Antidegradation

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Robert J. Yarbrough

• Attorney at Law•

201 North Jackson Street • Media, PA 19063

Phone (610) 891-0668 • Fax (610) 891-0655

robert@yarbroughlaw.com

Patent Law • Environmental Law

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Pennsylvania DEP’s Water Quality

Antidegradation Program

Robert J. Yarbrough

Introduction

“Antidegradation” refers to a prohibition of degradation of water quality in a water body due to new dischargers. DEP promulgated new antidegradation regulations on July 17, 1999. The new regulations will affect all applicants for NPDES permits in the Commonwealth.

Federal Antidegradation Provisions

The EPA antidegradation provisions appear at 40 CFR §131.12. The EPA program creates three classifications of waters. The Tier 1 classification applies to all waters, and existing water uses and water quality necessary to protect the uses is not allowed to be degraded. In Tier 2 waters, existing water quality is protected unless an applicant can demonstrate social and economic justification for a reduction. Tier 3 waters are “Outstanding National Resource Waters” and cannot be degraded.

Prior State Program

The approach of DEP was, and is, to designate specific uses for each body of water and then to establish specific water quality criteria for each use. The water quality criteria are then used to establish NPDES permit conditions for dischargers. DEP established three families of criteria: (a) statewide criteria applicable by default across the state; (b) high quality (HQ) water criteria, providing enhanced protection to certain waters; and (c) exceptional value (EV) criteria applicable only to a very few pristine waters. Of the three different families of criteria, only the EV criteria prohibited degradation from existing water quality.

Water bodies were designated as HQ or EV in a rulemaking in which DEP and the EQB exercised considerable discretion. An EV designation could stop development dead in its tracks. There were instances where an EV designation appeared to be more a political decision than a water quality decision.

History

EPA disapproved the Pennsylvania antidegradation program in 1994. DEP began a negotiated rulemaking procedure to replace the state program and to implement the Federal. At about the same time, the Raymond Proffitt Foundation, represented by John Wilmer, sued EPA in the Eastern District of Pennsylvania, demanding that EPA be directed to implement and antidegradation program in Pennsylvania. The court ruled against EPA in Raymond Proffitt Foundation v. U.S. Environmental Protection Agency, 930 F. Supp. 1088 (1996). Final federal regulation implementing antidegradation in Pennsylvania were promulgated on December 6, 1996.

DEP continued with its negotiated rulemaking process. DEP opened an initial proposal for comment in June, 1996. Proposed regulations were published on January 21, 1997. DEP received some 1700 comments to the proposal. As a result of the comments, DEP decided to substantially revise the proposal. DEP published an Advance Notice of Final Rulemaking on January 23, 1999, and reopened the matter for comment. After several public meetings, DEP now has published the final rulemaking on July 17, 1999 at 29 Pa. Bull. 3720.

Summary of the New Rulemaking

The rulemaking has two main effects. The first is to incorporate many of the Federal antidegradation requirements into Pennsylvania law. The second is to formalize and make much more rigid the procedure and requirements for designating a water body as HQ or EV.

The rulemaking retains the current Pennsylvania system of designated uses for each water body in the state with water quality criteria assigned to each use. HQ and EV are also retained as designated water body uses.

Qualifying for HQ or EV status

The rulemaking includes substantial specificity concerning qualification for HQ or EV protection.

To qualify for HQ protection, the water body must pass either a water chemistry test or a biology test. To qualify under the chemistry test, one year of water quality monitoring data must exist for the water body. The tests must demonstrate that the water body meets specified water chemistry criteria at least 99% of the time. To pass the biology test, the stream must score at least 83% as well as a reference stream for benthic macroinvertibrate tests in a peer-reviewed study.

To qualify for EV protection, a water body must meet all of the requirements for HQ protection and in addition must meet one of several criteria. For example, a HQ water may qualify as EV if it is located in a state or national park, a wild river, or Federal wilderness area or national recreational area. A HQ water also may qualify as EV if the water body is of “exceptional recreational significance” or is designated as a “wilderness trout stream” by the Fish and Boat Commission or if biology tests show that it scores 92% or better of the score of a reference stream.

A water body is not required to meet HQ standards to qualify as EV if the water body is of “exceptional ecological significance.” The examples given are thermal springs and exceptional wetlands.

Use of the Antidegradation Criteria

The antidegradation criteria are used in the NPDES permitting process. When permit writers establish permit conditions, they examine (a) technology-based treatment requirements, (b) in-stream water quality criteria to protect a particular use, and (c) antidegradation requirements.

Statewide criteria - For a stream subject to the statewide criteria, the major effect of the antidegradation requirements is the formalization of the requirement that no existing use may be degraded. Note that what is protected in the statewide criteria water bodies is the use, not water quality. Therefore, a new discharger into a water body subject to the statewide criteria may degrade water quality, so long as the existing uses are protected and so long as minimum in-stream water quality criteria and technology-based treatment standards are met.

A new twist is that the protected existing uses are not only those uses designated in the regulation. An interested person may introduce evidence to the DEP during the permit issuance process that the water body supports uses in addition to the designated uses. DEP then is required to protect those additional uses as a part of the antidegradation review. This provision will add an arrow to the quiver of persons opposing unpopular facilities.

It should be noted that High Quality and Exceptional Value are listed as “uses” for waters in the new regulations. If a citizen’s group can demonstrate as part of a NPDES permitting process that a water body meets the requirements for HQ or EV waters, the citizens may be able to block a project.

High Quality Waters - An applicant for a permit to discharge into a HQ water must demonstrate (a) that no alternative to the discharge exists, including reuse of the wastewater; and (b) that the discharge will not adversely affect water quality in the HQ water body. Note that what is protected in HQ water bodies is not only the use of the water body, but also the water quality of the water body. Of course, any discharge will have some effect on water quality. An exception to the prohibition on adversely affecting water quality exists where the applicant can demonstrate “social and economic justification” for the decrease in water quality. Justification is easier where the purpose of a sewage discharge is to correct existing environmental problems, such as failing septic systems. These requirements are drawn directly from the Federal regulations.

Exceptional Value Waters - The requirements for EV waters are identical to those for HQ waters, except that no exception for decreases in water quality is allowed. The EV classification is essentially a prohibition on stream discharges.

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