What happens when a developer proceeds with a project without first obtaining a required erosion and sedimentation NPDES (National Pollutant Discharge Elimination System) permit from the Department of Environmental Protection (“DEP”)? Such situations are not uncommon, often resulting from unfamiliarity or misinterpretation of regulatory requirements related to permitting. The Pennsylvania Commonwealth Court recently addressed this issue in its decision in Pileggi v. DEP, providing guidance on how DEP may enforce permitting violations and the implications for developers.
The case before the Court involved a matter where a developer failed to obtain a required DEP permit before commencing earthmoving activities. Even though the project was completed, DEP determined that the appropriate remedy was to require the developer to obtain an after-the-fact permit. DEP’s reasoning was that a party should not benefit from its failure to follow regulatory requirements. The Environmental Hearing Board (“EHB”), on appeal by the developer, agreed with DEP’s reasoning.
The Court, however, disagreed with DEP’s and the EHB’s reasoning. It stated the DEP has multiple options for enforcing NPDES permit requirements, in addition to mandating an after-the-fact permit. As a result, the Court held that DEP needed to provide more rationale for selecting this specific enforcement option. Importantly, the Court did not prohibit DEP from requiring after-the-fact permits but emphasized the need for reasoned decision-making when choosing among enforcement options.
The Court’s decision, however, may be a Pyrrhic victory for the developer. Along with assessing civil penalties, requiring a developer to obtain an after-the fact permit is a fairly typical remedy when a developer fails to obtain a required permit. In many cases, it is significantly less expensive than remedies such as requiring the removal of fill or the restoration of disturbed wetlands. The practical impact of the Court’s decision in Pileggi is that DEP may become more open to impose these more intrusive and expensive remedies, or assess higher civil penalties, for a developer’s failure to obtain necessary permits.
The Court’s action also highlights the need for developers and property owners to be diligent and knowledgeable about permitting requirements before proceeding with earthmoving work or filling potential wetlands. Environmental permitting requirements are complex and highly site-specific, and misinterpretation can lead to significant enforcement exposure. When in doubt, developers and property owners should exercise caution and consult with an environmental consultant or an environmental attorney before proceeding.
Barley Snyder’s Environment & Energy Industry Group assists developers and property owners with navigating permitting requirements, securing governmental approvals efficiently, and defending those approvals against regulatory or third-party challenges. If you have any questions, please reach out to attorneys Martin R. Siegel or any member of the firm’s Environment & Energy Industry Group.
