Pittsburgh, PA and Washington, DC
The Foundation Water Law Newsletter
(Lisa M. Bruderly, Mackenzie M. Moyer and Jessica Deyoe)
On January 18, 2024, the Pennsylvania Department of Environmental Protection (PADEP) presented the final version of the technical guidance document on using trenchless technology to construct natural gas pipelines, other pipelines, and underground utilities to the PADEP Water Resources Advisory Committee. See PowerPoint Presentation, PADEP, “Trenchless Technology Guidance: Environmental Considerations for the Construction and Operation of Trenchless Technology” (Jan. 18, 2024). The final guidance was published in the Pennsylvania Bulletin in late February. See 54 Pa. Bull. 1017 (Feb. 24, 2024). Development on the guidance began in 2018 due to a stakeholder workgroup required as part of a PADEP settlement with the Clean Air Council, the Delaware Riverkeeper Network, and the Mountain Watershed Association regarding PADEP-issued permits for the Mariner East II Pipeline Project.
The final guidance, entitled “Trenchless Technology Guidance,” PADEP Doc. No. 310-2100-003, outlines the steps that proponents of projects using trenchless technology should consider. Trenchless technology is defined as “[a] type of subsurface construction work that requires few trenches or no trenches which includes any trenchless construction methodology, including, but not limited to: horizontal directional drilling, guided auger bore, cradle bore, conventional auger bore, jack bore, hammer bore, guided bores, and proprietary trenchless technology.” Id. at 6. Trenchless technology is often considered a less environmentally impactful alternative to other types of construction. Id.
Under the Guidance, each project should evaluate the “suitability, feasibility, and environmental considerations” of using trenchless technology methods, depending on the level of environmental risk. Id. at 2. The Guidance provides consistency for the regulated community and review staff on the appropriate level of due diligence recommended for trenchless technology. The Guidance is broken into three major sections: (1) Suitability, Feasibility, and Environmental Considerations; (2) Design and Permitting; and (3) Construction and Compliance.
In response to the 143 comments PADEP received on the draft guidance, PADEP changed the Guidance by, among other things: (1) clarifying when it is appropriate to use a Pennsylvania-licensed Professional Engineer or Professional Geologist; (2) adding to the recommended analyte list; (3) removing the HDD flow chart; (4) adding new risk factors to more accurately assess risk; and (5) updating the definitions.
Proposed Changes to Pennsylvania’s General Stormwater Permit for Construction Activity
Pennsylvania’s National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02) is up for reissuance in 2024. The current permit is set to expire on December 7, 2024. At the Pennsylvania Department of Environmental Protection’s (PADEP) Water Resources Advisory Committee meeting on November 16, 2023, Krystal Bloom from PADEP’s Bureau of Clean Water presented on the proposed changes to the PAG-02. See PowerPoint Presentation, PADEP, “PAG-02: NPDES General Permit Reissuance” (Nov. 16, 2023).
The PAG-02 applies to earth disturbance activities that disturb areas greater than or equal to one acre. It does not apply to earth disturbance activities involving agricultural plowing and tilling, animal heavy use areas, timber harvesting activities, or road maintenance activities. Earth disturbance activities associated with oil and gas exploration, production, processing or treatment operations, or transmission facilities may be required to obtain coverage, instead, under an Erosion and Sediment Control General Permit (ESCGP).
The proposed PAG-02 includes changes in anticipation of the final Post-Construction Stormwater Management (PCSM) Manual. Under the current PAG-02, permittees are responsible for long-term PCSM best management practices (BMPs); under the new permit, permittees would be responsible, more broadly, for PCSM stormwater control measures (SCMs), which are defined as “any natural feature or manmade structure designed or utilized to reduce or manage the volume, pollutant load, or peak rate of stormwater runoff.” The Permit also proposes to modify the deadline to submit a notice of intent (NOI) for coverage from 60 days prior to planned construction commencement to 90 days. If the PAG-02 is finalized as proposed, all permittees with coverage under the current PAG-02 looking to renew coverage would need to submit a renewal NOI by December 7, 2024. Existing projects may continue coverage under the existing PAG-02 if the projects are under the proposed applicability thresholds of 100 acres of earth disturbance and 25 acres of new impervious surfaces. If the PAG-02 is finalized as proposed, annual reports would need to be submitted by December 7 each year, and permittees would be required to repair or replace any erosion and sedimentation control BMPs or PCSM SCMs within 24 hours of discovery of a failure in the BMP or SCM.
Draft Assessment Book and Integrated Water Quality Report
On October 28, 2023, the Pennsylvania Department of Environmental Protection (PADEP) published a notice in the Pennsylvania Bulletin announcing the Draft 2024 Integrated Water Quality Monitoring and Assessment Report (Integrated Report). See 53 Pa. Bull. 6782 (Oct. 28, 2023). The public comment period was open from October 28, 2023, through December 11, 2023. PADEP sought comments on the general nature of the Integrated Report, as well as on the waters listed as high priorities for total maximum daily load development and the waters selected to be restored through advance restoration plans. A comment-response document will be made available to the public once the Integrated Report is finalized.
The Integrated Report is Pennsylvania’s biennial update on the health of streams and lakes throughout the commonwealth, as required by sections 303(d) and 305(b) of the federal Clean Water Act (CWA). In the proposed Integrated Report, PADEP expanded the assessment of waterways with 7,566 stream miles and 103,777 public lake acres newly assessed or reassessed for a use—drinking water, fish consumption, aquatic life, and recreational use. The Report also shows water quality restoration, noting that since 2004 approximately 967 miles of streams and 28,727 acres of public lakes have been restored. The Report reflects the cumulative assessment of 99% of stream miles and 99% of lake acres statewide since Pennsylvania began reporting for the CWA.
PADEP is also in the process of updating their Water Quality Assessment Methodology for Surface Waters (Assessment Book), the current version of which was published in 2021. See PADEP, “Assessment Methodology for Streams and Rivers” (2021). The Assessment Book describes current methods used by PADEP to assess the surface waters of Pennsylvania as required by sections 303(d) and 305(b) of the CWA. Notable updates include new assessment methods (Wadeable Freestone Acidification Assessment Method, Physicochemical Potable Water Supply Assessment Method, and Bacteriological Source Method), updated assessment methods (General Source and Cause Method, Eutrophication Cause Method), and the inclusion of Lake Assessment Methods.
As of the time of this report, public comment has not yet opened on the 2024 Draft Assessment Book.
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