PA Environmental Quality Board Adopts New Regulations for E&S Controls and Stormwater Management

June 2010Newsletters In the Zone

On May 17, the Pennsylvania Environmental Quality Board adopted new regulations that impose stricter controls on erosion and sedimentation and post-construction stormwater runoff. The new rules will now go to the General Assembly and to the Pennsylvania Independent Regulatory Review Commission (IRRC) for a 30-day review period. It's possible that there will still be some fighting over the new regulations, inasmuch as the IRRC previously provided extensive comments concerning cost-benefit, which do not appear to have been addressed by PADEP.

The new regulations amend 25 Pa. Code Chapter 102. The revisions are comprehensive and include changes to definitions, imposition of enhanced erosion and sedimentation control planning requirements, changes to permit application requirements and increased permit fees, changes to post-construction stormwater management, including long term operation and maintenance, antidegradation implementation, riparian buffer requirements and new permits-by-rule. The regulations incorporate updates to the federal stormwater permitting requirements promulgated in two phases in 1992 and 2002. Pennsylvania maintains delegation of the federal program, so some of the new regulations were adopted to implement the second phase of the federal requirements, according to PADEP.

Of particular significance to developers, the new regulations impose an array of highly technical and onerous post-construction stormwater management (PCSM) requirements. Under the regulations, new earth disturbance activities that require permit coverage must have written PCSM plans. Developers that received permits prior to the effective date of the regulations and are renewed prior to January 1, 2013, are authorized to implement the PCSM plan in accordance with the terms of the existing permit. After January 1, 2013, the renewal of any permit issued before the effective date of the regulations must comply with the terms of the new regulations, so developers need to be very mindful of those deadlines. The regulations not only address what needs to be in the PCSM plan but also state that the plan itself must be prepared by a person trained and experienced in PCSM design methods and techniques "applicable to the size and scope of the project being designed." The PCSM plan under the new regulations must contain a long-term operation and maintenance schedule, which provides for maintenance and inspection of BMPs in perpetuity. PCSM plan stormwater analysis must take into consideration a predevelopment site characterization and assessment of soils and geology and appropriate infiltration and geotechnical studies. Under the new regulations, for sites with existing impervious cover, the predevelopment evaluation must include an analysis for the 2-year/24-hour storm event that factors in "20% of the existing impervious area to be disturbed must be considered meadow in good condition," but it also allows the developer to demonstrate impracticability and stormwater volume reduction to the maximum extent practicable to protect existing water quality and uses. The computations required are highly technical and will require an ever-increasing sophistication on the part of outside consultants. The changes instituted by the regulations are comprehensive and require special attention by anyone with a development in the planning stages. They undoubtedly will have a significant impact on new development throughout the Commonwealth.

Click here for a copy of the regulations.

For more information, please contact M. Joel Bolstein at 215.918.3555 or [email protected].