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PA Bulletin, Doc. No. 24-1211

NOTICES

DEPARTMENT OF
ENVIRONMENTAL PROTECTION

Availability of National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)

[54 Pa.B. 5536]
[Saturday, August 31, 2024]

 Under The Clean Streams Law (35 P.S. §§ 691.1—691.1001) and sections 1905-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P.S. §§ 510-5, 510-17 and 510-20), the Department of Environmental Protection (Department), by this notice, informs the public of the availability of the final National Pollution Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02) for a new 5-year term. The PAG-02 General Permit will become effective on December 8, 2024, and will expire on December 7, 2029.

 The PAG-02 General Permit is intended to provide NPDES permit coverage to persons proposing an earth disturbance activity (other than agricultural plowing or tilling activities, animal heavy use areas, timber harvesting activities, oil and gas activities and road maintenance activities) involving earth disturbance greater than or equal to one acre, or an earth disturbance on any portion, part or during any stage of, a larger common plan of development or sale that involves greater than or equal to 1 acre of disturbance, in satisfaction of State (25 Pa. Code §§ 92a.1(b) and 102.5(a) (relating to purpose and scope; and permit requirements)) and Federal (40 CFR 122.26(b)(14)(x) and (15) (relating to storm water discharges (applicable to State NPDES programs, see § 123.25)) regulations, if the eligibility requirements have been satisfied. The PAG-02 General Permit may also be used for NPDES permit coverage where the Department or the United States Environmental Protection Agency requires an NPDES permit based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to waters of the United States, in accordance with 40 CFR 122.26(b)(15)(ii). The PAG-02 General Permit may not be used for discharges to waters designated for special protection under 25 Pa. Code Chapter 93 (relating to water quality standards) or other discharges that do not meet eligibility requirements of the PAG-02 General Permit.

 Notice of the availability of a draft PAG-02 General Permit was published in the Pennsylvania Bulletin at 54 Pa.B. 1263 (March 9, 2024). A 30-day comment period was provided and interested parties were directed to submit comments to the Department's eComment system. The comment period ended on April 8, 2024. The Department received comments from 20 individuals and organizations during the comment period. A comment and response document has been developed by the Department.

 The notice of availability of the draft PAG-02 at 54 Pa.B. 1263 included a description of the significant changes in the draft PAG-02 compared with the PAG-02 that became effective on December 8, 2019. The following additional significant changes were made to the final PAG-02 General Permit documents in comparison to the draft General Permit published on March 9, 2024:

 • Submission to Municipalities—The draft PAG-02 proposed a requirement to submit annual reports and Notices of Termination (NOT) to municipalities. In response to public comments, the Department has removed this requirement from the final PAG-02.

 • Landowner Acknowledgement—The draft PAG-02 proposed a new ''Landowner Acknowledgement'' section of the PAG-02 Notice of Intent (NOI) that the landowners of a project site would sign to demonstrate the applicant has authority to conduct earth disturbance activities, if the applicant was not the sole owner of land comprising the project site. In response to public comments, the Department has removed this section from the final PAG-02 NOI.

 • Legal Instrument Recording—Under 25 Pa. Code § 102.8(m)(2) (relating to PCSM requirements), permittees must record a legal instrument identifying post-construction stormwater management (PCSM) stormwater control measures (SCM) on properties. In the 2019 version of PAG-02, this instrument was required to be recorded within 45 days of permit issuance. The draft PAG-02 published March 9, 2024, proposed that the legal instrument recording occur and the recorded documentation be submitted to the Department or a delegated county conservation district (CCD) prior to the scheduling of the required pre-construction meeting to aid in ensuring that this requirement will be satisfied and does not prevent the approval of an NOT. In response to comments received, the Department is, in the final PAG-02, making an exception to this requirement for utility projects and other projects that receive written approval from the Department or a CCD. If the exception applies, the permittee will be required to record the instrument and submit the recorded documentation to the Department or a CCD within 45 days of PAG-02 coverage approval.

 • Residential Impervious—The Department has removed questions on the final PAG-02 NOI concerning whether the maximum impervious allowed on a lot or a factor of safety was used for planned impervious areas. PCSM Module 2 will be updated to include a table of lots and impervious areas for multilot development projects. If the stormwater analysis and design of SCMs considers either the maximum allowable impervious area under a local ordinance or the maximum impervious on a lot, as designed, is at least 10% greater than the planned impervious, the permittee would not be responsible for amending the approved PCSM Plan and PAG-02 coverage or documenting future changes on record drawings, assuming the changes are within the factor of safety.

 • Monthly Color Photographs—The draft PAG-02 proposed that color photographs be taken at least monthly of best management practices and SCMs. In the final PAG-02, the Department has modified this requirement to allow for alternative approaches when approved by the Department or a CCD, generally for large projects.

 • Effective Date—The Department has clarified in the final PAG-02 that the requirements for site inspectors to be qualified and for confirmation testing of infiltration SCMs go into effect on December 8, 2025, 1 year following the effective date of the final PAG-02, to provide adequate time to prepare for these new requirements.

 • Confirmation Testing for Infiltration Capacity—The Department has decided to eliminate the 20% threshold on ponding or drawdown times when evaluating infiltration SCMs through confirmation testing for infiltration capacity and instead allow the licensed professional the discretion to determine if the SCM is infiltrating in a manner consistent with the design.

 Changes to the new PAG-02 General Permit compared with the PAG-02 that became effective on December 8, 2019, are also detailed in the ''PAG-02 Modifications'' section of the fact sheet accompanying the new PAG-02.

 Permittees with existing coverage under the PAG-02 General Permit will be required to submit a renewal NOI to maintain continued coverage under the reissued PAG-02 General Permit by December 7, 2024. Permittees must use the PAG-02 Renewal NOI form (3800-PM-BCW0405h). The Department or CCDs will transmit notification to all existing PAG-02 permittees explaining the changes to the terms and conditions of General Permit coverage.

 The fees for the PAG-02 General Permit include: 1) a $500 administrative filing fee that is payable to the appropriate CCD Clean Water Fund or, if earth disturbance will occur in Forest or Philadelphia counties, payable to the Commonwealth Clean Water Fund; 2) a disturbed acreage fee calculated by multiplying the number of disturbed acres (rounded to the nearest whole acre) by $100, payable to the Commonwealth Clean Water Fund; and 3) any additional fees that the CCD has established for review of the NOI for PAG-02 coverage. The administrative filing fee and disturbed acreage fee do not apply to entities satisfying the criteria for an exemption under 25 Pa. Code § 102.6(b)(4) (relating to permit applications and fees).

 The General Permit package can be accessed online through the Department's eLibrary web site at www.depgreenport.state.pa.us/elibrary/ (select ''Permit and Authorization Packages,'' then ''Clean Water,'' then ''PAG-02 NPDES General Permit for Discharges of Stormwater Associated with Construction Activities 3800-PM-BCW0405'').

 In accordance with 25 Pa. Code § 92a.84(c)(3) (relating to public notice of general permits), the Department will publish notice of every approval of coverage under the PAG-02 General Permit in the Pennsylvania Bulletin.

JESSICA SHIRLEY, 
Acting Secretary

[Pa.B. Doc. No. 24-1211. Filed for public inspection August 30, 2024, 9:00 a.m.]


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