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.
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.
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.
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.