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PA Bulletin, Doc. No. 24-303



Draft National Pollutant Discharge Elimination System General Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)

[54 Pa.B. 1263]
[Saturday, March 9, 2024]

 The Department of Environmental Protection (Department) is announcing the availability of a draft National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02). The draft General Permit and related documents are available on the Department's eLibrary at (select ''Permit and Authorization Packages,'' then ''Clean Water,'' and then ''PAG-02 NPDES General Permit for Discharges of Stormwater Associated with Construction Activities 3800-PM-BCW0405'').

 The PAG-02 General Permit is intended to provide NPDES permit coverage to persons discharging stormwater associated with construction activities to surface waters of this Commonwealth in satisfaction of State (25 Pa. Code §§ 102.5(a) and 92a.1(b) (relating to permit requirements; and purpose and scope)) and Federal (40 CFR 122.26(b)(14)(x) and (b)(15) (relating to storm water discharges (applicable to State NPDES programs, see § 123.25))) NPDES permit requirements. The PAG-02 General Permit applies to eligible projects proposing an earth disturbance activity that involves 1 or more acres of earth disturbance, or an earth disturbance on any portion, part or during any stage of, a larger common plan of development or sale that involves 1 or more acres of earth disturbance. If a project is ineligible for PAG-02 and requires NPDES permit coverage, an applicant may submit an application for an individual NPDES permit.

 Notices of Intent (NOI) to use the PAG-02 General Permit for NPDES permit coverage must be submitted to county conservation districts (CCD) that are delegated by the Department to complete reviews of NPDES permit applications under 25 Pa. Code Chapter 102 (relating to erosion and sediment control), or in the absence of a delegated CCD, a regional office of the Department.

 The Department is proposing the following significant changes in the draft PAG-02 General Permit (2024 General Permit) in comparison to the PAG-02 General Permit that became effective on December 8, 2019, and will expire on December 7, 2024 (2019 General Permit):

 • Impairment Causes—The 2019 General Permit requires the use of nondischarge alternatives or antidegradation best available combination of technologies best management practices (BMP) when stormwater discharges are proposed to surface waters (including tributaries to the Chesapeake Bay) that are impaired for causes of siltation, turbidity, suspended solids, water/flow variability, flow modifications/alterations or nutrients. Since 2019, the Department has renamed several of these causes through the Department's Integrated Water Quality Report. The Department is proposing to revise the list of causes as siltation, turbidity, Total Suspended Solids, algae, eutrophication, nutrients, flow regime modifications and habitat alterations to be consistent with the latest Integrated Water Quality Report.

 • Authorized Non-Stormwater Discharges—The Department is proposing to identify specific types of non-stormwater discharges that are authorized during earth disturbance activities to be consistent with other Department general permits for stormwater discharges.

 • EPA Technology-Based Standards—The Department is proposing to incorporate the United States Environmental Protection Agency's (EPA) technology-based standards at 40 CFR Part 450 (relating to construction and development point source category) into the effluent limitation requirements, along with two new requirements for construction dewatering water. Discharges would need to be treated by an approved series of at least two BMPs.

 • Site Inspections—The Department is proposing to require that site inspections be conducted only by qualified personnel. Three options would be available to demonstrate that a person is qualified. Existing permittees would be provided 1 year from the effective date of the 2024 General Permit to implement this provision.

 • Definitions—The Department is proposing to add or revise definitions to clarify certain conditions of the General Permit. For example, the Department is proposing a definition for the term ''operator co-permittee'' to distinguish between an operator, as defined at 25 Pa. Code § 102.1 (relating to definitions), who is a co-permittee, and co-applicants that become co-permittees upon approval of coverage.

 • Instrument Recording—The 2019 General Permit requires that proof of the recording of an instrument for post-construction stormwater management (PCSM) stormwater BMPs, which are now referred to as stormwater control measures (SCM), be submitted to the Department or CCD with the Notice of Termination (NOT) or a Transfer Application. The Department is proposing that the full recording and proof of the recording be submitted before the pre-construction meeting is scheduled and then again upon submission of the NOT to ensure compliance with 25 Pa. Code § 102.8(m) (relating to PCSM requirements).

 • Co-Permittees—The Department is proposing to eliminate the requirement to submit the Co-Permittee Acknowledgement Form for Chapter 102 Permits (3800-FM-BCW0271a) and the Co-Permittee Liability Release Form (3800-FM-BCW0271).

 • Imported Fill and Soil and Groundwater Contamination—The Department is proposing to clarify requirements concerning the importation of fill to a project site and the discovery of soil and groundwater contamination during construction.

 • Erosion Potential (EP) Analysis—The Department is proposing that the 2024 PAG-02 NOI will require the completion of an EP Analysis, using Department Form No. 3800-FM-BCW0271h, for stormwater discharges during and following construction that will not directly enter a surface water to evaluate the stability of the flow path up to the 10-year/24-hour storm event.

 • Annual Report—The Department is proposing to require that an annual report be submitted each year by December 7, which would be the anniversary of the General Permit's expiration date, to provide information on the status of the project.

 • SCM Construction Certification Form—The Department is proposing the use of a standard form, 3800-FM-BCW0271j, to document the completion of each structural PCSM SCM. The form would need to be signed by a licensed professional and submitted to the Department or CCD within 30 days of completion of each SCM.

 • Construction Confirmation Testing for Infiltration Capacity—For infiltration-based SCMs, the Department is proposing to require post-construction testing to determine whether as-built ponding time or drawdown time are within a tolerance range of the design ponding time or drawdown time. The results would be submitted to the Department or CCD with the SCM Construction Certification Form.

 • New Property Owner Notification Form—The Department is proposing to require permittees that sell property within the project site that contains or will contain PCSM SCMs to provide a copy of the New Property Owner Notification Form (3800-FM-BCW0271i) to the new property owner, along with record drawings or other documentation of SCMs and the long-term Operation and Maintenance Plan. Permittees would need to submit the form to the Department or CCD within 30 days of the date of property transfer.

 • Impervious Surfaces for Residential Subdivisions—The Department is proposing that the 2024 PAG-02 NOI will include questions concerning the area of post-construction impervious surface that is planned. For residential subdivisions, the Department expects that the area of impervious surface used in the stormwater analysis will be either the maximum area of impervious surface for a lot under a municipal ordinance or the anticipated impervious area with a factor of safety of at least 10%. This approach is expected to streamline the process when impervious surfaces are added to individual lots during construction of a larger common plan of development or after the sale of a lot and in other circumstances where a change to PCSM SCMs may be needed. This approach also is expected to reduce the administrative burden on the permittee and the Department or CCD by decreasing the number of permit amendments during construction.

 In addition, the Department will update the Erosion and Sediment Module 1 and PCSM Module 2 to be consistent with the revisions to the 2024 General Permit upon permit reissuance. Additional information on these proposals may be found in the draft PAG-02 General Permit Fact Sheet and other supporting documents.

 Applicants must submit a $500 administrative filing fee to the delegated CCD with the NOI package and any additional fees the CCD requires. Applicants must also submit a fee in the amount of $100 for each disturbed acre to the Department. If a project is located in a county without a delegated CCD, the disturbed acre fee and the administrative filing fee must be submitted to the Department.

 For existing permittees, the Department is proposing that a renewal NOI to remain covered under the reissued PAG-02 General Permit must be submitted by December 7, 2024, using form 3800-PM-BCW0405h. A $500 administrative filing fee must accompany the renewal NOI.

Written Comments: Interested persons are invited to submit written comments regarding the draft PAG-02 General Permit and associated documents through Monday, April 8, 2024. Commentators are encouraged to submit comments using the Department's online eComment system at Written comments can also be submitted by e-mail to or by mail to the Department of Environmental Protection, Policy Office, Rachel Carson State Office Building, P.O. Box 2063, Harrisburg, PA 17105-2063. Comments, including comments submitted by e-mail, must include the originator's name and address. Comments submitted by facsimile will not be accepted.

 Written comments submitted during the 30-day comment period will be retained by the Department and considered in finalizing the General Permit. The Department will provide an opportunity for any interested person or group of persons, any affected State, any affected interstate agency, the EPA or any interested agency, to request or petition for a public hearing with respect to the draft General Permit. The request or petition for public hearing, which must be filed within the 30-day period allowed for filing of written comments, must indicate the interest of the party filing the request and the reasons why a hearing is warranted. A hearing will be held if there is significant public interest.

Acting Interim Secretary

[Pa.B. Doc. No. 24-303. Filed for public inspection March 8, 2024, 9:00 a.m.]

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