Advisory Committee Critical Of DEP Proposal To Rollback Water Quality Protection

The Department of Environmental Protection’s Water Resource Advisory Committee held a special meeting on February 25 to discuss a proposed “permit-by-rule” for the Chapter 102 Erosion and Sedimentation and NPDES Stormwater Permitting Programs. DEP released a draft of the rule on February 20.

 

DEP’s proposed permit-by-rule would be a stormwater permitting option available to developers, oil and gas operators and other persons engaged in earth disturbance activity and who meet certain project criteria. Basic features of the permit-by-rule are:

 

1. Projects would have to meet the following eligibility criteria:

-- The project site is not in an Exceptional Value watershed;

-- The earth disturbance activities are not conducted on certain steep slopes/highly erodible soils, or in wetlands or floodplains;

-- The earth disturbance activities are not conducted on geological formations that present a risk to public health, safety or the environment, such as areas susceptible to sinkholes;

-- The project site is does not contain contaminated areas;

-- The earth disturbance will not adversely affect endangered or threatened species;

-- The project will maintain or establish a 100 foot forested riparian buffer along streams, lakes, and ponds

-- The earth disturbance does not exceed 25 acres at a time;

-- The project may not result in more than 20 percent impervious surfaces;

-- Consistency with local municipal stormwater and erosion and sediment control ordinances is met;

-- The post-construction stormwater discharge results in no net change from the pre-construction discharge volume for the 2 year/24 hour storm; and

-- The post-construction stormwater rate is no greater than the pre-construction rate for the 2 through 100 year storms.

 

2. Persons seeking coverage under the permit-by-rule must submit a complete “Registration of Coverage” which includes an Erosion and Sediment Plan, Post-Construction Stormwater Management Plan, and a Pollution Prevention and Control Plan for the project site. Plans must be signed and sealed by a “Licensed Professional.” The E&S and Stormwater Management Plans would have to meet the standards and specifications set forth in DEP’s E&S and Stormwater BMP Manuals.

 

3. DEP and/or county conservation districts would be required to make a final decision to approve or disapprove coverage within 15 days from the submission of the ROC.

 

4. The permit-by-rule would be eligible for use in High Quality watersheds. Persons seeking coverage would have to maintain or establish 150 foot forested buffers and use “non-discharge” BMPs in such watersheds.

 

Many issues and concerns were raised during a lively discussion of the permit-by-rule.

Many commenters had serious problems with the 15 day review period, expressing concern that the period was way too short to provide any meaningful review of E&S and Stormwater Management Plans, and make determinations of whether complex eligibility criteria, including volume and rate control standards, are met. DEP acknowledged that conservation districts were concerned about the 15 day review period.

 

Meaningful review of plans, it was pointed out, is a baseline requirement of the Clean Water Act.

The inclusion of HQ waters was a concern of some commenters, since Pennsylvania’s water quality standards require that new discharges in such watersheds undergo careful scrutiny to determine whether water quality is protected and stream degradation does not occur.

 

It was pointed out that, by allowing qualifying projects to result in land conversion to 20 percent impervious, stressors on HQ watersheds are likely to occur, particularly from multiple such projects, which may result in a degradation of water quality. Other commenters pointed out that, if HQ waters were eligible, then EV waters should be eligible, too.

 

Several commenters pointed out that, given the lengthy list of eligibility criteria, very few persons engaged in earth disturbance activities would likely opt for such a permit review process.

 

The suggestion was made that, instead of developing a permit-by-rule that is unlikely to get much use and raises serious Clean Water Act legal issues, DEP should devote its limited resources to improving the existing stormwater general permitting system to streamline the application process and facilitate more efficient and timely permit reviews.

 

The permit-by-rule, along with other revisions to Chapter 102, are likely to be brought before WRAC for further discussion at its next meeting on April 8.