Erosion/ Sediment Pollution Control Program: Chapter 102, Erosion Control


The attached report analyzes the Chapter 102 Rules and Regulations and compares them to existing federal requirements.

The evaluation and recommendations in this report are intended to stimulate constructive discussion of how Pennsylvania's environmental requirements can be made more effective. It does not represent a final recommendation of the Department of Environmental Protection.

The Regulatory Basics Initiative is a multi-step process for evaluating regulations and policies using several factors: are requirements more stringent than federal rules without good reason, do they impose economic costs disproportionate to the environmental benefit, are they prescriptive rather than performance-based, do they inhibit green technology and pollution prevention strategies, are they obsolete or redundant or written in a way that causes significant noncompliance.

Recommendations for changing DEP regulations and policies will be made only after the evaluation process is complete and with the active participation of the public.

Please contact Michael Sherman, Bureau of Land and Water Conservation at 717­ 783­7577 or by e-mail at Sherman.Michael@dep.state.pa.us.


EROSION AND SEDIMENT POLLUTION CONTROL PROGRAM REGULATORY BASICS INITIATIVE
TITLE 25 CHAPTER 102 EROSION CONTROL
COMPARISON WITH FEDERAL LAW

Program and Regulation History

Erosion control programs developed in the 1930's with passage of the Soil Conservation Act by the U.S. Congress. The Act created the Soil Conservation Service as part of a national program to address soil and water conservation. Since 1973, over 30 states have adopted legislation to implement erosion control programs.

During the late 1960's increasing awareness of the damage caused by sediment to flood control facilities and other property resulting from accelerated erosion from construction sites and agricultural lands resulted in revisions to the Clean Streams Law. The revisions included defining sediment as a pollutant and included changes to Section 316, Responsibilities of Landowners to provide an incentive for implementing agricultural erosion practices. Section 316 was changed to state that landowners can be excluded from responsibility for pollution in the form of sediment resulting from an act of God if a complete conservation plan for the land has been developed and the plan has been fully implemented and maintained.

Pennsylvania's existing Erosion Control Rules and Regulations at 25 Pa Code Chapter 102 were developed prior to the federal Water Pollution Control Act and prior to the development of the 1972 Model State Act for Soil Erosion and Sediment Control. The Chapter 102 regulations were adopted under the authority of the Clean Streams Law to define specific procedures and requirements of the program. The regulations also reflect the Declaration of Policy contained in Act 217, the Conservation District Law, to implement a program to help provide for the conservation of soil, water and related resources, for the control and prevention of soil erosion and preservation of natural resources. The Chapter 102 regulations require erosion control planning for all types of earthmoving; urban, agricultural plowing and tilling, forestry, mining, utilities, and others. No earthmoving activities are exempt from the regulatory requirements.

The regulations have created a role for local governments in the program by coordinating issuance of building permits, notification to conservation districts of projects affecting five or more acres and provisions for program delegation to local government bodies. The regulations provided a five year phase­in period for implementing the erosion control plan requirement.

Federal Requirements

Most recent federal requirements for agricultural conservation planning are contained in the Food Security Act of 1985 (FSA) as amended by the Food, Agriculture, Conservation, and Trade Act of 1990 (FACTA). In order to obtain federal program benefits, conservation plans are required for highly erodible lands.

Federal requirements for the control of stormwater from construction activities are contained at 40 CFR 122. The 1987 amendments to the federal Clean Water Act established two phases of NPDES stormwater permitting for certain municipalities and industrial activities. Regulations for Phase I dischargers published November 16, 1990 at 40 CFR 122.26 defined construction activities affecting five or more acres of land as an industrial activity requiring an NPDES permit and a stormwater pollution prevention plan. Regulations for Phase II dischargers published August 7, 1995 at 40 CFR 122 include construction activities less than five acres. These regulations have set an NPDES permit application deadline date of August 7, 2001. Both regulations allow the permitting authority to require permits for dischargers that contribute to a violation of a water quality standard or are a significant contributor of pollutants to waters of the United States.

The Coastal Zone Act Reauthorization Amendments (CZARA) of 1990 impose requirements on states to be incorporated into their coastal NPS programs. Management measures for all construction activities in the Coastal Zone include preparation and implementation of an approved erosion and sediment control plan and reduction of erosion and retention of sediment on site during and after construction. For timber harvesting activities CZARA management measures include preharvest planning, road management, site preparation and forest regeneration and revegetation.


Comparative Analysis

Erosion Control Planning

With the exception of nonpoint source silvicultural activities, the scope of Pennsylvania's Erosion Control Regulations are generally comparable to both federal and other state requirements. The federal law specifically exempts nonpoint source silvicultural activities from the NPDES permit requirement. There are no federal regulations specifically directed to erosion control requirements. The Food Security Act of 1985 as amended, addresses erosion control planning on highly erodible agricultural lands. Federal agencies at the Natural Resource Conservation Service and the Agricultural Stabilization and Conservation Service provide conservation plan assistance. Landowners are responsible for decision­making necessary for conservation plan development and implementation of practices. Pennsylvania's Erosion and Sediment Pollution Control Program relies on the NRCS Technical Guide for standards and specifications for conservation practices that are incorporated into the conservation plans to meet the requirements of Pennsylvania's Chapter 102. The Commonwealth's requirements are consistent with federal standards contained in the Technical Guide.

Details and comparison of regulation requirements by Pennsylvania, Maryland, New Jersey and federal regulation are contained in Table 1. The technical portions of the Chapter 102 Regulations, Sections 102.12, 102.13 have no federal equivalent; however, they are similar to other states programs. These include the requirements to develop erosion and sedimentation control plans, specifying plan content and standard technical requirements for runoff conveyance and best management practices.

Permits

Chapter 102 requires permits for larger earthmoving activities that disturb more than 25 acres. Activities that are subdivided into smaller parcels, activities requiring other permits and agricultural plowing and tilling are exempt from the permit requirement (102.31). Phase I NPDES Stormwater Permit Regulations lowered the permit acreage threshold to five acres. Phase II Regulations promulgated August 7, 1995 which affect construction activities on less than five acres of land will require NPDES permits or other approvals no later than August 7, 2001, depending on the final Phase II regulatory program in place at that time. Technical requirements and erosion control planning contained in the existing Chapter 102 Regulations meet federal requirements under the NPDES program for construction activities. These regulations, combined with Chapter 92, are the authority necessary to implement the NPDES Stormwater Permit Program for construction activities. E&S plan review and approval by delegated county conservation districts to allow permit by rule will be pursued by the program to comply with the Phase II permit deadline in 2001.

Chapter 102 Erosion Control Rules and Regulations are more stringent than federal requirements in the following areas:

Section 102.4.

1. Regulation of timber harvesting activities; erosion and sedimentation control plans are required for earthmoving activities including timber harvesting. There are no federal requirements for erosion control at timber harvesting sites.

2. Regulation of agricultural plowing and tilling; erosion and sedimentation conservation plans are required for all agricultural plowing and tilling. Federal requirements only apply to highly erodible land which may only occupy a small portion of a farmers plowed or tilled acreage.

Section 102.31.

A Chapter 102 earth disturbance permit is required if the earthmoving activity will disturb 25 or more acres of land. This applies only to larger timber harvesting activities for which there is no equivalent federal permit requirement. Individual stormwater construction permits are required for earthmoving activities affecting 25 or more acres of land. General NPDES permit coverage is available for most projects between five and twenty-five acres of disturbance.

It is recommended that minor revisions to Chapter 102 Erosion Control be made to correct and update the permit section found at 102.31. We would propose to exempt timber harvesting activities from the requirement to obtain an earth disturbance permit. Elimination of this permit requirement would make the Commonwealth`s requirements consistent with other state and existing federal requirements, yet would maintain the important requirement to develop and implement an erosion and sedimentation control plan. We recommend retaining the erosion control planning requirement for all types of earthmoving, including agricultural plowing and tilling and timber harvesting but add a clarifying minimum acreage threshold of 5,000 square feet disturbed area to trigger the requirement to develop an erosion and sedimentation control plan. Using a minimum acreage threshold would make the Commonwealth`s plan requirement (Section 102.4) consistent with adjacent states and eliminate the plan requirement for insignificant very minor earthmoving activities. Retaining the plan requirement now for activities disturbing less than five acres will position the Department and the regulated community to be prepared for, and in compliance with, the Phase II federal stormwater regulation deadline in the year 2001.

Section 102.42 - Notification of Application for Building Permits

Local municipalities must notify the Department or its designee upon receipt of an application for a building permit involving an earthmoving activity which affects five acres or more of land. There is no equivalent federal requirement. The program recommends retaining this section since it provides a useful coordination technique for the county conservation district and local municipality to ensure all necessary approvals are obtained for the project.

Section 102.43 - Withholding Building Permits

Local municipalities may not issue a building permit for those engaged in earthmoving activities requiring a Department permit until the Department has issued the permit. There is no equivalent federal requirement. Neighboring states use similar or more stringent requirements to ensure that adequate erosion control planning or stabilization occurs prior to issuing project approvals or occupancy permits. The program recommends retaining this Section since it is a useful compliance technique that benefits both the program and the local municipality and allows correction of problems without formal enforcement.


Statutory, Policy, Technical Recommendations

The Erosion Control Rules and Regulations are one of the Commonwealth's oldest sets of regulations. Over 20 years have elapsed since adoption of the regulations; yet the requirements contained, are for the most part, still appropriate for earthmoving and construction activities in the Commonwealth. One of the strengths of the program has been that the E&S planning requirement applies equally and fairly to all earthmovers regardless of project type.

Erosion and sedimentation control guidelines for timber harvesting have been widely promoted to the regulated community through training efforts with county conservation districts, Penn State University, and industry groups. Partnerships with these groups has led to the development and continued use of the Timber Harvesters Action Packet and Pocket Guide which contain E&S guidelines and a simplified model erosion and sedimentation control plan. The basic E&S plan requirement provides a consistent standard or benchmark that industry can attain in lieu of separate, more stringent or restrictive local municipal ordinances or zoning requirements.

The Erosion and Sedimentation Control Program is an important component of the Commonwealth's Chesapeake Bay Nutrient Reduction Strategy, Section 319 Nonpoint Source Management Program, CZM Nonpoint Source Control Program and the Nutrient Management Program, especially pertaining to agricultural plowing and tilling. Exempting agricultural plowing and tilling would be viewed as a reversal of an important environmental requirement that promotes a reasonable, balanced approach to protecting soil resources and minimizing water quality impacts. Section 6 of the Nutrient Management Act requires nutrient management plans that include Best Management Practices including stormwater management practices to manage nutrients. These practices form the essence of a conservation plan. Currently the program is working with the Nutrient Management Advisory Board and other segments of the agricultural community to develop a revised agricultural erosion and sedimentation control manual. This manual uses widely accepted and practiced planning techniques that are consistent with federal Natural Resource Conservation Service guidance. Section 316 of the Clean Streams Law contains an important safeguard for farmers that protects them from penalties under the Act that result from any act of God that results in sediment pollution as long as the land owner has developed and implemented a complete conservation plan. For the above reasons it is recommended that Chapter 102 Erosion Control continue to impose conservation plan requirements for agricultural plowing and tilling.

Additional information is available upon request regarding program costs to the regulated community. Technology and resources are widely available and utilized by the agriculture and timber industries. Guidance and outreach activities sufficiently convey regulation requirements, utilizing frequent training sessions and user/pocket guides to simplify and facilitate compliance requirements.