Friday, December 11, 2009

Post Construction Stormwater BMP Trading / Offsets

Lets Fix the Chesapeake Bay, Help the Building Industry and the Economy!

There are times in life when you need to look long and hard to see the light at the end of the tunnel.  This seems to be one of those times.  With DEP  enacting numerous new regulations, EPA developing a bay wide TMDL, DEP & Conservation District budgets and staff cuts and the building industry still trying to recover, we see opportunities that would otherwise not be presented. We have proposed solutions to the Pa. Conservation District, the Chesapeake Bay Foundation and DEP, that help solve environmental and development problems to help in fixing the Chesapeake Bay.  First, let’s look at the main source and location of pollution to the bay.

These figures show that the highest levels of nutrients, shown in red are generally located in south central Pennsylvania.  Looking at Google earth aerial photos we see numerous farms with little or no buffer to streams in these same areas.

What does this have to do with the building industry?  Well as part of DEP’s & EPA’s efforts to clean up the Bay we have numerous new regulations which require Post Construction Stormwater Best Management Practices (PCSW BMP’s) in site designs that will be difficult to comply with and will require a substantial amount of money to design, install and maintain.  A much more effective pollution control measure would be for the building industry to help fund the off site stream buffers in return for offsets of certain PCSW BMP site requirements.  Of course we would still need to install all erosion and sedimentation control measures and stormwater facilities to control the runoff rate to pre-development conditions.  We would propose to offset stormwater infiltration areas, that will be a long term problem for everyone to guarantee maintenance and function, with off site forested buffers.
In the front of this article we show one of our recent site designs with the infiltration areas colored in orange.  These areas are  typically designed to hold one foot of water which will infiltrate into the ground after a storm event.  We see these areas as a problem for home owners and source of complaints to builders.  After the development is completed a property owner is likely to fill in these areas with topsoil to eliminate the ponding after each storm.  This will be a difficult issue to police.
Instead of designing and installing the infiltration areas we would propose that the builder or designer work with the Conservation Districts to identify riparian forested buffers or similar  projects that need funding. This would be similar to the wetlands banking concept we have used in the past. EPA & DEP has identified the farms as a major contributor to nutrient pollution, however, they have not  come up with a way to enforce or fund the problem.  We see a mutual benefit to the builders, farmers, DEP, EPA and Conservation Districts to cooperate and help provide a source for funding of these projects.  This would maximize the environmental benefits for a reasonable cost and minimize the long term maintenance and enforcement issues.
Farmers would need to grant a conservation easement along the stream in return for technical assistance to bringing the farm into compliance and installation of the riparian buffer.  It may be possible to generate and sell nutrient credits with this program which could benefit the farmer and/or the Conservation District with long term funding.
Please consider this proposal and e-mail your comments if you feel this is the right way to go.  We are actively promoting this concept to DEP, EPA and the Conservation Districts.  Your input would be helpful to make sure we get this right. Any cost and maintenance issues you have had with stormwater BMP’s would also be  helpful to note.

For more information on Land Development Issues & Solutions see our website at

Wednesday, September 30, 2009

Harrisburg HBA vrs. EPA /DEP - TMDL VICTORY! (Mabey?)

R.J. Fisher & Associates, Inc.
Civil Engineering, Site Planning, Land Surveying & Landscape Architecture

Harrisburg HBA vrs. EPA /DEP - TMDL VICTORY! (Mabey?)
The Harrisburg Home Builders Association (HBA) has won a major decision by the EPA Science Advisory Board (SAB) which agrees with the HBA’s assertion that the Paxton Creek Total Maximum Daily Load (TMDL) used flawed procedures and is not based on valid scientific methods. This decision is a major victory as long as EPA & DEP listen to the SBA and withdraw or modify the TMDL.

The HBA became involved with this issue when we discovered that EPA was holding a public meeting at the Lower Paxton Township building on the Paxton Creek TMDL. Upon contacting the manager of Lower Paxton Township we learned that the Township was not notified on what this issue involved and we proceeded to get them involved.
Upon further research we discovered that several other Pennsylvania municipalities were also targets of the EPA & DEP - TMDL’s and that EPA was looking to use this TMDL method nationwide as a way to get TMDL’s completed quickly. A coalition was formed to sue EPA & DEP over these procedures and Lower Paxton Township and the Harrisburg HBA joined the coalition.

If this TMDL was approved as written it would effectively stop all building within Susquehanna and Lower Paxton Township and cost the residents of the Township several million dollars for stormwater treatment and still not correct the environmental issues.

Anyone familiar with the Paxton Creek in Harrisburg knows that north of the Farm Show Paxton Creek flows through Wildwood Lake a pristine nature preserve but in the city the creek is a concrete channel with combined sewer overflows. A drastic contrast in environmental quality that would not be fixed or changed at all by the methods EPA & DEP were proposing. I used photos of this contrast at the SAB hearing to show how our Federal and State Government seem to be proposing all the wrong solutions to fix our environmental problems at the cost of the Building Industry and taxpayers.

This newsletter is prepared by Robert J. Fisher, P.L.S., P.E. as a service to the Home Building and Land Development Industry. If you have any questions concerning items in this newsletter or need assistance with any land development issues please contact me at the phone number below or e-mail me at We have additional information and video presentations to assist you on our website at . The building industry is currently under attack by the federal and state regulators and it is imparitive that we address these issues quickly and effectively or we all may see our businesses greatly diminished.

1546 Bridge St. - New Cumberland, PA 17070 717.774.7534 Selinsgrove 570.259.1577 Fax 717.774.7190

PaDEP Proposed Permit Changes

R.J. Fisher & Associates, Inc.
Civil Engineering, Site Planning, Land Surveying & Landscape Architecture
Creative Ideas & Practical Solutions for Builders & Developers
October 2009 Newsletter

DEP to change the Rules on NPDES Permits !!!
DEP has proposed changes to Chapter 102 regulations on erosion and sedimentation control and post construction storm water permits (NPDES). This change can impact plans you already have approved and permitted !!!

DEP has published proposed changes to Chapter 102 Regulations that will have major impacts on Land Development projects. The NPDES permits you have for your current projects are renewed every 5 years and DEP has instructed the Conservation Districts to use the new regulations for permit renewals. This means that your approved Subdivision or Land Development plans may need to be redesigned to allow for additional storm water infiltration areas, Best Management Practices (BMPs) or Buffer Areas. DEP has held public meetings to receive comments on these regulations where I presented numerous comments along with the Pa. Builders Association.

In our evaluation of several projects designed and approved just four years ago they will need numerous new BMP’s and may ultimately need to eliminate lots or units to comply with the new regulations. Many of the variables in what will be required is dependent on the Conservation District or DEP permit reviewer and how the new regulations are enforced on existing projects. As a builder or developer, you will need to check on expiration dates for your NPDES permits to make sure that they do not expire!

The permit fees are proposed to increase from $500 to $5,000 but the more troubling requirements is for riparian forested buffers along all rivers, perennial or intermittent streams (both sides), Lakes, Ponds or Reservoirs. The buffer is 100’ for all waters and 150’ for Impaired or Special Protection waters. These buffers must be managed and maintained to remove and control noxious weeds and invasive species.

Picture a 200’ wide forested buffer on every swale through your property!! What is your density loss?

We will try to get this changed through the review and comments process!

Thursday, September 3, 2009

What is a TMDL and Why Should You Care?

What is a TMDL and Why Should You Care?

On EPA’s website TMDL is defined as “A Total Maximum Daily Load, (TMDL), is a calculation of the maximum amount of a pollutant that a water body can receive and still safely meet water quality standards.”  Why should You Care?  As a builder, developer, municipality or citizen you should care because a TMDL has the potential to stop all building within a drainage area, cost a significant amount of money to meet compliance and still not correct the environmental issues.  Recently EPA has changed the impairment listing criteria and ignored their own standards set for the TMDL process. The public was never informed of the regulatory changes and our own Pa. DEP never looked for public comments.

The local TMDL for Paxton Creek could require existing NPDES permits be modified to meet new discharge treatment limits.  Think you have an existing approved plan, THINK AGAIN!!  Consider redesign of a multi phased plan that only has one or two phases built!  DEP is already requiring existing projects to meet the new stormwater requirements upon renewal of your NPDES permit which has a five year renewal period.  Given that the only impaired area of Paxton Creek is in the City of Harrisburg, where there are Combined Sewer/Storm Sewer Overflows with a concrete stream channel, anything done upstream of the city will not clean up the stream in the city.  What a waste of time and money!!!

The TMDL process should.

  • ·         Identify Applicable State Water Quality Standards.
  • ·         Identify waters not meeting the Standard (Impaired Waters)
  • ·         Complete Scientific Assessments to Confirm Problem Exists and Ensure Standards Compliance.
  • ·         Identify Sources of Pollutants That Must be Regulated (Point & Non Point)
  • ·         Establish Pollutant Limits / Restoration Activities Necessary to Eliminate Impairment
  • ·         Occur in a Open Public Process
  • ·         Use Site Specific Data Whenever Possible

The process in Pennsylvania has changed significantly over the past 9 years as shown below.

TP Limits
Pre 2004
Dissolved Oxygen
1.0 mg/l
Nuisance Alga
0.2 mg/l
Less than 0.04 mg/l
EPA’s new approach ignores plants and assumes that nutrient directly impairs invertebrate claiming “Weight of Evidence” even though there is no site specific data confirming this assumption.  

The new stream standard .025 to .040 mg/L -TP  for a TMDL would:
  • ·         Make Point & Non-Point Load Reduction targets unattainable
  • ·         Stop all New Projects / New Connections
  • ·         Cost at Least $200 Million in Local Expenditures for stormwater treatment
  • ·         Require existing approved projects to be redesigned if there is a way to even meet the new requirements or stop construction of future phases.
  • ·         Mandate an Additional Round of Reductions when goals are not met.

The Harrisburg Home Builders Association, Lower Paxton Township and several other municipalities have joined together to challenge the current EPA / DEP TMDL process based on the following:
  • ·         Illegal Water Quality Standard Adoption
  • ·         Illegal Amendment of an Impairment Designation
  • ·         Violation of Public Notice Requirements
  • ·         Illegal TMDL (Not Protective, Won’t Restore Use Impairment)
  • ·         Used Scientific Procedures that are Not Accepted
  • ·         Arbitrary DEP Approval of EPA TMDL Document
  • ·         Failure to Consider Site-Specific Information

Litigation Status
·         DEP requested a Jurisdictional Hearing which was held this week.
·         EPA has agreed to a Science Advisory Board (SAB) Peer Review which will be held September 9 -11, 2009.
Costs to Date for Harrisburg HBA & Others
HBA Industry Action Fund(IFA)
PAC Local Gov.
Realtors Assoc.
Note the above costs do not include the Lower Paxton Twp. Or other municipal contributions from Pa. Periphyton Group.
What we need to do now?
  • ·         Obtain Funding to get testimony to the SAB Peer review on September 9 – 11, 2009.
  • ·         Obtain Funding to complete the request to DEP to delist the Paxton Creek TMDL.
  • ·         Consider Legislative fix to limit DEP to using their own guidance documents.

Local Developers who have agreed to participate in the funding.
Yingst Homes, McNaughton Company, Triple Crown Corp., Classic Communities, Sydney Ruble

A win at the SAB peer review may have an impact on how EPA is allowed to conduct TMDL's across the country and not just Pennsylvania.  This issue is a lot larger than one drainage area near Harrisburg. 
Note: The above Information is based on a slide show presentation given by John C. Hall of Hall & Associates, Washington D.C. and information researched by R.J. Fisher, P.L.S., P.E.

For more information on this issue and other issues critical to Land Development go to

www.rjfisherengineering.comFor more information on Land Development Issues & Solutions see my website at

Friday, August 21, 2009

Barriers to Affordable Housing in Pa.

This presentation was given to the Pennsylvania State Planning Board by Robert J. Fisher on February 27, 2009. The Board was interested in finding ways to make governments and the private sector work together to reduce the burden of government.

Sunday, August 16, 2009

Critical Housing Issues currently being Proposed

The Home Building Industry is currently under ATTACK on many fronts that need to be addressed quickly or the industry will be forever damaged. The purpose of this blog is to inform builders, developers, professionals involved with land development and the general public of these issues and to propose realistic solutions.

What are the Issues and why should you care?
(Note: Each of these issues will be addressed in more detail in future blogs)

1. Pa. DEP Chesapeake Bay Tributary Strategy - Has significantly increased sewage costs and has lead the DEP to propose numerous new regulations and policies that will increase the cost for housing and limit future growth. There are no provisions for future residential or commercial growth in the plan. There are better ways to save the bay and provide for growth. The Fair Share Coalition which includes the Pa. Builders Association, Pa. Municipal Authorities Association, Pa. Conservation Districts and the Chesapeake Bay Foundation all agree and have joined together to propose better solutions to the Pa. DEP Bay Strategy.

2. EPA / DEP Total Maximum Daily Load (TMDL) Chesapeake Bay & Local Streams (Paxton Creek) - EPA & DEP have proposed several TMDL's around the state that would impose discharge limits on storm water and wastewater that would be very difficult if not impossible to meet. The main problem with the new TMDL is the science being used is totally different from past TMDL's and not scientifically defensible. If this methodology is allowed to be used now it will stop growth within these drainage areas and then it could be applied across the country.

3. DEP Chapter 102 Revisions - DEP is currently proposing changes to the erosion and sedimentation (E&S) control and post construction storm water (PCSW) regulations which are very troubling. The costs of E&S and PCSW controls have increased significantly during the past 3 years and the new proposed regulations will add additional costs and problems to getting plans approved. These regulations will be posted in the Pa Bulletin shortly and we must respond with positive alternatives to the proposed regulations.