Raymond Proffitt Foundation
Pollution UpDate
27 March 98

"Pollution UpDate" is a publication dedicated to the reporting of timely environmental news. Environmental activists with story ideas or comments can e-mail gateway@rayproffitt.org. I'd like to thank the readers of Pollution UpDate for their comments and suggestions, and DEP for giving us plenty to write about.
Joe Turner, Editor

What Mr. Hess Is Not Telling You, Part I

Since David Hess of DEP wants to use the Internet for action alerts, but yet refuses to use his position in Harrisburg to let you know of all the anti-environmental measures that YOUR legislators dream up (with the able assistance of some of the worst lobbyists money can buy), Pollution Update takes it upon itself to occasionally spotlight (as one would shine a light on a rat) particularly anti-environmental measures.

This week's entry comes to us from the northwest part of the state. Rep. Jim Lynch (R-Warren) has introduced two bills to change the way the state protects our best waters. Apparently, special interest polluter groups were not happy with not getting their way in the "Special Protection Waters Stakeholders Group" and, just as a spoiled child would, threw a tantrum. Rep. Lynch, with these bills, is happy to give these brats a big lollypop at the expense of your water quality and--your constitutional rights to pure water.

What follows is an analysis of the bills by Pennsylvania Trout, Inc. If you are outraged after reading the analysis, write Reps. Reber and George, the majority and minority chairs of the House Environmental Committee and tell them to kill these bills. Actually, these bills are so bad as to deserve a "Lynch-ing." Send a copy of any letter to your own Representative. A short sample letter follows the analysis.

Analysis of HB 1896 and HB 1969 PA Trout Environmental Committee

Two bills have been introduced into the Pennsylvania House that would radically weaken protection of our best streams. The bills, introduced by Rep. James Lynch (R-Warren County), are basically identical. HB 1896, introduced in October 1997, would amend the Clean Streams Law, while HB 1969 is a stand-alone bill and was introduced a short time later. Both bills would strip existing Exceptional Value streams of their designations, and would change the way the Commonwealth recognizes its outstanding waters in such a way that no stream will ever be likely to be designated as "Exceptional Value."

The Federal Clean Water Act mandates that states set up mechanisms for identifying and protecting "outstanding national resource waters," also known as "Tier 3" waters. Currently, the Department of Environmental Protection recommends "Exceptional Value" designations for waters that are outstanding resources. DEP studies the basin, and is then supposed to base these recommendations on the attributes of the watershed. DEP has set up criteria to assess these waters, and most recommendations are based on the pristine nature of the watershed and the outstanding aquatic resources of the waterbody. In Pennsylvania, stream designations are regulations, and therefore, DEP's recommendations must be approved by the Environmental Quality Board, a body made up of the Governor's cabinet, Legislators, and citizen representatives. While the system is not entirely perfect, there is input from all sides. DEP has proposed, and the EQB has approved as proposed, new regulations and procedures for the program (March, 1997) but DEP has not finalized the regulations.

Right now, about 1,500 stream miles, about 3% of Pennsylvania's streams, are designated EV. About half are on public lands. The protection these streams receive is considered "no degradation." This means that discharges are allowed, but permit limits are set so that there is no change in the water quality. Development is not stopped, but treatment levels are increased in recognition of the outstanding aquatic resources.

Rep. Lynch's bill would change all that. The bill (HB 1969 Section 2(b)) mandates that DEP hold an informational public meeting prior to the DEP study, something DEP has already proposed to do. One of the purposes of the meeting, according to the bill, is to have DEP inform the public on the "impacts of the Exceptional Value Waters designation on activities in the affected watershed."

Section 2(c) directs DEP to hold another meeting after the study is completed. This time, DEP is to announce its recommendation, but also "identify watershed lands that would be affected," and "explain the types of activities that are restricted by the recommended designation and how the department restricts such activities."

After the initial meeting, study, and second meeting, Section 2(d) directs DEP to then hold public hearings in each county. The purpose of the hearing is to receive testimony from "owners and residents of the watershed lands who will be affected by the designation." The other users of the watershed, those that rely on good water quality, are apparently not permitted to testify.

For each meeting, and for the hearing, DEP will have to notify by mail every municipality and permit holder, and by certified mail each "affected" land owner (Section 2(e)).

Section 2 (f) states that if the designation would affect "interests in watershed lands that are under private ownership or control," DEP must then engage "all owners of interests in the affected property" in designing a watershed conservation plan.

Section 2 (g) says that DEP can only submit its recommendation for EV status if the watershed conservation plan has been adopted and implemented by "all persons who participated in the development of the plan." In other words, landowners in the watershed, who must be actively engaged, will hold veto power over DEP's submission of its final recommendation. They can refuse to adopt and implement the conservation plan and thus prevent DEP from moving ahead with an EV recommendation.

Even if all those conditions are satisfied, Section 2 (h) states that the designation must be passed like a law, rather than go to the EQB as happens now.

Section 7 immediately revokes the EV status of streams that "affect interests in lands under private ownership or control." Watersheds wholly on public land or owned or controlled by a non-profit organization devoted to preservation will keep their designations for four years. DEP must re-study all these streams in two years, and make recommendations for EV status. These recommendations must then be acted upon as outlined in Section 2 (h). Otherwise the designations lapse after four years.

The bills include all the positions advocated by radical industry lobbyists during the "regulatory-negotiation" on the Special Protection program in 1995-1996. Pennsylvania Trout was on this panel and along with other conservation groups and resource agencies, resisted these positions. They are ostensibly based on a fear that EV designations end all economic activity in a watershed. No examples of problems have ever been given. In fact, the contrary is true. In the Pine and Elk Creek basins in Centre County, DEP has issued surface mining permits in the face of an EV designation. EV designations do not preclude development, although they may increase treatment costs. It is probably the increased costs and decrease in profits that make EV designations objectionable to industry, developers and their supporters.

Either of these bills would end the protection on our best streams. They turn topsy-turvy the Pennsylvania Constitution's guarantee of the right to pure water and instead establish by statute a right for private interests to degrade our pure water, simply because their costs might increase.

The bills also re-defines the way Pennsylvania would designate "high quality" waters, also known as "Tier 2." About 25% of Pennsylvania's streams are HQ streams.Water quality can be degraded if a potential discharger can demonstrate "social or economic justification." In some instances, a higher level of treatment is required. Currently, DEP assesses the water chemistry and the aquatic resources of the basin. The new definition of "high quality" waters in Rep. Lynch's HB 1969 (Section 1) states that waters "may qualify as high quality waters only if" all the water chemistry parameters are better than the established numeric criteria at the time of sampling. Otherwise, the waters would get only the basic water quality protection. This is completely contrary to Federal guidance says that states should consider waters as "high quality" as long as any parameter is better than standards. This was another radical position staked out by lobbyists for extractive industries on the reg-neg committee, which at that time was rejected by Pennsylvania Trout.

Taken together, the bills' sections on EV streams coupled with the new definition of HQ streams afford no protection to our best waters. An outstanding trout stream could fail to qualify as EV waters because one private landowner refuses to agree to a conservation plan. The same stream could then fail to qualify as HQ waters because, for example, the same landowner has allowed non point source pollution to enter the water and sampling would show a violation of the water quality criterion.

Rep. Lynch says the purpose of his bills is to expand public participation and restore political accountability to the EV designation process. The bills' provisions on EV waters actually give veto power to a small group of people (landowners), and for HQ streams, remove the public from having any say in water quality decisions. This is contrary to the spirit and intent of the Pennsylvania Constitution, the Commonwealth's Clean Streams Law, and the Federal Clean Water Act.

These bills are so bad that they should not even be considered by the House or Senate Environmental Committee.

Rep. Robert D. Reber, Jr.
426 King Street
Pottstown, Pa. 19464

Rep. Camile George
430 Spring Street
Houtzdale, Pa. 16651

Dear Representatives Reber and George:

I strongly oppose two bills that would give certain citizens the right to degrade our waters at the expense of the rest of us. HB 1896 and HB 1969 would give would-be polluters veto power over the level of protection our best streams receive, and roll back the protection that our best streams now receive.

Special interests would have you believe that economic activity comes to a halt in areas that have higher levels of protection for surface waters. In fact, the opposite is true. Counties such as Pike and Monroe have our highest rate of economic growth and are blessed with miles of clean streams that receive high levels of protection. People simply want to work and play in areas with clean water. Also, DEP has issued a number of discharge permits on "Exceptional Value" streams that allow for economic development but also recognize the value of the receiving waters.

The bills supposedly increase public participation but in fact limit participation to landowners in the basin. Our water quality is a public resource and not any individual's property. These bills are contrary to our Constitutional right to pure water. Please do this and future generations a service and do not allow these bills to reach the floor of the House. If these bills are to move to the floor, extensive public hearings should be held across this Commonwealth to allow the people to be heard.

Sincerely,

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