Pennsylvania Enacts Legislative Changes To Weaken PADEP Stream Buffer Requirements

October 2014Articles In the Zone

Pennsylvania Governor Tom Corbett on October 22, 2014, signed into law legislation (HB 1565) making significant changes to the requirements imposed on developers working near high quality and exceptional value streams. The legislation had passed the Pennsylvania Senate by a vote of 27-22 on October 14 and the Pennsylvania House by a vote of 118-79 on October 15.

In 2010, Pennsylvania adopted regulations requiring a 150-foot buffer for new developments potentially affecting high quality and exceptional value streams. The applicable regulation, found at 25 PA Code Section 102.14(a), currently reads:

“(a) General requirements for mandatory riparian buffers (1) Except as in accordance with subsection (d), persons proposing or conducting earth disturbance activities when the activity requires a permit under this chapter may not conduct earth disturbance activities within 150 feet of a perennial or intermittent river, stream, creek, lake, pond or reservoir when the project site is located in an exceptional value or high quality watershed attaining its designated use as listed by the department at the time of application and shall protect any existing riparian buffer in accordance with this section.”

Under the recently passed legislation, the mandatory 150-foot buffer requirement now goes away, and developers will be able to satisfy Chapter 102 by using or installing “either” a riparian buffer or “another option or options among available best management practices, design standards and alternatives that collectively are substantially equivalent to a riparian buffer or riparian buffer in effectiveness, to minimize the potential for accelerated erosion and sedimentation and to protect, maintain, reclaim and restore water quality . . . to ensure compliance with 25 Pa. Code Ch. 93 (relating to water quality standards).” The legislation also includes an offset provision allowing developments with earth disturbances within 100 feet of surface water in a special protection watershed, so long as the developer offsets any reduction in the total square footage of the buffer zone that would have been used as a best management practice (BMP) with a replacement buffer “elsewhere along special protection waters in the same drainage list and as close as feasible to the area of disturbance at a ratio of one-to-one.”

In explaining why she sponsored the legislation, Representative Marcia Hahn from Northampton County was quoted as saying: “We have seen significant frustrations under the current regulations as businesses, landowners and homebuyers alike have expressed their concerns with the riparian buffer requirements and the negative impacts they have on development and land use in many areas of the Commonwealth. Oftentimes, this has been seen as an instance of eminent domain without compensation as landowners could be prevented from using their own property.” The legislation was actively supported by the Pennsylvania Homebuilders Association.

Now in the category of “be careful what you wish for,” it will now be up to the Pennsylvania Department of Environmental Protection (PADEP) to determine how to implement HB 1565. The legislation explicitly abrogates “any and all regulations” that are inconsistent, and it takes effect 60 days from the Governor’s signature. So, hypothetically, let’s say a developer is getting ready to file an National Pollutant Discharge Elimination System (NPDES) stormwater construction permit application for a new subdivision. The subdivision has an EV or HQ stream running through the middle that would severely limit the number of houses that could be built if the 150-foot buffer requirement was in place. Presumably, with this new legislation, those plans could be revised to allow disturbance within the 150-foot buffer and propose other alternative BMPs. But which other BMPs will PADEP allow? Who decides which BMPs are “substantially equivalent” to a riparian buffer? Is the EQB going to need to develop new regulations? In the meantime, how is PADEP going to implement this change in a manner consistent with the legislative intent, which is clearly to enable developers to work within areas that previously would have been off limits? Also, what if a developer has an NPDES stormwater construction permit that currently imposes the 150-foot buffer? Can that developer now go back to PADEP and modify the permit to allow for disturbances in the buffer area? Presumably they could, since the legislation doesn’t preclude it, assuming alternative BMPs could be designed to replace the riparian buffer and be substantially equivalent in effectiveness.

My guess is there will be a period in which both PADEP and developers will consider the full implications of the legislation on current and future projects. I would also hope and expect that PADEP will roll out some guidance, in short order, on how it intends to implement the legislation.

View the entire issue of In the Zone (pdf)