The Pennsylvania Environmental Quality Board proposes to amend the erosion and sediment control and stormwater management regulations (25 Pa. Code Chapter 102).  Below is a summary of the PADEP explanation of the proposed changes, followed by a copy of the proposed regulations.

The amendments will  update agricultural planning and implementation requirements, update erosion and sediment  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.    

 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.

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.

Public Participation and Outreach

   In the proposed rulemaking, the Department has incorporated many revisions. 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.

Proposed New Section 102 Regulations

§ 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:

   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.

 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).