I've gone to a number of programs and seminars where the speakers have summarized the proposed changes to Chapter 102 relating to erosion and sedimentation (E&S) controls and stormwater management and then painted a very grim picture for the developers and home builders in the audience of the high cost of compliance. They describe the overly burdensome requirements for developing and implementing post construction stormwater management (PCSM) plans and creating riparian stream buffers. Those new regulations are now on the fast path to becoming law in the Commonwealth, having been approved by the IRRC earlier this month and only having now to go for a final review before the House and Senate Environmental Resources and Energy Committees. Assuming the regulations pass that hurdle, they will go into effect 90 days after being published in the Pennsylvania Bulletin.
I took a close look at the regulations and the accompanying 471 page comment/response document to see what, if anything, the Environmental Quality Board (EQB) has done to ensure that the regulations don't adversely impact brownfield redevelopment in Pennsylvania. Here is what I found.
On Page 264 of the Comment/response document, one commenter asserted that the proposed regulations would "potentially present a significant disincentive to brownfield redevelopment in the Commonwealth." The commenter noted that the proposed regulation would adversely impact brownfield developers who took the initiative and started preparing the site for re-use (such as by demolishing buildings), before the stormwater permitting and PCSM compliance obligations kicked in at the time of earth disturbance. In response, the Department agreed that "flexibility is needed" on brownfields sites. As a result, it revised Section 102.8(g)(2)(ii) and (iii) of the final regulations. Section 102.8(g) is the subsection that sets forth the criteria to be applied in performing the PCSM plan stormwater analysis. Section 102.8(g)(2)(iii) states as follows:
(iii) When the existing site contains impervious area and the existing site conditions have public health, safety or environmental limitations, the applicant may demonstrate to the Department that it is not practicable to satisfy the requirement in (ii), but the stormwater volume reduction and water quality treatment will be maximized to the extent practicable in order to maintain and protect existing water quality and existing and designated uses.
The first thing I see in that subsection that helps brownfield redevelopers is the notion that a site may have existing "public health, safety or environmental limitations" that impact the ability to manage post construction stormwater. Many brownfield sites have contamination under an asphalt cap or concrete and it is in everyone's interest to leave that undisturbed. Presumably that would be seen as an "environmental limitation". So for example, let's assume a brownfield developer wants to buy an old abandoned corner gas station and turn it into a bank or a drugstore. The site soils are contaminated and are all covered by the existing parking lot. The developer plans on maintaining that cap to limit direct exposure to the soil contamination. It would appear that Section 102.8(g)(2)(iii) of the new regulations would allow that brownfield redeveloper to avoid having to comply with the otherwise one-size fits all post construction stormwater volume reduction requirements or design the stormwater BMPs for the 2-year/24 hour storm event, provided it demonstrates that stormwater volume will be reduced for the completed brownfield development "to the extent practicable". What that means, I don't completely know. I'm not even sure the Department knows at this point. Practicability is a concept that puts an enormous degree of discretion in the hands of the Department. Since the Department carved out this exception for brownfield projects, one would hope they'd use that discretion as a means of facilitating brownfield redevelopment and not be too rigid in applying the subsection.
In the Comment/Response Document, the Department also notes that Section 102.14(d)(2(v) provides a waiver for brownfield redevelopment projects from the new riparian buffer requirements. As support for the regulation, the EQB found that "riparian buffers are one of the most cost effective stormwater management BMPs." The new regulations require the creation of riparian buffers to protect exceptional value and high quality waters. Under Section 102.14(a), a person may not conduct earth disturbance activities within 150 feet of a perennial or intermittent river, stream, or creek, or lake, pond, or reservoir, where the project site is located in an exceptional value or high quality watershed attaining its designated use as listed by the Department at the time of application and he or she is required to protect any existing riparian buffer in that circumstance. Where the site is in an EV or HQ watershed where there are waters failing to attain one or more designated uses and the project site is along or within 150 feet of a perennial or intermittent stream, then the person must protect any existing riparian forest buffer, or convert an existing riparian buffer to a riparian forest buffer, or establish a new riparian forest buffer. The brownfield waiver to the riparian buffer requirement is found in Section 102.14(d)(2). The exception reads:
(d)(1) The requirements of 102.14(a) do not apply for earth disturbance activities associated with the following:
(2) For earth disturbance activities associated with the following, the Department, or the Conservation District after consultation with the Department, may grant a waiver from any of the requirements of 102.14(a) and (b) upon a demonstration by the applicant that there are reasonable alternatives for compliance with this section, so long as any existing riparian buffer is undisturbed to the extent practicable and that the activity will otherwise meet the requirements of this Chapter:
(v) Redevelopment projects which include brownfields or use of other vacant land and property within a developed area for further construction or development;
In order to invoke the brownfield waiver, a brownfield redeveloper has to submit a written request for the waiver to the Department or the Conservation District as part of the application for the NPDES Stormwater Construction permit. The new regulation also allows for anyone claiming the waiver to propose "in-lieu of compensation to fund riparian forest buffer protection, enhancement or establishment."
OK, so what does all of this mean? Well, let's assume you are a brownfield redeveloper and you are looking to buy an old vacant factory that sites on 20 acres and it has a stream running through it and it's located in an EV or HQ watershed. Without the brownfield waiver, you would have to create a riparian buffer of 150 feet on both sides of the creek. That would cut back significantly on the area available for the brownfield development project and it might dissuade someone from acquiring that abandoned site. Presumably, the brownfield waiver was put in the Chapter 102 regulations to recognize that brownfield sites require special incentives, not disincentives, in order to encourage their productive reuse.
In my hypothetical, the developer would be eligible to seek a waiver upon written request "as part of the application for a permit" under Chapter 102. But that is the rub. The brownfield redeveloper won't know that a waiver will be granted until they apply for a permit. That means the Department won't likely be telling the brownfield redeveloper whether the site will receive a waiver from the riparian buffer requirement at any time prior to the site being purchased. They also won't likely be telling that developer in advance of the purchase whether or not any payment in-lieu of the riparian buffer will be required. That could be a significant enough risk to still deter the potential brownfield redeveloper if that extra site area is important to the viability of the project. What I can see happening for those sites is a scenario as follows: (1) developer identifies a vacant abandoned industrial site; (2) developer wants some certainty regarding the area available for redevelopment so it enters into cooperation agreement with a county redevelopment authority or economic development corporation; (3) the county RDA or EDC acquires the site; (4) the county RDA or EDC files an application for a stormwater construction permit, requesting the waiver from the riparian buffer requirement under Section 102.14(d)(v); (5) if DEP or the Conservation District grants the waiver, the developer moves forward and takes title to the property and proceeds. I'm sure there will be other ideas that brownfield redevelopers will come up with, but that is one I have worked with on a number of projects where the site requires assessment grant or remediation grant funding and the RDA or EDC is the conduit for the state or federal funding. I believe that structure could be adapted to work in the circumstances of a brownfield site potentially triggering the need for a riparian buffer.
So for anyone working with brownfield redevelopers, there is some good news buried in the final Chapter 102 regulations and the accompanying 471 page Comment/response document. We can all hope that the Department uses the flexibility provided by the regulations to keep Pennsylvania's successful brownfield program moving forward.
