The Pennsylvania Independent Regulatory Review Commission Approves New Stormwater Regulations

June 24, 2010
by JONATHAN RINDE
MGKF Special Alert

On June 17, 2010, the Pennsylvania Independent Regulatory Review Commission ("IRRC") approved as final a package of revisions to Pennsylvania's erosion and sediment control and stormwater management regulations found at 25 Pa. Code Chapter 102. These regulatory changes will have a wide application across the Commonwealth and affect everyone who desires to disturb ground, such as developers, landowners and contractors. The new regulations will become effective 90 days after their publication in the Pennsylvania Bulletin.

The Pennsylvania Department of Environmental Protection ("DEP") administers the Chapter 102 regulations through the National Pollution Discharge Elimination System ("NPDES") permitting program. The NPDES program controls discharges to surface waters, and these particular regulations control the discharge of stormwater from construction sites. In short, entities who intend to disturb ground need to obtain a NPDES permit from DEP or designated county conservation districts prior to initiating earth disturbances in Pennsylvania.

There are a number of significant regulatory changes found in the revisions, including the following:

  • The imposition of a mandatory riparian buffer of 150 feet from each side of any surface water located within a High Quality or Exceptional Value watershed. The imposition of a mandatory riparian buffer would prevent any earth disturbance from occurring within this area. The regulations set forth a number of limited waivers and exceptions to the mandatory buffer requirement, including one for projects that have an application submitted to DEP prior to the effective date of the new regulations.
  • Incorporation by reference of the recently announced federal effluent limitation guidelines ("ELGs") and standards for the construction and development point source category that were promulgated by the U.S. Environmental Protection Agency ("EPA"). The ELGs and standards are set forth at 40 CFR Part 450 and are incorporated into the state's amended regulations by reference, without any changes, modifications or additional explanation. Importantly, the incorporation of the federal ELGs will require that Pennsylvania NPDES permits for the discharge of stormwater from construction sites include a numeric limitation on turbidity discharged from each discharge point on a construction site of a certain minimum size for a certain specified rainfall.
  • An exclusion from permitting requirements for certain road maintenance activities.
  • A requirement that permittees conduct a pre-construction meeting with DEP and the county conservation district after receiving a permit, unless notified otherwise.
  • An increase in permit application fees, which will now include a base fee of either $500 or $1,500 plus an additional $100 per acre to be disturbed.
  • Specific requirements for a Post-Construction Stormwater Management ("PCSM") plan, which has heretofore been imposed by DEP through the Best Management Practices ("BMPs") manual.
  • Several provisions that address the issue of grandfathering, including a provision that allows permits existing at the time the new regulations become effective, and which are renewed prior to January 1, 2013, to observe the requirements of the existing and previously approved PCSM plan.
  • The PCSM plan now requires the permittee to provide analysis to generally demonstrate that the post-construction condition will not adversely affect nearby waterbodies and to identify long-term maintenance activities and those entities responsible for their implementation.
  • A requirement that a licensed professional be present on-site at critical stages of implementation of the PCSM plan elements.
  • A requirement that the BMPs set forth in the PCSM plan, and the entity responsible for their operation and maintenance, shall be set forth in a document recorded with the appropriate county recorder of deeds.

If you have any questions about the stormwater regulations, or any other issue related to water or permitting, please contact Jonathan Rinde (jrinde@mgkflaw.com), Michael Meloy (mmeloy@mgkflaw.com) or Bridget Dorfman (bdorfman@mgkflaw.com) or call 484-430-5700.