The comment period for the draft National Pollutant Discharge Elimination System (NPDES) General Permit (PAG-02) (“General Permit”) closed earlier this month. The General Permit authorizes developers to discharge stormwater associated with construction activities involving 1 or more acres of earth disturbance to surface waters of the Commonwealth, and is administered by the local conservation district with jurisdiction over the project. As the Pennsylvania Department of Environmental Protection (“DEP”) begins finalizing the General Permit, there are several elements included in the draft General Permit that developers should prepare for, assuming they are included in the final version. Note that the current version of the General Permit expires in December of this year.

• SCM Construction Certification Form.  The term PCSM “BMP” or “Best Management Practice” has been retired, and DEP is now using the term PCSM “SCMs” or “storm water control measures” instead. The 2024 General Permit would require a new form to document the completion of each structural SCM, which must be submitted to the County Conservation District within 30 days of completion. This adds a new layer of reporting and compliance in the closeout of land development projects. Residential developers in particular should implement this additional requirement as part of their process for turning over storm water facilities to a homeowners’ association. Form HOA documents should be revised to reflect the new terminology of SCMs as opposed to BMPs and require homeowners to cooperate with developers in completing and submitting the construction completion documents.

• PCSM Instrument Recording.  The 2024 General Permit would require proof of recording of the PCSM instrument to be submitted to the County Conservation District prior to scheduling a pre-construction meeting. While some developers have been recording these instruments along with their land development plans, others have been waiting to record as part of the permit closeout process (when requesting the Notice of Termination), and others have not recorded the instrument at all. The General Permit makes it a uniform requirement early in the process. All developers should create a form of this instrument that can be easily completed and tailored for each project and ensure that it gets recorded with the land development plan. There are a number of components to this instrument, and developers should become familiar with what is required to create a comprehensive document.

• New Property Owner Notification Form.  Most developers are familiar with this form, as it is recorded with the PCSM instrument and delivered to transferees to notify them of the location of PCSM BMPs (now SCMs) on the property. The new form contains additional information about the PCSM SCMs, including specific data about impervious area treated by the SCM and the requirement that record drawings of the SCM be provided. Another major change is that a copy of the completed form needs to be delivered to the County Conservation District within 30 days of the property transfer. Residential developers will need to incorporate the signing and delivery of this new form into their settlement processes. Additionally, HOA documents should be updated to require homeowners to work with the developer in completing and submitting the form if they fail to do so at closing.

• Co-Permittee Changes.  Interestingly, the current draft of the 2024 General Permit would not require Co-Permittee Acknowledgement Forms and Liability Release Forms. These documents were customarily signed as part of lot take down settlements to ensure builders/developers were assuming liabilities associated with the NPDES Permit for a project, and to provide joint responsibility for compliance. With these forms no longer required by DEP, developers who are collaborating on a project (such as in the lot take down scenario) should still make sure that they are allocating responsibilities and liabilities between themselves to remain compliant with the governing NPDES Permit. This should include detailed provisions that cover inspection, certification, and reporting obligations. 

• Site Inspection Qualifications.  There are new standards and qualifications that apply to personnel conducting site inspections. In collaborative developments with shared responsibilities, these qualifications should be incorporated into the binding agreement between the parties to make sure that the party responsible for site inspections meets these new requirements.

• Impervious Surface Calculations.  The draft 2024 NPDES Permit would require residential developers to plan for development on each lot based on the maximum impervious area allowed by ordinance, or 110% of the anticipated impervious area. This will help to streamline subsequent additions after closeout of the NPDES Permit, such as decks and patios, but will also complicate stormwater planning upfront. While many developers already provide some buffer in their designs, in many cases this calculation may not be practical. For example, where a community consists of building “footprint” units that will never be expanded due to their configuration, a developer would still need to provide a buffer, which could impact density and size of stormwater facilities.  Additionally, for those types of communities where there are not individual, subdivided lots, it is not clear how the buffer would be allocated. This will be important to clarify in the governing documents for the community.

There are a number of other technical changes proposed to the General Permit, which are summarized here. Developers should consult with their engineers to determine how these changes could impact their plans going forward. From a legal perspective, the changes to the General Permit will create additional reporting and oversight requirements that should be reviewed with an attorney. In the context of residential developments, many of these new requirements should be incorporated into developers’ HOA documentation, settlement, and turnover processes to ensure compliance. We will be monitoring the issuance of the final NPDES Permit and update this article to reflect any deviations between the draft and final version. If you have any questions about these revisions to the General Permit, please contact me, Reilly Noetzel, or any member of Barley Snyder’s Real Estate Practice Group.