Brendan P. Burke, Esquire

A 2006 decision from Pennsylvania's Environmental Hearing Board ("Board") has added a wrinkle to the process for those seeking Pennsylvania Department of Environmental Protection ("DEP") permits to develop land near water that the Commonwealth has designated as High Quality or Exceptional Value waterways. In Blue Mountain Preservation Association, Inc. v. Commonwealth of PA Department of Environmental Protection and Alpine Rose Resorts, Inc. ("Alpine Rose"), the Board overturned DEP's issuance of a National Pollution Discharge Elimination System ("NPDES") permit to Alpine Rose Resorts, Inc. in connection with Alpine Rose's construction of a road course for sports cars and high performance vehicles on a 350-acre tract it owns on the north slope of Blue Mountain in Eldred Township, Monroe County, Pennsylvania. The Board repudiated DEP's long-standing policy of equating compliance with the erosion and sedimentation control regulations in 25 Pa. Code Chapter 102 with satisfaction of the anti-degradation requirements of 25 Pa. Code Chapter 93, regarding High Quality waters. The Board evaluated the individual requirements of the two Chapters and determined that compliance with the Best Management Practices ("BMPs") from Chapter 102 in and of itself does not constitute compliance with the specific anti-degradation requirements of Chapter 93 regarding High Quality waters. Accordingly, it found compliance with the specific requirements of Chapter 93 an indispensable pre-requisite to the issuance of NPDES permits for stormwater discharge to designated High Quality or Exceptional Value waterways.

The Aquashicola Creek, a High Quality waterway, flows through the northeast corner of the Alpine Rose property in Eldred Township. Alpine Rose submitted an NPDES permit application to DEP seeking permission to discharge stormwater to the Aquashicola Creek during and after construction of the road course on the property. After a hearing on the application, DEP determined that Alpine Rose had complied with the requirements of Chapter 102, which outlines BMPs for protection against erosion and sedimentation control. The Chapter 102 regulations also contain special BMPs that control situations where earth disturbance activities may result in a discharge to a High Quality or Exceptional Value waterway as defined by Chapter 93. Shortly thereafter, over the objection of several parties in opposition to the application, DEP issued an NPDES permit to Alpine Rose.

In reviewing the grant of the permit, the Board found that DEP should have required Alpine Rose to make certain affirmative demonstrations as a pre-requisite to the issuance of any permits to allow stormwater discharge into the Aquashicola Creek. Specifically, Alpine Rose did not perform the non-discharge analyses called for by 25 Pa. Code §93.4.C(b)(1)(i)(A), which requires the consideration of at least three discharge alternatives that might avoid stormwater discharge to the High Quality waterway. Rather, following a long-standing DEP policy whereby applicants for NPDES permits were not required to perform such alternative analyses where Chapter 102 compliance was demonstrated, DEP deemed Alpine Rose's compliance with Chapter 102 sufficient to meet Chapter 93 requirements for High Quality waterways. The Board emphatically rejected that practice and stated that Chapter 102's special protection BMP provisions were not intended to nor did they incorporate fully the Chapter 93 anti-degradation requirements and, therefore, failure to comply with Chapter 93's requirements, where they apply, must result in the denial of NPDES permits.

Following the Alpine Rose decision, compliance with Chapter 102 BMPs no longer guarantees compliance with Chapter 93 in the eyes of DEP. The anti-degradation regulations of Chapter 93 outline a process and procedure with which an applicant proposing a new, additional, or increased stormwater discharge to High Quality or Exceptional Value waters must comply, upon pain of having its NPDES application denied.

Due to the complex nature of these regulations, developers and land owners seeking to improve their property in and around areas through which High Quality or Exceptional Value waters may flow should seek legal counsel regarding Chapter 93's applicability to their property. Engineering professionals must conduct the proper analyses to make the affirmative demonstrations to DEP that will allow NPDES permits to issue and development of the property to occur, without incurring the considerable delay and additional expense that would result from a denial of the NPDES application.

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