PADEP’s New E&S/Stormwater Regulations Have Important Exceptions for Brownfield Redevelopment Projects

August 2010Newsletters In the Zone

The new Chapter 102 regulations relating to erosion and sedimentation (E&S) controls and stormwater management were approved by the Independent Regulatory Review Commission (IRRC) on June 17, 2010. In our most recent edition of In the Zone , we reviewed the burdensome requirements those regulations will impose on developers, including developing and implementing post-construction stormwater management (PCSM) plans and creating riparian stream buffers. Those new regulations are now on the fast path to becoming law in the Commonwealth by the end of the year, and they will go into effect 90 days after being published in the Pennsylvania Bulletin.

If you take a close look at the regulations and the accompanying 471-page comment/response document , you will see that the Environmental Quality Board (EQB) has slipped in a number of exceptions to ensure the regulations do not adversely impact brownfield redevelopment in Pennsylvania. On page 264 of the comment/response document, one commenter asserted the proposed regulations would "potentially present a significant disincentive to brownfield redevelopment in the Commonwealth." The commenter noted the proposed regulation would adversely impact brownfield developers who took the initiative and started preparing the site for re-use (such as by demolishing buildings), before the stormwater permitting and PCSM compliance obligations kicked in at the time of earth disturbance. In response, the Department agreed that "flexibility is needed" on brownfields sites. As a result, it revised Section 102.8(g)(2)(ii) and (iii) of the final regulations. Section 102.8(g) is the subsection that sets forth the criteria to be applied in performing the PCSM plan stormwater analysis. Section 102.8(g)(2)(iii) states as follows:

(iii) When the existing site contains impervious area and the existing site conditions have public health, safety or environmental limitations, the applicant may demonstrate to the Department that it is not practicable to satisfy the requirement in (ii), but the stormwater volume reduction and water quality treatment will be maximized to the extent practicable in order to maintain and protect existing water quality and existing and designated uses.

The first thing I see in that subsection that helps brownfield redevelopers is the notion a site may have existing "public health, safety or environmental limitations" that impact the ability to manage post-construction stormwater. Many brownfield sites have contamination under an asphalt cap or concrete, and it is in everyone's interest to leave that undisturbed. Presumably that would be seen as an "environmental limitation." So for example, let's assume a brownfield developer wants to buy an old abandoned corner gas station and turn it into a bank or a drugstore. The site soils are contaminated and are covered by the existing parking lot. The developer plans on maintaining that cap to limit direct exposure to the soil contamination. It would appear Section 102.8(g)(2)(iii) of the new regulations would allow that brownfield redeveloper to avoid having to comply with the otherwise one-size-fits-all post-construction stormwater volume reduction requirements or design the stormwater BMPs for the two-year/24-hour storm event, provided it demonstrates stormwater volume will be reduced for the completed brownfield development "to the extent practicable." What that means, I do not completely know. I am not even sure the Department knows at this point. Practicability is a concept that puts an enormous degree of discretion in the hands of the Department. Since the Department carved out this exception for brownfield projects, one would hope they would use that discretion as a means of facilitating brownfield redevelopment and not be too rigid in applying the subsection.

In the comment/response document, the Department also notes that Section 102.14(d)(2(v) provides a waiver for brownfield redevelopment projects from the new riparian buffer requirements. As support for the regulation, the EQB found that "riparian buffers are one of the most cost effective stormwater management BMPs." The new regulations require the creation of riparian buffers to protect exceptional value (EV) and high quality (HQ) waters. Under Section 102.14(a), a person may not conduct earth disturbance activities within 150 feet of a perennial or intermittent river, stream or creek, or lake, pond or reservoir, where the project site is located in an EV or HQ watershed attaining its designated use as listed by the Department at the time of application and he/she is required to protect any existing riparian buffer in that circumstance. Where the site is in an EV or HQ watershed where there are waters failing to attain one or more designated uses and the project site is along or within 150 feet of a perennial or intermittent stream, then the person must protect any existing riparian forest buffer, or convert an existing riparian buffer to a riparian forest buffer, or establish a new riparian forest buffer. The brownfield waiver to the riparian buffer requirement is found in Section 102.14(d)(2). The exception reads:

(1) The requirements of 102.14(a) do not apply for earth disturbance activities associated with the following:
(2) For earth disturbance activities associated with the following, the Department, or the Conservation District after consultation with the Department, may grant a waiver from any of the requirements of 102.14(a) and (b) upon a demonstration by the applicant that there are reasonable alternatives for compliance with this section, so long as any existing riparian buffer is undisturbed to the extent practicable and that the activity will otherwise meet the requirements of this Chapter:
(v) Redevelopment projects which include brownfields or use of other vacant land and property within a developed area for further construction or development;

In order to invoke the brownfield waiver, a brownfield redeveloper has to submit a written request for the waiver to the Department or the Conservation District as part of the application for the NPDES Stormwater Construction permit. The new regulation also allows for anyone claiming the waiver to propose "in-lieu of compensation to fund riparian forest buffer protection, enhancement or establishment."

So what does all of this mean for brownfield redevelopers? Well, let's assume you are a brownfield redeveloper and are looking to buy an old vacant factory that sits on 20 acres and has a stream running through it and is located in an EV or HQ watershed. Without the brownfield waiver, you would have to create a riparian buffer of 150 feet on both sides of the creek. That would cut back significantly on the land area available for the brownfield development project, and it might dissuade someone from acquiring that abandoned site. Presumably, the brownfield waiver was put in the Chapter 102 regulations to recognize that brownfield sites require special incentives, not disincentives, in order to encourage their productive reuse.

In my hypothetical, the developer would be eligible to seek a waiver upon written request "as part of the application for a permit" under Chapter 102. But that is the rub. The brownfield redeveloper will not know a waiver will be granted until they apply for a permit. That means the Department will not likely be telling the brownfield redeveloper whether the site will receive a waiver from the riparian buffer requirement at any time prior to the site being purchased. They also will not likely be telling that developer in advance of the purchase whether any payment in lieu of the riparian buffer will be required. That could be a significant enough risk to still deter the potential brownfield redeveloper if that extra site area is important to the viability of the project. What I can see happening for those sites is a scenario as follows:

  1. Developer identifies a vacant abandoned industrial site;
  2. Developer wants some certainty regarding the area available for redevelopment so it enters into a cooperation agreement with a county redevelopment authority or economic development corporation;
  3. The county RDA or EDC acquires the site;
  4. The county RDA or EDC files an application for a stormwater construction permit, requesting the waiver from the riparian buffer requirement under Section 102.14(d)(v); and
  5. If the Department or the Conservation District grants the waiver, the developer moves forward and takes title to the property and proceeds.

I am sure there will be other ideas that brownfield redevelopers will come up with, but that is one I have worked with on a number of projects where the brownfield site requires assessment grant or remediation grant funding and the RDA or EDC is the conduit for the state or federal funding. I believe that structure could be adapted to work in the circumstances of a brownfield site potentially triggering the need for a riparian buffer.

So for brownfield redevelopers, there is some good news buried in the final Chapter 102 regulations and the accompanying 471-page comment/response document.

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