Summary of DEP's Revised
Land Disturbance Regulations
On August 21, 2010 the Environmental Quality Board published final regulations which effected a number of changes to the Erosion and Sedimentation Control and Stormwater Regulations, Chapter 102. These changes, which went into effect on November 19, 2010, will affect how land developers carry out earthmoving activities. The following changes to the previous Chapter 102 regulations are worth noting:
1. Reduction in the size of the land disturbance requiring a general or individual National Pollution Discharge Elimination System (NPDES) permit to one acre (from five acres under the previous regulations). As for the previous five acre criterion, the size is assessed for the entire "common plan of development" and not on a lot-by-lot basis. The new criteria apply to projects proposed after the effective date of November 19, 2010 and are not retroactive. (See item 7 below.)
2. New definitions for "non-discharge alternative" and "antidegradation best available combination of technologies (ABACT)"have been added, and a new requirement to evaluate non-discharge alternatives and to implement ABACT when non-discharge is not feasible has been added to the application requirements. These provisions only apply when the receiving stream is a Special Protection (SP) Water (a water classified as High Quality or Exceptional Value). Note that evaluation of non-discharge alternatives is required by the Water Quality regulations (Chapter 93) and is a separate activity from developing Best Management Practices, especially in SP waters. The Non-discharge evaluation and ABACT requirements apply separately to Erosion and Sedimentation Control (E&S) plans for construction activities and Post Construction Stormwater Management Plans (PCSM) plans (i.e., you must do an evaluation for each activity).
In addition, installation of a new, or maintenance of an existing, riparian forest buffer meeting the regulatory standards is considered a non-discharge alternative. See item 6 below.
3. New elements of an E&S Plan (and Post Construction Stormwater Management-PCSM-Plan) were added. These are (1) identify naturally occurring geologic formations that may result in pollution and (2) identify potential thermal impacts and develop BMPs to address these issues. Examples might include carbonate spires, karst topography, large paved areas, or shallow water retention basins.
4. While not a new concept, the revised regulations make it mandatory that E&S plans for construction must be compatible with PCSM Plans. The regulations also specify that E&S plans and PCSM plans must be developed and reported separately in any Permit application (including separate non-discharge and ABACT analyses, see item 2 above).
5. The requirements for PCSM plans, previously imposed informally through the permitting process, are now regulatory. In addition to specifying the elements of the plan, the regulations require that it be implemented as a recorded covenant running with the land and that a person (which may be a local municipality or other entity) "agree to" be responsible for long term maintenance. If the developer fails to submit such an agreement, the developer remains liable for long term PCSM plan implementation and the Permit will not be terminated. (See # 9 below.) In many cases this requirement could be addressed in a Declaration of Planned Community (or a similar Declaration for a commercial development).
6. A significant change for some land development projects is the new regulatory emphasis on riparian buffers, including a special type: riparian forest buffers. Riparian buffers are only required when the project is located in a Special Protection watershed, and (with some exceptions) only when it is located within 150′ of the protected waterway. In addition, if the special protection water is listed by DEP as "impaired," on its Integrated List, the project must include a riparian forest buffer, which is a riparian buffer that contains significant numbers of native trees and shrubs. If a natural riparian forest buffer is present, it must be maintained. If not, one must be constructed according to the criteria listed in the regulations.
As noted above, a riparian forest buffer is defined as a non-discharge alternative which must be evaluated when the project is in a Special Protection watershed. Therefore, even when a Special Protection water is not on the impaired list, maintenance of an existing riparian forest buffer (or possibly conversion of an existing riparian buffer to a riparian forest buffer) may be de facto required by the non-discharge alternatives analysis requirement.
Finally, the regulations envisage some sort of "trading" program for riparian buffers when they are installed but not required. However, there is currently no trading program or guidance in place to utilize this provision.
7. There is a "grace period" for permits that existed prior to the new regulations' enactment. For NPDES Permits issued prior to August 21, 2010 and renewed, if necessary, prior to January 1, 2013, the PCSM requirements of the existing permit will remain valid. If an existing permit is renewed after January 1, 2013, it will contain new PCSM requirements as set forth in section 8 of the new regulations. The grace period also applies to the riparian buffer requirements. It is not clear whether the new lower one acre rule would be applied to an existing permit renewed after January 13, 2013.
8. Permit fees are substantially increased, from a flat $500 under the previous rule to $500 ($1500 for individual permits) plus $100 for each "disturbed acre." Note that the fee is not based on the size of the overall project site, but on the number of "disturbed acres." This may require some additional work by project planners for residential subdivisions intended to be developed individually by lot owners. The fees are those charged by DEP and are in addition to fees charged by County Conservation Districts.
9. Permits can no longer be terminated by a notice from the project developer. The new rules require written approval of termination from either DEP or the Conservation District. The notice of termination must identify the person who has "agreed to" be responsible for long term PCSM plan implementation and include a copy of the recorded instrument (see item 5 above).
The above discussion covers only the most significant changes, is for general information only, and should not be relied on as a complete and exhaustive analysis of the regulations. For more information regarding the revised regulations or for concerns regarding compliance, contact Paula Leicht, Esq. or Randy Hurst, Esq.
