EHB Expands Scope Of Review Of Construction Permits

The controversy over the construction of U.S. Route 202 in Chester County has resulted in a decision by the EHB that appears to expand the scope of the review required by DEP when it reviews storm water permits for construction activities. The case is Valley Creek Coalition v. DEP, EHB Docket No. 98-228-MG. On December 15, 1999, the EHB issued an opinion denying various Motions for Summary Judgment. The underlying appeal is a challenge by a coalition of citizens' groups to the issuance of an NPDES permit by DEP to the Pennsylvania Department of Transportation ("DOT") for construction work on U.S. Route 202. While denying the Coalition's Motion for Summary Judgment, EHB appeared to support several of its arguments. DEP had argued that the appeal should be dismissed because the Coalition's arguments addressed only post-construction issues. DEP contended that its review of the permit was limited only to discharges that occurred during construction. The Board disagreed. "Where it receives an application for storm water discharges for construction activities which does not propose only temporary controls, but also permanent fixtures which affect storm water discharge and which will remain in place after the conclusion of construction, it may be that it must at least consider the effect those permanent fixtures will have on the water quality of the receiving waters." Moreover, the Board agreed with the Coalition that DEP had a duty to consider not only the discharges from the project for which the application was made, but also the cumulative effect of all storm water discharges in the watershed. "Similarly, where the Department has issued a series of similar permits which will allow similar discharges into the same watershed, it is logical to take those other permits into consideration in order to assure that water quality will not suffer."