Chapter 1
1. Background
The second paragraph emphasizes that the antidegradation program "introduces levels of protection for deserving water bodies above the basic standards." This harks back to the days of the "Special Protection" program in Pennsylvania, and implies that the antidegradation program has nothing or little to do with the basic level of protection that is extended to all of our waters. While antidegradation certainly speaks to the protection extended to Tier 2 and Tier 3 streams, it also sets the basic level of protection, and, as will be pointed out, this document speaks little to the protection of Tier 1 waters.
2. Discussion
The last paragraph of this section implies that existing uses must be protected only when an activity that "requires a Department permit or approval" is proposed. Water quality standards, which are based on both Federal and Commonwealth statutes, are in force regardless of any Departmental action.
The second paragraph of the EV Waters section fails to point out the substantial reason for EPA's concern, which is similar to the 60-Day Notice filed by the Foundation and the petition to the EQB submitted by the Foundation. That reason is less the failure to include such waters in the definition of the regulation, and more the requirement for some additional type of protection that the Pennsylvania regulation places on waters of National and State Parks, contrary to the plain reading of the Federal (and current Pennsylvania) regulation.
Chapter 2
2. Discussion
This section while it provides the DEP's thinking on the differences and similarities between existing and designated uses, fails to specify the level of protection that the waters receive. The sentence "the Department protects such uses by making decisions to issue or deny requests for Department permits or approvals" conveys little information on the bar or threshold used by DEP to measure effects or when the use might be impaired. For example, DEP has routinely issued permits for longwall mining even though there is strong evidence (from past permits) of severe physical and hydrological changes to streams. The biological changes that result from these other impacts have been disregarded by DEP in their permit reviews.
Similarly, DEP has not outlined how it will implement key court rulings, such as the U.S. Supreme Court decision on water quantity (Jefferson County decision) and the EHB decision in the Oley Township case. The latter decision stated that hydrological and biological alteration of waters of the Commonwealth constitute "pollution" as defined in the Clean Streams Law. DEP has said that they are "implementing" the Oley Township decision in the comment/response document of the Regulatory Basics Initiative:
Response: Thank you for the extensive comments. The Department is implementing the Oley and PUD decisions in permits and is continuing to refine the analyses based on the experience gained with these issues. The Department is currently working with the Pennsylvania Fish and Boat Commission (PFBC) to develop new habitat and stream flow criteria to protect aquatic uses associated with hydrologic and biological needs. However, although these issues are under consideration at this time, it is premature to make changes to the regulations until studies are complete. Consideration of these comments will be included when the Department addresses this issue in the future. When the studies and results are completed, they will be used in consideration of these issues in a future triennial review of water quality standards.
If implementing the decisions is actually occurring, and the analyses are being refined, we would expect to see some indication of it in this document, but we have not.
EPA has long-standing guidance on existing use protection ("Questions and Answers on Antidegradation" and the Water Quality Standards Handbook) that clearly spell out that protection of the aquatic life uses extends to protection of all species in the water in question. DEP needs direct language in this guidance identical or very similar to that found in EPA's "Questions and Answers on Antidegradation:"
No activity is allowable under the antidegradation policy which would partially or completely eliminate any existing use whether or not that use is designated in a State's water quality standards... Species that are in the waterbody and which are consistent with the designated use (i.e., not aberrational) must be protected, even if not prevalent in number or importance. Nor can activity be allowed which would render the species unfit for maintaining the use. Water quality should be such that it results in no mortality and no significant growth or reproductive impairment of resident species. Any lowering of water quality below this full level of protection is not allowed... An existing aquatic community composed entirely of invertebrates and plants, such as may be found in a pristine alpine tributary stream, should still be protected whether or not such a stream supports a fishery.
DEP doesn't go into that level of detail anywhere in this document. And, given the point-source orientation of this document, it seems as if DEP believes that protection of a use simply means complying with the numeric water quality criteria. While such compliance is needed, the approach that might be satisfactory for NPDES permits but does not help much with situations like those in the Jefferson County or Oley Township decisions, where connections were made between water quantity and physical disturbances, and water quality standards and antidegradation.
In addition, DEP needs to better define the protection of uses because of the broad regulatory definitions found in Chapter 93. Headwater streams of Green and Washington counties, for example, are protected as Warm Water Fishes, although they don't fit particularly well into anyone's idea of a warm water aquatic environment. They have a biology and hydrology that DEP currently recognizes or protects neither in regulation nor in this Guidance. Existing uses for these streams would be based on invertebrates and non-fish fauna (e.g., salamanders). Such streams receive protection in Ohio based on a more precise biological description. Pennsylvania needs to ensure that small headwater streams are protected, and short of a regulatory change, the best way to achieve this would be to make unequivocal statements such as those in EPA guidance protecting resident species.
The protection of the "use" is a critical question, no matter what the activity. For example, DEP plans on providing "High Quality" protection to streams that have a "Class A" designation from the PA Fish and Boat Commission. Class A streams exhibit a certain trout population. How much of a reduction in a Class A trout population would DEP tolerate from a permitted (and socially or economically "justified") activity? Does the level of protection differ for Class A streams because the population level is responsible for the High Quality designation? What about other biological measures that are indicative of "High Quality," such as the 83% benthic macroinvertebrate score? Does compliance with the water quality criteria mean that no impact on the invertebrates is expected?
What about wild trout streams that are not Class A? DEP rejected giving these streams protection as "High Quality" based on their trout population--only Class A streams received that protection. Does a severe reduction in a Class B trout population, for instance, mean that the "existing" use is still protected? What does the "Cold Water Fishes" designation or any of the other designations mean? Could the bass population be eliminated in a river designated for "Warm Water Fishes" and replaced with carp? Both are, after all, considered "warm water."
In cases where the protection involves compliance with the numeric water quality criteria (e.g., an NPDES permit), one can be reasonably certain on the afforded level of protection because the numeric criteria have a basis in science. In other cases, however, especially those that involve physical disturbance of habitat or hydrological changes, the protection (modification of or denying a permit) is based less on a "cook-book" approach and more on the specifics of the activity and of the waterbody. Situations such as longwall mining, water withdrawals (as typified by the Oley Township case) and direct hydrological impacts caused by stormwater discharges and creation of impervious surfaces (as typified by various permits issued in the Valley Creek, Chester County, watershed) are the ones where antidegradation has been, and will continue to be severely tested. Unfortunately, the document is silent on the very real issue of protecting the uses of our waters.
3. Identification of waterbodies and procedures for existing use
Similar to the discussion directly above, DEP needs to articulate how it will evaluate information to determine if the "existing" use is, or is not the same as the "designated" use. What are the criteria for any of the designations?
DEP states that it will evaluate any submitted information and perform a "quality assurance" step which "may" involve field verification of the data. If information does not meet DEP's standards, it will be returned, and DEP will determine the existing use "at the time of final permit or approval action" based on the "sound data that exist at the time." This gives DEP far too much flexibility on whether it uses any outside information and whether it gathers data on its own accord. DEP has an obligation to determine the proper level of protection to waterbodies and does not have an obligation to approve permits, especially when the level of protection is at issue, the "money-back guarantee" notwithstanding. Supplied data may be insufficient to make the determination, but may be sufficient to call into question the existing use. In that case, DEP must gather information on its own.
Chapter 3
2. Terms
The definition of "endangered species" limits the protection to those "in danger of extinction throughout all or a significant portion of its range" and is taken from the Federal Endangered Species Act. The definition of "threatened species" is also based on the Federal definition. Because this determination is made by the appropriate Federal agency at time of Federal listing, the use of this definition, in effect, limits the protection to Federally-listed species. The state-listed species would only be included if they are also Federally-listed. State-listed species that are not "in danger of extinction throughout all or a significant portion of its range" would not get protection, based on the definition of terms. This is simply not supported by a plain reading of the regulation that extends protection to all Federally- and state-listed endangered and threatened species. The Guidance is not a reasonable interpretation of the regulation.
The definition of the term "presence, critical habitat, or critical dependence" is well thought out and should cover the gamut of circumstances where species might need the protection extended in this section.
4. Scope of Protection and Regulated Activities
How will DEP "confirm" the presence of the species? Merely recheck the PNDI?
Chapter 4
4. Regulatory Process
We would be interested in the results of DEP's pilot study to notify landowners, including the perceived need for the study, as in 1999 DEP "concluded that having either a petitioner or the Department personally notify each landowner in the watershed is overly burdensome." EPA in a February 19, 1999 letter to Edward R. Brezina of DEP, said that requiring such notification "appears to be very burdensome when compared with the fact that dischargers who seek to lower water quality are not subject to this requirement." Perhaps DEP should conduct an analogous study and notify riparian landowners of requests to lower water quality. Or has DEP concluded that protection of water quality affects property rights while lowering water quality does not?
Chapter 5
1. Qualifying as High Quality Waters (Chemistry)
This section offers a faulty interpretation of Tier 2 antidegradation, ignores EPA's reasonable reading of the regulation vis-a-vis chemical data, and creates additional chemistry tests that are not supported in the Federal or Pennsylvania regulation.
The document describes the various factors that influence parameters such as stream temperature, pH, and dissolved oxygen but does not describe how DEP will consider the data for these parameters that can greatly vary over the course of a day. These parameters also do not have "acute" and "chronic" components. Would a few hourly pH or temperature readings, for example, outside the criterion be enough to render the waterbody ineligible?
The Guidance says "a water must be better than all the relevant criteria 99% of the time to qualify for High Quality Waters." When Federal antidegradation regulations for Pennsylvania were promulgated, EPA rejected such a drastic interpretation. Why should a waterbody be given only the basic water quality protection for parameters are better than the appropriate criteria, simply because one parameter does not meet its criterion? That turns the concept of antidegradation on its head. Instead of protecting the individual components of water quality that are better than standards, DEP gives a green light to degrading all the parameters simply because one parameter does not meet the criterion (and incidentally, should not be degraded further because of the lack of assimilative capacity). DEP should consider Tier 2 protection on a parameter-by-parameter basis. Failure to exceed standards for one parameter should not mean free rein to degrade the remainder without a Tier 2 antidegradation review.
The section entitled "Consideration of additional chemical and toxicity information" (bottom of page 22), simply re-writes the regulation: "To be considered for High Quality Waters, concentrations of other substances known to be present in the water in addition to those listed in the regulation have to be better than water quality standards 99% of the time" (emphasis added). What gives DEP the authority to place these additional chemistry hurdles that are not in the regulation? The second paragraph of the section describes that human health impacts must also be considered in order to protect the potable water use. This will make waterbodies meet the human health criteria that in many cases are much more stringent than the aquatic life criteria. Since Tier 2 antidegradation is supposed to be based on the "fishable/swimmable" standards, making waterbodies meet these more stringent tests unduly restricts Pennsylvania waters. The EQB said as much in its final rulemaking package (May 19, 1999) when it said that certain other chemicals
were not included in the final regulation because they are designed to protect potable water supply (human health), and therefore are not appropriate for the fish and aquatic life uses specified in the federal regulation at 40 CFR 131.12(a)(2) and in this Section.
Why is DEP proposing to adopt, through guidance, an approach the EQB specifically rejected in regulation only two years ago?
The fact that streams may also qualify for a High Quality designation through its biological scoring does not mitigate the Guidance's unreasonable interpretation of the chemical component of waters. Streams that are borderline in biology may be rejected if they fail to meet these unreasonable chemistry tests. The Foundation reads this section and is reminded of the old "environmental or other features" requirement and DEP's insistence on the idea that Tier 2 antidegradation is something "special" that only a few waters deserve.
2. Qualifying as High Quality Waters (Biology).
B. Matching reference sites with candidate sites:
What happens when there is no appropriate reference for an EV or HQ stream? It is possible to model reference sites using a peer review process. This process can utilize historical records and expert testimony as to what constitutes an adequate reference. In addition, reference sites should be used for protecting existing uses. In terms of designated uses, there is a WWF reference condition that WWF streams should not be allowed to be degraded from. In this way, a bass stream could not be turned into a carp wallow. But more specifically, over and above the designated uses, there is an existing use reference condition at which a stream should be protected. This reference is actually the highest quality of the stream on or after November 28, 1975. However, we can use reference streams (or the peer reviewed process mentioned above) to estimate this condition. Going along with the above is the development of bio-criteria for each existing (or designated) use. DEP should use biological indices to define and protect designated and existing uses.
4. Qualifying as Exceptional Value waters
DEP fails to outline its rationale that differentiates between one of the public land categories (National Wildlife Refuges) and two others (National and State Parks). A plain reading of the Federal regulation does not distinguish between these public lands, but DEP's regulation does. According to Pennsylvania's regulation, waters of National and State Parks must not only be High Quality, but must also be included in a "resource management plan" that contains "water quality protective measures." Waters of National Wildlife Refuges simply need to be of High Quality in order to meet the definition.
Although the terms are apparently defined in Chapter 93, the Guidance does not elaborate on how these other agencies (land-steward Federal or state agencies, not DEP, must be the ones to adopt these plans) are supposed to go about jumping through the hoops that would entitle these waters to become candidates for EV. A June 2000 report by the Foundation entitled "Our Best Waters, Our Worst Efforts: Pennsylvania's Existing Program to Protect Waters Of Public Lands Exists Only On Paper" revealed that DEP has not contacted the other agencies to implement what was called an "existing" program.
Our June 2000 petition to the EQB to change Pennsylvania's regulation aimed at removing this additional hurdle but was put into regulatory limbo at the request of DEP, because they promised the EQB that the Guidance would tell all. EPA, in a March 17, 2000 letter to Secretary Seif said that
we are concerned that section 93.4b of the regulations lacks a clear statement that National and State parks with high quality waters are eligible for protection under the revised regulations to the same extent as is the case under the Federal regulation found at 40 CFR 131.12(a)(3).
EPA gave DEP the option of providing a clear statement in the Guidance that shows that Pennsylvania's regulation encompasses all the waters included in the Federal regulation. The Guidance merely restates the Pennsylvania regulation and the sketchy information contained in the EQB's minutes of May 19, 1999. Because the Federal regulation does not distinguish between the different types of land ownership, we remain unable to see how Pennsylvania can add yet another requirement for waters of National and State Parks beyond their qualification as high quality waters, consistent with the Federal regulation. The plain reading of the Federal regulation is that high quality waters of National and State Parks should qualify for consideration as EV based on those two attributes alone. DEP's assertion that waters of National and State Parks are included because they can qualify under multiple paths disregards the salient facts that 1) any water can qualify for EV consideration under most of those paths, and 2) Pennsylvania has no authority to make some of the waters that are specifically mentioned in the Federal regulation negotiate yet an additional hurdle.
Chapters 6-10
Chapter 6 is very much oriented toward point sources. The information and outline that are here are well thought out. We specifically agree with the first test: "Is there a non-discharge alternative which is cost-effective and environmentally sound?" The second test, evaluating partial non-discharge alternatives, is also required in order to do an accurate "necessary to accommodate" test for Tier 2 antidegradation. We agree with the requirement for treatment technologies that go beyond the standard technologies. We strongly agree with this approach that evaluates discharge alternatives and requires advanced treatment before conducting the test for "social or economic justification."
As we pointed out above, the Guidance is relatively silent on how non-discharge activities such as water withdrawals, other hydrologic impacts and physical disturbances will be evaluated. This is particularly important in Chapter 8, Chapter 9 and Appendices B through F (those that describe "Antidegradation Best Available Combination of Technologies" or ABACT). In those sections, DEP should describe how it will prevent water quality degradation for a variety of parameters; at a minimum, it should describe how it will protect the parameters that it considers when evaluating waters for Tier 2 or Tier 3 designations. How DEP protects "uses" also needs to be discussed. In Chapter 8, the "Test of Non-Degradation of Water Quality" is oriented toward those chemical pollutants that are normally added to our waters by NPDES dischargers. The comparison of the discharge to the water quality criteria is a good place to start. Similarly, requiring a demonstration that the "discharge... is non-degrading from a biological perspective, as well as a chemical one" should be an integral part of all permit evaluations. We suggest that DEP require whole effluent toxicity (WET) tests on NPDES discharges to HQ and EV streams, as well as in-stream biological evaluations. But without a basic description of biological "degradation" (i.e., a real description of existing use protection (see Chapter 2 discussion above)), any results of biological evaluations will likely be reduced to arguments over what real "impact" a discharger/permit holder might be causing.
Chapter 8 briefly discusses DEP's position on flow (only in the context of "measurable flow" that is "added") and "heat," but Appendices B through F do not appreciably discuss hydrologic impacts nor temperature impacts. Appendix F, describing ABACT for stormwater management, does not mention temperature (we note that this section is still under development). Appendix D, ABACT for mining activities, does not mention any hydrologic impacts from mining, except in the stormwater context. DEP needs to further develop the parts of this Guidance that are supposed to address 1) parameters such as temperature and flow, and 2) water quality degradation and use impairment by activities outside the point source arena. If the Appendices do not discuss all the various ways a discharge or activity can impact a waterbody, we fear that antidegradation will be reduced to only an evaluation of the narrow aspects described (generally a few discharge-specific water quality parameters). For example, Appendix D mentions that mining may cause "changes in both water quality and physical habitat (including stream flow) which can change the composition of the aquatic biological community." Further mention in Appendix D of flow changes only occurs in the stormwater context and not in the context of reduced stream flow caused by subsidence or other direct effects of mining.
We believe that ABACT, because it is a linchpin of DEP's permit evaluation process for both HQ and EV streams, needs to be more inclusive. At the very least, Appendices B through F need to list the likely impacts to our waters from the activities, and discuss how DEP plans on evaluating the proposed activity in light of the water quality and use protection afforded by antidegradation.
Chapter 11
How does DEP plan on evaluating the non-point source components of an activity, and integrating that analysis of water quality with any point source components? In other words, if a residential development is proposed, will the resultant permanent non-point source impacts of the development be considered when evaluation of any point sources is done? DEP needs to look at the overall impacts of an applicant's activities when conducting antidegradation evaluations. Simply requiring BMPs for the non-point sources is not sufficient.
In addition, DEP needs to ensure that non-point sources are being controlled as thoroughly as possible throughout the watershed before permitting any additional degradation via point or non-point sources.
Thank you for the opportunity to comment.
Joseph W. Turner, Sec/Tres. RPF.
P.O. Box - 723
Langhorne, PA. 19047-0723
215-945-1329
gateway@rayproffitt.org
http://www.rayproffitt.org
Delaware Riverkeeper Network
P.O. Box - 326
Washington Crossing, PA. 18977
215-369-1188
drkn@delawareriverkeeper.org
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