Wednesday, July 12, 2017

EPA Report Finds DEP Lacks The Resources To Implement Critical MS4 Stormwater Program

A June 2 report by the U.S. Environmental Protection Agency found the Department of Environmental Protection lacks the resources and staff to implement minimum federal MS4 Stormwater Management Program requirements, the same finding EPA made in  2011.
The report, done by PG Environment for EPA, found deficiencies in every aspect of DEP’s program due to staff and resource limitations, from basic management of the program, oversight of MS4 community compliance, reviews of MS4 community submissions, inspections of MS4 and stormwater construction (PAG-02) permits, staff training and program data management.
Each section of the report pointed back to the first observation-- “staffing insufficient in the [DEP] Central Office and Regional Offices to fully implement the MS4 Program.”
The report noted DEP has no dedicated staff implementing the MS4 Program.  MS4 responsibilities are included in DEP’s Water Pollution Control Program covering erosion and sedimentation controls, Chapter 105 permits as well as stormwater permits.
From 8 to 15 “full time staff equivalents” work on the program in Central and Regional offices as part of other water quality permitting duties, according to the report.
DEP’s Bureau of Clean Water Program Manager said approximately 30 additional staff are needed statewide to “fully and effectively” implement the MS4 Program, with an additional 10 positions needed just to address Chesapeake Bay Watershed action items.
Effectively implementing the MS4 Stormwater Program is critical to Pennsylvania meeting its obligations to cleanup its part of the Chesapeake Bay Watershed as well as to meeting nutrient and sediment reduction requirements of watershed-based Total Maximum Daily Load Plans (TMDL) all across the state.
This latest EPA report follows a review the agency did in 2011, also cited in the report, which found very similar concerns and made the same basic finding-- DEP lacks the resources to implement the minimum federal MS4 stormwater program.
It is important to note, this report does not address the need for funding to actually implement MS4 Stormwater Plans adopted by communities.  This report just covers basic MS4 Program management to make sure DEP’s efforts meet minimum federal requirements.
Any resources needed to deliver funding or other types of assistance to communities to implement the MS4 Program and watershed TMDL Plans is a separate issue.
Not The First Federal Warning
EPA and other federal agencies have reported DEP staff and resource shortages caused by significant state budget cuts have prevented Pennsylvania from complying with minimum federal requirements in the Safe Drinking Water Program, Air Quality, Surface Mining Regulation, Drinking Water and Wastewater Funding Programs and the Chesapeake Bay Program itself.
DEP’s General Fund appropriation, which has generally been used to fund water quality-related programs, has been cut over 40 percent over the last 13 years.
In February of 2016, the PA Environmental Council and Chesapeake Bay Foundation-PA wrote to members of the General Assembly to raise concerns about the risk of losing control of key environmental regulatory programs to the federal government and courts because of the cuts in funding and staff at DEP over the past decade.
The FY 2017-18 General Fund budget bill that just became law this week does not address ANY of DEP’s environmental funding shortfalls.
DEP has had to try and make up these shortfalls by increasing permit fees and by adopting new fees, but that process is slow and always three years behind the actual funding needs.
For example, in May the Environmental Quality Board adopted proposed fee increases in the Safe Drinking Water Program to cover the need for more resources to meet minimum federal requirements in that program.
For that program, EPA took the extraordinary step of recommending DEP secure temporary funding to hire staff sooner, because DEP could not start hiring new staff for at least 3 years until additional funding starts to come it after the fees are finalized.
Report Findings/Recommendations
Typically reports like this form the basis of follow-on recommendations designed to correct deficiencies that EPA and DEP will work together to address.  Many of those recommendations for action are included in the report.
The report also notes initiatives DEP has undertaken to improve the program, even with its lack of resources.
Among the findings and recommendations in the June 2 report are--
-- Lack of DEP Resources To Implement The MS4 Program: Same finding in EPA’s 2011 report.  The recommendation is to do a work load analysis to determine appropriate staffing and resource levels required to adequately implement the program as a basis for further action. (page 3)
-- Need To Identify Full Universe Of MS4 Permits: There was a discrepancy between the Central Office and Regional Offices of DEP over the the number of MS4 community permits in the program, due to the lack of staff, leading to a need for better data collection.  DEP reported managing a total of 809 community permits statewide, however, 145 of those should get waivers from the program.  There was also a need to identify federal facilities covered by MS4 requirements in the state. (page 7)
-- MS4 Inspection Program Falling Behind: DEP made a commitment in 2011 to doing inspections for compliance with MS4 requirements for all of its MS4 communities over the following 5 years.  That program began in 2013, according to the report, and was to be done in 2018, but DEP Regional Offices reported falling behind as early as 2014, again due to the lack of staff.  Only about half of the MS4 communities have been inspected as of this 2016 report. (page 8)
-- No Training Program For DEP Staff: The report found DEP had no training for its staff in MS4 requirements, other than on-the-job training, even though significant new work load will be coming when MS4 communities submit their plans in September and beyond. EPA continued to offer its assistance in developing and delivering training. (page 10)
-- Oversight Of Construction Stormwater Permits (PAG-02): DEP and county conservation districts work together to administer the PAG-02 Construction Stormwater General Permit Program in Pennsylvania.  The report notes many conservation districts, as well as DEP, lack the professional engineers to conduct engineering reviews of applications and post-construction reviews.  Although districts are making progress, the report recommended this element be included in the staffing needs work load analysis.  The report said there are 4,776 active PAG-02 permits in the field and 717 active individual permits managed under this part of the program. (page 11)
-- Compliance and Enforcement: The report said DEP and conservation districts first try to obtain compliance with violations of the PAG-02 or individual permits through voluntary action and are generally successful.  These non-legal enforcement methods are preferred by DEP Regional Offices because they “do not require litigation or support from state legal entities” [other staff resources].  The report again suggests these functions be included under the work load analysis. (page 16)
Click Here for a copy of the 18-page main report.  Click Here for the report appendices.  These reports were obtained as a result of a Right To Know request to DEP.
For more information on stormwater management in Pennsylvania, visit DEP’s Municipal Stormwater webpage.
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