Real estate developers, construction businesses, engineers, and others involved in development projects are subject to numerous permitting and approval requirements under local, state, and federal regulatory programs. For example, development projects in Pennsylvania involving earthmoving of more than one acre (i.e. most projects) must obtain a National Pollutant Discharge Elimination System (“NPDES”) permit for construction-related stormwater discharges, also known as PAG-02. The current PAG-02 expires on December 7, 2019. Recently, the Pennsylvania Department of Environmental Protection (“PADEP”) announced the availability of supporting documents, such as an updated Fact Sheet, and a comment period on the draft revised PAG-02. The comment period is open until only September 16, 2019.
Anyone engaged in construction, real estate development, or similar operations should review the draft revised PAG-02 permit and supporting documents, and should consider submitting comments to PADEP. PADEP anticipates the revised PAG-02 having an effective date of December 8, 2019.
Background on the NPDES Permitting Program and PAG-02
The NPDES program is imposed by federal requirements under the Clean Water Act. The United States Environmental Protection Agency (“EPA”) delegated to PADEP the authority to administer the NPDES program in Pennsylvania. PADEP has, in turn, delegated some of its responsibilities to county conservation districts. Developers and engineers typically work with either PADEP or a county conservation district when applying for coverage under one of Pennsylvania’s various general NPDES permits, including the PAG-02 permit. PAG-02 is a “general permit” in that the terms and conditions do not change from one permit to another, but rather a standard set of terms and conditions apply. Conversely, individual NPDES permits are required, for instance, for projects in exceptional value and high-quality watersheds. Periodically, PADEP reviews each general permit under the NDPES program for compliance with current federal and state regulatory requirements and to address procedural or administrative issues that have arisen during the term of the previous general permit. A review of PAG-02 is occurring now.
Key Proposed Revisions to PAG-02
PADEP’s draft revised PAG-02 contains several minor tweaks, but also includes several substantive changes on which the regulated community should consider addressing in comments to PADEP. Specifically, PADEP has proposed to (1) alter the mechanics of permit expirations under PAG-02; (2) require personnel training for those involved in earth disturbance activities; (3) clarify certain prohibited discharges; and (4) require the use of erosion and sedimentation (“E&S”) and post construction stormwater management (“PCSM”) “templates” during the application process.
Permit Expiration. Unlike the current version of PAG-02, an expiration date of December 7, 2024 is proposed for all permits authorized under PAG-02. Previously, projects granted coverage under PAG-02 were provided with a five-year permit that would often extend beyond the term of PAG-02 itself.
Training. Required personnel training is proposed as a standard condition in permits issued under PAG-02. As proposed, personnel training must address permit deadlines, the location and maintenance information relating to stormwater controls, the permit’s pollution prevention requirements, inspection procedures, and other topics. Training could be tailored to reflect the specific job duties of a given employee. To evidence compliance with this permit condition, permittees would have to maintain a training log onsite for review by the relevant agency. Given the broad requirement for trained personnel, the mechanics of who may give the training and when training is required may prove more difficult to establish than PADEP anticipates.
Prohibited Discharges. With few exceptions, the current PAG-02 prohibits discharges to impaired waters where the discharge will result in a net change in the volume, rate, or water quality of the stormwater. “Impaired waters” are those determined by PADEP to not meet water quality standards and are identified in PADEP’s list of impaired waters. The draft revised PAG-02, alters this permit condition and prohibits discharges to waters specifically impaired for siltation, suspended solids, or nutrients. Similarly, PADEP proposes to alter the discharge prohibition applicable to waters with established Total Maximum Daily Loads (“TMDL”), such as the Chesapeake Bay. Discharges that include sediment, phosphorus, nitrites, or nitrates into these waters are permitted only if the project is managed by either nondischarge or “antidegradation best available combination of technologies” best management practices. This could result in significant changes to stormwater facilities both during construction and post-construction.
E&S/PCSM Templates. Traditionally, project developers and engineers draft project narratives as part of the permit application process and Notice of Intent (“NOI”) for coverage under PAG-02. PADEP had previously included checklists for developing these narratives, but now proposes to eliminate these checklists in favor of standardized E&S and PCSM templates (See E&S Module 1 and PCSM Module 2).
Although the draft revised PAG-02 is intended, in part, to provide clarifications and to improve permitting efficiency, several questions remain unaddressed. For example, PADEP has failed to detail the scope and depth of the proposed training requirements or how currently existing permits will be treated once the current PAG-02 is replaced. Interested parties should consider these and other questions when submitting comments to PADEP.
PADEP’s proposed changes to PAG-02 will affect many developers, builders, and engineers. Due to the scope of changes and remaining uncertainty surrounding the proposed revisions, we urge you to consider submitting comments to PADEP by or on September 16, 2019. The environmental legal professionals at McNees stand at the ready to assist in preparing comments. Any questions regarding the regulation of construction-related stormwater or PADEP’s proposed changes to PAG-02 may be directed to any member of McNees’ Environmental & Toxic Tort Group or Land Use Group.