Back in December of 2004, the Pennsylvania Department of Environmental Protection (“DEP”) rolled out its Chesapeake Bay Tributary Strategy (“Bay Strategy”) in response to the United States Environmental Protection Agency’s directive for all states within the Chesapeake Bay Watershed to develop a comprehensive strategy to reduce storm water, wastewater and industrial discharges to the Bay. While the debate continues as to whether or not the strategy implemented by the DEP will ultimately result in any meaningful improvement to water quality within the Bay, the impact of the DEP’s strategy on developers, business owners and municipal authorities in Pennsylvania is unquestioned. Any entity requiring a National Pollutant Discharge Elimination System (“NPDES”) permit as part of its construction activities or business operations must now factor in the Bay Strategy and its more stringent effluent requirements (for constituents such as nitrogen, phosphorus and suspended solids) into its plans.

 

The Bay Strategy and its tightened effluent standards are complicating the process of renewing NPDES permits for existing operations and raising the bar for securing NPDES permits for new discharges. DEP is informing NPDES permit holders that any additional capacity or new discharge must comply with the heightened Bay Strategy effluent discharge standards. This position is particularly challenging for existing NPDES permit holders because even with the implementation of best available technology, some older treatment systems and existing discharge points will not be able to meet the new standards. The bottom line is that developers and business owners are being forced to very critically evaluate upfront the cost and ability of individual projects to meet these tightened discharge standards. This analysis includes, but is not limited to, determining whether a project will: (1) require a new or modified NDPES permit for storm water or wastewater and (2) be served by public sewer and, in turn, if the publicly owned treatment works has sufficient available capacity to service the project. If a development project is to be served by a private treatment system, the cost associated with having a new or upgraded system which meets the Bay Strategy standards also has to be factored into the business model for the project.