Final Response to Comments 

Response to Comments 

4/23/10 

Comments received December 5, 2008 from Peter Talbot/Delaware County Safe Drinking Water 

Coalition, Inc. (the “Coalition,” Middletown Township Land Conservancy, Inc. (M.T.L.C.), and 

Upper Providence for Open Space (U.P.O.S.)). 

Comment 1. The Coalition, M.T.L.C. and U.P.O.S. oppose the repeal of the following 

grounds: 

(i) The current PA Department of Environmental Protection (PA DEP) antidegradation regulation (25 PA CODE 93.4) is not the same, in terms, as your 

40 C.F.R. 131.32. It weakens the clearly stated federal rule by excessive and 

confusing language, and it lacks the absolute prohibition against the 

degradation of the very high quality (“Exceptional Value”) waters. 

EPA Response: Pennsylvania submitted an antidegradation policy and implementation methods 

(25 PA Code 93.4) for EPA CWA review and approval. EPA’s CWA approval of 

Pennsylvania’s antidegradation policy and implementation was reviewed against 40 C.F.R. 

131.12, rather than 40 C.F.R. 131.32. While the Pennsylvania submission is not 40 C.F.R. 

131.12 verbatim, the content of Pennsylvania’s antidegradation policy and implementation 

methods are what EPA expects in a state submission that fully complies with, i.e., is consistent 

with, 40 C.F.R. 131.12. The full EPA approval documents are attached in Attachments 1 and 2. 

The Pennsylvania antidegradation policy does not lack such prohibition against degradation of 

the very high quality (“Exceptional Value”) waters, see 25 PA Code 93.4a(d). 

(ii) The said PA DEP anti-degradation regulations fail to specially designate 

waters of a state and national park as required by 40 C.F.R. 131.32, and as a 

result, there is no special prohibitions applicable to either the Valley Forge 

National Park or the great Ridley Creek State Park, the state regulatory 

regime being unacceptably disrespectful in this regard. 

EPA Response: EPA’s CWA approval of Pennsylvania’s antidegradation policy and 

implementation was reviewed against 40 C.F.R. 131.12, rather than 40 C.F.R. 131.32. 40 C.F.R. 

131.12(a)(3) does not require a State to designate or classify any specific waters for Outstanding 

National Resource protection simply because the water is a water of a State or National Park. 

However, Pennsylvania’s antidegradation policy states that any water (regardless of whether or 

not it is a State or National Park water) that meets the requirements of 25 PA Code 93.4b(b) 

qualifies as an Exceptional Value Water. As stated above, EPA has concluded that this provision 

is consistent with the federal antidegradation regulation at 40 C.F.R. 131.12. 

(iii) In practice, the state regulatory regime is so rarely and weakly enforced as to 

have permitted a 20 year process of degradation of the community water 

supplies of Delaware County, Pennsylvania, so severe that 24 Miles of the 

Crum Creek estuary are listed as “impaired,” the community’s Springton 
Final Response to Comments 

Reservoir is listed as suffering “trophic status impairment,” the fish in the 

Reservoir are tumorous, and former prime fishing and recreational areas on 

the reservoir have been closed, thus categorically violating 33 U.S.C. 

1313(c)(2)(A). See CRC, Natural lands Trust Watershed Conservation Plan, 

2005. 

EPA Response: The issue described above is related to implementation of Pennsylvania’s 

antidegradation policy and implementation procedures. It is not within the scope of EPA’s CWA 

review of Pennsylvania’s submission of an antidegradation policy and implementation methods. 

The scope of EPA’s CWA review is limited to whether or not Pennsylvania’s submission 

substantially complies with, i.e., is consistent with, 40 C.F.R. 131.12. EPA’s approval 

documents for Pennsylvania’s antidegradation policy and implementation methods can be found 

in Attachments 1 and 2. 

(iv) Current continuing non-enforcement of the anti-degradation rules forced 

residents of the Ridley Creek Valley (neighboring the Crum) to form the 

undersigned Coalition to stop a PA DEP permitting that threatens an 

identical level of harm to the Ridley Creek water supply system as have 

previously happened in the valley of the Crum. In the face of overwhelming 

independent expert testimony by 4 professionals and two professors that 

degradation would occur from the subject proposals, permits were granted 

above the designated “High Quality” Ridley Creek, at the point of its water 

in-take collecting pond, and without requiring “economic and social 

justification,” provided for in PA DEP’s own rules. Failing every attempt to 

stop the permitting, the Coalition was forced to take legal action under the 

citizen suit provisions of the CWA, and the case is now pending under U.S. 

Eastern District docket No. 07-1782, and U.S. 3’d Circuit Ct. of Appeals 

Docket No. 07-4757. The case specifically alleges violation of the federal rule 

40 C.F.R. 131.32 AND the order of the Court in the Raymond Proffitt case, in 

that U.S. EPA has not enforced the federal law, as required in that order. 

EPA Response: The issue described above is related to implementation of Pennsylvania’s 

antidegradation policy and implementation procedures. It is not within the scope of EPA’s CWA 

review of Pennsylvania’s submission of an antidegradation policy and implementation methods. 

The scope of EPA’s CWA review is limited to whether or not Pennsylvania’s submission 

substantially complies with, i.e., is consistent with, 40 C.F.R. 131.12. EPA’s approval 

documents for Pennsylvania’s antidegradation policy and implementation methods can be found 

in Attachments 1 and 2. 

The commenter mentions litigation brought against the Pennsylvania Department of 

Environmental Protection and EPA, but does not explain how this litigation supports the 

assertion that withdrawal is inappropriate. The litigation was resolved in the EPA's favor, and it 

is not clear to EPA that the outcome lends any support to the commenter's opposition to the 

Agency's decision today. 
Final Response to Comments 

(v) The proposed repeal of 40 C.F.R. 131.32, at this time, and while this case is 

pending, has the appearance of being litigation-related, disingenuous, and for 

the purpose of suggesting that a determination has been made of compliance 

with PA DEP, when in fact they have not complied. There is no evidence 

presented by U.S. EPA that the matter of Pennsylvania’s level of compliance 

has been in any way investigated or determined. Therefore, the decision to 

repeal must be deemed arbitrary, baseless and motivated by other than 

regulatory reasons. 

EPA Response: The issue described above is related to implementation of Pennsylvania’s 

antidegradation policy and implementation procedures. It is not within the scope of EPA’s CWA 

review of Pennsylvania’s submission of an antidegradation policy and implementation methods. 

The scope of EPA’s CWA review is limited to whether or not Pennsylvania’s submission 

substantially complies with, i.e., is consistent with, 40 C.F.R. 131.12. EPA’s approval 

documents for Pennsylvania’s antidegradation policy and implementation methods can be found 

in Attachments 1 and 2. 

(vi) The proposed repeal of 40 C.F.R. 131.32, at this time, in the waning weeks of 

the current Administrator’s tenure, is an action directly contrary to the 

expressed will of the people of the United States, who just voted for a change 

of policy toward a greater, not a lesser level of environmental protection, this 

having been one of the primary electoral issues. To this extent, the proposed 

rule is anti-democratic in the extreme. 

EPA Response: The issue outlined above is not relevant or within the scope of EPA’s CWA 

review of Pennsylvania’s submission of an antidegradation policy and implementation methods. 

The scope of EPA’s CWA review is limited to whether or not Pennsylvania’s antidegradation 

policy complies with, i.e., is consistent with, 40 C.F.R. 131.12. EPA’s approval documents for 

Pennsylvania’s antidegradation policy and implementation methods can be found in Attachments 

1 and 2.