18469_Authority_June

municipalauthorities.org | 23 By E. Lee Stinnett II, Esq., Luke X. Gibson, Esq., Tyler Erb, Esq., and Bruce Hulshizer, Esq., Salzmann Hughes, P.C. The Pennsylvania Department of Environmental Protection’s (“DEP”) draft PAG-13 NPDES General Permit (“Draft Permit”) has raised many questions among regulated entities about compliance issues and associated costs. Notably, DEP’s regulatory focus has shifted from pollutant reduction in stormwater runoff to runoff volume management. DEP advertised the Draft Permit on January 18, 2025, followed by a 60- day public comment period. At the conclusion of the comment period, approximately 70 entities provided comment. It is unclear whether DEP will modify the Draft Permit before issuing a final permit; however, we anticipate that the general structure and key components of the Draft Permit will survive. With that in mind, HRG and Salzmann Hughes have partnered to provide guidance to current and future permittees about the Draft Permit, its effect on existing municipal stormwater programs, and funding strategies. Under the current General Permit, which took effect in 2018, permittees in impaired watersheds were required to develop a Pollutant Reduction Plan (“PRP”) to reduce stormwater runoff sediment loads. Instead, the Draft Permit proposes to remove PRPs and replace them with a Volume Management Plan (“VMP”) focused on reduction and management of stormwater runoff volume. The underlying philosophy of this shift is that a reduction in runoff volume will likewise reduce sediment and nutrient loads. However, the Draft Permit raises the question of whether, and to what extent, permittees may receive credit under the new permit for stormwater improvement projects and other best management practices (“BMPs”) that they constructed in order to comply with the 2018 permit. DEP’s MS4 NPDES Permit FAQs (last revised May 20, 2024) provides that if an MS4 reduces sediment more than is required over the course of the 2018 permit, “[a]dditional reductions may be used to satisfy future pollutant load reduction obligations when applicable.” However, DEP noted that “the approach used for determining pollutant loads and/or reduction obligations could be adjusted in the future based on updates in science or policy. Therefore, reductions generated now may not be equivalent to reductions that may be applied in the future.” With the shift from pollutant load reduction to runoff volume management, we predict that certain stormwater management strategies used by permittees to meet current permit requirements will no longer be viable for credit under the Draft Permit. Specifically, we do not expect that permittees will receive the same credit under the Draft Permit for street sweeping and stream restoration projects because they focus on sediment reduction rather than runoff volume. However, other types of projects that focus on stormwater runoff, such as bioinfiltration basins, floodplain reconnection, and pervious pavements, may provide credit opportunities. Permittees are also rightfully concerned about funding ongoing operation and maintenance of existing stormwater improvements and BMPs that were constructed to receive credit on prior permits. These improvements and BMPs may no longer be eligible for credit following the transition to a new regulatory scheme focusing on volume reduction. Some projects, particularly streambank restorations, often require perpetual easements that must be maintained at the permittee’s expense. These costs will continue in addition to the cost of new projects that will mitigate volume under the new regime. Permittees will need to carefully budget and plan for the increased compliance costs that will inevitably come with the new permit cycle. We advise them to think about their program strategically and holistically. Rather than budget for individual permit requirements, they should work with their staff and consultants to identify all program needs related to aging infrastructure, regulatory compliance, and known problem areas (like flooding). Permittees should also think about how to develop projects that address all three categories in order to maximize limited municipal budgets. We advise them to explore all of the funding tools available—including Continued on page 65.