PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[ 25 PA. CODE CH. 102 ]
Erosion and Sediment Control and Stormwater Management
[39 Pa.B. 5131]
[Saturday, August 29, 2009]The Environmental Quality Board (Board) proposes to amend 25 Pa. Code Chapter 102 (relating to erosion and sediment control and stormwater management). The amendments update agricultural planning and implementation requirements, update erosion and sediment (E & S) control requirements, incorporate the Federal Clean Water Act ''Phase II'' NPDES permit requirements for stormwater discharges associated with construction activities, include post construction stormwater management (PCSM) requirements, establish riparian forest buffer provisions, and include provisions for a permit-by-rule option.
This proposal was adopted by the Board at its meeting of June 16, 2009.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact Kenneth F. Murin, Chief, Division of Waterways, Wetlands, and Stormwater Management, P. O. Box 8775, Rachel Carson State Office Building, Harrisburg, PA 17105-8775, (717) 787-6827 or Margaret O. Murphy, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding submitting comments on this proposal appears in Section J of this preamble. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the DEP web site (http://www.depweb.state.pa.us).
C. Statutory Authority
The proposed rulemaking is being made under the authority of Sections 5 and 402 of The Clean Streams Law (35 P. S. §§ 691.5 and 691.402), which authorize the Department of Environmental Protection to formulate, adopt and promulgate rules and regulations that are necessary to implement the provisions of the act, specifically, to regulate accelerated erosion, sedimentation and stormwater runoff from earth disturbance activities to protect, maintain, reclaim and restore waters of this Commonwealth by requiring that accelerated erosion, sedimentation during construction, and volume, rate and quality of post construction stormwater runoff, be minimized and controlled; and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which authorizes the Board to promulgate rules and regulations that may be determined by the Board to be for the proper performance of the work of the Department; and Section 11 of the Conservation District Law (3 P. S. § 859(2)).
D. Background and Purpose
The existing E&S control regulations found in 25 Chapter 102 describe the requirements for controlling accelerated erosion and preventing sediment pollution from various earth disturbance activities. The purpose of Chapter 102 is to protect surface waters of this Commonwealth from sediment and stormwater pollution by requiring the use of best management practices (BMPs) that minimize accelerated erosion and sedimentation and manage post construction stormwater runoff, both during and after earth disturbance activities.
Since 1972, earth disturbance activities related to agricultural plowing and tilling, as well as, non-agricultural earth disturbance activities have been regulated under this chapter by requiring persons to develop, implement and maintain BMPs.
The proposed amendments elaborated in this preamble, incorporate specific language which enhance requirements related to agriculture; clarify existing requirements for accelerated E&S control; incorporate updated Federal requirements; update permit fees; codify PCSM requirements; add requirements related to riparian forest buffers; and introduce a permit-by-rule option.
Enhanced requirements related to agriculture
The scope of the agricultural section (§ 102.4(a)) is being enhanced beyond ''agricultural plowing and tilling'' to also include ''animal heavy use areas.'' The requirements related to plowing and tilling are also being more clearly defined. The animal heavy use area provisions of the proposed rulemaking require responsible parties to develop and implement an E & S Control Plan (E & S Plan) that minimizes accelerated erosion and sedimentation.
Clarification of existing requirements for accelerated E & S control
Revisions to existing language are included in the proposed rulemaking to clarify definitions, plan requirements, Chapter 93 antidegradation implementation requirements, permitting and site stabilization.
Incorporation of updated Federal requirements
The Federal Clean Water Act, NPDES Program includes regulatory requirements for stormwater discharges associated with construction activities. Pennsylvania is delegated administration of the NPDES program by Environmental Protection Agency (EPA). Chapter 102 provides the regulatory framework for the stormwater construction portion of the NPDES program in this Commonwealth. The Federal requirements for stormwater construction were promulgated by the EPA in two phases (Pennsylvania compliance required by 1992 and 2002, respectively). The Chapter 102 amendments in 2000 included the first phase ''Phase I'' of these NPDES requirements. In order to maintain delegation of the NPDES program and to be compliant with Federal law, Pennsylvania is incorporating the second phase ''Phase II'' of the Federal requirements in this proposed rulemaking.
Updated permit fees
The proposed rulemaking includes the NPDES permit fees specific to the stormwater construction program, and updates the fees for other (non-NPDES) permits that may be required under Chapter 102.
Codification of PCSM requirements
Permanent changes to the surface of the land resulting from earth disturbance activities also have the potential to cause pollution as that term is defined under both the federal Clean Water Act as well as the Clean Streams Law. This rulemaking proposes to include specific PCSM requirements, as a codification of existing practices in this Commonwealth. Since 2002, the Department has included PCSM requirements in the NPDES stormwater permitting program in response to the need for enhanced water quality protection, long-term stormwater management, streambed and streambank protection and as a flood control measure. The inclusion of PCSM requirements in this program is driven by the federal NPDES stormwater construction requirements, Environmental Hearing Board decisions, and is necessary to support implementation of stormwater management planning requirements for the Municipal Separate Storm Sewer System (MS4) NPDES program and the Pennsylvania Stormwater Management Act (32 P. S. §§ 680.1--680.17).
Addition of requirements related to riparian forest buffers
Riparian forest buffers are one of the most effective and efficient BMPs for preventing pollution both during and after earth disturbance activities, and provide natural, long-term sustainability for aquatic resource protection and water quality enhancement. This proposed rulemaking includes new requirements for protecting existing riparian forest buffers and for establishing new buffers. The rulemaking also proposes mandatory riparian forest buffers for projects permitted under Chapter 102 that contain, or are located along or within, 150 feet of Exceptional Value (EV) rivers, perennial and intermittent streams, or lakes, ponds, or reservoirs. Requirements for buffer conservation, construction and maintenance are included.
Introduction of a permit-by-rule option
The proposed amendments include a new permitting option for low impact, low risk projects that incorporate riparian forest buffers. This permit-by-rule could be used to authorize qualifying projects that require either an NPDES permit or E & S control permit under this chapter. The proposed permit-by-rule balances environmental protection for this Commonwealth with predictability in permitting for the applicant. The permit-by-rule includes eligibility criteria to limit applicability to ''low-risk'' projects and conditions requiring the use of riparian forest buffers, ''low impact design'' techniques, more prescriptive plan and implementation requirements, mandatory oversight by a professional engineer, geologist or landscape architect registered in this Commonwealth, and a 30-day review time frame.
E. Public Participation and Outreach
In developing this proposed rulemaking, the Department undertook extensive outreach efforts to meet with stakeholders, including: conservation districts, builders, agriculture, other industry groups, environmental groups, legislators and advisory committees.
Outreach efforts by Department Secretary Hanger and Executive Staff on permit-by-rule and riparian forest buffers included meetings with the following groups during 2008-2009:
* Department of Community and Economic Development
* Governor's Action Team
* Interested legislators
* Pennsylvania Association of Conservation Districts (PACD)
* PA Builder's Association and building industry representatives
* PA Campaign for Clean Water (Coalition of environmental groups including: Chesapeake Bay Foundation, Clean Water Action, Delaware River Keepers, Sierra Club, Trout Unlimited PA Chapter, Penn Future)
* PA Chamber of Business and Industry
* POGAM, IOGA, and oil & gas industry representatives
* State Conservation Commission
Outreach efforts by the Department staff on Chapter 102 revisions, permit-by-rule and buffers included meetings with the following groups during 2007-2009:
* Conservation district directors, managers, and staff
* Department of Conservation & Natural Resources
* PACD
* PA Builders Association
* PA Campaign for Clean Water (Coalition of environmental groups including:
Chesapeake Bay Foundation, Clean Water Action, Delaware RiverKeepers, Sierra Club, Trout Unlimited PA Chapter, Penn Future)* PennAg Industries, PA Farm Bureau and agricultural representatives
* State Conservation Commission
* USDA, NRCS
Advisory Committee Meetings:
* Citizen's Advisory Council:
◦ March 17, 2009 (permit-by-rule)
◦ April 21, 2009
* Agricultural Advisory Board (AAB) :
◦ February 21, 2007 Overview of proposed revisions
◦ October 10, 2007 Overview of proposed revisions
◦ December 19, 2007 Discussion of proposed draft language for agricultural activities
◦ April 15, 2009 Consideration of Proposed Chapter 102 rulemaking
* Water Resources Advisory Committee (WRAC):
◦ January 10, 2007 Overview of proposed revisions
◦ January 9, 2008 Overview of proposed revisions
◦ July 22, 2008 Overview of riparian forest buffers
◦ February 25, 2009 Overview of proposed permit-by-rule
◦ April 8, 2009 Consideration of Proposed Chapter 102 rulemaking
◦ April 23, 2009 Special Meeting--continuation of proposed Chapter 102 Rulemaking
◦ April 29, 2009 Second Special Meeting--continuation of proposed Chapter 102 (No quorum of WRAC)
In the proposed rulemaking, the Department has incorporated many revisions suggested by these various groups. The Department acknowledges that the Water Resources Advisory Committee would like the Board to solicit input during the public comment period on the following three issues:
* Scope of the permit-by-rule: Should the proposed rulemaking limit or expand the availability of the proposed permit-by-rule?
The permit by rule is proposed to be used for low risk projects with riparian forest buffers in High Quality and all waters other than Exceptional value. Some of the members recommended that the permit-by-rule be available for all waters (including Exceptional Value); while others recommended that it be available for use in only waters other than special protection.
* Responsibility for long-term PCSM operation and maintenance (O & M): How should the proposal rulemaking address responsibility for long-term operation and maintenance of PCSM BMPs?
Assignment of the long-term O&M responsibility for PCSM has been, and continues to be, a challenging issue for the Department and regulated community. The proposed rulemaking requires the permit applicant to identify a party with long-term responsibility for operation and maintenance of PCSM BMPS, and includes a default provision that obligates either the landowner or permittee to provide that O&M function. Some members of WRAC voiced concern that the Department should be more detailed and prescriptive on how this function will be carried out.
* Mandatory Riparian Forest Buffers: Should the proposed rulemaking include a provision for mandatory riparian forest buffers?
The rulemaking proposes 150-foot riparian forest buffers for permitted activities along Exceptional Value (EV) streams. Some of the members recommended that riparian forest buffers be mandatory for not only EV, but all waters, while others recommended that riparian forest buffers be used voluntarily.
F. Summary of Regulatory Requirements
Several changes are proposed in this regulatory package and are described as follows. The descriptions include a reference to the section or subsection proposed to be changed, the nature of the change and the effect of the change.
§ 102.1. Definitions
Specific amendments include the following:
New definitions: Act 167, Agricultural Operation, Along, Animal heavy use areas, Antidegradation Best Available Combination of Technologies, Forest stewardship plan, Intermittent stream, K Factor, Licensed professional, Nondischarge alternative, Normal pool elevation, Notice of Termination, Oil and gas activities, Perennial stream, Point source, Pollutant, Post construction stormwater, PCSM, PCSM Plan, PPC Plan, Riparian forest buffer, Soil loss tolerance, Stormwater, Surface waters and Top of streambank.
Revised definitions: Agricultural plowing or tilling activity, BMPs, Conservation district, Conservation plan, Diversion, Earth disturbance activity, E & S Permit, E & S Plan Municipality, NPDES, Notice of Intent, NPDES Permit for Stormwater Discharges Associated with Construction Activities, Operator, Person, Project site, and Sediment.
Definitions proposed to be deleted: Dewatering zone, Permanent pool, Principal spillway, and Skim.
§ 102.2. Scope and purpose.
This section is revised to reflect the codification of existing PCSM requirements.
§ 102.4. Erosion and sediment control regulations.
Agricultural Activities
This section incorporates new terms and establishes general requirements for animal heavy use areas. The revisions clarify planning requirements for agricultural activities and soil loss tolerance values or ''T,'' and identify the conservation plan requirements that satisfy the E & S Plan requirements of this Chapter.
Non-agricultural Activities
This section provides clarity by codifying the Department's current policy and guidelines that have been established to meet Federal requirements and to comply with court decisions. Persons proposing or conducting earth disturbance activities shall limit the extent and duration of the earth disturbance; protect existing drainage features and vegetation; minimize soil compaction; utilize measures or controls that prevent or minimize the generation of stormwater; and protect, maintain, reclaim and restore waters of this Commonwealth. Additionally an E & S Plan must be consistent with the PCSM Plan; identify naturally occurring geologic formations, or soil conditions that may have the potential to cause pollution during earth disturbance activities and include BMPs to avoid or minimize potential pollution and its impacts from such formations; utilize Chapter 93 nondischarge and ABACT BMPs in special protection waters, evaluate the potential for thermal impacts; and identify and protect existing and proposed forest riparian buffers when applicable.
§ 102.5. Permit requirements.
This section adds the federal NPDES ''Phase II'' permit requirements for earth disturbance activities between 1 and 5 acres with a point source discharge; and incorporates the antidegradation implementation requirements related to NPDES Permits in special protection waters as required by Chapter 93 and Blue Mtn. Preservation Assn. v. DEP, 2006 EHB 589. Permitting requirements are included for oil and gas activities to obtain an E&S permit for 5 acres or more of earth disturbance. Additionally, a permit requirement is included for activities involving 5 acres or more of earth disturbance not otherwise specified in this section as requiring permit coverage. Additional requirements have been included for a preconstruction meeting for all permitted activities; a general requirement that a permittee must ensure long term operation and maintenance requirements for PCSM facilities identified in § 102.8; and a provision to clarify that operators who are not the permittee shall be identified as co-permittees. Finally, the Clean Water Act NPDES permit exemption for activities covered by a Clean Water Act § 404 dredge and fill permit is clarified.
§ 102.6. Permit application and fees.
This section introduces the registration requirements for coverage under the permit-by-rule option; clarifies the existing requirement to include a PCSM Plan with a permit application, as well as the existing requirement to create a preparedness, prevention and contingency (PPC) plan when necessary. Fees for E & S permits are updated to meet program expenses. The fees for NPDES Permits for Stormwater Discharges Associated with Construction Activities from Chapter 92 are incorporated and updated. Language is added to clarify the Department's obligation to review fees at least once every 3 years and to clearly define complete applications and an applicant's responsibility to provide additional information to the Department within 60 days. Additionally, the ability of conservation districts to charge additional fees pursuant to Conservation District Law is clearly outlined.
§ 102.7. Permit Termination.
This section adds an obligation to identify the person responsible for operation and maintenance of PCSM BMP and PCSM Plans and clarifies the obligation of the permittee to operate and maintain the PCSM BMPS and PCSM Plan until the Notice of Termination is acknowledged.
§ 102.8. PCSM requirements.
This new section is added to codify provisions for PCSM for all activities that require an NPDES permit for stormwater discharges from construction activities or an E & S Permit. The goals for which PCSM Plans should be designed and implemented are outlined. The components of a written PCSM Plan that includes drawings and a narrative portion are also identified. Additional requirements are also established including, the performance criteria for the PCSM BMPs; the need for a licensed professional to certify ''record drawings'' that ensure the PCSM Plan was implemented properly prior to termination of the permit; and a requirement to ensure there is a long-term operation and maintenance plan and that a responsible party is identified.
§ 102.11. General requirement.
This section has been revised to include additional references.
§ 102.14. Riparian forest buffer requirements.
This section was added to describe requirements associated with the establishment of new riparian forest buffer and the protection of existing buffers along surface waters in this Commonwealth when required under Chapter 102, or which may be required by other Department rules regulations, permits, orders, or other authorizations. General requirements are added to identify a certain size, composition, quality, management, reporting, and permanent protection of riparian forest buffers when utilized to meet regulatory requirements. Finally, this section establishes a mandatory 150 foot riparian forest buffer requirement for projects permitted under Chapter 102 that are located along certain specified Exceptional Value waters.
§ 102.15. Permit-by-rule for low impact projects with riparian forest buffers.
This section provides a new permit-by-rule option in addition to existing individual and general permits. The permit-by-rule includes the following eligibility criteria: discharges to waters other than Exceptional Value; Pennsylvania Natural Heritage Program requirements shall be met; applicants shall satisfy compliance history requirements; lands that are currently contaminated are excluded; and sensitive geologic formations, soils with steep slopes, wetlands and floodplains are excluded.
The permit-by-rule conditions for use, include: a pre-submission meeting; inclusion of a riparian forest buffer (meeting the requirements of § 102.14); limit of 15 acres of disturbance at any one time during development of a project; and the retention of services of a professional engineer, geologist, or landscape architect registered in this Commonwealth to prepare and certify E & S and PCSM Plans, oversee critical stages of construction, and provide ''record drawings'' upon project completion.
The permit-by-rule option includes a requirement for municipal notification; prescriptive planning requirements for E & S and PCSM; a 30-day review and eligibility verification and determination for coverage; and an obligation for the Department to verify the effectiveness and level of environmental protection that the permit-by-rule provides. Additionally, the permit-by-rule includes further requirements for projects in High Quality waters and waters impaired for stormwater or sediment.
§ 102.22. Site stabilization.
This section is revised to incorporate and to clarify existing requirements for permanent and temporary stabilization.
§ 102.32. Compliance and enforcement provisions.
This section adds a new provision to include an opportunity to request an informal hearing with the Department after action by a conservation district and a new provision for cost recovery by the Department or conservation district.
§ 102.42. Notification of applications of permits.
This section is revised to reference the Federal NPDES ''Phase II'' permit requirements and to be consistent with the change in § 102.5.
§ 102.43. Withholding permits.
This section clarifies language to include references to local stormwater approvals and authorizations.
F. Benefits, Costs and Compliance
Benefits
The citizens of the Commonwealth, the regulated community, and State and local governments will benefit from the recommended changes in this rulemaking because surface waters will be protected, maintained and improved through requirements that minimize accelerated erosion and sedimentation and strengthen PCSM.
The proposed rulemaking provisions related to E & S control and PCSM will improve water quality and mitigate flooding potential by controlling increases in sediment and other pollutant discharges during and after earth disturbance activities. Controlling the discharges through this rulemaking will limit the risk for increased pollutant levels to waters of this Commonwealth, and protect against adverse impacts on aquatic ecosystems. To ensure protection against adverse impacts from stormwater runoff, the proposed rulemaking includes provisions for long-term operation and maintenance of PCSM facilities. In support of the Federal NPDES Stormwater Construction rulemakings the EPA also cited: benefits to navigation in the reduced sediment loads requiring dredging; benefits to water storage in reservoirs - again as a result of regained capacity from reduced sediment build-up; benefits to drinking water treatment - in terms of reduced costs for treatment for sediment in turbidity; as well as water quality.
The Commonwealth will benefit from increased permit fees that are based in part on the estimated cost of administering the program. Revisions to Chapter 92 in 1999 and Chapter 102 in 2000 included modifications to permit fees, but these were administrative filing fees and did not cover cost of program operations. This proposed rulemaking is the first effort by the Department to cover the Chapter 102 program costs through permit fees.
The regulated community is expected to benefit from these regulatory revisions through the restructuring and clarification of planning and permit application requirements, as well as the codification of the existing PCSM requirements. This rulemaking reflects a continuing commitment to integrate regulatory obligations for stormwater management including requirements underto Act 167, the NPDES Municipal Separate Storm Sewer Systems (MS4) program and permitting of earth disturbance activities. Local governments with State Act 167 or NPDES MS4 regulatory obligations may rely on the regulatory structure provided by this proposed rulemaking. This reliance on existing State stormwater programs represents a significant cost savings to local governments.
Finally, these regulatory revisions are beneficial because they continue to support the delegation of the E & S control and stormwater management programs to local county conservation districts. County conservation districts and the Department have had a successful and effective partnership that allows the Commonwealth to meet the Federal requirements of the NPDES program. Additionally, the delegation to the local government provides more accessibility to the community and regulated parties and ensures local involvement in oversight of the program.
Compliance Costs
These regulatory revisions should not result in significant increased compliance costs for persons proposing or conducting earth disturbance activities. Moderate increased costs may be incurred due to: increased permit application fees for activities requiring permits; PCSM Plan licensed professional oversight and preparation of record drawings; and long-term operation and maintenance of PCSM facilities.
Generally, there may be cost savings as a result of eliminating the outdated and unnecessary requirements, while increasing the protection of this Commonwealth's valuable water resources. Additionally, the emphasis in the proposed rulemaking on nonstructural ''low-impact'' stormwater management approaches should result in lower long-term operation and management costs. The permit-by-rule may provide the regulated community cost savings through a new permitting option that provides a definitive timeframe for review and determination of coverage.
Compliance Assistance Plan
The Department assists the regulated community in complying with these regulations through technical and educational assistance, largely provided in partnership with county conservation districts. These efforts have resulted in local community based initiatives that stimulate awareness and achieve regulatory compliance. Department staff have worked with conservation districts to develop and enhance their professional abilities. The development of compliance strategies that focus on negotiation, total quality management, mediation, and professional development, has greatly enhanced the Department's ability to protect this Commonwealth's water resources. County conservation district staff provide an efficient and effective local source of assistance as well as an efficient mechanism for the protection of valuable resources. Evaluations of district performance have shown that district staff can provide a quick response to process, review, and acknowledge permit applications.
By involving various advisory committees in the development of these regulations, and pursuing initiatives with the regulated community and other stakeholders, the Department's outreach efforts have allowed stakeholders to work together with regulators to work towards the goal of protecting water quality and the aquatic environment through E & S control and stormwater management efforts. Involvement of the public and the regulated community in the development of these regulations fosters subsequent compliance with standards and practices developed as a result of these efforts, and are an important form of compliance assistance.
The Department assists the regulated community with compliance by its development of standard checklists, worksheets and permit review letters to aid plan designers in developing sound pollution prevention plans. The Department also assists compliance by assuring that Department and district reviews are timely, effective, and consistent. Finally, the regulations incorporate a performance-based approach, which allows persons conducting earth disturbance broad latitude and flexibility in designing BMPs to achieve compliance.
Paperwork Requirements
The majority of the revisions to this proposed rulemaking are codifications of existing requirements, therefore only minor changes to forms, fact sheets, and technical guidance are anticipated.
G. Pollution Prevention
Chapter 102 prevents sediment and stormwater pollution to surface waters of this Commonwealth from earth disturbance activities through a tiered regulatory framework built upon BMP requirements. The chapter covers both agricultural and nonagricultural earth disturbance activities, with distinct regulatory requirements for these two broad categories. Regardless of the category, all earth disturbance activities must utilize BMPs to minimize accelerated erosion and sedimentation for the duration of earth disturbance activities. Additionally, some earth disturbance activities require preparation of a written E & S Plan. Finally, earth disturbance activities exceeding specified acreage thresholds may trigger the requirement to obtain permit coverage, which in turn includes the obligation to prepare and implement a written PCSM Plan.
The proposed rulemaking will improve protection from earth disturbance activities not only through the inclusion of PCSM requirements, but also through the addition of the riparian forest buffer provisions, which are one of the most effective and sustainable BMPs for protecting, maintaining, reclaiming and restoring surface waters of this Commonwealth.
Effective pollution prevention also requires robust inspection, oversight, and enforcement authority, which are retained and enhanced in this rulemaking. The proposed rulemaking adds requirements such as: mandatory pre-construction meetings; licensed professional documentation requirements; and a program audit provision to verify the environmental protection and effectiveness of the permit-by-rule.
H. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which it was intended.
I. Regulatory Review
Under Section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the proposed rulemaking on August 18, 2009, to the Independent Regulatory Review Commission (IRRC), and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed regulations within 30 days of the close of the public comment period. The Act specifies detailed procedures for review of these issues by the Department, the General Assembly and the Governor prior to final publication of the regulations.
J. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions, or objections regarding the proposed regulation to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by November 30, 2009. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by the Board by November 30, 2009. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulation will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@state.pa.us and must also be received by the Board by November 30, 2009. A subject heading of the proposal and a return name and address must be included in each transmission.
K. Public Meetings and Public Hearings
The Board will hold three public meetings to explain the proposed rulemaking and to respond to questions from meeting participants. In addition to the public meetings, the Board will hold three public hearings for the purpose of accepting comments on the proposed rulemaking. The public meetings and hearings will be held as follows:
September 29, 2009 Cranberry Township Municipal Building
2525 Rochester Road
Cranberry Township, PA 16066-6499
Public Meeting: 4 p.m.
Public Hearing: 5 p.m.
October 1, 2009 Department of Environmental Protection
Southcentral Regional Office
Susquehanna Room A
909 Elmerton Avenue
Harrisburg, PA 17110
Public Meeting: 4 p.m.
Public Hearing: 5 p.m.October 5, 2009 Salisbury Township Municipal Building
2900 South Pike Avenue
Allentown, PA 18103
Public Meeting: 4 p.m.
Public Hearing: 5 p.m.Persons wishing to present testimony at a hearing are requested to contact the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526, at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 10 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.
Persons in need of accommodations as provided for in the Americans With Disabilities Act of 1990 should contact the Board at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) to discuss how the Board may accommodate their needs.
JOHN HANGER,
ChairpersonFiscal Note: 7-440. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARMTENT OF ENVIRONMENTAL PROTECT
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 102. EROSION AND SEDIMENT CONTROL AND STORMWATER MANAGEMENT
GENERAL PROVISIONS
ENFORCEMENT
GENERAL PROVISIONS § 102.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
ABACT--Antidegradation best available combination of technologies--Treatment, land disposal, pollution prevention and stormwater reuse BMPs that will individually or collectively manage the difference in the net change from preexisting stormwater volume, rate, and quality for storm events up to and including the 2-year/24-hour storm that is not fully managed by nondischarge alternative BMPs and that will maintain and protect the existing quality of the receiving surface water.
* * * * * Act 167--The Storm Water Management Act (32P. S. §§ 680.1--680.17)
Agricultural operation--The management and use of farming resources for the production of crops, livestock, or poultry, or for equine activity.
Agricultural plowing or tilling activity--
(i) Earth disturbance activity involving the preparation and maintenance of soil for the production of agricultural crops.
(ii) The term includes no-till cropping methods.
Along--Touching or contiguous; to be in contact with; to abut upon.
Animal heavy use area--Barnyard, feedlot, loafing area, exercise lot, or other similar area on an agricultural operation where because of the concentration of animals it is not possible to establish and maintain vegetative cover of a density capable of minimizing accelerated erosion and sedimentation by usual planting methods.
BMPs--Best management practices--Activities, facilities, measures, planning or procedures used to minimize accelerated erosion and sedimentation and manage stormwater to protect, maintain, reclaim, and restore the quality of waters and the existing and designated uses of waters within this Commonwealth before, during, and after earth disturbance activities.
* * * * * Collector--A channel, dike or other conveyance, constructed downslope of an earth disturbance activity for the purpose of collecting stormwater runoff from [an existing or proposed disturbed] that area and conveying it to facilities for sediment retention or removal.
[County conservation] Conservation district--A conservation district, as defined in section 3(c) of the Conservation District Law (3 P. S. § 851(c)), which has the authority under a delegation agreement executed with the Department to administer and enforce all or a portion of the erosion [and], sediment [control], and stormwater management program in this Commonwealth.
Conservation Plan--A plan that identifies conservation practices and includes site specific BMPs [which minimize the potential for accelerated erosion and sediment from] for agricultural plowing or tilling activities and animal heavy use areas.
[(i) BMPs for agricultural plowing or tilling activities, including soil loss tolerance values (T), are identified in the Pennsylvania Soil and Water Conservation Technical Guide, United States Department of Agriculture, Natural Resources Conservation Service, 1991.
(ii) The Conservation Plan shall include a schedule for the implementation of the BMPs.
Dewatering zone--The zone within a sediment basin where stormwater runoff is held and released in a controlled manner.]
* * * * * Diversion--A facility, including a channel, [terrace or dike] or a conveyance constructed up-slope of [an earth disturbance activity for the purpose of diverting] the disturbed area to divert clean offsite runoff away from [an existing or proposed disturbed area] the earth disturbance activity.
Earth disturbance activity--A construction or other human activity which disturbs the surface of the land, including [,but not limited to,] land clearing and grubbing, grading, excavations, embankments, land development, agricultural plowing or tilling, operation of animal heavy use areas, timber harvesting activities, road maintenance activities, oil and gas activities, well drilling, mineral extraction, and the moving, depositing, stockpiling, or storing of soil, rock or earth materials.
* * * * * E & S Permit--Erosion and Sediment Control Permit--A permit required for earth disturbance activities [of 25 acres (10 hectares) or more] where the earth disturbance is associated with timber harvesting [or], road maintenance activities, or oil and gas activities.
E & S Plan--Erosion and Sediment Control Plan--A site-specific plan [identifying] consisting of both drawings and a narrative that identifies BMPs to minimize accelerated erosion and sedimentation before, during and after earth disturbance activities. [For agricultural plowing or tilling activities, the Erosion and Sediment Control Plan is that portion of a conservation plan identifying BMPs to minimize accelerated erosion and sedimentation.]
Forest Stewardship Plan--A written plan that provides an overview of a woodland property in the context of a landowner's needs and objectives and serves as a means of communicating technical information in a concise form that is useful to the landowner.
Intermittent stream--A body of water flowing in a channel or bed composed primarily of substrates associated with flowing water, which, during periods of the year, is below the local water table and obtains its flow from both surface runoff and groundwater discharges.
K factor--The soil erosion factor used for determining the level of potential erosion based upon soil characteristics.
Licensed professional--Professional engineers, landscape architects, geologists and land surveyors licensed to practice in this Commonwealth.
Municipality--[(i)] A county, city, borough, town, township, school district, institution or authority [created by any one or more of the foregoing] or another public body created by or pursuant to state law. [(ii)] For purposes of this definition, town includes an incorporated town.
NOI--Notice of Intent--A request, on a form provided by the Department [or county conservation district], for coverage under a General NPDES Permit for Stormwater Discharges Associated With Construction Activities.
NOT--Notice of Termination--A request, on a form provided by the Department, to terminate coverage under a permit-by-rule, General or Individual NPDES Permit for Stormwater Discharges Associated With Construction Activities or other permits under this chapter.
NPDES--National Pollutant Discharge Elimination System--The National system for the issuance of permits under section 402 of the Federal Clean Water Act (33 U.S.C.A. § 1342) including a state or interstate program which has been approved in whole or in part by the EPA, including the regulations codified in Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), and as specified in this chapter.
NPDES Permit for Stormwater Discharges Associated With Construction Activities--A permit required for the discharge or potential discharge of stormwater [into waters of this Commonwealth] from construction activities, including clearing and grubbing, grading and excavation activities involving [5]:
(i) Equal to or greater than 1 acre and less than 5 acres (0.4 to 2 hectares) of earth disturbance with a point source discharge to surface waters of this Commonwealth, or an earth disturbance on any portion, part, or during any stage of, a larger common plan of development or sale that involves equal to or greater than 1 acre to less than 5 acres (0.4 to 2 hectares) of earth disturbance with a point source discharge to surface waters of this Commonwealth over the life of the project.
(ii) Five acres (2 hectares) or more of earth disturbance, or an earth disturbance on any portion, part or during any stage of, a larger common plan of development or sale that involves 5 acres (2 hectares) or more of earth disturbance over the life of the project.
Nondischarge alternative--Environmentally soundand cost-effective BMPs that individually or collectively eliminate the net change from preexisting stormwater volume, rate and quality for storm events up to and including the 2-year/24-hour storm.
Normal pool elevation--
(i) For bodies of water which have no structural measures to regulate height of water, the height of water at ordinary stages of low water unaffected by drought.
(ii) For structurally regulated bodies of water, the elevation of the spillway, outlet control, or dam crest which maintains the body of water at a specified height.
(iii) The term does not apply to wetlands.
Oil and gas activities--Earth disturbance associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities.
Operator--A person who has one or more of the following:
(i) Oversight responsibility of earth disturbance activity on a project site or a portion thereof [which] who has the ability to make modifications to the [Erosion and Sediment Control] E & S Plan, PCSM Plan or site specifications.
(ii) Day-to-day operational control over earth disturbance activity on a project site or a portion thereof to ensure compliance with the [Erosion and Sediment Control] E & S Plan or PCSM Plan.
Perennial stream--A body of water flowing in a channel or bed composed primarily of substrates associated with flowing waters and capable, in the absence of pollution or other manmade stream disturbances, of supporting a benthic macro- invertebrate community which is composed of two or more recognizable taxonomic groups of organisms which are large enough to be seen by the unaided eye and can be retained by a United States Standard No. 30 sieve (28 meshes per inch, 0.595 mm openings) and live at least part of their life cycles within or upon available substrates in a body of water or water transport system.
* * * * * Person--[An] Any operator, [natural person, partnership, association or corporation or an agency, instrumentality or entity of Federal or State government, including a municipality] individual, public or private corporation, partnership, association, municipality or political subdivision of this Commonwealth, institution, authority, firm, trust, estate, receiver, guardian, personal representative, successor, joint venture, joint stock company, fiduciary; Department, agency or instrumentality of State, Federal or local government, or an agent or employee thereof; or any other legal entity.
* * * * * [Permanent pool--The area within a sediment basin which is designed to be inundated with water at all times.
Principal spillway--The structure within a sediment basin which controls the discharge of water from the facility.]
Point source--
(i) Any discernible, confined and discrete conveyance, including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, or vessel or other floating craft, from which pollutants are or may be discharged.
(ii) The term includes concentrated or channelized flow associated with stormwater.
(iii) The term does not include sheet flow associated with stormwater.
Pollutant--Any contaminant or other alteration of the physical, chemical, biological or radiological integrity of surface water which causes or has the potential to cause pollution as defined in section 1 of The Clean Streams Law (35 P. S. § 691.1).
Post construction stormwater--Stormwater associated with a project site after the earth disturbance activity has been completed and the project site is permanently stabilized.
PCSM--Postconstruction stormwater management.
PCSM Plan--A site-specific plan identifying BMPs to manage changes in stormwater runoff volume, rate and water quality after earth disturbance activities have ended and the project site is permanently stabilized.
PPC Plan--Preparedness, Prevention and Contingency Plan--A written plan that identifies an emergency response program, material and waste inventory, spill and leak prevention and response, inspection program, housekeeping program, security and external factors, developed and implemented at the construction site to control potential discharges of pollutants other than sediment into waters of this Commonwealth.
Project site--The entire area of activity, development, lease, or sale including:
* * * * * ROC--Registration of coverage for the permit-by-rule
Riparian forest buffer--A BMP that is an area of permanent vegetation consisting of predominantly native trees, shrubs and forbs along surface waters that is maintained in a natural state or sustainably managed to protect and enhance water quality, stabilize stream channels and banks, and buffer land use activities from surface waters.
* * * * * Sediment--Soils or other erodible materials transported by surface water as a product of erosion.
* * * * * [Skim--To remove the uppermost portion of water within a sediment basin.]
Soil loss tolerance (T)--The maximum amount of soil loss, in tons/acre/year, that a given soil type can tolerate and still permit a high level of crop production to be sustained economically and indefinitely. Values for T for various soil types may be obtained from the Pennsylvania Soil and Water Conservation Technical Guide, USDA NRCS, 1991 (as amended and updated).
Stabilization--The proper placing, grading, constructing, reinforcing, lining, and covering of soil, rock or earth to [insure] ensure their resistance to erosion, sliding or other movement.
Stormwater--Runoff from precipitation, snowmelt,and surface runoff and drainage.
Surface waters--Perennial and intermittent streams, rivers, lakes, reservoirs, ponds, wetlands, springs, natural seeps, and estuaries, excluding water at facilities approved for wastewater treatment such as wastewater treatment impoundments, cooling water ponds, and constructed wetlands used as part of a wastewater treatment process.
* * * * * Top of streambank--First substantial break in slope between the edge of the bed of the stream and the surrounding terrain. The top of streambank can either be a natural or constructed (that is, road or railroad grade) feature, lying generally parallel to the watercourse.
* * * * * § 102.2. Scope and purpose.
(a) This chapter requires persons proposing or conducting earth disturbance activities to develop, implement and maintain BMPs to minimize the potential for accelerated erosion and sedimentation and to manage post construction stormwater.
* * * * * § 102.4. Erosion and sediment control requirements.
(a) For agricultural plowing or tilling activities or for animal heavy use areas, the following erosion and sediment control requirements apply:
* * * * * (2) Written [Erosion and Sediment Control] E & S Plans are required for agricultural plowing or tilling activities or for animal heavy use areas that disturb 5,000 square feet (464.5 square meters) or more of land.
(3) The landowner, and any lessee, renter, tenant or other land occupier, conducting or planning to conduct agricultural plowing or tilling activities, or operating an animal heavy use area, are jointly and individually responsible for developing a written [Erosion and Sediment Control] E & S Plan and implementing and maintaining BMPs, including those identified in the [Erosion and Sediment Control] E & S Plan.
(4) The [Erosion and Sediment Control] E & S Plan [shall be] must include cost-effective and reasonable BMPs designed to minimize the potential for accelerated erosion and sedimentation from agricultural plowing or tilling activities and animal heavy use areas.
(i) For agricultural plowing or tilling activities, the E & S Plan must, at a minimum, limit soil loss from accelerated erosion to the soil loss tolerance (T) over the planned crop rotation.
(ii) For agricultural plowing and tilling activities that will occur on fields with less than 25% cover and within 100 feet of a river, or perennial or intermittent stream, additional BMPs shall be implemented to minimize accelerated erosion and sedimentation.
(iii) For animal heavy use areas, the E & S Plan must identify BMPs to minimize accelerated erosion and sedimentation. BMPs and their design standards are listed in the current amended and updated version of the appropriate National Resources conservation Service conservation practice standards such as Heavy Use Area Protection, Critical Area Planting, Fencing, Wastewater Treatment Strip, Constructed Wetland, Use Exclusion, Animal Trails and Walkways, Diversions, and Roof Runoff Structure.
(5) The [Erosion and Sediment Control] E & S Plan [shall] must contain plan maps [, soils maps,] that show the location of features including surface waters [of this Commonwealth,] and drainage patterns, field and property boundaries, buildings and farm structures, animal heavy use areas, roads and crossroads, and BMPs; soils maps; and a description of BMPs including animal heavy use area practices and procedures, tillage systems, schedules, and crop rotations[, and cost effective and technically practical conservation measures]. The plan must be consistent with the current conditions and activities on the agricultural operation.
(6) The E & S Plan must contain an implementation schedule. The plan shall be implemented according to the schedule, and the BMPs shall be operated and maintained as long as there are agricultural plowing or tilling activities or animal heavy use areas, on the agricultural operation.
(7) The portion of a conservation plan that identifies BMPs to minimize accelerated erosion and sedimentation from agricultural plowing or tilling activities, or from operation of animal heavy use areas, may be used to satisfy the E & S Plan requirements of this subsection if it meets the requirements of paragraphs (4)--(6).
(8) The [Erosion and Sediment Control] E & S Plan shall be available for review and inspection at the [project site during each stage of the agricultural plowing or tilling activity] agricultural operation.
(9) Nothing in this section negates the requirements under other provisions of this chapter, such as those applicable to construction activities.
(b) For earth disturbance activities other than agricultural plowing or tilling or animal heavy use areas, the following erosion and sediment control requirements apply:
(1) The implementation and maintenance of [erosion and sediment control] E & S BMPs are required to minimize the potential for accelerated erosion and sedimentation, including for those activities which disturb less than 5,000 square feet (464.5 square meters).
(2) A person proposing earth disturbance activities shall develop and implement a written [Erosion and Sediment Control] E & S Plan under this chapter if one or more of the following criteria apply:
* * * * * (ii) The person proposing the earth disturbance activities is required to develop an [Erosion and Sediment Control] E & S Plan under to this chapter under Department regulations other than those contained in this chapter.
* * * * * (3) The [Erosion and Sediment Control] E & S Plan shall be prepared by a person trained and experienced in [erosion and sediment] E & S control methods and techniques [, and shall be designed to minimize the potential for accelerated erosion and sedimentation].
(4) [Earth disturbance activities shall be planned and conducted to minimize the extent and duration of the disturbance.] Unless otherwise authorized by the Department or conservation district after consultation with the Department, earth disturbance activities shall be planned and implemented to the extent practicable in accordance with the following:
(i) Minimize the extent and duration of the earth disturbance.
(ii) Maximize protection of existing drainage features and vegetation.
(iii) Minimize soil compaction.
(iv) Utilize other measures or controls that prevent or minimize the generation of increased stormwater runoff.
(v) Protect, maintain, reclaim and restore the quality of water and the existing and designated uses of waters within this Commonwealth.
(5) The [Erosion and Sediment Control] E & S Plan [shall] must contain drawings and narrative which describe the following:
* * * * * (iv) The [amount] volume and rate of runoff from the project [area] site and its upstream watershed area.
(v) The location of all surface waters [of this Commonwealth] which may receive runoff within or from the project site and their classification under to Chapter 93.
(vi) A [written depiction] narrative description of the location and type of perimeter and onsite BMPs used before, during and after the earth disturbance activity.
(vii) A sequence of BMP installation and removal in relation to the scheduling of earth disturbance activities, prior to, during and after earth disturbance activities that ensure the proper functioning of all BMPs.
(viii) Supporting calculations and measurements.
* * * * * (x) A maintenance program which provides for the operation and maintenance of BMPs and the inspection of BMPs on a weekly basis and after each [measurable rainfall] stormwater event, including the repair of the BMPs to ensure effective and efficient operation. The program must provide for completion of a written report documenting each inspection and all BMP repair and maintenance activities.
* * * * * (xii) Identify naturally occurring geologic formations or soil conditions that may have the potential to cause pollution during earth disturbance activities and include BMPs to avoid or minimize potential pollution and its impacts from the formations.
(xiii) Evaluate the potential for thermal impacts to surface waters from the earth disturbance activity and include BMPs to avoid, minimize or mitigate potential pollution from thermal impacts.
(xiv) The E & S Plan shall be planned, designed and implemented to be consistent with the PCSM Plan under § 102.8 (relating to PCSM requirements). Unless otherwise approved by the Department, the E & S Plan must be separate from the PCSM Plan and labeled ''E & S'' or ''Erosion and Sediment Control Plan'' and be the final plan for construction.
(xv) Identify existing and proposed riparian forest buffers.
(6) Where an earth disturbance activity may result in a discharge to a water of this Commonwealth classified as High Quality or Exceptional Value uunder Chapter 93, the person proposing the activity shall, as applicable, use [the following Special Protection] nondischargealternatives and ABACT BMPs to maintain and protect the water from degradation[:]. Nondischarge alternatives and ABACT BMPs and their design standards are listed in the Erosion and Sediment Pollution Control Program Manual, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-2134-008 (April 2000), as amended and updated.
[(i) Special sediment basin requirements.
(A) Principal spillways shall be designed to skim water from the top 6 inches (15 centimeters) of the dewatering zone, or shall have permanent pools greater than or equal to 18 inches (46 centimeters) deep.
(B) The basin shall be designed with a flow length to basin width ratio of 4:1 or greater.
(C) The basin shall be designed so that it dewaters in at least 4 days and no more than 7 days when at full capacity.
(ii) Channels, collectors and diversions shall be lined with permanent vegetation, rock, geotextile or other nonerosive materials.
(iii) BMPs that divert or carry surface water shall be designed to have a minimum capacity to convey the peak discharge from a 5-year frequency storm.
(iv) Upon completion or temporary cessation of the earth disturbance activity, or any stage thereof, the project site shall be immediately stabilized.
(v)] The Department [or county conservation district] may approve alternative BMPs which will maintain and protect existing water quality and existing and designated uses.
(7) The [Erosion and Sediment Control] E & S Plan, inspection reports and monitoring records shall be available for review and inspection by the Department or the [county] conservation district at the project site during all stages of the earth disturbance activity.
(8) Upon complaint or site inspection, the Department or [county] conservation district may require that the E & S Plan be submitted for review and approval to ensure compliance with this chapter.
(c) The Department may require, or [county] the conservation district [may require] after consultation with the Department may require, other information necessary to adequately review a plan, or may require additional BMPs, on a case-by-case basis, when necessary to ensure the maintenance and protection of water quality and existing and designated uses.
(d) A person proposing or conducting an earth disturbance activity shall obtain the other necessary permits and authorizations from the Department or conservation district, related to the earth disturbance activity, before commencing with the earth disturbance activity.
(e) Persons proposing an earth disturbance activity that requires permit coverage under § 102.5 (relating to requirements) shall have permit coverage prior to commencing the earth disturbance activity.
§ 102.5. Permit requirements.
(a) An NPDES permit stormwater discharges associated with construction activities.
(1) Other than agricultural plowing or tilling activities, animal heavy use areas, timber harvesting activities or road maintenance activities, a person proposing an earth disturbance activity that involves equal to or greater than 1 acre and less than 5 acres (0.4 to 2 hectares) of earth disturbance with a point source discharge to surface waters, or an earth disturbance on any portion, part, or during any stage of, a larger common plan of development sale that involves equal to or greater than 1 acre and less than 5 acres (0.4 to 2 hectares) of earth disturbance with a point source discharge to surface waters over the life of the project, shall obtain an individual NPDES Permit or coverage under a general NPDES permit or NPDES permit-by-rule for Stormwater Discharges Associated with Construction Activities prior to commencing the earth disturbance activity.
(2) Other than agricultural plowing or tilling activities, animal heavy use areas, timber harvesting activities or road maintenance activities, a person proposing an earth disturbance activity that involves 5 acres (2 hectares) or more of earth disturbance, or an earth disturbance on any portion, part, or during any stage of, a larger common plan of development or sale that involves 5 acres (2 hectares) or more of earth disturbance over the life of the project, shall obtain [a general or] an individual NPDES Permit for Stormwater Discharges Associated With Construction Activities or coverage under a general NPDES permit or NPDES permit-by-rule for Stormwater Discharges Associated with Construction Activities prior to commencing the earth disturbance activity.
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