Proposed Amendments to Pennsylvania's Stormwater Management and Erosion and Sediment Control Regulations

January 8, 2010
by MICHAEL MELOY
Client Alert Newsletter Forecast 2010

During 2010, the Pennsylvania Department of Environmental Protection ("PADEP") is expected to press forward with efforts to finalize highly controversial and significant changes to Pennsylvania's regulations governing erosion and sedimentation control measures set forth in 25 Pa. Code Chapter 102. The proposed regulations not only revise existing requirements pertaining to erosion and sedimentation controls, but add, among other things, an array of new provisions (1) governing the management of stormwater discharges during construction activities, (2) imposing long term obligations to manage stormwater discharges following the completion of construction activities, and (3) requiring the creation and maintenance of forested riparian buffers in certain instances as a condition to receiving permits to proceed with activities that will result in earth disturbances. It appears that PADEP is focused on attempting to ensure that the proposed regulations are finalized and in effect prior to the gubernatorial election later this year.

The Pennsylvania Environmental Quality Board ("EQB") published the proposed regulations in the Pennsylvania Bulletin in late August 2009 triggering a 90-day public comment period. The EQB received more than 1,300 comments concerning the proposed regulations from a broad array of entities that will be directly affected by the proposed changes and from various watershed associations and private citizens generally supporting the proposed changes. In addition, many state legislators submitted comments regarding the proposed regulations. A number of other governmental entities such as the Pennsylvania Department of Transportation and the Pennsylvania Department of Conservation and Natural Resources likewise submitted comments. These comments highlight the far reaching impacts that the proposed regulations will have in Pennsylvania, encompassing almost any activity that involves earth disturbances including agricultural operations, construction projects, infrastructure projects, and maintenance activities.

On December 30, 2009, the Pennsylvania Independent Regulatory Review Commission ("IRRC") issued to the EQB detailed comments going to the very core of the proposed regulations. For example, IRRC raised significant questions as to whether the proposed regulations are in the public interest, challenged the cost-benefit analysis that PADEP proffered in support of the proposed regulations and questioned the basic need for regulatory changes. In addition, IRRC highlighted many elements of the proposed regulations that are poorly drafted, impose unreasonable burdens on the regulated community and/or appear to be unwarranted. The comments prepared by IRRC will help to frame many of the battles that are likely to take place during the coming weeks.

Three elements of the proposed regulations in particular appear to be engendering tremendous controversy – (1) the inclusion of a permit-by-rule ("PBR") for earth disturbance activities and associated stormwater discharges, (2) the imposition of post-construction stormwater management requirements that apply in perpetuity, and (3) the requirement that earth disturbance activities requiring permits in areas along certain special protection waterways be predicated on the creation and maintenance in perpetuity of riparian forest buffers at least 150 feet wide. The policy considerations underlying these elements of the proposed regulations reflect a marked shift in emphasis. The current regulations impose requirements that apply during earth disturbance activities to protect water quality. The proposed regulations are dramatically broader in scope, containing requirements for managing stormwater and protecting water quality that apply in perpetuity after the earth disturbance activities have been completed. As such, the proposed regulations may create tremendous stumbling blocks for projects that even PADEP would desire to encourage. Moreover, the long-term consequences of imposing obligations that survive in perpetuity have not been adequately evaluated by PADEP and the EQB. Given the depth and breadth of the concerns surrounding the proposed regulations, IRRC has strongly recommended that after carefully addressing the multitude of issues that have been raised, the EQB publish an advanced notice of final rulemaking providing an opportunity for additional public comment regarding the revised form of the proposed regulations before attempting to finalize the regulations. PADEP appears to have decided to ignore this recommendation, however. Based on a presentation prepared by PADEP for a meeting with the Water Resources Advisory Committee ("WRAC") on February 19, 2010, PADEP appears to be planning to rapidly move ahead with finalizing the proposed regulations with the objective of discussing final form regulations at a special meeting with WRAC on March 17, 2010, and presenting the final regulations to the EQB for approval at the EQB's meeting on June 15, 2010.

Unless major changes are made to the proposed regulations, PADEP's approach may trigger a major show-down with IRRC and the environmental legislative committees later this year. Preliminary indications suggest that while PADEP intends to make some changes to the proposed regulations (such as abandoning the proposed PBR option), it intends to retain and even expand other highly controversial components of the proposed regulations (such as the requirements to create and maintain riparian buffers).