by Paul Mullin, Esq.

 At the end of 2019, the Pennsylvania Department of Environmental Protection (PADEP) published a final 2019 National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02) in the Pennsylvania Bulletin.  If you currently have a valid PAG-02 general permit that was issued before December 7, 2019, you should have received a notice letter from PADEP notifying you that the 2017 PAG-02 general permit has expired.  That letter includes an acknowledgment form which needs to be returned to PADEP by March 9, 2020.  The new changes are applicable to existing permits with some exceptions.  This post identifies the most significant changes to the PAG-02 general permit and how it can impact existing permit holders.

Permit Coverage: If you have an existing PAG-02 general permit and expect to have stormwater discharges associated with construction activities beyond the expiration date of your permit, you will have to submit a Notice of Intent (NOI) to renew your coverage at least 180 days prior to your current permit expiration.  This is not a new requirement.  However, the requested extension will only go until December 7, 2024, the date on which the statewide PAG-02 general permit expires.  Previously PADEP granted 5 year extensions even if they extended beyond the validity of the statewide PAG-02 general permit.  While this change is not currently a major issue, if a project is commenced in late 2023 or early 2024, PADEP or the designated County Conservation District (CCD) will issue general permits which expire on December 7, 2024.  PADEP has noted in its comments that they anticipate having a new extension protocol in place for permits expiring in 2024, but as was seen with the last statewide PAG-02 general permit extension, there are no guarantees.

Proof of Instrument Recording: While the 2019 PAG-02 general permit still requires a Post-Construction Stormwater Management (PCSM) declaration to be filed within 45 days of the issuance of the permit, the previous reality was that such instruments were only needed to be in place in order to get a Notice of Termination (NOT) for the permit. The 2019 PAG-02 general permit requires a PCSM declaration to be recorded in order to obtain an NOT and in order to be able to transfer a general permit.

Impaired Waters: If you are currently seeking a general permit to discharge stormwater into impaired waters, such as the Chesapeake Bay watershed, you will be required to utilize non-discharge alternatives or Antidegradation Best Available Combination of Technologies (ABACT) BMPS for your project. If you have an existing general permit and are discharging into an impaired water, PADEP has confirmed that no additional actions shall be required regarding BMPS unless additional earth disturbance warranting a major amendment to the general permit is proposed. If you submitted an application for a general permit to discharge into impaired waters prior to the expiration of the 2017 PAG-02, but did not receive permit authorization prior to December 7, 2019, you will be required to implement non-discharge alternatives or ABACT BMPS.

General Permit Implementation/ Training: Permittees and co-permittees must now ensure that all appropriate personnel on-site are trained so that they understand permit deadlines associated with installation, maintenance, and removal of stormwater controls, and with site stabilization. Permittees must now maintain an on-site training log for review by PADEP or the designated CCD. While PADEP is currently in the process of creating a training program, in its January 28, 2020 guidance, PADEP noted that training required under the 2019 PAG-02 general permit “does not mean formal training, although formal training in a classroom or other setting could be done to satisfy this requirement. Training in this context broadly means the transfer of information, e.g., from permittee or general contractor to subcontractor, daily or weekly meetings, pre-construction meeting, etc.” While that guidance is vague, the 2019 PAG-02 general permit appears to require at a minimum training on all stormwater controls on the project site, how such controls are to be maintained, and the proper procedures to follow to conduct inspections, record observed results, and take corrective actions.

Site Inspections: The 2019 PAG-02 general permit clarifies previously vague language on when a site inspection must occur following a storm event. A post-storm site inspection is now required after a rainfall of .25” or more. The  2019  PAG-02 general permit also requires visual site  inspections in response to observed deficiencies with Erosion and Sedimentation (E&S) and/or PCSM Plan implementation.

New Application Forms: In an effort to streamline and standardize the permitting process, PADEP has issued various new forms that have to be utilized going forward. These include new permit transfer forms, co-permittee forms, and E&S and PCSM modules.

Acknowledgement Form: As part of the letter you should have received from PADEP, an Acknowledgement Form was included for execution which indicates whether:

  1. You remain eligible and will comply with the 2019 General Permit;
  2. You are no longer eligible, cannot comply, or do not wish to comply with the 2019 General Permit; or
  3. You no longer need PAG-02 coverage because earth disturbance activities have ceased and permanent stabilization has been achieved.

You will need to respond no later than March 9, 2020. You can complete and submit the Acknowledgement Form using one of the following methods.

  1. Via the PADEP website here;
  2. Via email: RA-102PermitForms@pa.gov; or
  3. Via mail: DEP Bureau of Clean Water, NPDES Permitting Division, PO Box 8774, Harrisburg, PA 17105-8774.

Prior to executing the Acknowledgement Form, you should review the changes to the PAG-02 general permit with your professional team to make sure that none of the changes adversely impact your project or will require you to obtain a new NPDES permit.

Should you have any questions regarding the changes to the PAG-02 general permitting program, your existing NPDES permits, or any other stormwater matter related to your project, please call or e-mail Paul Mullin (pmullin@hrmml.com)/ (215) 661-0400.