PADEP Announces Significant Changes to Construction Stormwater Permit PAG-02

March 22, 2024
Diana A. Silva, Esq., Todd D. Kantorczyk, Esq. and Jonathan H. Spergel, Esq.
MGKF Special Alert

On March 9, 2024, the Pennsylvania Department of Environmental Protection (PADEP) published proposed updates to the National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Construction Activities, referred to as PAG-02.  The PAG-02 permit is commonly used for land development projects where there will be construction activities that involve one acre or more of earth disturbance.  PADEP has proposed several important changes to the current version of the PAG-02 permit, which is set to expire on December 7, 2024.  A copy of the current draft permit is available on PADEP’s website, and a copy of the PA Bulletin notice that summarizes the proposed changes is available here.

The key proposed changes to the PAG-02 permit involve: several modifications to reporting and recordkeeping procedures; required additional inspections and annual reporting; modifications to co-permittee registrations; additional testing obligations; the timing for recording post-construction stormwater management (PCSM) instruments; testing and documentation of structural stormwater control measures (SCMs) and new obligations for land transfers that occur during the term of permit coverage.  Some of the proposed modifications represent a codification of policies that PADEP and the local County Conservation Districts (CCDs) have been implementing in recent years, while others would be wholly new requirements for permittees.  The proposed modifications include: 

  • Instrument Recording – Requiring PCSM obligations and instruments be fully recorded on the deed to the property, and proof of recording be provided to PADEP both before the pre-construction meeting is scheduled to allow construction and earth disturbance activities to commence, and then again after the conclusion of the project and submission of a Notice of Termination (NOT) form.
  • Annual Reports – Requiring submission of an annual report by December 7, to PADEP/CCD and also to each municipality where project site is located, that summarizes the status of the project. The proposed annual report includes general project information, information on status of construction progress and stage of construction sequence, identification of any deviations from permit requirements, the projected date when the site will be permanently stabilized and a NOT submitted, confirmation that visual site inspections were performed at required frequency, and a summary of status of PCSM construction and related certifications.
  • New Property Owner Notification Form – Requiring any permittee that sells property containing or planning to contain a PCSM SCM during the term of permit coverage to complete a form and provide it to the new property owner, together with all record drawings or other documentation of SCMs and the related long-term operation and maintenance plans. The permittee must also provide a copy of the form to PADEP/CCD within 30 days of the property transfer.
  • Co-Permittee Forms – Eliminating the requirement to submit a Co-Permittee Acknowledgment Form and Co-Permittee Liability Release Form.
  • Site Inspections – Mandating that inspections be performed by qualified personnel, which would be limited to individuals who: (1) have completed the Qualified Site Inspector Training Program in PADEP’s Clean Water Academy; (2) hold an active Certified Professional in Erosion and Sediment Control or as a Certified Erosion, Sediment, and Stormwater Inspector from a recognized organization; or (3) can demonstrate to satisfaction of PADEP or a CCD that they have qualifications exceeding individuals identified in category 1 or 2 above.
  • Stormwater Control Measure Construction Certification Forms – Requiring documentation and submission of the completion of each structural SCM, signed by licensed professional and submitted within 30-days of completion of each SCM.
  • Confirmation Testing for Infiltration – for any infiltration SCMs, requiring post-construction testing to determine as-built conditions for ponding or drawdown time to confirm they are within the tolerance range of the design, with submission of results as part of SCM Construction Certification Forms.
  • Erosion Potential (EP) Analysis – Requiring permit applicants to perform an EP Analysis for stormwater discharges both during and after construction that will not directly enter a surface water and evaluate the flow path for up to a 10-year/24-hour storm event.
  • Impervious Surfaces for Residential Subdivisions – Including additional questions regarding areas of post-construction impervious surface that is planned. For residential developments, the maximum impervious area allowed by the appliable municipal code will be used, or the anticipated impervious surface area with an additional factor of safety of 10%.
  • Authorized Non-Stormwater Discharges – Requiring identification of authorized non-stormwater discharges authorized under PAG-02, including potable water, uncontaminated condensate, irrigation and dust control drainage, landscape water (if it does not contain pesticides, herbicides, or fertilizers), pavement wash waters, routine external building washing/power washing (that does not contain detergents or hazardous cleaning products), uncontaminated ground water or spring water, foundation or footing drains, constructing dewatering that complies with dewatering discharge requirements.
  • Imported Fill and Soil & Groundwater Contamination – Requiring all fill imported to a site must meet definition of clean fill as defined in PADEP’s Management of Fill Policy, except for sites that are enrolled in Act 2 or sites with approval to use regulated fill. Also, if groundwater sampled at the site during construction reveals newly discovered contamination at levels exceeding either residential or non-residential standards (as applicable to the given type of development project), notification must be made to PADEP/CCD within 24 hours, but earth disturbance does not need to stop unless directed by PADEP/CCD.
  • Impairment Causes – Revising the list of causes of impairment of the surface waters to which stormwater may discharge, for consistency with PADEP’s Integrated Water Quality Report.
  • Incorporation of EPA’s Technology Based Standards – Adopting EPA’s standards relating to construction and development point source discharges (40 CFR Part 450) into effluent limitation requirements, including new requirements for construction dewatering water, including requirements for treatment by at least two best management practices (BMPs) and potential daily monitoring for turbidity.
  • Definitions – Revising the definitions of “operator co-permittee” to distinguish between an operator as defined at 25 Pa. Code § 102.1, who is a co-permittee, and co-applicants who become co-permittees upon approval of the permit.

The proposed changes to PAG-02 will have widespread implications for most land development projects in the Commonwealth, and will require permittees to perform additional assessments as part of the permit application process, perform additional assessments after construction of the project, and also prepare, maintain and in some cases submit to the CCDs or PADEP additional records and forms – both during and after construction of the project – that have not previously been universally required. PADEP’s proposal to eliminate co-permittee acknowledgement and release of liability forms is also surprising, given the long-standing practice and expectation that both the property owner and the development contractor performing earth disturbance activities are each equally responsible for ensuring compliance with the permit conditions and regulatory requirements. With these proposed new permit compliance obligations, and potential enforcement for violations with associated civil penalties, the proposed changes to PAG-02 should be carefully reviewed and considered by everyone who may perform land development projections, construction, or other earth disturbance activities in the Commonwealth. 

PADEP is accepting public comments on the proposed revisions to PAG-02 until Monday, April 8, 2024. If there is sufficient public comments and interest, PADEP may also hold a public hearing.  

For more information on construction stormwater permitting, or if you would like to discuss submitting public comments on the proposed revisions to PAG-02, please contact Diana Silva (484-430-2347), Todd Kantorczyk (484-230-2359), or Jonathan Spergel (484-430-2309).