Subchapter A. CLEAN WATER STATE REVOLVING FUND
PROJECTS PRIORITY LIST RATINGS

§ 103.1. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Alternative processes and techniques—Proven methods which provide for the reclaiming and reuse of water, productively recycle wastewater constituents or otherwise eliminate the discharge of pollutants, or recover energy.

   CWSRF—Clean Water State Revolving Fund—A fund administered by the Pennsylvania Infrastructure Investment Authority (PENNVEST) that provides low-interest loan funds to borrowers for the construction of facilities.

   EPA—The United States Environmental Protection Agency.

   Effluent limitation segment—A section, segment or zone of a stream where water quality standards are met or will be achieved if discharges are treated to meet the secondary treatment requirements specified elsewhere in this title or in the Federal Act or the regulations promulgated thereunder.

   Facilities—Any device or system for the storage, treatment, recycling and reclamation of municipal sewage, domestic sewage or liquid industrial wastes or necessary to recycle or reuse water at the most economical cost over the useful life of the works. The term includes intercepting sewers, outfall sewers, sewage collection systems, individual systems, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any works, including site acquisition of the land that will be an integral part of the treatment process or is used for ultimate disposal of residues resulting from the treatment, including land for composting sludge and temporary storage of the compost and land used for the storage of treated wastewater in land treatment systems before land application; or another method or system for preventing, abating, reducing, storing, treating, separating or disposing of municipal waste or industrial waste, including waste in combined stormwater and sanitary sewer systems.

   Federal Act—The Federal Water Pollution Control Act (33 U.S.C.A. § §  1251—1387).

   Federal fiscal year—October 1 through September 30.

   Inadequately treated sewage—Sewage receiving less than secondary treatment as defined elsewhere in this title or in the Federal Act or the Federal regulations promulgated thereunder.

   Innovative processes and techniques—Developed methods which have not been fully proven under the circumstances of their contemplated use and which represent a significant advancement over the state of the art in terms of meeting the national goals of cost reduction, increased energy conservation or recovery, greater recycling and conservation of water resources (including preventing the mixing of pollutants with water), reclamation or reuse of effluents and resources (including increased productivity of arid lands), improved efficiency or reliability, or both, the beneficial use of sludges or effluent constituents, better management of toxic materials or increased environmental benefits.

   Intended use plan—A plan identifying the intended uses of the moneys in the Clean Water State Revolving Fund and describing how those uses support the goals of the fund.

   Municipality—A city, incorporated town, township, borough, county, municipal authority or other public body created under State law having jurisdiction over the disposal of sewage, industrial wastes or other wastes or a designated and approved management agency under 33 U.S.C.A. §  1288.

   NPDES—The National system for the issuance of permits under section 402 of the Federal Act including, any State or interstate program which has been approved by the EPA, in whole or in part, under section 402 of the Federal Act (33 U.S.C.A. §  1342).

   Project equivalent population—The initial population equivalent which would be served by a project implemented for the rated area at the time that the area is rated.

   Project priority list—The list of identified public sewerage project needs in this Commonwealth established under this subchapter.

   Sewage facilities plan—A plan developed under the Pennsylvania Sewage Facilities Act (35 P. S. § §  750.1—750.20) for the provision of adequate sewage facilities, adopted by municipal officials and approved by the Department.

   Small municipality—A municipality having a population of 3,500 or less based on the most recent United States Bureau of Census figures.

   Water quality segment—A section, segment or zone of a stream where water quality standards are not met or achieved even if waste discharges are treated to meet the minimum treatment requirements specified elsewhere in this title or the Federal Act or the Federal regulations promulgated thereunder.

   Water quality standards—The combination of water uses to be protected and water quality criteria necessary to protect those uses, as specified in Chapter 93 (relating to water quality standards).

   The provisions of this §  103.1 amended under The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 16(2) of the Land and Water Conservation and Reclamation Act (32 P. S. §  5116(2)); and The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  103.1 adopted September 2, 1971, effective September 3, 1971, 1 Pa.B. 1804; amended December 28, 1973, effective December 29, 1973, 3 Pa.B. 2957; amended December 21, 1979, effective December 22, 1979, 9 Pa.B. 4158; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 18. Immediately preceding text appears at serial pages (237402) and (233553) to (233554).

   The provisions of this §  103.2 adopted September 2, 1971, effective September 3, 1971, 1 Pa.B. 1804; amended April 29, 1977, effective May 16, 1977, 7 Pa.B. 1171; amended December 21, 1979, effective December 22, 1979, 9 Pa.B. 4158; reserved January 2, 1998, effective January 3, 1998, 28 Pa.B. 18. Immediately preceding text appears at serial page (223554).

   Strict Compliance

 (a)  The project priority ratings developed under this subchapter are water quality based assessments of sewage treatment needs. This priority rating system is mandated by section 216 of the Federal Act (33 U.S.C.A. §  1296) and has been approved by the EPA for ranking projects for the CWSRF project priority list and intended use plan. To be funded under the CWSRF, a project first shall appear on a project priority list and then an intended use plan list.

 (b)  The Department prepares project priority lists and assists PENNVEST with preparation of intended use plan lists required by Title VI of the Federal Act (33 U.S.C.A. § §  1381—1387). These lists are prepared in conformance with 40 CFR Part 35, Subpart K (relating to State Water Pollution Control Revolving Fund) and submitted in support of annual CWSRF capitalization grant applications to the EPA.

 (c)  Once the Commonwealth receives its capitalization grant award, applications for funding are evaluated under the Pennsylvania Infrastructure Investment Authority Act (35 P. S. § §  751.1—751.20) and the regulations thereunder in Part VII (relating to Pennsylvania Infrastructure Investment Authority,) including the wastewater evaluation criteria in §  963.8 (relating to wastewater project evaluation criteria). The water pollution control rating factors described in §  103.8 (relating to water pollution control) will be used by the Department in evaluating for PENNVEST the public health and safety and environmental impact criteria in the PENNVEST project evaluation process.

   The provisions of this §  103.5 amended under The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 16(2) of the Land and Water Conservation and Reclamation Act (32 P. S. §  5116(2)); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

 (a)  Priority among eligible projects for the purpose of creating the project priority list shall be established according to the accumulation of points for each of the following rating factors weighted as shown:

   (1)  Water Pollution Control—80%

   (2)  Stream Segment Priority—10%

   (3)  Population Affected—10%

 (b)  A project’s total priority points shall be the sum of the points assigned in each of the individual rating factors.

   The provisions of this §  103.6 amended under The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 16(2) of the Land and Water Conservation and Reclamation Act (32 P. S. §  5116(2)); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  103.6 adopted September 2, 1971, effective September 3, 1971, 1 Pa.B. 1804; amended April 29, 1977, effective May 16, 1977, 7 Pa.B. 1171; amended December 21, 1979, effective December 22, 1979, 9 Pa.B. 4158; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 18. Immediately preceding text appears at serial pages (233557) to (233558).

   The Environmental Hearing Board has jurisdiction to review actions of the Department of Environmental Resources in implementing the Federal Water Pollution Control Act (33 USC §  1251 et seq), but it could not exercise jurisdiction in a case where appellant failed to make out a colorable claim for review and the question involving the determination of priority points awarded by the Department was not disputed by the most credible showing of invalidity since only one of numerous parties affected by the priority list was before the Board. Latrobe Municipal Authority v. Commonwealth, 75 Pa. D. & C.2d 284 (1975).

   Requiring a municipal authority to clean up its acid-mine-drainage polluted stream under state law and consequently giving such stream a lower priority in the distribution of federal funds under DER regulations is not so inconsistent or unreasonable as to give rise to a colorable claim of invalidity of the regulations that would give the courts jurisdiction to review the DER’s actions in awarding a low priority. Latrobe Municipal Authority v. Commonwealth, 75 Pa. D. & C.2d 284 (1975).

 (a)  Priority points attributable to this factor will be assigned in accordance with the following:

   (1)  Category I. Water quality segments which have existing sewage discharges from sewerage systems, including treatment plants, and are experiencing rates of growth at or above the Statewide average in the segment’s drainage area; excluded from this category are streams affected by mine drainage which are not scheduled for acid mine drainage reclamation projects—10 points.

   (2)  Category II. Water quality segments with drainage areas that have rates of growth below the Statewide average or segments identified as ‘‘special protection’’ streams—7 points.

   (3)  Category III. Effluent limitation segments—4 points.

   (4)  Category IV. Water quality segments that are affected by acid mine drainage from abandoned coal mines—1 point.

 (b)  Designated stream segment categories shall be those identified in the Program Plan submitted to EPA in accordance with section 106 of the Federal Act.

   The provisions of this §  103.7 adopted September 2, 1971, effective September 3, 1971, 1 Pa.B. 1804; amended December 28, 1973, effective December 29, 1973, 3 Pa.B. 2957; amended April 29, 1977, effective May 16, 1977, 7 Pa.B. 1171; amended December 21, 1979, effective December 22, 1979, 9 Pa.B. 4158. Immediately preceding text appears at serial page (30947).

 (a)  The number of points for water pollution control shall be based on the extent to which project implementation will eliminate detrimental effects of pollution and public health hazards from existing discharges of untreated or inadequately treated sewage.

 (b)  The following point values shall be used to determine rating points for this factor.

   (1)  Community environment and aesthetics—Use matrix in assigning points as follows:

     (i)   Category A—24 points maximum—Documented evidence or technical evaluation conducted or approved by the Department confirming that a majority of onlot disposal systems in the rated area are malfunctioning or otherwise inadequate with numerous instances of untreated or inadequately treated sewage found in publicly accessible areas; or untreated or inadequately treated sewage is being discharged to surface streams from sewers, storm drains, or overloaded sewage conveyance facilities in dry weather.

     (ii)   Category B—16 points maximum—The rated area has a documented history of a significant number of malfunctioning onlot disposal systems—this includes deficiently designed onlot systems and visual evidence of malfunctioning onlot systems primarily found in residential yards or adjacent areas; or documented intermittent discharges to surface streams from sewers, storm drains, or overloaded sewage conveyance facilities; or documented evidence of discharges of inadequately treated sewage from treatment plants to water quality limitation segments.

     (iii)   Category C—10 points maximum—Existing onlot systems in the rated area are shown to occasionally malfunction; major portions of the rated area have physical condition which limit the application of onlot disposal systems; or there is visual evidence in the project area of discharges of untreated or inadequately treated sewage from sewage conveyance facilities primarily in wet weather or other periods of peak sewage flows; or documented evidence of discharges of inadequately treated sewage from treatment plants to effluent limitation segments.

     (iv)   Category D—6 points maximum—Discharges of sewage receiving at least secondary treatment but less than NPDES requirements prior to discharge.

     (v)   Category E—0 points—Present sewerage facilities are adequate.

 Matrix for Community Environment and Aesthetics Category


    —% of total project equivalent population in Category A
    —% of total project equivalent population in Category B
    —% of total project equivalent population in Category C
    —% of total project equivalent population in Category D
    —% of total project equivalent population in Category E
     TOTAL 100%

   (2)  Domestic water supply. Points awarded in the domestic water supply category shall be assigned as follows:

     (i)   18 points—Documented evidence provided by laboratory analysis that public drinking water sources or a significant number of private drinking water sources are contaminated by malfunctioning onlot disposal systems or that downstream drinking water sources are subject to water quality standards violations due to discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation.

     (ii)   10 points—Documented contamination of public or private groundwater drinking water sources supported by known subsurface soil and hydrogeologic conditions and evidence of periodic water source contamination or documentation that downstream drinking water sources are periodically subject to contamination by existing discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation, based on water quality analyses or evaluation of the stream’s physical characteristics, or both.

     (iii)   5 points—Suspected contamination of public or private groundwater drinking water sources based on knowledge of subsurface soil and hydrogeologic conditions or a downstream drinking water source is shown to be affected by periodic water quality standards violations from discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation based on evaluation of the stream’s physical characteristics.

     (iv)   0 points—No downstream drinking water sources or no documentation or evidence that drinking water sources are affected by the sewage treatment need which would be eliminated or upgraded by project implementation.

   (3)  Fish and aquatic life. Points awarded in the fish and aquatic life category shall be assigned as follows:

     (i)   14 points—Surface waters are capable of supporting a cold or warm water fishery but documented evidence shows that they are not because of pollution caused by discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation.

     (ii)   8 points—Surface waters currently supporting a depressed cold or warm water fishery shown through documentation to be caused by untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation.

     (iii)   5 points—Surface waters currently supporting a cold or warm water fishery documented to be periodically affected or threatened by discharge of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation based on evaluation of the stream’s physical characteristics.

     (iv)   0 points—No documentation or evidence that fish and aquatic life are affected by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation.

   (4)  Public bathing. Points awarded in the public bathing category shall be assigned as follows:

     (i)   8 points—A downstream permitted public bathing beach has been closed due to contamination as a result of water quality standards violations due to discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation.

     (ii)   3 points—A downstream permitted public bathing beach is shown through water quality analysis and an evaluation of stream and bathing area’s physical characteristics to be subject to contamination by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation.

     (iii)   1 point—A public bathing place permit has been denied because of violations of water quality standards resulting from discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation.

     (iv)   0 points—No downstream public bathing uses are documented or there is no documented effect of discharges of untreated or inadequately treated sewage on downstream public bathing uses which would be eliminated or upgraded by project implementation.

   (5)  Boating and recreation. Points awarded in the boating and recreation category shall be assigned as follows:

     (i)   5 points—Documentation shows that discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation prevent the use of a stream or impoundment for boating and other nonswimming and nonfishing recreational purposes due to excessive aquatic growth or other material posing a danger to the user or his equipment.

     (ii)   3 points—Discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation are shown to adversely affect, but not prevent, the use of the stream or impoundment for boating and other nonswimming and nonfishing recreational purposes.

     (iii)   1 point—Discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation are shown to potentially affect the use of the stream or impoundment for boating or other nonswimming and nonfishing recreational purposes.

     (iv)   0 points—No downstream boating and recreation uses are documented or there is no documented effect of untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation on downstream boating or other nonswimming and nonfishing recreational purposes.

   (6)  Industrial water supply. Points awarded in the industrial water supply category shall be assigned as follows:

     (i)   5 points—Documented evidence that water supply intakes for industries which process foods or make fine papers are shown to be directly affected as a result of water quality standards violations due to untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation.

     (ii)   3 points—The use of water supplies for industries which use water in a way that persons are exposed to untreated water is shown to be limited or restricted as a result of water quality standards violations due to untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation.

     (iii)   1 point—Industrial water supply intakes are shown to be adversely affected by discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation based on evaluation of the stream’s physical characteristics.

     (iv)   0 points—No downstream industrial water supply intakes are documented or there is no documented effect on downstream industrial water supply uses caused by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation.

   (7)  Irrigation. Points awarded in the irrigation category shall be assigned as follows:

     (i)   3 points—Irrigation water sources for crops grown or prepared for human consumption are shown to be adversely affected as a result of water quality standards violations due to discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by project implementation.

     (ii)   2 points—Irrigation water sources for crops other than those grown or prepared for human consumption are shown to be adversely affected as a result of water quality standards violations due to untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation.

     (iii)   1 point—Irrigation sources are shown to be affected by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation based on evaluation of the stream’s physical characteristics.

     (iv)   0 points—No downstream irrigation uses are documented or there is no effect on downstream irrigation uses by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation.

   (8)  Stock watering. Points awarded in the stock watering category shall be assigned as follows:

     (i)   3 points—Water sources used to wash and water dairy animals are documented to be adversely affected as a result of water quality standards violations due to untreated or inadequately treated sewage from discharges which would be eliminated or upgraded by project implementation.

     (ii)   2 points—Water sources used to water livestock other than dairy animals are documented to be in violation of water quality standards as a result of untreated or inadequately treated sewage from discharges which would be eliminated or upgraded by project implementation.

     (iii)   1 point—Water sources used to water livestock are shown to be contaminated by untreated or inadequately treated sewage from discharges which would be eliminated or upgraded by project implementation based on evaluation of the stream’s physical characteristics.

     (iv)   0 points—No downstream stock watering is documented or there is no documented effect on downstream stock watering uses caused by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by project implementation.

SUMMARY OF WATER POLLUTION CONTROL
RATING USE FACTOR RATINGS

	No Effect	Slight Effect	Moderate Effect	Great Effect
Community Environment and Aesthetics	0	(See Matrix)		24
Domestic Water Supply	0	5	10	18
Fish and Aquatic Life	0	5	8	14
Public Bathing	0	1	3	8
Boating and Recreation	0	1	3	5
Industrial Water Supply	0	1	3	5
Irrigation	0	1	2	3
Stock Watering	0	1	2	3

   The provisions of this §  103.8 amended under The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 16(2) of the act (32 P. S. §  5116(2)); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  103.8 adopted September 2, 1971, effective September 3, 1971, 1 Pa.B. 1804; amended April 29, 1977, effective May 16, 1977, 7 Pa.B. 1171; amended December 21, 1979, effective December 22, 1979, 9 Pa.B. 4158; amended January 2, 1998, effective January 3, 1998, 28 Pa.B. 18. Immediately preceding text appears at serial pages (233558) to (233563).

 (a)  Priority points attributable to this factor shall be assigned as follows:

 (b)  Project Equivalent Population shall be the initial population equivalent to be served by the project at the time that the project is rated.

   The provisions of this §  103.9 adopted September 2, 1971, effective September 3, 1971, 1 Pa.B. 1804; amended December 28, 1973, effective December 29, 1973, 3 Pa.B. 2957; amended April 29, 1977, effective May 16, 1977, 7 Pa.B. 1171; amended December 21, 1979, effective December 22, 1979, 9 Pa.B. 4158. Immediately preceding text appears at serial page (30948).

 (a)  All small municipality projects shall be rated in accordance with the rating system described in § §  103.6—103.9 except that nine points shall be assigned under the population affected factor.

 (b)  Where a project will serve more than one municipality, it shall qualify as a small municipality project if each municipality involved conforms to the definition of a small municipality as set forth in §  103.1 (relating to definitions).

   The provisions of this §  103.11 amended under The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 16(2) of the Land and Water Conservation and Reclamation Act (32 P. S. §  5116(2)); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

 (a)  If two or more projects receive the same number of total rating points, the relative rank of the projects on the project priority list will be based on points awarded under the water pollution control factor, the higher rank being assigned to that project with the higher water pollution control points. If, after this test, the projects remain tied, the factors of stream segment priority and then population affected shall be used to break ties.

 (b)  In the case of a regional project when the Department determines each portion of the regional project is essential to the integrity of the project, the Department will rank all portions of the project together as a single project and assign the same number of rating points to all portions of the regional project on the project priority list.

 (c)  Based on the findings and conclusions of the sewage facilities plan, the Department will consider the need to rerate projects for the purpose of ranking projects on the project priority list if the findings and conclusions of the sewage facilities plan significantly alter the definition of wastewater treatment need or the scope of the project.

   The provisions of this §  103.12 amended under The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 16(2) of the Land and Water Conservation and Reclamation Act (32 P. S. §  5116(2)); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  103.14 adopted September 2, 1971, effective September 3, 1971, 1 Pa.B. 1804; amended December 28, 1973, effective December 29, 1973, 3 Pa.B. 2957; amended April 29, 1977, effective May 16, 1977, 7 Pa.B. 1171; amended December 21, 1979, effective December 22, 1979, 9 Pa.B. 4158; reserved January 2, 1998, effective January 3, 1998, 28 Pa.B. 18. Immediately preceding text appears at serial pages (233566) to (233567).

   Where the DER originally certifies a project to the EPA, and the EPA then rejects some portion of the project but indicates that the portion deleted could be reinstated if certain conditions are met, an amendment to the Authority’s grant covering the portion to be reinstated is not a ‘‘change in scope’’ and thus not subject to the provisions of subsection (b)(2). Department of Environmental Resources v. Bethlehem Township Municipal Authority, 465 A.2d 1329 (Pa. Cmwlth. 1983).