In late October, the Pennsylvania Department of Environmental Protection issued two individual Municipal Separate Storm Sewer System (MS4) Individual Permits for the Pennsylvania Department of Transportation (PennDOT) and the Pennsylvania Turnpike Commission (PTC). 

PennFuture, alongside allied environmental organizations, provided the DEP with feedback during the comment period when these permits were in their draft phase this year. While the DEP has addressed some of our concerns, two critical flaws were enshrined into the final permit. First, the permit gives unequal treatment to PennDOT versus other municipalities, creating a significantly larger volume of overall stormwater runoff. Second, in a defiance of simple logic and science, the DEP has allowed PennDOT to combine together three different watersheds into one for planning purposes. On Monday, November 30, PennFuture filed an appeal of this permit to protect the waterways of the Commonwealth and to ensure that municipalities are all given equal treatment. 

First, a little background. In Pennsylvania, stormwater is a leading cause of impairment of our Commonwealth’s waterways, and that stormwater from roads is directly linked to degraded physical, chemical, and biological conditions. These permits, and in particular the PennDOT permit, regulate a huge amount of surface area, and thus a correspondingly huge amount of stormwater pollution. Different watersheds, of course, have different needs in order to protect their individual streams, rivers, and groundwater. 

For the first time, the current cycle (2018-2023) of the MS4 General Permit—which applies to a number of local municipal governments across the state—included a Pollution Reduction requirement. This element was geared towards the restoration of polluted waters, and was designed to allow Pennsylvania to begin to fulfill its Clean Water Act goals of upholding and restoring the designated uses of the waters of the Commonwealth. These local governments have been working diligently to comply with these sometimes-challenging requirements. As a result, many have already made significant progress towards their 2023 goals, and PennFuture applauds that work.

However, the Pollution Reduction element of the MS4 program cannot be successful without robust participation and leadership by PennDOT and PTC as well. In PennFuture’s comments earlier this year, we wrote of our concern that the draft permit, which provided for a lower overall Pollution Reduction number for PennDOT than is required for other municipalities, would severely undercut the overall effectiveness of the Pollution Reduction goal. In the end, the final permit does exactly that: the permit requires PennDOT to reduce existing pollutant loads in the Delaware, Ohio, and Lake Erie watersheds by as little as 3.0% for sediment, while municipalities in those watersheds are required under their applicable MS4 permit to reduce existing pollutant loads for sediment by 10%. 

Thus, we arrive at the current appeal. It is in the nature of PennDOT’s business to manage roads and other impermeable surfaces. It’s easy to see that by the simple fact that PennDOT mainly manages roads that it will have a higher overall volume of stormwater runoff than a local town or city government, who manage many different kinds of surfaces. The DEP’s supporting logic is that even at the lower percentages, PennDOT will reduce their pollutants by a similar amount as regulated municipalities. This logic is the kind that almost makes sense, as long as you don’t think about it too hard. DEP’s permit tries to hide how low the bar is by focusing comparing apples to oranges: it focuses on the overall volume of stormwater reduction by PennDOT as compared to municipalities, instead of comparing the percentage of reduction. 

Pause and think about the implications of that. If, at only 5% reduction, PennDOT is doing a comparable pollutant reduction to municipalities at 10%, then it is clear that the baseline load of PennDOT must be at least twice that of those municipalities. At that kind of stormwater runoff, the DEP should be striving to minimize it as much as possible, not to give PennDOT a free pass. It is easy to see that this is both unfair to those other municipalities who have been working diligently and a tremendous wasted opportunity for real stormwater runoff reductions and improvement of waterways. 

In addition to this flaw in overall volume reductions, the permit allows PennDOT to combine three major watersheds into one for the purposes of developing a pollution reduction plan. The EPA allows watershed-based permits because it recognizes that viewing each watershed holistically—from the big rivers to the small streams to the groundwater—makes more sense from a scientific standpoint and leads to better outcomes. It doesn’t take an advanced degree to see that combining different watersheds goes directly against this principle, because it is no longer viewing each watershed holistically. 

Because of these two significant problems, PennFuture has appealed this permit. We won’t let the this potentially major runoff issue flow downstream any further.