Pennsylvania Proposes New Stormwater Management Rules

October 29, 2009
by JONATHAN RINDE, JONATHAN SPERGEL, MICHAEL MELOY and BRIDGET DORFMAN
MGKF Special Alert

On August 29, 2009, the Pennsylvania Environmental Quality Board ("EQB") published for public comment proposed regulations that would significantly change the current rules governing erosion and sedimentation control and stormwater management in Pennsylvania. Developers, farmers, land owners and anyone involved with earth disturbance activities (e.g., land clearing, grading, soil stockpiling, oil and gas activities, or any other human activity that disturbs the land surface) will be affected if these proposed regulations are adopted.

If finalized in their current form, the proposed regulations would largely be implemented through the administration and enforcement by County Conservation Districts and the Pennsylvania Department of Environmental Protection ("PADEP") of the National Pollutant Discharge Elimination System ("NPDES") permit program, and Pennsylvania's erosion and sedimentation control program. Among the most significant of the proposed changes are the following:

  • Imposition of mandatory riparian forest buffers in areas 150 feet from each side of surface waters classified as Exceptional Value ("EV"). Additional riparian forest buffer requirements are included for land disturbing activities located in non-EV watersheds when an NPDES permit-by-rule is sought (a new permitting option in the proposed regulations summarized below). With limited exceptions, development in riparian forest buffer areas will be prohibited.
  • Codification of PADEP's current practice to require that a Post-Construction Stormwater Management ("PCSM") Plan be submitted with an NPDES permit application for stormwater discharges during construction activities. New requirements for the contents of PCSM Plans are intended to standardize the contents of such plans and to ensure that post-construction stormwater management requirements are implemented and maintained in perpetuity following the completion of construction activities.
  • Creation of a new "permit-by-rule" option for low impact projects located outside of an EV watershed and which meet other eligibility requirements such as preserving riparian forest buffers.
  • Imposition of additional erosion and sedimentation control requirements in connection with agricultural activities, including but not limited to agricultural plowing and tilling activities and animal heavy use areas such as barnyards or feedlots.

Permit application fees will increase dramatically under the proposed regulations, from $250 to $2,500 for an NPDES general permit, and from $500 to $5,000 for an individual NPDES permit. Numerous new and amended definitions are included in the proposed regulations. Moreover, a requirement to have a preconstruction meeting for all permitted activities has been added, and other important administrative changes have been proposed.

The EQB will be accepting public comments on all aspects of the proposed rulemaking until November 30, 2009. If you have any questions regarding the proposed regulations or would like to submit comments to the EQB, either individually or as part of a group, please contact Jonathan Rinde (jrinde@mgkflaw.com), Jonathan Spergel (jspergel@mgkflaw.com), Michael Meloy (mmeloy@mgkflaw.com), Bridget Dorfman (bdorfman@mgkflaw.com) or any other lawyer at the firm at (484) 430-5700.