Antidegradation Comments due by 31 July 2001

Well, DEP's long-awaited guidance on antidegradation is out. We give it a mixed review. There are some good things in it, some things that are weak, and some areas where we expected a lot more [link to our comments].

Like its earlier version, the "Special Protection Waters Implementation Handbook," the guidance is heavy on how DEP will assess applications for point source discharges in HQ and EV streams. We like the way that applicants will have to assess non-discharge alternatives first, then partial discharge alternatives, and then a discharge alternative with advanced treatment. All this is before a discharge goes through the "social or economic justification" exercise. This means that advanced treatment should become more common on our better waters.

The guidance doesn't talk too much about the basic level of protection that our streams should get. EPA guidance says that all species have to be protected. That doesn't mean that all individuals need to be protected, or that no activity or discharge can take place. It means that the activities shouldn't significantly reduce the fish, plant or invertebrate populations of our lakes and rivers. DEP doesn't talk about this very much.

This is an important point because impacts from many activities aren't caused by "discharges." They are caused by changing stream temperatures, or causing increased high flows from stormwater runoff, or reducing the stream flows during drier periods. DEP doesn't talk very much about how they will assess these types of impacts in our better waters. Instead, it seems like DEP thinks that antidegradation is mostly about sewage discharges.

Endangered species are defined in such a limited way that very few Pennsylvania endangered or threatened species will get additional protection. DEP did this by using the Federal definitions for endangered and threatened species. This unduly restricts the regulation that affords protection to both Federal and state species.

DEP decided to add a number of chemical parameters to the long list of things they check for when determining if a water should be HQ. But when they made the regulation final two years ago, the EQB decided to reject additional chemical tests. This is important because DEP insists that all the chemical parameters must be better than standards before they consider it HQ. What better way to limit the number of streams becoming HQ than requiring even more tests? This approach was rejected by EPA five years ago when they wrote regulations for Pennsylvania. This position seems as if it was written for or by industry lobbyists, as they called for it during the failed "reg-neg" process and afterwards. DEP will protest that the streams could also qualify for HQ due to the biology of the stream, but whenever streams are borderline, they will end up looking at both. When some stream is assessed and has "borderline" biology, DEP can reject it if it has too much of any one chemical. It's easier to reject streams if you give them more tests.

It doesn't seem as if the regulations were ever interpreted to give streams more protection. For instance, the guidance merely repeats the need for additional protection measures for waters of National or State Parks before they are considered for EV status. We filed a petition with the EQB [link] to change the regulation, and EPA has held off approving Pennsylvania's regulation because they are not sure that this passes muster. Our report [link] on how poorly DEP has explained this additional requirement to the Federal and state agencies that will have to provide the "extraordinary water quality protective measures" in the "management plans" doesn't seem to have had any impact because DEP provides no additional information on what is required. It looks like it is yet another way to unfairly limit the number of streams considered for EV status.

There are four public hearings--go to them and speak your mind [link to hearing sites]. Or send in the attached letter, or take another look at our letter and come up with your own. DEP needs to expand this document in order to better protect our waters. You can be sure that industry lobbyists, who have been working tirelessly for years to limit this program, will be complaining about the protection that it affords.

Written comments may be submitted in place of or in addition to oral testimony and should include the name, address and telephone number of the person submitting them. Written comments will be accepted by postal or electronic mail at the address listed below. Comments submitted by facsimile or voice mail will not be accepted.

The comment period extends through July 31, 2001, and comments and testimony received by that date will be considered in the formation of final guidance for the Antidegradation Program, which will be announced in the Pennsylvania Bulletin.

Written comments may be submitted to:

mhoughton@state.pa.us

Mary Houghton
Department of Environmental Protection
Office of Water Management
Bureau of Water Supply and Wastewater Management
Division of Water Quality Assessment and Standards
P.O. Box - 8555
Harrisburgh, Pa. 17105-8555

(SAMPLE LETTER)

The draft DEP Antidegradation Guidance is strong in some areas, and weak or silent in others.

The section on designated and existing uses does not speak to the basic level of protection that our waters receive. DEP should adopt language similar to the long-standing EPA guidance. DEP also needs to discuss how it will implement the U.S. Supreme Court and Environmental Hearing Board decisions that ruled that water quantity and physical disturbances are integral parts of water quality standards, especially antidegradation.

DEP has "defined" endangered and threatened species in such a way as to exclude any Pennsylvania endangered or threatened species that are also not Federally-listed. The Guidance should not re-write the regulation, in which it is clear that Pennsylvania species are to be protected. In a similar fashion, the Guidance adds many other chemical "tests" for waters to qualify for HQ. The EQB rejected this approach in its final rulemaking. We disagree that all the chemical parameters must be better than standards in order for a stream to qualify. EPA doesn't agree with that approach, either.

The requirement that waters of National and State Parks have some other "protection" before DEP considers them for EV status is not supported in the Federal regulation.

DEP is conducting a "pilot" study to notify landowners when it proposes to redesignate a waterbody to HQ or EV status. Why does DEP only think that property "rights" are affected when greater protection to public resources is proposed, and not when public resources are degraded?

We agree with DEP that the order of preference of alternatives should be 1) no discharge, 2) partial discharge with advanced treatment, 3) advanced treatment, and 4) determining social or economic justification. Our best waters deserve the protection afforded by advanced treatment, even if the discharge is justified. Permit holders should be required to do more toxicity and instream work to ensure their activities are not causing biological harm.

In a watershed, non-point sources need to be controlled before allowing any new activity that would further degrade waters, as well as when looking at the overall impacts of a proposed activity.

The descriptions of ABACT are strong on treatment methods to control chemical discharges, but are weak in other areas, especially temperature impacts and changes to physical conditions. They need to include measures to avoid or minimize the impacts from all reasonable likely impacts from an activity, and descriptions of how DEP will assess proposals in Tier 2 and Tier 3 waters for all of those impacts, and not just a few chemical water quality parameters.

Thank you.

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