordination and public participation provisions of the Commonwealth's planning process." DEP is requiring less than the federal requirements, therefore, this language must be changed to conform to federal language.

H. The SEJ language must allow for benefits to the local area

A stream will benefit its local community in many ways, from aesthetics to recreation to commercial enterprises. The federal requirements only allow for such degradation if there is some return to the local community. This becomes a balancing test between the lowering of water quality and economic or social development to the local area.

If DEP wants to add language that includes economic and social benefits as well, then these benefits also should be to the local area. DEP should eliminate the phrase "and will result in economic or social benefits to the public" and simply add the phrase "benefits" to the existing federal language. The new language would read as follows: "that allowing lower water quality is necessary to accommodate important economic or social development and benefits in the area in which the waters are located."

I. Bonding should be required for discharges or activities that affect EV streams

EPA denied DEP's last Triennial Review for antidegradation and required, among other things, that DEP not allow any new or additional discharges to EV streams. DEP objected and said that as long as the regulations required water quality to be maintained and protected then federal requirements were being met.

The reason for having no new or additional discharges to EV streams is simple. They are our best streams, and operations on these streams will eventually fail. When, for example, a sewage plant fails, DEP does not have a reputation for being the fastest enforcement agency in the area. Problems typically go on until the stream is harmed far longer than necessary.

We would suggest that if DEP does not want to limit new or additional discharges, then it require dischargers, or any activity to an EV stream, to post a bond that would cover the cost of a cleanup should the operation fail and lower water quality. Each bond would have to be individually determined.

VII. CONCLUSION

The Raymond Proffitt Foundation and the Delaware Riverkeeper Network hereby give "conditional approval" to Pennsylvania's proposed antidegradation regulations, but only if the above recommendations are incorporated into the regulations. Final approval will be given only after three years, and only after a satisfactory showing by DEP that the proposed regulations meet minimum federal requirements and keep clean waters clean.

JOHN WILMER
21 Paxon Hollow Road
Media, PA 19063
(610) 565-2736
jwilmer@ix.netcom.com 

Date: February 16, 1999

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