(a)
Existing use protection.
(1)
Procedures.
(i) Existing use protection shall be provided
when the Department's evaluation of information (including data gathered at the
Department's own initiative, data contained in a petition to change a
designated use submitted to the EQB under §
93.4d(a)
(relating to processing of petitions, evaluations and assessments to change a
designated use), or data considered in the context of a Department permit or
approval action) indicates that a surface water attains or has attained an
existing use.
(ii) The Department
will inform persons who apply for a Department permit or approval which could
impact a surface water, during the permit or approval application or review
process, of the results of the evaluation of information undertaken under
subparagraph (i).
(iii) Interested
persons may provide the Department with additional information during the
permit or approval application or review process regarding existing use
protection for the surface water.
(iv) The Department will make a final
determination of existing use protection for the surface water as part of the
final permit or approval action.
(2)
Endangered or threatened
species. If the Department has confirmed the presence, critical
habitat, or critical dependence of endangered or threatened Federal or
Pennsylvania species in or on a surface water, the Department will ensure
protection of the species and critical habitat.
(b)
Protection of High Quality and
Exceptional Value Waters.
(1)
Point source discharges. The following applies to point source
discharges to High Quality or Exceptional Value Waters.
(i)
Nondischarge alternatives/use of
best technologies.
(A) A person
proposing a new, additional or increased discharge to High Quality or
Exceptional Value Waters shall evaluate nondischarge alternatives to the
proposed discharge and use an alternative that is environmentally sound and
cost-effective when compared with the cost of the proposed discharge. If a
nondischarge alternative is not environmentally sound and cost-effective, a
new, additional or increased discharge shall use the best available combination
of cost-effective treatment, land disposal, pollution prevention and wastewater
reuse technologies.
(B) A person
proposing a new, additional or increased discharge to High Quality or
Exceptional Value Waters, who has demonstrated that no environmentally sound
and cost-effective nondischarge alternative exists under clause (A), shall
demonstrate that the discharge will maintain and protect the existing quality
of receiving surface waters, except as provided in subparagraph
(iii).
(ii)
Public participation requirements for discharges to High Quality or
Exceptional Value Waters. The following requirements apply to
discharges to High Quality or Exceptional Value Waters, as applicable:
(A) The Department will hold a public hearing
on a proposed new, additional or increased discharge to Exceptional Value
Waters when requested by an interested person on or before the termination of
the public comment period on the discharge.
(B) For new or increased point source
discharges, in addition to the public participation requirements in
§§
92a.81,
92a.82,
92a.83 and
92a.85, the applicant shall
identify the antidegradation classification of the receiving water in the
notice of complete application in §
92a.82 (relating to public notice
of permit applications and draft permits).
(iii)
Social or economic
justification (SEJ) in High Quality Waters. The Department may allow a
reduction of water quality in a High Quality Water if it finds, after full
satisfaction of the intergovernmental coordination and public participation
provisions of the Commonwealth's continuing planning process, that allowing
lower water quality is necessary to accommodate important economic or social
development in the area in which the waters are located. A reduction in water
quality will not be allowed under this subparagraph unless the discharger
demonstrates that the High Quality Water will support applicable existing and
designated water uses (other than the high quality and exceptional value uses)
in §
93.3, Table 1 (relating to
protected water uses).
(2)
Nonpoint source control.
The Department will assure that cost-effective and reasonable best management
practices for nonpoint source control are achieved.
(c)
Special provisions for sewage
facilities in High Quality or Exceptional Value Waters.
(1)
SEJ approval in sewage facilities
planning and approval in High Quality Waters. A proponent of a new,
additional, or increased sewage discharge in High Quality Waters shall include
an SEJ impact analysis as part of the proposed revision or update to the
official municipal sewage facilities plan under Chapter 71 (relating to
administration of sewage facilities planning program). The Department will make
a determination regarding the consistency of the SEJ impact analysis with
subsection (b)(1)(iii). The determination will constitute the subsection
(b)(1)(iii) analysis at the National Pollutant Discharge Elimination System
(NPDES) permit review stage under Chapter 92a (relating to National Pollutant
Discharge Elimination System permitting, monitoring and compliance), unless
there is a material change in the project or law between sewage facilities
planning and NPDES permitting, in which case the proponent shall recommence
sewage facilities planning and perform a new social or economic justification
impact analysis.
(2)
SEJ
for sewage facilities in High Quality Waters correcting existing public health
or pollution hazards. A sewage facility, for which no environmentally
sound and cost-effective nondischarge alternative is available under subsection
(b)(1)(i)(A), proposed to discharge into High Quality Waters, which is designed
for the purpose of correcting existing public health or pollution hazards
documented by the Department, and approved as part of an official plan or
official plan revision under §
71.32 (relating to Department
responsibility to review and act upon official plans), satisfies the SEJ
requirements in subsection (b)(1)(iii).
(3)
Public participation requirements
for official sewage facilities plans or revisions to official plans in High
Quality or Exceptional Value Waters. A proponent of a sewage facility
in High Quality or Exceptional Value Waters seeking approval of an official
plan or revision shall comply with the public participation requirements in
§
71.53(d)(6)
(relating to municipal administration of new land development planning
requirements for revisions).