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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