By: John R. Embick, Esq.
Chair, Chester County Bar Association, Environmental Law Section
3/31/2015
On October 22, 2014, former Governor Corbett signed into law amendments to Section 402 (Potential Pollution) of the Clean Streams Law, 35 P.S. §§ 691.1 et seq. Act 162 of 2014 adds a new subsection (c) to § 402, 35 P.S. § 691.402(c). The new amendments became effective 60 days thereafter, on December 21, 2014.
New section 402(c)(1) specifies that in instances where a riparian buffer or forested riparian buffer is required by the relevant administrative rules and regulations set forth in 25 Pa. CodeChapter 102 (Control of Erosion and Sedimentation), an applicant for an NPDES construction stormwater permit may seek to demonstrate that other best management practices (“BMPs”), design standards, or other alternatives may be used in lieu of a riparian buffer, so long as the BMP or other alternatives has “substantially equivalent” effect.
25 Pa. Code § 102.14 (a) (1) indicates that where an earth disturbance activity is proposed in a high quality or special protection watershed, the buffer distance shall be 150 feet.
25 Pa. Code § 102.14(a)(2) states that where the earth disturbance is proposed, and the project contains or is along or within 150 feet of protected waters in a high quality or special protection watershed, and where the waters fail to attain certain uses contained in Category 4 (waters impaired for one or more designated uses but not needing a total maximum daily load (TMDL)) or Category 5 (waters impaired for one or more designated uses and needing a total maximum daily load (TMDL)) on Pennsylvania’s Integrated Water Quality Monitoring and Assessment report, then a forested riparian buffer must be protected or created.
The riparian buffer standards contained in 25 Pa. Code Chapter 102 were adopted in 2010 after an extensive period of public comment and response. There are some exceptions, and the rules regarding the location and composition of the riparian forested buffer are detailed.
In addition, section 402(c)(2) of the new amendments basically provides that if a project is within 100 feet of a protected water, then an applicant must provide offsetting buffers in a one-to-one ratio somewhere else nearby.
On March 21, 2015, Pa DEP published proposed guidance documents relating to the manner in which the regulated community could demonstrate “substantially equivalent” performance.
In a proposed guidance document entitled: “Riparian Buffer or Riparian Forest Buffer Equivalency Demonstration,” DEP ID: 310-2135-002, the Department provides interim final technical guidance and outlines the equivalency demonstration criteria and process related to the riparian buffer or riparian forest buffer equivalency demonstration required by Act 162 of 2014.
In a companion proposed guidance document entitled: “Riparian Buffer or Riparian Buffer Offsetting,” DEP ID: 310-2135-003, the Department provides interim final technical guidance relating to the offsetting criteria and process related to the riparian buffer or riparian forest buffer offsetting required by Act 162 of 2014.
The amendments to the Clean Streams Law reportedly were supported by the Pennsylvania Builders Association, and were opposed by virtually every environmental advocacy group in the Commonwealth, including PennFuture, the Pennsylvania Environmental Council and the PA Fish & Boat Commission.
The instances in which the amendment to sec. 402(c) (1) applies seem fairly narrow: the project must be near special protection waters, and require a NPDES stormwater construction discharge permit. However, these waters are arguably the most sensitive and deserving of a high level of protection.
A forested riparian buffer is considered to be the gold standard of stream and wetland protection in connection with preventing pollution associated with earth disturbance or development. The buffers act as a highly efficient filter and treatment system for sediment and other pollution that runs off development sites and also help prevent flooding downstream and protect water quality.
It remains to be seen whether there actually are pollution control alternatives or BMPs which are “substantially equivalent” to the 150 foot riparian forested buffers. Many conservation groups felt that strong protection represented by riparian buffers was required for Pennsylvania’s most valuable, sensitive and high quality waters, and that the new amendments are a step backwards.
The new amendments to the Clean Streams Law do not mandate or specify what control alternatives are “substantially equivalent,” and none may currently exist. The amendments nevertheless will afford an applicant the ability to make the demonstration.
The guidance document published by PaDEP regarding the “substantial equivalency” demonstration suggests that the PaDEP thinks that the demonstration theoretically can be achieved, at least with utilization of the “capture and reuse” BMP. What this means is that runoff from the development site must be captured and reused somehow on site.
A lot of people were upset by the cost and effort associated with complying with the riparian buffer zone requirement, and felt that the 150 foot buffer requirement was arbitrary and did not adequately accommodate site-specific conditions. It is clear that many people also viewed the forested riparian buffer requirements to be an unreasonable restriction on their rights to use their property as they saw fit. The new amendments may provide some relief, but how much is not clear as yet.