1. PAG-02
    2. AUTHORIZATION TO DISCHARGE UNDER THE
    3. WITH CONSTRUCTION ACTIVITIES
  1. COMMENT RESPONSE DOCUMENT
    1. INTRODUCTION
    2. LIST OF COMMENTERS
    3. COMMENTS AND RESPONSES

PAG-02
AUTHORIZATION TO DISCHARGE UNDER THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
GENERAL PERMIT FOR STORMWATER DISCHARGES ASSOCIATED
WITH CONSTRUCTION ACTIVITIES

Back to top


COMMENT RESPONSE DOCUMENT
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
BUREAU OF CLEAN WATER

PAG-02 General Permit
Comment Response Document
- 1 -
INTRODUCTION
The Department of Environmental Protection (DEP) published notice of the availability of a draft NPDES General Permit
for Stormwater Discharges Associated with Construction Activities (PAG-02) in the
Pennsylvania Bulletin
on November
4, 2017 [47 Pa.B. 6884]. A 30-day comment period was provided, and interested parties were directed to submit
comments to DEP’s eComment system. The comment period ended on December 4, 2017. DEP received comments
and questions from the organizations listed below. The purpose of this document is to present DEP’s responses to
these comments and answer all questions posed.
DEP is re-issuing PAG-02 General Permit for a term of two (2) years. This action has been approved by EPA. Notice
of the availability of a final PAG-02 General Permit was published in the
Pennsylvania Bulletin
on December 16, 2017.
The PAG-02 General Permit became effective on December 8, 2017 and will expire on December 7, 2019.
LIST OF COMMENTERS
The names of individuals who submitted comments to DEP are identified below. DEP has recorded each comment in
this document and identified the commenter(s) by number, corresponding to the list below.
(1)
Randall L. Hoover, P.E. and Chris Sigmund, TeamAg Inc., 120 Lake Street, Ephrata, PA 17522.
(2)
Alan Novak and Doug Harbach, Professional Dairy Managers of Pennsylvania, 174 Crestview Drive,
Bellefonte, PA 16823.
(3)
Pennsylvania Builders Association, 2509 North Front Street, Harrisburg, PA 17110.
(4)
Harry Campbell, Chesapeake Bay Foundation, 1426 N. 3
rd
Street, Suite 220, Harrisburg, PA 17102.
(5)
Kurt Weist, PennFuture, 610 N. 3
rd
Street, Harrisburg, PA 17101.
(6)
Daniel B. Slagle, P.E., Nichols & Slagle Engineering, Inc., 333 Rouser Road, Airport Office Park, Building 4,
Suite 600, Moon Township, PA 15108-2773.

PAG-02 General Permit
Comment Response Document
- 2 -
COMMENTS AND RESPONSES
The number associated with each commenter is identified in parentheses following the comment.
1. Comment
: Amend DEP’s Stormwater Best Management Practices (BMP) Manual so that it has practices that are
practical and appropriate for agriculture. With a strong urban bias in the current manual, it actually limits best
management practice applications for agricultural projects. We believe strongly that by incorporating a practical
understanding of agriculture, the manual will promote, rather than hinder agriculture’s efforts to implement BMPs.
(1), (2)
Response
: This comment is beyond the scope of the request for comments on PAG-02. The Department
recognizes
that
updates
to
the
Pennsylvania
Stormwater
Best
Management
Practices
Manual
(DEP Doc. No. 363-0300-002) would be helpful and has initiated steps to update the manual.
2. Comment
: Provide credit to farms that are exceeding compliance requirements by implementing additional farm
practices that improve water quality such as cover crops, no-till, installation of riparian forested buffers, etc. Other
agricultural water quality improvement BMPs to be considered may be those that are designed to avoid and control
the movement of sediment and/or nutrients on their fields. These credits could then be used to allow them to be
considered for small construction activity waivers for sites that disturb five acres or less and be waived from Post-
Construction Stormwater Management (PCSM) requirements (as per EPA’s NPDES Construction Stormwater
Permitting Program). In the past, these PCSM requirements have required farms to install BMPs such as infiltration
and retention basins, thereby removing valuable agricultural land from production.
(1), (2)
Response
: The Department recognizes the value of agricultural BMPs to achieve water quality improvement and
is evaluating possible options for such credits. If determined to be feasible, such options will be proposed in the
update to the Stormwater BMP Manual that has been initiated and/or revisions to PAG-02. The Department expects
to issue proposed revisions to PAG-02 within the two-year permit term.
3. Comment
: Page one of the Permit Summary Sheet states that the Anti-degradation Analysis is a major component
of the NPDES permit but is hardly acknowledged in the draft permit itself. The Anti-degradation Analysis should
be identified as a condition within the final PAG-02 Permit.
(3)
Response
: The Department does not agree that the draft PAG-02 did not adequately identify conditions necessary
to implement antidegradation requirements (25 Pa. Code §§ 102.4(b)(6) and 102.8(h) and 93.4a-93.4d). The terms
and conditions of PAG-02 ensure these requirements will be met. An activity is not eligible for coverage under
PAG-02 if it discharges to water, including wetlands, with a designated or existing use of High Quality or
Exceptional Value pursuant to 25 Pa. Code Chapter 93 (relating to Water Quality Standards). For activities eligible
for coverage under PAG-02, the terms and conditions of this final permit will achieve the antidegradation
requirements by ensuring that existing instream water uses and the level of water quality necessary to protect the
existing uses of the surface waters receiving discharges from the project site are maintained and protected.
4. Comment
: Page two of the Permit Summary Sheet; Thermal Impacts Analysis – The Permit should clearly state
that this analysis is required for each point of interest (POI) identified on site. Additionally, it is indicated on page 1
of the Permit Summary Sheet that the Thermal Impact Analysis is a major component of the NPDES permit and
yet it is not acknowledged in the draft permit itself. The Thermal Impact Analysis should be identified as a condition
within the final PAG-02 Permit.
(3)
Response
: PAG-02 requires an Erosion and Sediment (E&S) Plan for activities eligible for coverage under the
permit to be prepared in accordance with the requirements of 25 Pa. Code Chapter 102. These regulations
specifically require that an E&S Plan include “[i]dentification of potential thermal impacts to surface waters of this
Commonwealth from the earth disturbance activity including BMPs to avoid, minimize or mitigate potential pollution
from thermal impacts.” 25 Pa. Code § 102.4(b)(5)(xiii). The Department has highlighted this requirement in the
Permit Summary Sheet to emphasize this obligation to applicants seeking coverage under PAG-02. The
Department has not revised the terms and conditions in the final PAG-02 to include any further requirements related
to thermal impact analysis. The Department will consider this comment further as it proceeds with developing
proposed revisions to PAG-02.

PAG-02 General Permit
Comment Response Document
- 3 -
5. Comment
: Page two of the Permit Summary Sheet; Future Phases of a Project – We recommend the guidance
clearly outline the applicability for Phased projects, define “large projects”, and provide metrics including timespan
between phasing and project size.
(3)
Response
: This comment is beyond the scope of the request for comments on PAG-02. The Department will
consider the need for the suggested revisions to its
Permit Guidelines for Phased NPDES Stormwater Permits
(DEP Doc. No. 363-2134-013) referred to in the Permit Summary Sheet as it evaluates further changes to PAG-02.
6. Comment
: Page four of the Permit Summary Sheet; General Information – This section states, “Persons proposing
stormwater discharges associated with construction activities shall file an administratively complete and acceptable
application no later than 60 days prior to the proposed commencement of earth disturbance activities for General
Permits, and no later than 120 days for Individual Permits.” Additionally, DEP noticed in the
Pennsylvania Bulletin
(47 Pa.B 6565) (Pa.B Doc. No. 17-1737) on October 21, 2017, “…the Department of Environmental Protection
(Department) is, by this notice, extending for 12 months the availability of the current National Pollutant Discharge
Elimination System (NPDES) General Permit for Stormwater Discharges Associated with Construction Activities
(PAG-02).” The noticed extension of the PAG-02 General Permit extends the expiration date from December 7,
2017, to December 7, 2018, for persons currently operating under the PAG-02 General Permit. The October 21,
2017, DEP notice in the
Pennsylvania Bulletin
also states: “This extension authorizes use of PAG-02 by those
existing permittees who receive authorization prior to December 7, 2017. Permit applicants after December 7,
2017, will be required to obtain an individual permit until PAG-02 is renewed.” DEP’s October 21, 2017, notice in
the
Pennsylvania Bulletin
was only 47 days prior to the expiration of the existing PAG-02 General Permit, and does
not mention any additional waiver or variance of the minimum timeframes currently required for the submittal of an
NOI for General Permit coverage (60 days) or an Individual Permit (120 days). Additionally, on November 4, 2017
DEP opened the 30-day public comment period which closes on December 4, 2017. DEP did not adequately
notice the public prior to the expiration of the PAG-02 General Permit which expires on December 7, 2017, affording
persons the NOI application timeframes listed in PAG-02: at least 60 days for a General Permit NOI, or at least
120 days for an Individual Permit NOI. More specifically, the potential exists that persons needing General Permit
or Individual Permit approval did not or have not submitted their NOIs subsequent to DEP’s October 21, 2017,
notice in the
Pennsylvania Bulletin
knowing that they would not meet the minimum NOI application timeframes.
Therefore, DEP should notice a waiver or allow a variance on the application timeframes for General Permit NOI
to at least February 5, 2018; and for Individual Permit NOI to at least April 6, 2018.
(3)
Response
: The Department has issued the final PAG-02 effective as of 12:00 a.m. on December 8, 2017. The
prior PAG-02 expired on December 7, 2017 at 11:59 p.m. Therefore, NOIs for coverage under PAG-02 will continue
to be processed without interruption. Applicants for projects eligible for coverage under PAG-02 can continue to
seek such coverage and will not need to file applications for an individual NPDES permit.
7. Comment
: Page five of the Permit Summary Sheet; Municipal Notification Requirements – The Municipal
Notification Requirements section states: “For Permit Application Submission – The permit applicant must submit
the following along with the application/NOI: (3) Applicants are encouraged to submit copies of local zoning
approvals with their permit authorization application.” The language used by DEP pertaining to the required
documentation to be submitted with the permit applications is conflicting. DEP needs to clarify on page five to
declare if the applicant(s) is required to submit copies of local zoning approvals with their permit authorization
application, or if this is optional for the permittee(s).
(3)
Response
: The language in the final PAG-02 instructions related to Municipal Notification Requirements was
clarified to remove submission of local zoning approvals from the list of required items, however, PAG-02
instructions continue to encourage such submission.
8. Comment
: Page nine of the Permit Summary Sheet; Critical PCSM Plan Stages – The Permit should clearly state
that this analysis is required for each POI identified on the site.
(3)
Response
: The requirement in Part C.V.D of PAG-02 and discussed under “Critical PSCM plan stages” in the
PAG-02 instructions address critical stages of implementation of the PCSM plan during which a licensed
professional or designee must be present at the site. These provisions are consistent with the regulatory
requirement in 25 Pa. Code § 102.8(k) and have not be revised in the final PAG-02. The Department will consider

PAG-02 General Permit
Comment Response Document
- 4 -
this comment further as it evaluates revisions to PAG-02. The final PAG-02 has been issued for two years, so the
Department expects to issue proposed revisions to PAG-02 within the two-year permit term.
9. Comment
: Draft Permit Cover Sheet – The second paragraph of the Cover Sheet of the Draft Permit states,
“…including through municipal separate storm sewers and non-municipal separate storm sewers.” It is important
for DEP to explicitly state what separate storm sewers would meet the definition as “non-municipal” and; therefore,
DEP needs to add to Section I of the Draft Permit a definition for the term “non-municipal storm sewers.
(3)
Response
: The term “municipal separate storm sewer” is defined in 40 C.F.R. § 122.26(b), and has been
incorporated by reference into 25 Pa. Code § 92a.32. Discharges from non-municipal separate storm sewers
requiring NPDES permits under 40 C.F.R. § 122.26(a)(6), which is also incorporated by reference into 25 Pa. Code
§ 92a.32, are “storm water discharges associated with industrial activity from point sources which discharge
through a non-municipal or non-publicly owned separate storm sewer system.” The Department cannot definitively
state in PAG-02 what discharges from non-municipal separate storm sewers would be eligible for coverage. An
applicant that is uncertain whether its stormwater is discharging through a non-municipal or non-publicly owned
separate storm sewer system should contact the appropriate DEP Regional Office.
10. Comment
: Section II (C) of the Draft Permit states: “DEP or the authorized conservation district may request copies
of records required by this permit, which could include the records required under Part A, Section 3 of this Permit.”
The reference to “Section 3” appears to be incorrect. The reference to “Section 3” should be changed to
“Section III”.
(3)
Response
: This correction was made in the final PAG-02.
11. Comment
: Section III (A) (3) of the Draft Permit states: “E&S control BMPs shall be designed and implemented to
meet the standards and specifications identified in DEP’s regulations…and listed in DEP’s Erosion and Sediment
Pollution Control Program Manual No. 363-2134-008, as amended and updated, or an approved alternative that is
at least as effective or better, when legally authorized.” The use of the term “when legally authorized” is vague
and DEP offers no additional reference to the policies, codes, or procedures required for approval prior to a permit
applicant implementing an alternative E&S control BMP onsite. Additionally, DEP’s Erosion and Sediment Pollution
Control Program Manual No. 363-2134-008 referenced in Section III (A) (3), states on Page ii: “Alternate BMPs
that are not listed in this manual but that provide the same (or greater) level of protection may also be used to
attain the regulatory standard. It is incumbent on the person proposing the use of alternative BMPs to demonstrate
their effectiveness with appropriate test result or other documentation.” Also, DEP’s Instructions for a General
(PAG-02) or Individual NPDES Permit for Stormwater Discharges Associated with Construction Activities (Form
3150-PM-BWEW0035 1/2013), Erosion and Sediment (E&S) Plan Requirement section states: “BMPs not included
in the Department’s manual will require documentation to support the effectiveness of the BMP.” It is suggested
that the language in Section III (A) (3) of the Draft Permit have the phrase “when legally authorized” removed; and,
Section III (A) (3) updated to include text for the permit applicant proposing an alternative E&S control BMP (e.g.
“…or an approved alternative that is at least as effective or better, with the alternative BMPs documentation
included to support the effectiveness of the BMP”).
(3)
Response:
The Department’s use of the phrase “when legally authorized” refers to BMP design standards
authorized by 25 Pa. Code §§ 102.4 and 102.11. These regulations are identified in this provision and govern the
type of BMPs that are legally authorized. The Department will consider this comment further as it evaluates
potential PAG-02 revisions for proposal within the two-year permit term.
12. Comment
: Section III (A) (4) of the Draft Permit; Notice of Intent (NOI) Submittal – Section III (A) (4) states” “PCSM
BMPs shall be designed and implemented to meet the standards and specifications identified in DEP’s
regulations…and
listed
in
DEP’s
Pennsylvania
Stormwater
Best
Management
Practices
Manual,
No. 363-0300-002, as amended and updated, or an approved alternative that is at least as effective or better, when
legally authorized.” The use of the term “when legally authorized” is vague and DEP offers no additional reference
to the policies, codes, or procedures required for approval prior to a permit applicant implementing an alternative
PCSM BMP onsite.
Additionally, DEP’s Pennsylvania Stormwater Best Management Practices Manual,
No. 363-0300-002, referenced in Section III (A) (4), states in the Forward: “Alternate BMPs, not listed in this
manual, that provide the same or greater level of protection, may also be used to attain the regulatory standard. It
is incumbent on the person proposing the use of alternative BMPs to demonstrate their effectiveness with

PAG-02 General Permit
Comment Response Document
- 5 -
appropriate supporting analysis, calculations, test results or other documentation.” Also, DEP’s Instructions for a
General (PAG-02) or Individual NPDES Permit for Stormwater Discharges Associated with Construction Activities
(Form 3150-PM-BWEW0035 1/2013), Post Construction Stormwater Management (PCSM) Plans section states:
“BMPs not included in the Department’s manual will require documentation to support the effectiveness of the
BMP.” Therefore, it is suggested that the language in Section III (A) (4) of the Draft Permit have the phrase “when
legally authorized” removed; and Section III (A) (4) updated to include text for the permit applicant proposing an
alternative PCSM BMP (e.g. “…or an approved alternative that is at least as effective or better, with the alternative
BMPs effectiveness demonstrated with appropriate supporting analysis, calculations, test results or other
documentation.”).
(3)
Response
: See response to Comment No. 11.
13. Comment
: The Cover Page of the Draft Permit states: “Coverage may be extended by DEP or Authorized
Conservation District if a timely, administratively complete and acceptable renewal NOI is submitted to DEP or
Authorized Conservation District at least 180 days prior to date of coverage expiration.” Section III (C) of the Draft
Permit states: “Persons requesting a renewal of coverage under this General Permit must submit to DEP or the
authorized conservation district an administratively complete and acceptable NOI, at least 180 days prior to the
expiration date of the coverage…” The timeframe for permit renewal levied onto existing permittees of “at least
180 days prior to the expiration date of the coverage” is burdensome and unnecessary. A permittee having to
forecast out their remaining land-disturbing activities when renewing coverage 180 days prior to expiration, may
ultimately complete the land disturbing activities originally authorized by their permit coverage, and would not have
needed to renew their permit. Additionally, if there are no major modifications to the originally approved Erosion &
Sediment Control Plan, the Post-Construction Stormwater Management Plan, or the Preparedness, Prevention
and Contingency Plan, why does DEP or authorized conservation district need 180 days to approve a renewal
NOI? Therefore, DEP should change the timeframe deadline for submitting a renewal NOI to either DEP or an
authorization conservation district from 180 days to 60 days, which is the time afforded persons submitting an NOI
for new coverage under the PAG-02 General Permit.
(3)
Response
: This requirement in PAG-02 s consistent with the requirement in 25 Pa. Code § 92a.75, which allows
a permittee who wishes to continue to discharge after the expiration date of its NPDES permit to submit an
application for reissuance of the permit at least 180 days prior to the expiration of the permit unless permission
has been granted for a later date by the Department. If no major modifications to the originally approved plans are
necessary, submission of an NOI at least 180 days prior to the expiration of coverage should not pose an undue
burden on the applicant. The Department has allowed for coverage to continue under other NPDES general permit
without requiring resubmission of an NOI when the activity is expected to continue without modification beyond
five years. The earth disturbance activities authorized under PAG-02, however, are typically of shorter duration,
and minimization of the extent and duration of the earth disturbance activities is a requirement of the Chapter 102
regulations. The Department has not revised this requirement in the final PAG-02, but will consider this comment
further as it evaluates potential PAG-02 revisions for proposal within the two-year permit term.
14. Comment
: Part C Other Conditions; Section XIV Long-term Operation and Maintenance, Subparts (A) and (E) -
Part C (XIV) (A) states: “The permittee or co-permittee shall be responsible for long-term operation and
maintenance of PCSM BMPs unless a different person is identified in the NOT and that person has agreed to long-
term operation and maintenance of PCSM BMPs.” Part C (XIV) (E) states: “A permittee or co-permittee that fails
to transfer long-term operation and maintenance of the PCSM BMPs or otherwise fails to comply with this
requirement, shall remain jointly and severally responsible with the landowner for long-term operation and
maintenance of the PCSM BMPs located on the property.” DEP’s requirement that the permittee or co-permittee(s)
identify the person(s) that has agreed to the long-term operation and maintenance (O&M) of the Post Construction
Stormwater Management (PCSM) BMPs on the Notice of Termination (NOT) is burdensome to the permittee or
co-permittee(s), unnecessary, and should be removed from the Draft Permit. There may be various external factors
that are out of the control of the permittee or co-permittee(s) as to why a landowner of the property containing a
PCSM BMP will not agree to long term O&M on the NOT. For this reason, making the permittee or co-permittee(s)
jointly and severally liable with the landowner for the long-term O&M is impractical; places permittees at risk for
significant penalties; and redundant as procedures are already included in the Draft Permit to ensure that the
landowners of the property with a PCSM BMP are afforded their long-term maintenance obligations. Therefore,
the requirement that the permittee or co-permittee(s) identify the person(s) that has agreed to the long-term O&M
of the PCSM BMPs should be removed from the Draft Permit for these and the following reasons:

PAG-02 General Permit
Comment Response Document
- 6 -
The Draft Permit already contains language that the permittee or co-permittee(s) will record documents
pertaining to the PCSM BMP, and their related obligations that are binding to the property regardless if the
landowner(s) changes. Part C (XIV) (B) of the Draft Permit states: “For any property containing a PCSM BMP,
the permittee or co-permittee shall record an instrument with the Recorder of Deeds which will assure
disclosure of the PCSM BMP and the related obligations in the ordinary course of a title search of the subject
property. The recorded instrument must identify the PCSM BMP, provide for necessary access related to long-
term operation and maintenance for PCSM BMPs, and provide notice that the responsibility for long-term
operation and maintenance of the PCSM BMPs is a covenant that runs with the land that is binding upon and
enforceable by subsequent grantees, and provide proof of filing with the NOT under 25 Pa.
Code § 102.8(m)(2).”
And required to be included with these documents is the long-term maintenance plan as stated in Part C (XIV) (F)
of the Draft Permit: “…the permittee shall record an instrument as required under 25 Pa. Code 102.8(m)(2) and
paragraph XIV.B above within 45 days from the date of issuance of this permit authorization. Unless DEP
authorizes a different procedure, the long-term operation and maintenance plan shall be recorded along with the
instrument.”
(3)
Response
: The requirement in Part C.XIV.A.-E. relating to PCSM long-term operation and maintenance
requirements are consistent with the regulatory requirements in 25 Pa. Code § 102.8(m). PAG-02 cannot modify
existing regulatory requirements.
15. Comment
: Part A (II) (A) – Effluent Limitations, Monitoring, and Reporting Requirements – Part A (II) (A) of the
Draft Permit states: “The permittee and co-permittee(s) must ensure that visual site inspections are conducted and
documented weekly, and within 24 hours after each measurable stormwater event throughout the duration of
construction…” The language DEP uses to define when a post-rain event inspection is required “…after each
measurable stormwater event…” is vague, overly burdensome, not consistent with industry standards, and allows
for a very broad interpretation from the permittees. Further, the requirement to conduct a post-rain event inspection
after a “measurable stormwater event” should be changed by DEP to a defined rainfall amount (e.g. 0.5 inches or
greater) for several other reasons, as outlined below.
The Draft Permit does not include a definition of the term “Measurable stormwater event” in
Section I – Definitions.
The 2017 EPA Construction General Permits states in Sections 4.2.1 and 4.2.2 “At least once every
seven (7) calendar days, or once every 14 calendar days and within 24 hours of the occurrence of a storm
event of 0.25 inches or greater…”.
(3)
Response
: The Department has retained the requirement to visually inspect within 24 hours after each measurable
stormwater event. This same requirement was in the prior PAG-02 and the Department has interpreted this
language consistent with EPA’s interpretation, which is that a measurable stormwater event is an event of
0.25 inches or greater. The Department will consider this comment further as it evaluates potential PAG-02
revisions for proposal within the two-year permit term.

PAG-02 General Permit
Comment Response Document
- 7 -
16. Comment
: Part A (II) (E) – Effluent Limitations, Monitoring, and Reporting Requirements – Part A (II) (E) states:
“…all reports and other information prepared in accordance with the terms of this permit shall be available for public
inspection at the appropriate DEP Regional Office or authorized conservation district.”
The Draft Permit’s
description of the location of documents available for public review is vague. Are the permittee(s) and co-
permittee(s) responsible to keep up-to-date permit documentation at the appropriate DEP Regional Office or
authorized conservation district office throughout the duration of construction activities? Who is responsible for
maintaining this documentation offsite: the permittee(s), co-permittee(s), DEP, or the authorized conservation
district? If the permittee(s) and co-permittee(s) are required to provide this documentation upon request, then DEP
needs to update Part A (II) (E) to define the timeframe afforded the permittee(s) and co-permittee(s) to provide the
documentation (e.g. in a timely manner); or, DEP should update Part A (II) (E) to be consistent with the following
parts of the Draft Permit, as outlined below.
Section III (A) (6) states “The permittee or co-permittee shall have the E&S Plan, PCSM Plan, PPC Plan, and
other documents required by this permit maintained at the site and available for review by DEP, authorized
conservation district, or other authorized local, state, or federal agent or representative.”
Part B (I) (B) (1) states “The permittee or co-permittee(s) shall furnish to DEP or the authorized conservation
district within thirty (30) days of the date of request, any information DEP or the authorized conservation district
may request…to determine compliance with this permit.”
Part B (I) (B) (2) states “The permittee or co-permittee shall furnish, upon request, to DEP, EPA or the
authorized conservation district, copies of records required to be kept by this permit.”
(3)
Response
: The provisions discussed in the above comment are consistent with the requirements of 25 Pa. Code
Chapter 102 and have been retained in the final PAG-02. The Department maintains files of submissions made by
permittees pursuant to PAG-02. Those files are available for public inspection at the appropriate DEP Regional
Office.
17. Comment
: Act 162 of 2014 – We recommend the draft permit and instructions be updated to include the
requirements of Act 162 of 2014 as a condition of the Permit.
(3)
Response
: Act 162 applies to earth disturbance projects that discharge into High Quality or Exceptional Value
waters that trigger the riparian buffer requirements under 25 Pa. Code § 102.14. Such projects are not eligible for
coverage under PAG-02 and, therefore, has not been revised to include the requirements of Act 162.
18. Comment
: Worksheets 10 and 11 – We recommend further instructions and clarifications should be provided for
Worksheets 10 and 11. Specifically, clarification should be provided regarding how a BMP can be used as a
primary and/or secondary BMP. In addition, BMPs selected should be re-examined. Highly rated water quality
BMPs, such as 6.4.2, Infiltration Basin, should be included.
(3)
Response
: See response to Comment No. 1. As the Department proceeds with updates to the
Pennsylvania
Stormwater Best Management Practices Manual
, it will update these worksheets accordingly.
19. Comment
: As we understand it, the Department expects to publish notice of a draft, reissued PAG-02 General
Permit in December 2017, and issue a final, reissued PAG-02 by the Spring of 2018. CBF therefore incorporates
by reference our prior comments to the current permit (those from 2009 and the 2012 Amendment to the PAG-02
General Permit), and looks forward to commenting on the draft, reissued permit as it becomes available in the very
near future.
(4)
Response
: The Department will consider this comment further as it evaluates potential PAG-02 revisions for
proposal within the two-year permit term.
20. Comment
: Visual Inspections – The Department should delete the word “measurable” from Part A.II.A of the Draft
Permit and add a definition of “stormwater event” to the final permit. An erosion and sediment control plan
(E&S Plan) must include “a maintenance program which provides for the operation and maintenance of BMPs and
the inspection of BMPs on a weekly basis and
after each stormwater event
, including the repair or replacement of
BMPs to ensure effective and efficient operation.” 25 Pa. Code § 102.4(b)(5)(x) (emphasis added). When it
amended this provision in 2010, the Environmental Quality Board (EQB) replaced “measurable rainfall event” with

PAG-02 General Permit
Comment Response Document
- 8 -
“stormwater event” in part to make clear that inspection of BMPs is required whenever runoff occurs, including in
“situations when there was no immediate or recent precipitation, but warmer temperatures caused melting of snow
which results in a runoff condition.” 40 Pa. Bull. 4861, 4864 (Aug. 21, 2010).
Part A.II.A of the Draft Permit deviates from the language of § 102.4(b)(5)(x) – “after each stormwater event” – by
inserting the word “measurable” before “stormwater.” (Draft Permit, p. 8). It thereby reintroduces the notion
rejected by the EQB in 2010 that visual inspections must occur only in response to measurable precipitation events.
The Department should make the final Permit match the language of the regulation by deleting the word
“measurable” from the first sentence of Part A.II.A of the Draft Permit.
PennFuture further suggests that the Department add to the final Permit the following definition of “stormwater
event,” which is consistent with the preamble to the 2010 final rule adopting the amendments to the Chapter 102
regulations:
Stormwater event
– A precipitation event, snowmelt, or other condition that results in stormwater runoff on any
portion of the project site.
(5)
Response
: See response to Comment No. 15.
21. Comment
: The Department should add a warning of the potential penalties for falsification to its Visual Site
Inspection Report. Part A.II.A of the Draft Permit requires that “visual site inspections and reports shall be
completed on a form developed by DEP.” (Draft Permit, p. 8). As a document that is “required to be maintained
under this permit, including reports of compliance or noncompliance,” these visual site inspection reports are
subject to the statutory provisions cited in Part B.II.J of the Draft Permit, which identifies the possible penalties for
falsification of reports. (Draft Permit, p. 13).
The Department’s Visual Site Inspection Report form itself, however, does not contain any warning of the potential
consequences for providing false information on the form. PennFuture recommends that the Department add such
a warning immediately above the line for the “Inspector’s Signature.” We suggest using the following language,
which is similar to that found on page 3 of the Department’s “Transferee/Co-Permittee Application” form for
construction stormwater NPDES permits:
I certify under penalty of law that the information presented in this report is, to the best of my knowledge, true,
accurate, and complete. I am aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment or both for knowing violations pursuant to Section 309(c)(4)
of the Clean Water Act, 33 U.S.C. § 1319(c)(4), and 18 Pa. C.S. §§ 4903-4904.
(5)
Response
: The Department agrees that visual inspection reports are subject to the penalties for falsification of
reports identified in Part B.II.J of the PAG-02. The Department anticipates updates to its visual site inspection
report form (Doc. No. 3150-FM-BWEW0083) in the near future and will consider the suggested certification
language as part of this update.
22. Comment
: The Department should revise Part A.II.C of the Draft Permit to make it consistent with 25 Pa.
Code § 92a.41(b). One of the conditions established by regulation that is applicable to all NPDES permits provides:
The permittee shall comply with the immediate oral notification requirements of [25 Pa. Code] § 91.33 (relating
to incidents causing or threatening pollution). Oral notification is required as soon as possible, but no later
than 4 hours after the permittee becomes aware of the incident causing or threatening pollution. A written
submission shall also be provided within 5 days of the time the permittee becomes aware of the incident
causing or threatening pollution.
The written submission must conform to the requirements of
40 CFR 122.41(l)(6).
25 Pa. Code § 92a.41(b). Although citing this regulation, Part A.II.C of the Draft Permit (“Noncompliance
Reporting”) impermissibly modifies its requirements. With respect to oral notifications, Part A.II.C of the Draft
Permit omits the regulation’s “as soon as possible” requirement entirely, and switches the regulation’s 4-hour
outside deadline to “24 hours.” (Draft Permit, p. 8). Further, where the regulation requires the submission of the
written report within five days from when the permittee becomes aware of the incident, Part A.II.C instead uses

PAG-02 General Permit
Comment Response Document
- 9 -
five days from the initial (oral) notification (which, under Part A.II.C, could be the day after the incident). (Draft
Permit, p. 8). We recognize that these are modest differences, but by its terms, § 92a.41(b) applies to every
NPDES permit, and there is no apparent basis to deviate from its clear terms in this NPDES permit. We therefore
recommend that the Department revise Part A.II.C of the Draft Permit to require that: a) the oral notification (by
telephone or personal contact) to PADEP or the authorized conservation district occur as soon as possible, and
no later than four hours after the permittee or co-permittee becomes aware of the incident causing or threatening
pollution; and b) the written report must be submitted within five days after the permittee or co-permittee becomes
aware of the incident causing or threatening pollution.
(5)
Response
: The requirement in PAG-02 to report noncompliance orally within 24 hours and to follow up with a
written report within five days is consistent with the regulatory requirements in 40 C.F.R. § 122.41(l)(6), which is
incorporated by reference into 25 Pa. Code § 92a.41. The Department agrees that the incident reporting
requirements in 25 Pa. Code § 41(b) are also applicable to PAG-02 and the provision in Part A.II.C of PAG-02 is
not intended to modify this regulatory requirement. The Department has not revised the final PAG-02 in this
provision, but will consider this comment further as it evaluates potential PAG-02 revisions for proposal within the
two-year permit term.
23. Comment
: The Department should clarify the provisions in Part B.I.D of the Draft Permit governing changes in
ownership or control of the permitted facility. Part B.I.D of the Draft Permit is titled “Transfer of Ownership or
Control,” but both Part B.I.D and the “Transferee/Co-permittee Application” referenced therein contemplate two
kinds of changes in ownership and control: 1) a transfer of the approval of coverage under PAG-02 from one
permittee to another; and 2) the addition of one or more co-permittees under the approval of coverage. The former
involves the substitution of one responsible party for another; the latter involves sharing liability under the approval
of coverage with a second (or third, etc.) responsible party based on its status as an operator of the permitted
project site. To accurately reflect the scope of Part B.I.D, PennFuture recommends that the Department add “or
Sharing” after “Transfer” in its title. As an alternative, PennFuture suggests that the Department substitute the
word “Change” for the word “Transfer” in the title of Part B.I.D.
To make clear when and why a general contractor or other operator must seek to become a permittee or co-
permittee, PennFuture recommends that the Department add the following sentence at the beginning of Paragraph
3 of Part B.I.D of the Draft Permit. “An Operator must become a permittee prior to conducting any earth disturbance
activities at the project site.”
Paragraph 4 of Part B.I.D. provides that “[a]fter
receipt
of the documentation described in paragraph 3 above, the
permit will be considered modified by DEP or the authorized conservation district.” (Draft Permit, p. 11) (emphasis
added). The only receipt of documentation mentioned in Paragraph 3 is the receipt of the Transferee/Co-permittee
Application form by the Department or the authorized conservation district. Paragraph 1.a of Part B.I.D makes
clear, however, that the modification of the permit (transfer or addition of a co-permittee) does not occur
immediately upon the permitting authority’s
receipt
of the Transferee/Co-permittee Application form. Instead, the
permitting authority has 30 days to take action on the application. PennFuture therefore recommends that the
Department revise the first sentence of Paragraph 4 of Part B.I.D of the Draft Permit to read: “Upon approval of
deemed approval of a Transferee/Co-permittee Application, the permit will be considered modified by DEP or the
authorized conservation district.”
(5)
Response
: The Department has revised the title of Part B.I.D to “Transfer/Change of Ownership or Control” to
more accurately reflect the content of this provision. The Department has also clarified paragraph 4 of Part B.I.D.
of the final PAG-02 to state that the permit will be considered modified by DEP unless DEP or the authorized
conservation district notifies the applicant otherwise within thirty (30) days, which make this provision consistent
with paragraph 1.The Department did not add the requirement that an operator become a permittee prior to
conducting any earth disturbance activities at the project site, but will consider this comment further as it evaluates
potential PAG-02 revisions for proposal within the two-year permit term. Operators who are not the permittee are
required to become co-permittees under 25 Pa. Code § 102.5(h).
24. Comment
: The reference to the “Director of DEP” should be changed to “Secretary of DEP,” and the definition of
“Director” should be deleted or revised. The title “Director” appears only once in the body of the Draft Permit, in
Part B.II.H (“Right of Entry”), which refers to the “Director of DEP.” (Draft Permit, p. 12). Consistent with the
definition of “State Director” in the federal NPDES regulations, as “the chief administrative of any State or interstate

PAG-02 General Permit
Comment Response Document
- 10 -
agency operating an ‘approved program;’” 40 C.F.R. § 122.2, PennFuture suggests that the reference to “the
Director of DEP” in Part B.II.H of the Draft Permit be changed to “the Secretary of DEP.” See also 40 C.F.R.
§ 122.2 (defining “Director” as “the Regional Administrator [of the Environmental Protection Agency] or the State
Director, as the context requires, or an authorized representative”).
Making this change would allow the Department to delete the definition of “Director” from the Draft Permit, and
thereby to remove a point of potential confusion. As in the current version of PAG-02, the Draft Permit defines
“Director” as “[t]he Director of the Bureau of Waterways Engineering and Wetlands, or any authorized employee
thereof.” (Draft Permit, p. 1). However, unlike the current version of PAG-02, which was signed in 2012 by the
Director of the Bureau of Waterways Engineering and Wetlands, the Draft Permit would be signed by the Director
of the Bureau of Clean Water. (Draft Permit, p. 7). In light of this change in the signatory and the involvement of
both bureaus in the regulation of stormwater discharges from construction activities, PennFuture recommends that
the Department delete the definition of “Director” from the Draft Permit. Alternatively, PennFuture recommends
that the Department expand the definition to provide: “The Director of the Bureau of Clean Water, the Director of
the Bureau of Waterways Engineering and Wetlands, or any authorized employee of either bureau.”
(5)
Response
: The Department has revised Part B.II.H to refer to the Secretary of DEP and deleted the definition of
Director in the final PAG-02 for clarity, as recommended.
25. Comment
: Change the period at the end of Section III.A.15 on page 5 of the Draft Permit to a semicolon.
(5)
Response
: The Department has made this correction in the final PAG-02.
26. Comment
: In the first sentence of Part A.I.C on page 8 of the Draft Permit, change “state and federal” to “state or
federal,” and change “the receiving water” to “all affected waters”.
(5)
Response
: The Department has changed the “and” to “or” in Part A.I.C. of the final PAG-02, as recommended.
The Department has not changed “receiving waters” to “all affected waters,” as recommended, but will consider
this comment further as it evaluates potential PAG-02 revisions for proposal within the two-year permit term.
27. Comment
: In the last sentence of Part C.II.B on page 14 of the Draft Permit, add the word “approved” at the
beginning of the sentence and immediately before the word “revisions.”
(5)
Response
: The Department has not included the recommended change in the final PAG-02. The sentence
continues to state that E&S Plans and BMPs, and revisions thereto, which meet the requirements of 25 Pa. Code
Chapters 93, 96 (relating to water quality standards implementation), and 102, are conditions of this permit and
are incorporated by reference. The Department will consider this comment further as it evaluates potential PAG-02
revisions for proposal within the two-year permit term.
28. Comment
: In Part C.II.E on page 14 of the Draft Permit, in light of the narrow time frame, specify that the notification
must include contact by telephone or electronic mail.
(5)
Response
: While the Department agrees that this notification may occur by telephone or electronic mail, the
Department prefers not to limit the means of communication and has not made this revision to PAG-02. The
Department will consider this comment further as it evaluates potential PAG-02 revisions for proposal within the
two-year permit term.
29. Comment
: In Part C.II.F on page 14 of the Draft Permit, change the word “assigned” to “available.” This change
would make Part C.II.F consistent with the language in both 40 C.F.R. § 122.44(d)(1)(vii)(B) and the parallel
provision in Part C.V.E on page 15 of the Draft Permit.
(5)
Response
: The Department has made the requested clarification in the final PAG-02.
30. Comment
: To track the language of 25 Pa. Code § 102.8(m)(2), add “§ 102.7(b)(5)” to the citation at the end of
Part C.XIV.B on page 17 of the Draft Permit.
(5)
Response
: The Department has made this clarification in the final PAG-02.

PAG-02 General Permit
Comment Response Document
- 11 -
31. Comment
: In Part C.XIV.C on page 17 of the Draft Permit, change both citations from 25 Pa. Code § 102.8(m)(3)
to 25 Pa. Code § 102.8(m). PennFuture believes that when 25 Pa. Code § 102.8(m)(3) says “this subsection,” it
is referring to subsection (m) generally, because it is § 102.8(m)(2) that specifies the content of the recorded
instrument.
(5)
Response
: The Department has made this clarification in the final PAG-02.
32. Comment
: Pursuant to the Pennsylvania Bulletin (Volume 47 Number 44) issued on November 4, 2017, we
understand the Pa. DEP is having a public comment period for the proposed reissuance of the National Pollution
Discharge Elimination System (NPDES) General Permit for Stormwater Discharges Associated with Construction
Activities (PAG-02). We are writing in support of the environmental intent of the program, but take issue with the
recent implementation of Act 162 regarding riparian buffers as it relates to sanitary sewer projects. Historically,
linear utility projects, such as public sewerage systems, were exempt from the riparian buffer offsetting
requirements. This exemption was removed with the passage of Act 162. Public sewer projects are environmentally
beneficial to impaired watersheds because they remove malfunctioning septic tanks and satellite package
wastewater treatment plants from polluting the waterways. In addition, these utility projects often take place on
private property, as opposed to a residential developments or site plans, which makes acquisition of a riparian
buffer site an undue hardship on local municipalities and authorities. believe the current regulatory climate
discourages these environmentally advantageous projects, and causes additional impacts by encouraging utilities
to be located closer to existing waterways, as covered under the Chapter 105 permit process, defeating the
purpose of the riparian buffer regulations. We are writing to request the exemption for utility projects be
reincorporated into the NPDES General Permit for Construction Activities. At a minimum, we request this
exemption be applied for public sewerage projects.
(6)
Response
: See response to Comment No. 17.

Back to top