Pennsylvania’s Water Quality Standards are the basis for the protection of our clean waters. They are the details of the broad protection provided by the Federal Clean Water Act and Pennsylvania’s Clean Streams Law. The Clean Water Act provides that states must review their standards every three years. Right now, the latest "triennial review" is open for public comment. If you are interested in protecting your right to clean water to drink, swim or boat, or are concerned about aquatic life and wildlife, you should comment (see below).

A. Chapter 93.2. Clarifying the Scope of Chapter 93

DEP proposes to delete a few words from this section, which refer to discharges. The new section would read "This chapter sets forth water quality standards for surface waters of this Commonwealth, including wetlands. These standards are based upon water uses which are to be protected."

The proposed amendment does not broaden DEP’s authority; it merely clarifies the scope of DEP’s existing authority, which is to regulate activities that could cause pollution. In fact, any narrower reading of DEP’s authority under Chapter 93 would strip DEP of important tools to prevent water pollution in Pennsylvania, and would violate both the Pennsylvania Clean Streams Law and the federal Clean Water Act. The United States Supreme Court itself has spoken on this issue, and it has made clear that the Clean Water Act governs not only discharges, but also the loss of water quantity where that loss results in violation of state water quality standards. See PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994).

Despite these authorities, industries and developers (and their allies in the legislature) will argue that the water quality standards apply only to point source discharges and argue against the change. Support this change.

DEP proposes to amend Table 3 to eliminate the numerical dissolved oxygen (D.O.) criteria for the hypolimnion (bottom part of the water column) of stratified lakes, ponds, and impoundments, including waters that are classified as High-Quality (HQ) waters. Dissolved oxygen, critical to the survival of aquatic life.

The language of the proposal is so vague that there is no definition or any standard or parameter delineating what is considered "stratified." Also, if the proposal is enacted, DEP can remove lakes, ponds, and impoundments from DEP’s list of impaired waters, without any parameters for the public to review the determination against, that a waterbody is "stratified."

The change is not well thought out, and eliminates D.O. protections for certain waters and aquatic species in some of the best lakes, ponds, and impoundments in the Commonwealth. Oppose this change.

Related to this issue with dissolved oxygen is the fact that the PA Fish and Boat Commission (PFBC) pointed out to DEP years ago that EPA actually recommended higher DO numbers than Pennsylvania had in its standards. DEP said it evaluated the criterion using "Pennsylvania-specific" data, although they didn’t make the data public. Trout and other aquatic life in Pennsylvania don’t need less oxygen than their out of state cousins. DEP should adopt the EPA numbers for dissolved oxygen.

DEP Secretary Kathleen McGinty was recently interviewed by Inside EPA magazine (November 21, 2003) and made the point that the present framework of regulations was not designed to combat nonpoint source water pollution, but instead was geared toward point source pollution, even though the relative importance of that is declining.

In the past, resource agencies, conservation groups and the public have pointed out to DEP various shortcomings in their standards. Many of these suggestions would help move the water quality standards beyond the realm of point source discharges, and create a regulation that would be equipped to meet the numerous threats.

DEP has not been open to new ideas, but they usually respond that they will "study" or "review" or "evaluate" the suggestions, and put something in a future triennial review. DEP has not adopted most of those suggestions made over the last few triennial reviews (the last was in 2000, the previous one, 1994), and has not bothered to report on the results of its numerous reviews and evaluations, and there is no indication that any study or evaluation has even occurred.

Because most of the suggestions made in the past by resource agencies, conservation groups and the public would allow the water quality standards program to deal with nonpoint source pollution in a better fashion, let Secretary McGinty know that making some small, but important changes to the standards will go far to solve the problem she identified.

DEP has not proposed any new water quality criteria based on biological indicators (i.e., macroinvertebrate or fish populations). This despite the fact that DEP utilizes biological assessment surveys when it determines whether a waterbody is impaired for purposes of listing on the 303(d) List of Impaired Waterbodies, a requirement of the Clean Water Act. DEP needs biological criteria because the Clean Water Act says that the biological integrity must be protected. So many activities can affect our streams without having a direct change on water chemistry parameters. DEP said in the past it was going to work on this issue, but it made no report this year.

While DEP gives broad definitions of "Warm Water Fishes," "Cold Water Fishes," and so on in Chapter 93, DEP has not stated how much biological integrity can be compromised and yet have the "existing uses" be maintained. This is important because the antidegradation policy does not allow existing uses to be eliminated. Elimination of uses is "pollution" and that isn’t allowed.

The EPA has provided guidance on existing use protection in its Water Quality Standards Handbook (1994). It simply says that all resident species (except those that are clearly "aberrational) must be protected, except in "mixing zones" and when a Section 404 permit is issued (for something like a wetland fill).

In contrast, DEP has said that it will protect existing uses only by evaluating an activity’s potential to change the numeric water quality criteria (see Chapter 2 of DEP’s "Water Quality Antidegradation Implementation Guidance" [http://www.dep.state.pa.us/dep/deputate/watermgt/wqp/wqstandards/wqstandards.htm]

By this definition of protection, DEP could allow subsidence from underground mining to alter the morphology of a stream from a riffle/run habitat to a pool/glide habitat, resulting in drastic changes in the fish and aquatic life in the stream. DEP’s definition might allow a dam on a stream to eliminate a flowing water species. A third situation is where an activity introduces a large amount of sedimentation into a stream. This may eliminate species such as darters, which are very sensitive to sediment, and result in the presence of species such as green sunfish, which tolerate sediment. A fourth situation is where a water withdrawal project eliminates much of the flow in a stream, and substantially reduces biomass, yet species still remain, albeit at stressed levels in small populations.

DEP’s stream biologists often make the call, however, that a discharge or activity has (or will) unduly affect biological integrity. DEP uses these calls to either force a discharger to make changes, or to deny or modify a permit. So why won’t DEP publish some sort of guideline or standard on this? Good question; let’s ask them!

DEP cannot allow the elimination and replacement of one type of flora and fauna by another without recognizing that an existing use has been impacted. DEP needs to ensure that it provides and implements existing use protection for all non-aberational flora and fauna from activities that may impact the flora and fauna (similar to the EPA language).

C. "Cool Water Fishes" Designated Use -

Many Pennsylvania streams contain species such as white suckers, creek chubs and blacknose dace. In the past, the DEP has attempted to "downgrade" a stream from CWF to WWF when the fish community was dominated by those species. These species are not fully protected by a WWF designation.

In 1992, a tire manufacturer asked that three streams be redesignated to "Warm Water Fishes," which would require less stringent temperature and dissolved oxygen criteria (and legalize their pollution). The DEP complied and recommended WWF designations for the streams to the Environmental Quality Board. But the PA Fish and Boat Commission objected, saying that the temperatures allowed in WWF would not protect the species there. The U.S. Fish and Wildlife Service (FWS), and the EPA supported the PFBC’s report and conclusion.

DEP backpedaled. They called the PFBC report "convincing," withdrew their earlier recommendation and said they would work with the PFBC to develop a new "designated use" that would protect these "cool water fish." The PFBC promptly supplied DEP with the data and information.

However, in 1994, DEP again recommended WWF designations for two additional streams, which would not protect the resident species (existing uses)--blacknose dace, creek chub, and white sucker. The PFBC, the FWS, and EPA said "there you go again." As a result, the DEP changed their recommendations for both streams. Also at this time, the Independent Regulatory Review Commission noted, "…no progress has been made on implementing the results and recommendations of the PFBC study" and recommended that DEP work to develop the new designated use.

Some people never learn. A Special Protection for Tohickon Creek prepared in 1997 by DEP repeated the error (as an aside, DEP has yet to finalize a recommendation for the Tohickon Creek watershed; the petition for an Exceptional Value designation was submitted in May, 1995!). It has been eleven years since the first PFBC letter to DEP, showing that neither the WWF nor the trout stocking (TSF) designations will protect many of Pennsylvania’s most common fish species. Tell DEP to work on this issue.

In 1998, the public and resource agencies recommended protecting aquatic habitat and instream flow (Governor Ridge’s 21st Century Environmental Commission did as well). DEP responded that they were working on this issue with the PFBC. There’s no evidence of any work. DEP owes the public a report in this triennial review of the progress of this effort.

EPA has repeatedly asked DEP to develop mixing zone (areas downstream of discharges that do NOT have to meet water quality criteria) and variance (allowing dischargers out of meeting standards altogether) policies. DEP has steadfastly refused to do so, and continues to permit mixing zones for almost every discharger in the state (it is not known how many dischargers get a "time extension," DEP’s backdoor variance). The problem is that the public is shut out of the process. According to EPA, there are many areas where mixing zones are NOT appropriate, such as important recreational areas, important fish or wildlife areas, or a when a tributary joins with the receiving water. Tell DEP that they need "up front" policies on mixing zones and variances, and not hide these loopholes in their permitting regulations.

A summary of the above comments is below. You can craft your own letter and submit it to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477 or electronically at RegComments@state.pa.us. Comments must be submitted by December 17, 2003. Send a copy of your comments to the Independent Regulatory Review Commission at irrc@irrc.state.pa.us.

Secretary Kathleen McGinty, Chair
Environmental Quality Board
P.O. Box 8477
Harrisburg, PA 17105-8477

Dear Secretary McGinty:

Please accept these comments on Pennsylvania’s Triennial Review of Water Quality Standards, published in the October 18, 2003 Pennsylvania Bulletin. Please make a copy of these comments available to the full Environmental Quality Board.

I agree with your recent words that the present regulations are geared toward point source discharges and that nonpoint sources are a big challenge. Most of my suggestions would help move the standards toward better protection from nonpoint sources.

1. I support the proposed language change to Chapter 93.2. Water Quality Standards apply to "activities" not just "discharges." This is necessary to comply with state and Federal law.

2. I oppose the change to the dissolved oxygen criterion. DEP has not adequately stated how it will protect the hypolimnion of lakes. DEP should also adopt the higher EPA values for dissolved oxygen.

3. DEP needs to protect "existing uses," that is, all the biological species that are in the stream. It is not enough to simply evaluate activities for their potential to change water chemistry or temperature. Use the EPA guidance language to do so.

4. DEP has said in the past that it was going to work on a) biological criteria, b) a "cool-water fishes" designated use, and c) language protecting instream flow and habitat. It has not reported to the public on these issues, even though some are over ten years old. It is past time to implement, at least partially, all three.

5. Pennsylvania needs both a "mixing zone policy" and a "variance" procedure in its standards if it is going to allow them (which it does). It would be better to eliminate mixing zones, but a good first step would be a policy that allows the public to participate and provide input. Currently, for each discharge, DEP does not provide information in public notices on the size or extent of mixing zones, nor on the number of "time extensions" it may be granting to dischargers.

Thank you.

(your name, address, phone, e-mail)