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Environmental Groups Opposed To DEP Rollback Of Clean Water Protections

The PA Campaign For Clean Water this week expressed serious concerns about a Department of Environmental Protection proposal to rollback clean water protections by dropping individual erosion and sedimentation and stormwater permit reviews for new developments and substituting a permit-by-rule proposal.

The proposedpermit-by-rule approach would only require an engineer's seal to guarantee compliance with erosion and sedimentation and stormwater management requirements for new development without the need for individual permit reviews by DEP or county conservation districts or any audits of permit-by-rule actions, even in High Quality and Exceptional Value watersheds.

The PA Campaign For Clean Water includes representatives of Clean Water Action, American Rivers, the Chesapeake Bay Foundation, Delaware Riverkeeper, Green Valleys Association, the Pennsylvania Sierra Club and 124 other groups.

In a letter to Acting DEP Secretary John Hanger, the groups provided detailed comments for the second time on the DEP proposal saying, in part, a permit-by-rule would violate specific federal Clean Water Act requirements, would provide no guarantees that erosion or stormwater management plans would be adequate to prevent water polllution and would abandon an earlier proposal by DEP to require streamside buffers.

"The PBR/PAG (permit-by-rule) as currently proposed by the Department raises very serious legal, policy, practical, and environmental issues. If the Department does not abandon the development of the PBR/PAG and fully address our concerns, we will have no choice but to vigorously oppose the Department’s proposal in every venue."

Violations Of The Clean Water Act

The groups provided a detailed analysis of how DEP's proposed permit-by-rule would violate multiple sections of the federal Clean Water Act which several federal court cases have held to be an "impermissible self-regulatory permitting regime."

"The court concluded by noting that its holding does not preclude permittees from designing their own stormwater management plans, “however, stormwater management programs that are designed by regulated parties must, in every instance, be subject to meaningful review by an appropriate regulated entity to ensure that each such program reduces the discharge of pollutants to the maximum extent practicable.”

"It makes absolutely no sense to develop a permitting scheme where problems with technically deficient plans cannot legally be addressed until during or after construction. Stormwater problems are substantially more difficult and costly to fix after the development is built, and water quality will suffer."

Voluntary Buffers

"We are quite disappointed that you are now proposing a voluntary approach. A voluntary buffer rule advances the ball so minimally it is not worthy of our support. For all intents and purposes, 100 foot buffers are already voluntary—any developer can currently propose to include such a buffer as part of its site design, and utilize that buffer as a stormwater management BMP, getting credit toward meeting stormwater volume control requirements. Any municipality can pass a local buffer ordinance requiring minimum 100 foot buffers, as many already have. Moreover, incentivizing buffers with the proposed PBR/PAG (permit-by-rule) is an unacceptable tradeoff that will further sacrifice the integrity of the Commonwealth’s waters. This is particularly so given that the PBR/PAG would even apply to upland parcels that do not contain streams."


"We recognize that the Department is faced with challenges in implementing the construction stormwater permit program. But the Clean Water Act does not allow the Department as the permitting authority to just quit doing its job. At a bare minimum, technical review of plans and public opportunities to review and comment on those plans must be required."

The groups offered several suggestions for improving the current permitting program, such as: streamlining the current permit review process, hiring contractors to review permit applications to alleviate the current DEP personnel shortage and providing additional training for consultants, municipal engineers and permit review staff to speed up reviews.

The letter concluded with an offer to again help DEP design a permit program that meets federal Clean Water Act requirements.

The full letter is available online.

The letter was, in part, a response to a December 17 editorial in the Harrisburg Patriot-News that disclosed the DEP proposal.


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