Revisions to Erosion and Sedimentation Control Regulations

Marcellus Shale Environmental Alert

Extensive revisions to Chapter 102, Erosion and Sedimentation Control, came into effect on November 19, 2010. These revisions, adopted August 21, 2010 (40 Pa. B. 4861), apply to earth moving activities and impose new restrictions and procedures that all those engaged in activities where earth moving is involved, including well construction and well drilling activities, should be aware of. These amendments incorporate the Federal Clean Water Act Phase II NPDES Permit Requirements regulating stormwater discharges associated with construction activities. In addition, post-construction stormwater management requirements are codified. The regulation prescribes long-term operations and maintenance requirements, post-construction stormwater management, and best management practices. Specific, antidegradation implementation provisions are included, which relate to earth moving activities in special protection watersheds. Although this regulation is in large part a codification of existing practices and requirements, it also contains new and stricter requirements that those engaged in earth moving activities need to understand.

One of the most significant changes is the addition of requirements for riparian buffers and riparian forest buffers. This provision prohibits earth disturbance activities for which Chapter 102 requires a permit within 150 feet of a stream or lake in an Exceptional Value (EV) or High Quality (HQ) watershed. In addition, if the water in question is listed as failing to attain one or more designated uses in DEP's "Integrated Water Quality Monitoring and Assessment Report," then the 150 foot riparian buffer must be a forest buffer. In this situation, an existing forest buffer must be protected, or if none exists, one must be established.

Another new change mandates a preconstruction meeting with DEP, unless DEP determines in writing that such meeting is not necessary (§ 102.5(e)). Proper preparation for this meeting should include a review of this revised regulation, and a list of questions the drilling company may have about their application to the proposed project.