Lawrence C. Tropea, Jr., P.E., DEE
Deputy Secretary for Water Management
Department of Environmental Protection
Before the
Senate Environmental Resources and Energy Committee
August 25, 2000
Good Morning, Madam Chairwoman and Members of the Committee.
I am Larry Tropea, Deputy Secretary for Water Management with the Pennsylvania Department of Environmental Protection where I am responsible for statewide water management activities including the proper classification and protection of Pennsylvania waters.
With me today is Stuart Gansell, Director of the Bureau of Watershed Conservation and William Gerlach, Assistant Counsel, in the Bureau of Regulatory Counsel at DEP.
It is my pleasure to appear before you this morning to discuss Pennsylvania’s efforts to protect the best surface waters in the Commonwealth. Pennsylvania citizens are extremely fortunate to enjoy over 83,000 miles of streams. The water quality in each of our streams is important to all of our citizens. Currently, 1,716 miles (or about 2 %) of our streams have earned protection as Exceptional Value streams, and 19,274 (or about 23 %) have been classified as High Quality.
These waters constitute the “best of the best” surface waters in the Commonwealth, and, for our citizens, provide unique and valuable uses including outstanding trout fisheries and unsurpassed recreational and aesthetic opportunities. I am sure that the value in preserving these waters is shared by members of this Committee.
In my comments this morning, I would like to outline the process Pennsylvania has followed in adopting our current water quality antidegradation regulations, provide a practical explanation of the
program and discuss implementation of this important environmental protection program.
The protection of high quality waters is not a new initiative in Pennsylvania. In fact, Pennsylvania has implemented an effective program to protect high quality waters since 1968.
The formal regulations, which implement this program, have evolved since 1968 in response to improved science, the need to achieve consistency with the federal requirements and public comments.
During the most recent process to update the regulations started in 1995, DEP employed a comprehensive public participation process to ensure diverse participation of interested parties in the development of these most important regulations. For example, a total of over 2,400 comments were submitted to DEP during the rule making processes. In addition, a total of ten public meetings and public hearings were held. The antidegradation regulation was approved by the Environmental Quality Board in May 1999 and, after review by the House and Senate Environmental Resources and Energy Committees and the Independent Regulatory Review Commission, published as a final regulation. EPA has subsequently approved the Pennsylvania regulation, except for one provision. We are confident this issue will be clarified to EPA’s satisfaction in the near future.
Since final publication of the regulation in July 1999, the Department has been working closely with the Water Resources Advisory Committee (WRAC) to revise the Antidegradation Program Implementation Guidance. WRAC added six temporary members representing a cross section of interest to specifically help with this effort. The initial draft of the comprehensive revisions to the guidance will be the main topic of the September 13th WRAC meeting.
It is important to note that EPA has also promulgated separate water quality antidegradation regulations for Pennsylvania that still remain in effect today and will remain applicable until EPA fully approves the Pennsylvania regulation.
I would like to take a few minutes to describe the primary process by which water quality designations are made in Pennsylvania. As you will hear throughout my comments, our process is based on sound science, experience gained in the thirty plus years DEP has implemented this program and that DEP strongly encourages broad public participation throughout the process, including the submission of data and involvement in the public participation process.
DEP biologists follow the procedures outlined in our Department's Special Protection Survey Protocol. The protocol provides a framework for evaluating the biological and physical properties of streams. This methodology provides a consistent, scientifically sound way to determine whether a stream can meet the established standards for High Quality or Exceptional Value streams.
To begin the process, our scientists will study the stream and collect in-stream samples that will be analyzed to determine the proper classification of the stream. The sampling points are selected in accordance with the formal protocol to ensure they are representative of the specific stream or reach. The results from the sample analyses are then summed up into one numerical value known as a Total Biological Condition Score.
At that point, our scientists are then able to compare the conditions of the stream being evaluated to the conditions of another similar stream that already has been identified as Exceptional Value, because of its excellent biological health and water quality. If the Total Biological Condition Score of the stream in question is 92 percent or greater of the score associated with the reference stream, it qualifies to be classified as "Exceptional Value." Streams that fall within 83 to 91 percent are qualified to be classified as “High Quality”.
This process typically involves a great deal of field sampling and analysis. DEP bases its final recommendation on the actual scientific results of these studies. In some cases, DEP finds that the candidate stream does not warrant a higher classification while in other cases we find that the stream deserves a higher classification. In all cases, our recommendation is based on the specific instream environmental quality.
All stream assessments are conducted in conjunction with a comprehensive public participation process. The first step in the process ensures that all interested parties have an opportunity to participate in the redesignation review from the start of the assessment. DEP provides notification to all affected municipalities, posts a notice on the DEP website, and publishes a newspaper notice that alerts the public that the Department is planning to assess a stream for possible re-classification. DEP also asks the public for data to use in the evaluation. The Environmental Quality Board must act on all petitions for stream reclassification, and approve all proposed and final stream redesignations. The second stage for public involvement comes with the additional public comment periods and public participation opportunities offered during the EQB designation process. Finally, a third opportunity for comment is offered when a permit is proposed in these watersheds.
The main elements of the new antidegradation requirements which apply to all surface waters of the Commonwealth consists of three tiers of protection:
- Existing uses, like warm or cold-water fishes and potable water supply, are protected in all surface waters by water quality criteria, which express safe amounts of substances or conditions in the water.
- The existing quality of High Quality (HQ) Waters is protected unless there is social or economic justification to allow some degradation, but the uses must always be protected. HQ waters are those that have been found to have water quality better than that necessary to protect the uses of the water and we estimate they account for about 23% of Pennsylvania’s waters.
- The existing quality of Exceptional Value (EV) Waters must always be protected. EV waters are the best or unique quality waters in the Commonwealth. We estimate that about 2 % of our waters are in this category.
In the redesignation process, DEP sometimes hears that an EV stream designation stops development of private lands, and stifles local economic development …This is not the case.
DEP’s experience is that well planned, environmentally sound development and preserving water quality can co-exist. Statewide, approximately 100 NPDES permits have been issued in EV watersheds, including permits for sewage system discharges, stormwater discharges and discharges from mining operations. These permits have protected the EV waters while still allowing economic growth to occur.
Let me describe for you how the system operates, anywhere in the Commonwealth, but particularly for EV or HQ waters.
Pennsylvania has statewide water quality criteria that must be met, in addition to technology based requirements, for all dischargers to Commonwealth waters. This is the case whether the discharge is to a stream in Altoona, Scranton, Pittsburgh, Butler or any other location. Besides complying with local government requirements, a new discharger or a land developer should contact DEP early in the project planning process to discuss the appropriate discharge permits, including a stormwater discharge permit for each earth disturbance of 5 acres or more. DEP then reviews an application and develops a permit that will protect the uses for that stream. This process has been in-place since the early 1970’s and is a fundamental part of our permitting process.
In the case of HQ or EV waters, the exact procedures I have described would still apply with a couple of extra steps added to protect the existing HQ or EV waters before a permit can be issued. The key thought to keep in mind is that, under our antidegradation regulations, discharges are not prohibited to HQ or EV streams.
DEP requires a proposed discharger to an EV water to consider nondischarge alternatives, including spray irrigation, and use them if they are environmentally sound and cost-effective. This is good environmental practice and public policy, and is designed to provide necessary protection to the stream. If this option is not feasible, the activity requires an individual NPDES permit as it does for hundreds of other dischargers to Commonwealth waters. An individual NPDES permit allows the special character of the waters and the proposed discharge to be individually considered. NPDES permits are not required for non-discharge alternatives, except for permits covering Concentrated Animal Feeding Operations. There are many examples where dischargers have fully met the requirements of the regulation and DEP has issued permits that protect the quality of the EV waters.
In HQ waters, a discharger may demonstrate to the Department’s satisfaction a social or economic justification to relax the water quality considerations associated with the classification. In these cases, the uses of the water must still be protected, but DEP has greater flexibility, where justified, under the regulations.
The Pennsylvania antidegradation regulation provides protection for all Pennsylvania surface waters for our citizens, and meets the requirements of our state Constitution, the Clean Streams Law and the federal Clean Water Act. All of the valuable input, collective knowledge and experience drawn from the numerous stakeholders, advisory groups and citizens have been integrated into a fair and scientifically sound regulation.
This regulation protects the existing uses of our precious state waters and provides a mechanism to classify and protect waters whose high quality or exceptional value may not currently be adequately protected.
In summary, we believe the water quality antidegradation program in Pennsylvania is scientifically sound and an essential component to protecting the outstanding waters that exist in the Commonwealth and ensuring public participation in the management of our resources. DEP has over thirty years of experience in implementing this program in a fair and effective manner to protect our precious waters.
We do not believe that the preservation of our high quality waters and the economic development needed by our communities are mutually exclusive objectives. Such a program works to protect our water quality which, in turn, helps promote economic development and tourism opportunities – both of which demand clean water sources.
The Pennsylvania antidegradation program does not prohibit development--it rather serves to ensure that development does not unfairly impair the best quality waters in our state. Our efforts today to protect and preserve High Quality and Exceptional Value streams, benefit the current citizens of the Commonwealth and will be our legacy to the new generations of citizens who will follow.
Thank you for the opportunity to testify.