ANTIDEGRADATION IS ANTI-POLLUTION, NOT ANTI-GROWTH
by John Wilmer, Esq.
Prior to 1972 our Nation’s waters were badly polluted, mostly from industrial and sewage point sources. The Clean Water Act was meant to eventually eliminate this pollution. The keystone of this federal act was the National Pollution Discharge Elimination System, or NPDES, a nationwide system for requiring dischargers to meet end of pipe effluent limitations. This system would reduce contaminants going into those streams already polluted, and had a future goal of zero discharge.
Protecting unpolluted streams, however, remained a problem. Regulators wisely predicted that future activities on unpolluted streams might continue the legacy meant to be corrected by the Clean Water Act. Regulators also wisely predicted that they could not prohibit discharges or activities that threatened these unpolluted streams.
In order to keep clean streams clean, the federal government devised a concept called antidegradation. Under this principle, the Environmental Protection Agency (EPA) requires states to have antidegradation policies and implementation methods. The EPA will not set state antidegradation standards unless a state fails to meet the minimum federal requirements.
Antidegradation is part of larger method of protecting streams that involves setting water quality standards. To accomplish this mammoth goal, the EPA devised a system whereas states would have primary responsibility for designating the uses of their streams; such as recreation, boating, cold water fishes, etc. Pennsylvania currently has sixteen different uses, while some states only have a few uses.
The use designation process is the first prong of the three-part requirement for classifying streams. The second prong involves devising water quality criteria to protect those uses. Low temperatures, e.g., would be required for a stream that supports a trout population. Antidegradation is the third prong and places the better quality streams into higher antidegradation tiers; Tier II for high quality streams (HQ) and Tier III for exceptional value or outstanding streams (EV).
When citizen groups in rural or semi-rural settings attempt to obtain HQ or EV designations for streams they are usually met by stiff resistance from developers, businesses and municipalities—all claiming that growth will be drastically halted. In fact, many citizen groups mistakenly attempt to upgrade streams solely to stop developments or expansions. Yet, the reality is that such designations will only stop heavy industry, such as chemical plants. Shopping centers, planned residential developments and the like can still exist in areas with HQ and EV streams.
Antidegradation, however, encourages clean growth, which is growth that takes the natural resources into consideration as part of the planning process. The purpose of antidegradation is to keep our clean streams clean. Discharges into these streams will be more tightly controlled, wetlands and natural habitats will be preserved, storm water will be recharged into the ground instead of eroding stream banks, etc. Development can occur, but only if the streams and wetlands are kept clean.
Developers, in fact, are beginning to realize the advantages of clean streams. After all, why do people want to live in rural or semi-rural settings? Is it because they want polluted streams and diminishing natural features? Of course not. It is just the opposite. Future homeowners want the peace and tranquility offered by clean streams, wetlands and wildlife. Many businesses want a clean environment to attract employees and customers.
The Valley Creek Watershed, in Chester County, Pennsylvania, offers a perfect example of an EV stream located in an semi-rural setting that has withstood the assault of industry, malfunctioning sewage systems, and over development. It is twenty miles from Philadelphia and in the Route 202 corridor, which is one of the fastest growing areas in Pennsylvania. The watershed was designated as EV in 1992 in a controversial decision, precisely because of the development occurring around it. Prior to this date, EV streams were those located out in the wilderness and on which there were no threatened developments. In other words, the only streams given that status were those that did not need the protection that status offered.
Even though Valley Creek had excellent water quality and a naturally reproducing wild brown trout population—it also contained PCB’s from a nearby train yard. It was a fly fisherman’s dream, albeit a "catch and release" stream because of the bioaccumlative effects of PCB’s in the trout. Another positive feature was that the last two miles of this fourteen mile stream flowed through Valley Forge National Historical Park. Yet, it was in a high growth area and government was worried that such a designation would receive widespread opposition. Initially, government wanted to designate only that portion that ran through the national park.
What convinced the state body to award EV status was the over 14,000 letters of support from all manner of people, groups and businesses. The number one and two employers in the county, and their employees, overwhelmingly said that they wanted to protect this clean stream. These two employers were a well known stock brokerage company and a medical systems organization collectively accounting for over ten thousand employees. Numerous other white collar and service industries supported this designation. One developer and his engineer were the only two letters in opposition.
Since that time, over forty storm water permits have been issued for Valley Creek. Obviously, its EV status has not dissuaded home and business developers from wanting to build in the region. Recently, there has been successful litigation to require storm water dischargers to use recharge methods rather than detention basins, primarily because of the stream’s EV status. Development has continued, but in a way that keeps the stream flowing and reduces harm from large volume discharges.
The stream has maintained its excellent water quality, as well as its attraction as a major fishing area and tourist spot through Valley Forge Park. And it has been the herculean efforts of those people and groups who have fought to keep this clean stream clean that has shown that is possible to apply antidegradation in a high growth area. The area continues to grow, Valley Creek continues to be a clean stream.