2-10-11

Level III Delegation Agreement Frequently Asked Questions (FAQs)

 What are the York County Conservation District’s (District) responsibilities under the current Level II delegation agreement with the PA Department of Environmental Protection (DEP)?

 A Level II District is delegated the following responsibilities for DEP’s Erosion and Sediment Control (E&S) Program and the National Pollutant Discharge Elimination System (NPDES) Program:

1)      Providing education and outreach services.

2)      Reviewing and approving E&S plans.

3)      Receiving, reviewing, and issuing NPDES permits.

4)      Investigating complaints.

5)      Conducting routine and follow-up inspections of NPDES-permitted and non-permitted earth disturbance activities while striving to obtain voluntary compliance.

6)      Preparing enforcement referrals to DEP when voluntary compliance can not be obtained.

7)      Attending and presenting inspection documentation at DEP-led administrative enforcement conferences.

 What additional responsibilities will the District assume by entering into a Level III delegation agreement with DEP?

 The District will continue to perform all responsibilities of the Level II delegation agreement listed above, and in addition, (when voluntary compliance can not be obtained) will assume the lead in enforcement responsibilities which can include:

1)      Preparing, commencing, and executing summary proceedings.

2)      Issuing Notices of Violation.

3)      Scheduling and conducting administrative enforcement conferences,

4)      Assessing civil penalties.

These responsibilities currently are administered by DEP under our Level II delegation agreement.  The District will continue to work with DEP when additional enforcement action, such as a stop-work order, is needed for sites in continuing violation.

 Why is the District entering into a Level III agreement with DEP?

 1) Improved consistency and more timely resolution of compliance actions.  The Southcentral DEP Region office has two Compliance Specialists covering two program areas in 15 counties so what may be a high priority site in York County, may not (understandably) be a high priority to DEP when ranked against numerous other sites spread over a 15-county region.  In some cases (under the current Level II Delegation) it has taken several months between the date the District has referred an out-of-compliance site to DEP for enforcement action and the scheduled date for an administrative enforcement conference.  This unfortunate delay in taking enforcement action gives the responsible party(s) the impression that the violations are not that serious or have simply “been taken care of” only to have a significant penalty assessed at a much later date.  The District’s goal will be to quickly prioritize and inspect sites with continuing major to severe violations and act within days or weeks to initiate an enforcement action.

2) Local control and accountability.  District inspectors answer to the District Manager and the locally-appointed volunteer District Board of Directors.  Assuming responsibility for enforcing the erosion and sediment control regulations at the local level should also demonstrate to state and federal agencies (ex. US EPA) that we’re serious about protecting our natural resources so that they may concentrate their compliance efforts elsewhere.

 3) A more level playing field for the regulated community.  Developers, builders, contractors and others who take erosion and sediment control seriously and do the right thing should not be penalized while others who repeatedly and willfully fail to practice good erosion and sediment control (and avoid the associated costs of compliance) enjoy a competitive advantage.

4) Less enforcement actions needed as the District’s long-time efforts at voluntary compliance will be taken more seriously by repeat offenders who unfortunately have learned to abuse the system rather than take advantage of the many opportunities to voluntarily comply.

5) Less District staff time and resources exhausted on numerous follow-up inspections for responsible parties who have repeatedly demonstrated little to no intention of voluntarily complying.  In turn this should result in more District staff time and resources available to provide technical assistance and positive educational programs to those who strive to comply.

6) Improved water quality for YorkCounty’s waterways and the Chesapeake Bay.  Greater compliance will ensure less sediment and other pollutants are reaching our local waterways and ultimately the Chesapeake Bay which leads to better commercial and recreational opportunities such as fishing, swimming, and boating.

7) Increased protection of public infrastructure and private properties located downstream of projects that are out-of-compliance for long periods of time.  This should result in savings to private landowners, taxpayers, and future generations who otherwise incur the costs of:

▪ treating downstream public drinking water supplies,

▪ repairing flood damages due to sediment-clogged streams and highway

culverts,

▪ stabilizing eroded streambanks to avoid losing valuable property,

▪ and dredging reservoirs to restore capacity (ex. Conowingo Dam).

What are the drawbacks to the District for assuming Level III delegation?

 One of the potential drawbacks of assuming Level III enforcement responsibilities is that the District will be viewed by the regulated community as wearing the “black hat.” On the other hand, folks who play by the rules should not see our hat changing and we hope they will benefit from a more level playing field.  Another potential drawback is the additional workload to administer enforcement actions and see them through but we hope that this is more than offset by increased compliance resulting in less enforcement actions.

 Have other Conservation Districts assumed the Level III Delegation agreement with DEP?

 Yes.  Eleven (11) other Conservation Districts in PA have a Level III Delegation agreement with DEP including neighboring Cumberland and Lancaster Counties.

 Once the District assumes DEP’s enforcement responsibilities, will the District expect to increase its enforcement efforts?

 No, the District will continue, as it always has, to strive first and foremost to obtain voluntary compliance and educate responsible parties.  Our hope is that compliance will increase as a result of our assuming Level III enforcement responsibilities resulting in the need for less enforcement actions.

 Will it be harder to stay in compliance with the District because of the Level III delegation?

  No, the Chapter 102 Rules and Regulations are the same regardless of the District’s level of delegation agreement with DEP.

 How will assuming the Level III delegation affect the way the District completes site inspections?

The District’s and DEP’s guidelines for conducting site inspections will remain the same under Level III however for sites that are in major to severe violation where voluntary compliance can not be obtained, the responsible party(s) should expect to see an enforcement action being taken within days or weeks not months.

 When will the District be assuming Level III delegation?

The District Board of Directors took action in September 2010 to accept the Level III delegation agreement.  District staff are currently undergoing training by DEP and the application is currently under review by DEP.   We expect to begin assuming Level III duties this spring or early summer.

 When a site is in major violation, will the Level III delegation agreement grant the District the authority to “shut the site down?”

 No.  As we do now, the District may request that the responsible parties voluntarily cease earth disturbance activities until all violations have been corrected.  If necessary, the District will continue to seek DEP’s assistance in issuing compliance orders for sites in continuing violation.

 How will civil penalty figures be determined and who will determine the penalty figure?

The District will determine the civil penalty amount based on established DEP Compliance Assistance and Enforcement guidelines.

Is the Conservation District assuming DEP’s enforcement responsibilities as a way to generate funds for District operations? 

 No, assessed penalties will continue to be made payable to the PA Clean Water Fund.  The District has and will continue to recover costs incurred in conducting enforcement actions.

 Will District inspectors now have the authority to issue fines “on the spot?”

 No, the District inspector will continue to follow the District’s and DEP’s compliance assistance and enforcement guidelines and consult with his/her immediate supervisor and District Manager.  The final decision on whether or not to take an enforcement action has been and will remain with the District Manager.  The District makes every effort to treat everyone the same and bases the decision to take an enforcement action on several objective criteria, which include but are not limited to:

1)      Proximity of the site to receiving streams and wetlands

2)      Failure to install and maintain required perimeter sediment controls

3)      Severity of sediment pollution occurring

4)      Potential for sediment pollution occurring

5)      Size of the disturbed area

6)      Disturbance to critical areas such as streams and wetlands without required DEP permits

7)      Compliance history of the responsible party(s)

8)      Willingness of the responsible party(s) to voluntarily comply

9)      Failure to develop an E&S plan or obtain required NPDES permit

10)    Number of legitimate complaints received

 Will DEP still be involved in the E&S program in York County?

Yes.  DEP will continue to support the E&S program and will take the lead in enforcement activities on sites where outstanding compliance issues require a DEP compliance order and/or where litigation is involved.  Additionally, DEP will supply the District necessary legal assistance via their staff attorneys.

 Will the Level III delegation agreement affect how and when E&S plans for my projects are reviewed?

Level III delegation has no effect on the District’s plan review/approval process or fees.  All plans will be reviewed within the same delegated timeframes and in the same manner as currently provided under the Level II delegation agreement.

 What affect will this have on the agricultural community?  Will the District take the lead in conducting enforcement actions against farmers who are out of compliance?

 All earth disturbance activities, includingagricultural plowing and tilling activities, are regulated under Pennsylvania’s Chapter 102 Erosion and Sediment Control & Stormwater Management Regulations.  The regulations vary slightly between agricultural plowing and tilling and other earth disturbance activities such as land development and timber harvesting however in all cases, including agriculture, an erosion and sediment control plan (i.e. ag conservation plan) must be developed and the Best Management Practices (BMPs) specified in the plan must be implemented to minimize accelerated erosion and sedimentation.  The District Board of Directors has determined that we will perform the Level III delegation for all earth disturbance activities, including agricultural plowing and tilling.  For more information on erosion and sediment control requirements for agricultural operations, please see our Summer/Fall 2010 Newsletter.

 Will penalty money be used for environmental restoration projects in York County?

No, DEP requires the penalties to be deposited in the PA Clean Water Fund.