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PennFuture Protects Major River Basins Across Pennsylvania in Stormwater Settlement

by Emma Bast, Staff Attorney

On Tuesday, June 21, 2022, PennFuture successfully reached an agreement with the Pennsylvania Department of Environmental Protection (DEP), PennDOT, and the Pennsylvania Turnpike Commission (PTC) in its lawsuit seeking stronger protections from stormwater runoff. 

A bit of background: When there are storms, the ground can become saturated, and excess water flows across the surface and into rivers, lakes, and streams. As it moves along, it picks up whatever dirt, trash, oil, dust, and anything else that is sitting on the ground surface. The water that runs off  hard, impervious surfaces, such as roads, can become especially polluted, because of the oil and exhaust solids that cars and trucks give off. The big three pollutants from this “stormwater runoff” are sediment (mainly fine dirt and dust), nitrogen, and phosphorus. All runoff water eventually flows into our streams, rivers, and lakes, and collects, building up and leading to toxic algae blooms, cloudy, cloudy water that can’t support aquatic life, and water we can’t use for fishing or any other enjoyment. 

However, under the federal Clean Water Act, municipalities and public (or quasi-public) entities, such as PennDOT and the PTC, are required to take action to control their stormwater runoff. Exactly what action they have to take is controlled by their stormwater permits, which are issued every 5 years by DEP. There are two kinds: first, there is a so-called “general” permit, which has more generally applicable terms and has a straightforward application process; second, a town or entity has the option to apply for an “individual” permit, which has terms that are more tailored to their own individual needs and business conditions. 

In the fall of 2021, DEP issued an individual permit each to PennDOT and PTC, and PennFuture noticed those permits were seriously flawed for two big reasons. First, we believed the permits allowed PennDOT and PTC to have much more lenient standards than other municipalities or comparable entities. Second, on top of that, the permits let both PennDOT and PTC “trade” their pollution reduction across different major watersheds – Ohio River, Lake Erie, and Delaware River. This meant that not only were they being held to lower standards in the first place, but it was possible to lower the standards even further, and favor one watershed over another so that some watersheds might not have as much water quality protection as other watersheds in the Commonwealth. Now is not the time to walk back water protections for anyone, and PennFuture was willing to wade into these turbulent legal waters to be hold DEP accountable. 

PennFuture believes that all watersheds in Pennsylvania should be protected, and that all entities should be tasked with protecting our waters equally. It simply defies logic to allow someone to treat several different watersheds as one single one: if that were true, then they wouldn’t be separate watersheds! Each river, and the people who use it, deserve the same protection. 

Through our litigation against DEP, PennDOT, and PTC, PennFuture is pleased with the final settlement that has been reached: PennDOT and PTC will not be able to do any interbasin trading for their pollution reduction; each watershed at issue must reach the same level of stormwater pollution reduction. While the overall pollution reduction amounts remain the same, PennFuture believes that our lawsuit has sent a strong signal that there are watchdogs looking out for clean water and the highest standards. We will continue to watchdog when the specifics of the pollution reduction plans are released later this year to ensure that these plans are protective of water quality. 

Bottom line: As a result of PennFuture’s close watchdogging and resulting litigation, PennDOT and PTC will now be required to protect each of the watersheds they are in equally, and we expect that there will be significant reductions in stormwater pollution as a result. 

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