The Man In The Green Mask

It may be the beginning of summer but it has been the Halloween season recently in Harrisburg, where all sorts of folks are masquerading as environmentalists. Anyone can call themselves an "environmentalist"-- there is no sanctioning body that bestows that title on a person.

For whatever reason (read: whatever job he has his eye on after Election Day 2000), Gov. Tom Ridge would like to call himself an environmentalist, or at least a "moderate" on environmental issues. His Department of Environmental Protection, which bent over backwards for industry in his first term, actually came out recently with what appears to be reasonable regulations in a very controversial area--the "antidegradation" policy of the water quality program. This program, also known as the "Special Protection" program, has been knocking its way between DEP, the Environmental Protection Agency, and the federal courts for a number of years now. Since January 1997, Pennsylvania has been living with federal regulations on antidegradation, although there is absolutely no sign that the DEP ever did anything different (actually, they did absolutely nothing at all in this program in the last two years, except write and rewrite regulations).

In January 1999, DEP published an "Advance Notice of Final Rulemaking" that set industry to squawking. DEP's original proposal, from May, 1997, was essentially written by those whose only interest in our waters is how quickly they carry wastewater away from the discharge pipe. DEP's "Advance Notice" reversed the earlier position on many key issues. See the PUs of February 12, 1999 and February 16, 1999 to see the comments of the Raymond Proffitt Foundation and the Delaware Riverkeeper Network (http://www.rayproffitt.org/pu/pu021299.htm and http://www.rayproffitt.org/pu/pu021699.htm). In those comments, we borrowed a page from our friends at EPA, and "conditionally approved" the regulations, provided some basic changes were made. (Contrary to the DEP Update of May 21, 1999, the Raymond Proffitt Foundation did not endorse the regulations).

Let's say up front that DEP made a lot of changes to improve the regulations over their earlier draft, but many of the changes were made simply to get the regulations up to something resembling the minimum Federal requirement. DEP will say they got a lot of praise, but it would be like if your boss wanted profuse thanks when you were handed your paycheck. Under the Clean Water Act, Pennsylvania HAS to have a program that meets the minimum Federal requirements--it is something the citizens are entitled to. We shouldn't have to praise them for something that they should have had in place years ago, and something that the Raymond Proffitt Foundation has had to take to Federal court--twice. It's just that no one was expecting much out of DEP and when everyone's low expectations were exceeded in most of the areas, they were surprised and praised the mean dog that finally stopped biting.

Anyway, one basic change that we suggested last February concerned some of Pennsylvania's best waterways: those found in National and State Parks. We suggested that DEP (and the Environmental Quality Board, when approving final regulations) change the regulation so that the state regulation on "Excpetional Value" (or EV) waters affords the same protection to waters of National and State Parks as does the Federal regulation. In the latter, "high quality" waters found in National and State Parks are considered to be "Outstanding National Resource Waters" (some other waters are included). Seems like a no-brainer. One of the reasons DEP went to the trouble of writing regulations was so that the Federal regulations could be removed. DEP continues to brag that their EV regulation is better than the Federal. What could it hurt to include the same land classifications that are in the Federal regulation?

The final state regulation does not extend such protection to those waters ( http://www.dep.state.pa.us/dep/subject/eqb/eqb.htm#051999 ). The EQB failed to make the changes; in fact, it seems like they went out of their way to EXCLUDE National and State Parks from EV consideration.

The regulation describing what waters are considered Exceptional Value is fairly confusing to go through. There are some classifications that are considered EV if they 1) qualify as "HQ" waters and also 2) are waters of some land classification, such as a National Wildlife Refuge or Federal or State Wild River. This is where, to be consistent with the Federal regulation, National and State Parks should have been included.

DEP got plenty of comments during the "Advance Notice" (see PUs of February 12 and February 16, 1999:
http://www.rayproffitt.org/pu/pu021299.htm   and http://www.rayproffitt.org/pu/pu021699.htm ) and knew that this was an issue. Here's what they had to say in the comment response document for the "Advance Notice," dated March 5, 1999 (full text available at http://www.dep.state.pa.us/dep/subject/eqb/eqb.htm#051999 ):

"EV Classification:

<snip>

"Commentators expressed concern that there is no mention of National (and State) Parks as part of the criteria in §93.4(b)(1) to be used in considering high quality waters. Presence of National Parks is part of the federal criteria. A commentator uses the example of the EV status of Valley Creek that flows through Valley Forge National Historical Park. It is possible that since National Parks are not part of the criteria the EV classification for Valley Creek could be removed.

"Response:

<snip>

"The 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."

There are a couple of things wrong with this. First, even if they had done it, they would have still been missing "State Parks." "State Park Natural Areas" is not the same as "State Parks." Second, with apologies to Nike, they just didn't do it. The regulation advertised in January had neither National Parks nor State Parks specifically listed, and DEP did NOT make the changes adding National Parks and National Forests into the regulation, contrary to their comment/response document. They did add the words to the "preamble" of the regulation, and then, after the May 19, 1999 EQB meeting, simply deleted them. This indicates that DEP and the EQB clearly meant to exclude waters of National and State Parks from the "Exceptional Value" waters classification, despite their misleading comment/response document. The question is why?

Remember that the reason why EPA wrote regulations for Pennsylvania in the first place was because Pennsylvania's regulations were found to be less than the minimum Federal requirement (and that a Federal judge ordered EPA to act). At that time the primary question was fact that Pennsylvania specifically excluded large numbers of streams from the "High Quality" classification--many streams in Pennsylvania were getting less protection than they deserved. There was not a question about Pennsylvania's definition of "Exceptional Value" waters -- that definition included everything found in the Federal definition and more, without qualification. So why, at this stage, would DEP and the EQB specifically decide to exclude two categories of streams, classifications that are prominent, the first two mentioned in the Federal regulation, and represent streams that millions of Pennsylvanians and out-of-state visitors enjoy every year?

We contacted DEP and they said that the waters of National and State Parks can enter through the back door of the regulation. They can be EV waters if the responsible agency writes some kind of plan as outlined in DEP's new definition of "Outstanding National, State, Regional or Local Resource Water" (bear with me, readers):

"A surface water for which a National or State government agency has adopted water quality protective measures in a resource management plan, or regional or local governments have adopted coordinated water quality protective measures along a watershed corridor."

The first part of the definition is at issue here (as much fun as it might be to dissect the second part of the definition: for instance, what the heck does DEP mean by "watershed corridor?"--maybe they will run a contest to have citizens define it for them!). Basically, it says DEP won't make a move unless the responsible agency says it's OK. But that is a condition not required in the Federal regulation. While it is certainly desirable for the agency to come up with a plan, it's not required (and note DEP did not include one of the other land classifications found in the Federal language, National Wildlife Refuges. Those lands were considered properly in the regulation. Apparently, the US Fish and Wildlife Service doesn't merit the same deference DEP is willing to grant to the state Department of Conservation and Natural Resources and the National Park Service. Maybe that has something to do with the fact that the Pennsylvania Office of the USF&WS has been a thorn in DEP's side for a number of years on its inadequate antidegradation program?). As we said in our earlier comments to DEP on the "Advance Notice," any time an agency fiddles with the Federal language, it's usually because they don't want to implement the Federal language. Maybe DEP is doing this because of some obvious fly in the ointment, like the millions of dollars the DCNR wants to waste on a dam at Swatara State Park (see PU of April 30, 1999: http://www.rayproffitt.org/pu/pu043099.htm ). DCNR might have even more trouble if the stream could be considered for EV status. Or is some developer with connections planning some assault on one of our other Parks, or the waters that eventually flow through a Park?

Or is DEP drawing a line in the sand with EPA? That agency is obligated to remove the Federal regulations in place--provided that state regulations meet the minimum Federal requirements. If DEP's EV definition has a major flaw, EPA will have to leave in place the section of the Federal regulation concerning "Outstanding National Resource Waters." That would render Pennsylvania's EV regulation as an "extra" category, and therefore practically untouchable by EPA. For while EPA requires that states have an antidegradation program, including three "Tiers" of antidegradation, they don't require 1) anything for "extra" categories, and 2) that states actually put streams into the categories. Pennsylvania could have a very stringent "Outstanding National Resource Water" classification (also known as "Tier 3") that they won't use. They could also lower the requirements in EV waters all DEP and the industry and developer friends would want. For EV would be demoted to something between "Tier 2" ("High Quality") and the Federal "Tier 3" that EPA would leave in place. Far fetched? Ask Virginia how many miles of stream they have in their EPA-approved "Exceptional Waters" (Tier 3) program. Zero, last we checked. The DEP and the EQB may actually want EPA to catch this mistake and keep in place a "paper" regulation that DEP can ignore, freeing them to lessen the requirements on the one part of the program that has been a long-standing success--the Exceptional Value waters classification.

As they say, just because you are paranoid, doesn't mean they are NOT out to get you! Or, more appropriately, it's deja vu all over again. A couple of years ago, PU had a fire fight with a high-ranking DEP official about the protection DEP afforded to waters of National Parks, such as Valley Creek, flowing through Valley Forge National Historical Park. At that time, DEP was trying to get the public to oppose EPA's promulgation of Federal regulations, claiming (in the topsy-turvy style that DEP has) that those regulations gave less protection to Pennsylvania's waters than the regulations proposed by DEP, because "EPA does not recognize EV." We said that it was really the state's call on how much they wanted to protect the best streams in the state-- they could always have regulations more stringent than those EPA was putting in place. (If anyone is interested in paging through the emails I exchanged with DEP, drop PU an email.) DEP wanted to ignore the fact that they were permitted to have more stringent regulations, that EPA's action did not jeopardize EV, and most importantly, that EPA's action was going to do nothing to reduce protection on EV streams.

Fast forward 2.5 years. Guess who finalized regulations that LESSENS protection of waters in National and State Parks (not to mention National Forests, that are not required in the Federal regulation, but were mentioned in the old EV definition), less than that afforded by the Federal regulation, and more importantly, less than that afforded by STATE regulations written many years ago and supported by numerous Pennsylvania administrations, both Republican and Democratic? Not big, bad EPA.

The Department of Environmental Protection, the Environmental Quality Board, and by extension, the person who controls both organizations, Governor Tom Ridge, the man in the green environmentalist mask.

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