June 22, 2010

By votes of 4-1, the Independent Regulatory Review Commission (IRRC) passed two key new regulations that will strengthen protections on water resources and on drinking water and watersheds from natural gas drilling pollution as well as other new development projects. These new rules fall under Title 25, in the PA code, Chapter 95, Wastewater Treatment Requirements, and Chapter 102, Erosion and Sedimentation Control. The IRRC is the last step in regulatory review process and is made up of five individuals - four from each of the Assembly’s caucuses (Democrat and Republican in both the Senate and House), as well as an appointee from the Governor.  Its mission is to ensure new regulations are consistent with public interest and legislative intent.

Changes to Chapter 102 state regulations approved by the IRRC will require some developers to maintain or create a 150-foot natural vegetative buffer beside Pennsylvania’s best rivers and streams. These rules affect so-called E&S permitting or Erosion and Sedimentation Control measures implemented with construction projects to reduce impact on streams and rivers. Streams in the top 20% statewide for water quality will be subject to the increased protections.

Streamside buffers are widely considered to be the best and most effective long-term solution for protection water quality. Buffers help filter water, reduce the impacts of flooding, shade and reduce water temperatures creating better habitat for fish and aquatic species. Clean Water Action says that over 200 municipalities require buffers with 63 requiring at least 100 foot buffers.

The new drilling rules (Chapter 95) require treatment of highly saline wastewater so as to meet drinking water standards if they want to dispose of it in Pennsylvania’s waterways.  Natural gas drilling in the Marcellus Shale of Pennsylvania has become greatly scrutinized due to the immense quantities of water used in the process, the chemical additives employed, and the manner of treatment.  Between 2 and 9 million gallons are used to “frack” each well in order to release the natural gas deposits.  That water is injected with a coctail of chemicals and salts. Some water flows back up and is collected in storage ponds for re-use or treatment.

These rules affect the manner in which the water is treated and disposed of into Pennsylvania’s more than 85,000 miles of streams.  The possibility of an impact fee on corporate drilling revenues remains unclear and while supported by the Governor is mired in budget debates and discussion over how to spend the expected hundreds of millions in revenues.

Altogether over 8,000 comments were received by the state from the public, with over 90% in support of the proposed water protection rules. Some 100 organizations supported the new rules, along with several major water suppliers in the state; 50 state legislators wrote in support.

admin Chapter 102 Regs, Stormwater Regulations buffers, clean water, Clean Water Act, gas drilling, Marcellus Shale, ordinances, stormwater legislation, stormwater standards, water quality, watershed protection

EDITORS NOTE: The American Society of Civil Engineers (ACSE) has recently released a review of Pennsylvania’s infrastructure programs, including stormwater management.  The results are sobering.  They parallel an equally dismal “report card” issued some time ago by Tom Schueler at the Chesapeake Stormwater Network.  ASCE gives Pennsylvania’s stormwater program a D minus, a barely passing grade.  ASCE recommendations have merit, and we would urge readers to review what they have to say (it’s a great condensed summary).

But, lest we be too critical and too negative (which we often are), keep in mind that in a relatively short period of time, PADEP has pushed the stormwater program with all of its unfunded mandates forward in significant ways.  Even as we speak, there are major changes - improvements- being made to Chapter 102 provisions and to the MS4 program, involving over 900 of Pennsylvania’s over 2,500 municipalities - a crazy quilt of management challenges.  In a relatively short period of time, we have moved from a single-focused peak rate detention management approach to embracing much more comprehensive objectives - peak rate and total volumes and water quality and temperature and re-use and water conservation with dozens of BMPs.  The Act 167 program is being bent into a new mold.  Yes, much remains to be done.  We are not there yet.  But some credit is due to committed state actors, both within and outside of PADEP, who have been working hard to push Pennsylvania’s stormwater program forward.  Don’t give up now!

FROM ACSE:

When looking at infrastructure, potholes and rotting bridges are easy to see-a failing stormwater system is not.  Stormwater infrastructure is vital to providing and maintaining safe drinking water supplies and a healthy environment, since stormwater runoff ends up in lakes and reservoirs.  Approximately 84 percent of Pennsylvania’s population relies on surface water for their drinking water supply.  Chemical and biological contamination from stormwater runoff can endanger both of these goals.  The primary obstacles to improving the state’s stormwater infrastructure are that there is no dedicated funding source for investigation, operation and maintenance of existing systems; no funding for taking the next step to improve water quality as well as manage water quantity; and little to no regulatory oversight of stormwater systems.  The Pennsylvania sections of the American Society of Civil Engineers encourage the Commonwealth to support a list of recommendations.

Fully fund and enforce Act 167

Comply with the recommended legislative priorities of the state water plan, including: Clearly authorize by legislation, regulation, or policy the creation and operation of local Authorities, Utilities, or Management Districts and/or other sustainable funding sources that enable entities to collect fees and generate revenues dedicated to planning, constructing, monitoring, maintaining, improving, expanding, operating, inspecting and repairing public and private stormwater management infrastructure.

Manage the level of effort allotted for preparing and updating stormwater management plans. Target critical watersheds with serious quality or quantity problems, based on a set of criteria (e.g., percent impervious cover, population density, federal requirements, special protection watersheds, impaired waters, rate of development, chronic flooding history and critical water planning area designation) for detailed planning efforts. Remaining areas could be covered using a standard planning outline.

Use stormwater management planning as a tool to achieve compliance with the total maximum daily load (TMDL) implementation where a water body is impaired by stormwater and a TMDL has been prepared or adopted.

Improve enforcement provisions to provide meaningful economic incentives to adopt, amend and implement stormwater management plans and ordinances.

Include provisions to address long-term operation and maintenance of stormwater management facilities.

Adequately fund regular updates to the Pennsylvania Stormwater Best Management Practices Manual to reflect innovation and change and continue to maintain and update the Stormwater Management Model Ordinance to reflect Manual revisions and statutory amendments.

To the maximum extent practicable and cost effective, vegetated buffers should be preserved and restored along all waterways. Through legislative, regulatory and administrative provisions, seek to manage stormwater so as to reduce excess runoff and pollutants.

Fund, promote and encourage water resource restoration projects.

With the decreasing federal funding for the State Revolving Loan Fund (SRF) program, Pennsylvania should leverage the available federal funds that remain, using them as collateral for the issuance of state bonds, effectively doubling the amount of funds available for infrastructure investments.

Establish a statewide infrastructure inventory to increase public awareness of the problems and needs facing the state’s physical infrastructure and help the state legislature to focus on programs devoted to long-term growth and productivity.

Promote sustainable infrastructure initiatives to close the funding gap by promoting better asset management techniques for reducing long-term costs and improving performance and supporting reduction of non-point source pollution of water sources.

Continue to fund low-interest loans to farmers to implement best management practices for manure handling and storage and land management to protect water sources.

The Full ACSE Stormwater Report Card can be found here>>

admin From the Editors Act 167, BMPs, buffers, clean water, flood control, Nonpoint source pollution, ordinances, PA BMP Manual, special protection waters, state revolving fund, sustainable infrastructure, TMDL

The U.S. Environmental Protection Agency has completed the creation of a rigorous accountability framework for reducing pollution in the Chesapeake Bay and the region’s streams, creeks and rivers. A letter sent today to the six states in the Bay watershed and the District of Columbia outlined a series of consequences EPA could impose if jurisdictions do not make adequate progress in reducing water pollution.

President Obama, EPA and the states want real, measurable results to restore and protect the Chesapeake Bay. To get there EPA is strengthening support for our partners, setting clear standards for progress, and ensuring accountability if those standards aren’t met,” said EPA Administrator Lisa P. Jackson. “Pollution in the Chesapeake is a challenge that has persisted for decades. This federal-state partnership presents new opportunities for cleanup, and we’re increasing support and accountability to be sure we get the job done.”

Federal, state and local officials have been working together on development of the Chesapeake Bay Total Maximum Daily Load (TMDL), a pollution budget that will set limits for sources of nitrogen, phosphorus and sediment to the Bay and its tidal creeks, rivers and bays. EPA is confident the collaborative work will continue and that the states and D.C. will successfully meet expectations for reducing water pollution. The series of consequences will serve as a backstop, however, to achieving water quality goals.

To help the states and D.C. improve the performance and accountability of pollution control programs, EPA will provide technical assistance and an additional $11.2 million in grants for fiscal year 2010, more than doubling 2009 funding levels to the states. The funds are designed to improve permitting, enforcement and other key regulatory activities that increase accountability for reducing water pollution.

EPA is creating the rigorous accountability framework for accelerating cleanup of the Chesapeake Bay and the region’s waterways by utilizing the authorities of the Clean Water Act, President Obama’s Executive Order and the Chesapeake Bay TMDL. Letters to the states and D.C. in September 2008 and November 2009 stated that the jurisdictions must create strategies and schedules for reducing water pollution loads as part of the accountability framework.

While the six Bay states - Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia - and D.C. have considerable flexibility in how they achieve reductions, the jurisdictions must meet milestones every two years for implementing pollution controls. EPA may impose a variety of consequences for inadequate plans or failure to meet the milestones, including:

• Expanding coverage of National Pollutant Discharge Elimination System (NPDES) permits to sources that are currently unregulated.
• Increasing oversight of state-issued NPDES permits.
• Requiring additional pollution reductions from point sources such as wastewater treatment plants.
• Increasing federal enforcement and compliance in the watershed.
• Prohibiting new or expanded pollution discharges unless sufficient offsets are provided.
• Redirecting EPA grants.
• Revising water quality standards to better protect local and downstream waters.
• Establishing finer scale load allocations in the Bay TMDL.

Within 60 days of receiving a deliverable - such as a plan, milestone or permit - EPA will provide an assessment.  If EPA finds a deliverable inadequate, the state or D.C. will then have 30 days to respond. EPA will deliver its final assessment and indicate any consequence the agency intends to impose within 120 days of the original submission.

The Chesapeake Bay TMDL will be completed by December 31, 2010. Under the TMDL, EPA expects the states and D.C. to provide specific timelines for enhancing programs and implementing controls to reduce pollution. By November 2010, the states and D.C. are required to identify gaps in current programs that must be addressed to meet pollution limits. Bridging these gaps may require expanding regulatory authorities, improving compliance with existing regulations, securing additional financial resources and issuing more stringent permits for wastewater facilities.

By 2011, EPA expects the states and D.C. to divide their allocated pollution loads to the local level so that counties, municipalities, conservation districts and watershed organizations understand their role in meeting water quality goals. States and D.C. must also offset any increased loads from population growth and land use changes anticipated in the coming decades. EPA expects that pollution controls will be in place that should result in approximately 60 percent of the required reductions by 2017. All measures needed to reach the pollution load limits must be in place no later than 2025.

Go here to view the letter sent by EPA to the Bay States.

admin Chesapeake Bay BMPs, Chesapeake Bay, Nonpoint source pollution, NPDES, ordinances, stormwater legislation, stormwater standards, TMDL, water quality, watershed protection

The Center is pilot testing a Circuit Rider Network approach to providing technical support to local governments in Maryland and Virginia working to address water quality goals for local waterways and the Chesapeake Bay.

Recognizing the diverse needs, interests, and resources of the hundreds of local governments in the Bay watershed, as well as the challenges of meeting water quality goals, the goal of the Circuit Rider Network is to create a group of technical service providers that can assist local governments in meeting those goals.

Over the next year the Center will be working with elected officials in priority areas to create watershed plans, evaluate codes and ordinances, design and implement stormwater best management practices (BMPs), as well as other technical services to address Chesapeake Bay goals.  Understanding that the Center cannot possibly work with all of the local governments at one time, informative programs will be developed that are designed for the larger audience of local government leaders and elected officials.  These programs will be designed to provide leaders with information and skills to move towards improved water quality and eventually lead to a greater level of involvement.  The Center, along with project partners and state agencies, is currently identifying priority areas for on-the ground-support.

For more information, contact the Center for Watershed Protection.

We Wonder:

• Would something like this make sense for Pennsylvania municipalities?
• If you are a municipal official, would you be willing to cover some level of cost to support Network services in your municipality?

Let us Know What you Think!

admin Chesapeake Bay BMPs, Chesapeake Bay, ordinances, stormwater best management practices, water quality, watershed plans, watershed protection, zoning codes

Last week we alerted you to the release of the November/Decemberedition of Stormwater Magazine, including a reference to an article entitled “Riparian and Wetland Buffers for Water-Quality Protection: A Review of Current Literature,” the full text of which is available here.

Upon a more careful reading, we have some questions and concerns about the piece.

First, their buffer recommendations substantively appear to us to be weak.  Authors seem to recommend a buffer width of 50 feet:

For streambank stability, temperature control, minimization of direct impacts, and pollutant removal capacities, substantial benefits are achieved within the first 50 feet of vegetated buffer width.

In contrast, the Pennsylvania Campaign for Clean Water recommends a buffer width which varies from 100 feet total for all streams, to 150 feet for first order streams and impaired streams, to 300 ft for Special Protection (EV and HQ) streams (roughly comparable to New Jersey state regulations). PADEP is recommending 150 feet for EV streams in its Draft Chapter 102 regulations.

Secondly, authors draw their conclusions based on extremely dated references — many from the 1970’s, ’80’s, and ’90’s.  References also seem to omit or ignore so many other commonly accepted riparian buffer authorities and respected sources (Correll, Lowrance, Peterjohn, Sweeney, Welsch, US Forest Service, Chesapeake Bay Foundation, and so many others), omitting some important recent work which is the advertised purpose of this article (viz., “…A Review of Current Literature”)!  We would expect attention to both recently published journal articles with new research findings as well as the more recently published manuals and guidance documents.  If this is a summary of review of 137 different sources, it seems to be an extremely selective summary.

The authors ostensibly focus only on water quality — which is a fine and very important objective.  However, before final buffer width recommendations can be made (by anyone), there needs to be acknowledged the reality that riparian buffers provide a much longer list of “ecosystem services” which should be integrated into buffer width recommendation decisionmaking, management, regulation.

A related concern is what is being regulated and how it is being regulated within the riparian buffer zone - a dimension of issues which is not really addressed by the authors here either.  In any case, the article, we believe, needs to acknowledge that buffer width recommendations should integrate all of these more complex issues - before rushing to a 50-foot buffer width judgment which it seems to want to do.

In addition, the authors seem not to understand some basic Pennsylvania context and government form elements – despite the fact that the article uses Southeastern Pennsylvania references quite liberally (which would seem to imply specialized knowledge and understanding of applicability in a Pennsylvania context). Consider the following statements made in the article:

Wetland and riparian buffer widths are instead decided at a county or township level.

When does the county level enter into this process?

Local environmental approvals that may require riparian and wetland buffers may include Sediment Erosion and Sediment Control Plans, County Grading Permits, and Nontidal/Tidal Wetland Permits.

The above terminology is not accurate.  And what does County Grading Permit mean?

In the absence of state-level rules, buffer widths are determined on the county and township jurisdictional level.

Where are counties determining buffer widths?

Critical elements of riparian buffer management are being ignored in this article.  And what is being included seems to be inaccurate - at least in some cases.  There is no discussion of PADEP’s Draft Chapter 102 regulations, which are so enormously important at the moment, and proposed riparian buffer language or the riparian buffer recommendations in PADEP’s Stormwater BMP Manual (2006) or other important “milestones” of riparian buffer management or lack of management in Pennsylvania.

In sum, we are concerned that this respected national technical journal would present this article as a summary of the science with special relevance to Pennsylvania municipalities.   We have been told that a presentation similar to this was recently made by ENTRIX authors at a Pennsylvania Builders Association conference.  If there is a point of view to this piece, Stormwater Magazine should have made this clear and not presented the article as objective science and as “…A Review of Current Literature.”

“…A Selective Review” might ring a little more true.

What do you think?

admin From the Editors BMPs, buffers, clean water, ecosystem services, flood control, ordinances, PA BMP Manual, PA DEP, stormwater legislation, water quality, wetlands