PADEP Launches Pilot Program for Construction Stormwater Permits in 10 Counties

May 3, 2024
Diana A. Silva, Todd D. Kantorczyk and Jonathan H. Spergel
MGKF Special Alert

On April 29, 2024, the Pennsylvania Department of Environmental Protection (PADEP) announced that it is launching a pilot program across 10 counties to improve the process for obtaining an individual National Pollutant Discharge Elimination System (NPDES) permit for construction stormwater discharges.  An individual NPDES permit is typically required for certain types of land development projects that involve more than one acre of earth disturbance, and where the particulars of a site (such as being located in a special protection watershed, particular design of stormwater controls, or brownfield redevelopment projects) require an applicant to obtain an individual permit, rather than the PAG-02 general NPDES construction stormwater permit. 

The pilot program will be available to permit applications starting on May 1, 2024, for projects in the following counties: Allegheny, Beaver, Bucks, Chester, Lebanon, Lehigh, Luzerne, Monroe, Montgomery, and York.  During the pilot program, the County Conservation Districts (CCDs) in these 10 counties will accept a maximum of three individual NPDES permit applications per quarter for consideration under the pilot program (i.e., no more than 12 applications per year).  Permit applicants must retain a licensed professional, such as a licensed professional engineer, to prepare the stormwater plan and to remain actively involved throughout the permitting process. PADEP or the applicable CCD staff will determine which permit applications to accept into the pilot program on a discretionary basis.

If a project is accepted into the pilot program, a concurrent completeness and technical review will be conducted within 47 business days (the current process is for completeness and technical reviews to be performed sequentially).  If there are significant deficiencies in the permit application, PADEP or the applicable CCD will email a deficiency letter to the applicant and provide 22 business days for resubmission.  If there are no significant deficiencies (or such deficiencies were resolved upon resubmission), PADEP or the applicable CCD will prepare and issue a draft permit for public notice in the Pennsylvania bulletin.  This timeframe would result in a significant reduction of time that applicants currently face for the processing of an individual permit application.

Note that there are several types of individual NPDES construction stormwater permit applications that are in eligible for this new pilot program, including:

  • applications for renewals, amendments, or transfers of new projects;
  • applicants that are exempt from paying permit application fees;
  • projects where Managed Release Concept (MRC) stormwater control measures are proposed, unless all PADEP-established design standards are met;
  • projects that propose to use alternative erosion and sediment control best management practices (BMPs) or post-construction stormwater management measures not identified on PADEP’s approved list;
  • projects that propose to use alternative design standards for stormwater analysis required by 25 Pa. Code §102.8(g);
  • projects that require review by PADEP’s Oil & Gas program;
  • projects that propose to disturb more than 50 acres and/or create more than 10 acres of new impervious surface in a single phase of development;
  • applicants or operators that have been subject to a formal enforcement action or have been assessed a civil penalty by PADEP or a CCD within the last 5 years; and
  • applications that may have significant public interest that are likely to have a public hearing as part of the public comment process.

In addition, for brownfield sites where there is known contamination that will be encountered during the land development process, for the project to be considered for the pilot program, the permit applicant must complete all “studies, sampling, and investigations” before the individual NPDES permit application is submitted.  Presumably this requirement means that an Act 2 Remedial Investigation will need to have been completed and approved by PADEP in order for a brownfield site to qualify for the pilot program.

For a permit application to be eligible for the pilot program, an applicant must meet with the applicable CCD or PADEP staff for two separate pre-application meetings during which the applicant will present the proposed development project, and the project will be assessed for eligibility for the pilot program. The first pre-application meeting will be an “informal” meeting with the applicable CCD to discuss the overview of the proposed project and potential eligibility for the pilot program.  The second pre-application meeting will be a “formal” pre-application meeting with the CCD and at least one PADEP staff member, where the applicant must present the final draft of a completed individual NPDES permit application, including all plans, and where the PADEP/CCD will spot check the application to provide a preliminary evaluation of eligibility for the pilot program.  An application manager will be assigned during this second/formal pre-application meeting.  The applicant must then submit a final permit application within 22 business days of the second/formal pre-application meeting, unless that time period is waived by the PADEP or CCD.  PADEP or the CCD will make a preliminary determination on eligibility of the project for the pilot program at the conclusion of the second/formal pre-application meeting, which will be confirmed after receipt of the formal permit application submission.

One of the goals of the pilot program is to improve efficiencies in review and issuance of individual NPDES permits for construction stormwater discharges, and to reduce the average processing time for individual NPDES permit applications – which can typically take anywhere from 6 months to a year or more to complete.  Under PADEP’s standard operating procedures for review of individual NPDES permits, the standard anticipated timeline from submission of a permit application to receipt of a final decision is typically a minimum of 171 business days (approximately 34 weeks/5-6 months).  The pilot program is expected to reduce that timeline from 171 business days to 98 business days. (approximately 20 weeks/3-4 months)

PADEP has posted additional information about the pilot program on its website, including a summary informational document, the standard operating procedure for the pilot program, and a pilot program application checklist.

For more information on construction stormwater permitting, please contact Diana Silva (484-430-2347), Todd Kantorczyk (484-230-2359), or Jonathan Spergel (484-430-2309).