I. When we last left our heroes.........

Unless this is your first time reading PU, you know that the Raymond Proffitt Foundation has a long-standing interest in Pennsylvania's antidegradation program. This is a program that is supposed to keep our best waters clean. In regulations passed last year by the Environmental Quality Board (EQB), the state added a requirement for the streams of State and National Parks before they can get an Exceptional Value classification. The Federal regulation simply says that "high quality waters" in certain settings, such as National and State Parks, are considered "outstanding national resource waters" and get the highest protection. The EQB, through DEP, wasn’t happy with that and now defines in regulation that an "outstanding national resource water" is a water where the agency in charge of the park has in place a "plan" that affords "extraordinary" water quality protection.

We believe that this extra hurdle is not in, nor authorized by, the federal regulation, and therefore is not allowed to be in the state's regulation, either. The Federal regulation is the minimum protection that waters get, and the regulation is quite straightforward--high quality waters of State and National Parks get the highest protection—it doesn’t say anything about having plans in place that offer extraordinary water quality protection.

Think about it, folks. It is supposed to be the Exceptional Value designation that affords the protection. That’s the whole point of antidegradation! Instead, courtesy of the distinctive style we have come to expect from Pennsylvania DEP, the streams will receive DEP’s highest classification--only if they are already protected by another government agency! Can you say passing the buck, boys and girls?

We expressed our displeasure to the EPA over this. They, in turn, withheld approval of the EV regulation, but said that the state could 1) change the regulation or, 2) in EPA’s own "Let’s Make A (Bad) Deal" style, tidy things up with

"a very clear statement in the implementation handbook    establishing that the Commonwealth’s revised regulations will be construed and applied to encompass all the waters encompassed by the Federal minimum."

Here’s a summary of why we think the regulation should be changed:

1. the requirement for a "plan" adds an additional hurdle for waters to be protected and makes the state’s program less inclusive than the Federal minimum,

2. it shifts DEP's and the EQB's obligations to protect water quality to other agencies with different missions,

3. it puts additional burdens on citizens who must now petition another government agency to create a plan or change their existing plan, and then petition DEP for an EV classification,

4. it creates a situation where waters with similar environmental attributes might receive dissimilar protection, because one stream might have a plan, while another doesn’t, and

5. it exempts government from the rules by which everyone else lives, as the regulation essentially gives a "veto" power over an EV designation to other government agencies—but does not give private landowners the same power (we don’t think anyone should have a veto—it should be the water quality and the attributes of the stream that determine its classification).

And remember, folks, this only deals with EV candidates—none of this means that the streams automatically would be EV, just that their consideration for EV would follow the Federal minimum.

Normally, DEP makes a recommendation to the EQB on whether a petition should be "accepted." If accepted, DEP then does a study and then makes a recommendation to the EQB on the request. At the June 20, 2000, meeting DEP initially spoke against our petition, because the EQB had just acted on regulations, and EPA had left open a non-regulatory escape hatch for DEP (see the "Let’s Make a (Bad) Deal" in the 4^th paragraph above).

II. Where’s the beef?

Well, a deferment is better than a rejection, and hats off to the EQB members that didn’t buy DEP’s arguments to reject our petition. After the meeting, we did a bit of nosing around to find out how this will be handled in the guidance document. We took a look at the agenda of the "Water Resources Advisory Committee," or "WRAC." If this was going to be handled in the guidance, the "WRAC" should be working on it.

It’s worth a look. A real close look (and the subject of at leas one future PU)! Chapter 2 was particularly interesting to us as it tells how waters will be classified as HQ or EV. And what do you know!? There is something in there about EPA’s concern (page 2-11). DEP claims that there are "multiple pathways" for these waters to become EV. But they fail to point out that all but one of these "pathways" are available for all waters--and it is that one remaining pathway that is at issue. That pathway is described in the Federal regulation as "where high quality waters constitute an outstanding national resource, such as National and state parks..." How does DEP deal with that?

"Outstanding resource waters… are defined in this regulation as waters for which a government agency has adopted water quality protective measures in a resource management plan…"

Well, there they go again. This sentence defines the problem. The Federal regulation says nothing about the Park agency having to come up with some "plan" with "water quality protective measures" (which DEP has further defined in regulation as providing "extraordinary long-term water quality protection of a watershed corridor").

DEP couldn’t be more clear, however, in the next statement, where they state how this really works:

"An Exceptional Value designation for these waters is designed to compliment or supplement existing efforts to protect and manage water quality being implemented by others."

Hats are off to DEP for finally telling it like it is! We didn’t put it any clearer when we termed it "passing the buck."

Here is bureaucratic buck passing at its finest. Water quality is supposed to be protected by the antidegradation policy, but DEP is saying they will implement antidegradation after the work is "implemented by others!

This goes beyond whether or not the stream running through "Senator Sludgepump State Park" gets to be EV or not. This goes to the heart of antidegradation and how that program is run by an agency that is afraid to make a hard decision and do its job. Antidegradation is supposed to protect water quality, and it is the job of DEP to make those calls as they are supposed to be made—not wait for the protection to be "implemented by others."

Our first lawsuit on antidegradation was based, in large part, because DEP required HQ streams to have something "extra" before DEP would protect it. Now they want to mess around with EV, and try to make that part of the program less inclusive than the Federal program.

It didn’t work before and it won’t work a second time. Hope you are listening, EPA.

III. Twenty Questions for Mr. Tropea

On September 19, the EQB will meet again and hear a presentation from DEP Deputy Secretary for Water Larry Tropea who will give the EQB an update on the Aguidance.@ It was the EQB, when voting to defer action on the petition, who asked that DEP update them. on the progress of the guidance.

We wonder if Mr. Tropea will answer some of the points raised in our petition. Maybe he will explain how the preamble of the draft "Advanced Notice of Final Rulemaking" included National Parks and Forests, but the regulation did not. Maybe he will say why the comment/response document for that advanced notice said that DEP would add National Parks and National Forests as selection criteria but then did not. Maybe he will say how DEP was lobbied by extractive industries to specifically exclude them.

And perhaps he will give an update on how this wonderful program has worked in the past! After all, in the final regulation’s preamble (p. 7, May 19, 1999), DEP said that the definition for "Water Quality Protective Measures in a Resource Management Plan… incorporates the Department’s existing procedures for national and state waters qualifying for EV status."

We were interested in that statement so at the same time we petitioned the EQB to change the regulation, we polled the "other" agencies to see how it was working and had a summary of the report ready for the EQB meeting on June 20th, and have put the full report on our web site [link]. We don’t think it works, Mr. Tropea. You and your agency have never bothered to communicate to the other agencies how the "existing procedures" work.

Mr. Tropea, it’s not an existing program. It’s a new trick to try to limit the number of EV waters. DEP also said in the same rulemaking (p. 6, May 19, 1999) in a moment of candor, that the number of EV stream miles "is not expected to change markedly under these regulations…".

When you take a straightforward Federal regulation and add pages of qualifiers, we agree that the number of EV streams will not "change markedly."

IV. Speak Out!

Please send this letter, or one of your own to: