In October 2014, the Pennsylvania legislature passed and the governor signed Act 162 of 2014, which amended the Clean Streams Law. Effective December 21, 2014, developers proposing an earth-disturbance activity near special protection waters now have a new option for compliance.
The change pertains to National Pollutant Discharge Elimination System (NPDES) stormwater construction permits required under 25 Pennsylvania Code Chapter 102 for earth-disturbance activity occurring within 150 feet of a special protection (high quality or exceptional value) river, stream, creek, lake, pond, or reservoir. While a riparian buffer used to be mandatory under these circumstances, a person, in applying for a permit, can now choose an alternative method as long as they can show that the method is at least as effective as the buffer. Where the proposed earth-disturbance activity is within 100 feet of special protection waters, however, an offset requirement is triggered. This means, if the applicant chooses the alternative method, the applicant may have to offset any reduction in the buffer zone that occurs within 100 feet of the stream with a replacement buffer elsewhere along special protection waters in the same drainage list and as close as feasible to the area of the disturbance. This change impacts permit applications submitted on or after December 21, 2014.
What is a riparian buffer?
A riparian buffer is a strip of land that runs parallel along the edge of a water body with the goal of helping to shade, protect, and improve the water’s quality by filtering runoff from activities that take place on nearby land. The strip contains a variety of native plants meant to secure the bank of the water body from erosion, filter surface runoff, and provide habitat for birds and other small creatures. The shade from the vegetation can also help to protect aquatic life by maintaining the natural temperature of the water. Riparian forest buffers are defined as those that also include native trees and shrubs and provide significant canopy cover. Pennsylvania’s Department of Environmental Protection (PADEP) has promulgated regulations that establish the minimum requirements for each type of buffer.[1] To qualify as a forest buffer under the regulations, the buffer must, among other criteria, provide at least 60% uniform canopy cover.[2]
What was previously required?
Prior to the change, holders of a NPDES stormwater construction permit were prohibited from conducting earth-disturbance activities within 150 feet of a water body if the project site was located in a special protection watershed.[3] They were also required to “protect any existing riparian buffer[.]”[4] If there were waters within the watershed that were failing to attain their designated uses, permittees were required to ensure the existence of a riparian forest buffer along the banks of the water body by protecting any existing riparian forest buffer, converting an existing riparian buffer into a riparian forest buffer, or installing a riparian forest buffer.[5] Applicants for a permit may have qualified for an exemption from these requirements.[6]
What does the new law say?
Where a riparian buffer or riparian forest buffer had been required in the past, Act 162 creates a new option for developers. A developer can choose another pollution control strategy if it can be shown to be “substantially equivalent” in effectiveness to the buffer. In addition, where the developer chooses the alternative option for a project located within a special protection watershed, and the proposed earth disturbance is within 100 feet of any stream, lake, or river, the developer must “offset any reduction in the total square footage of the buffer zone... with a replacement buffer elsewhere along special protection waters...”[7] The offset buffer must be in the same drainage list and as close as feasible to the area of disturbance, and at a ratio of one-to-one.[8]
What does Pennsylvania’s Department of Environmental Protection say about the change?
PADEP has issued an “Implementation Plan” as interim guidance on Act 162 as it considers a rulemaking to merge the precepts of that statute with existing regulations. According to the agency, which is responsible for administering the Clean Steams Law, Act 162 only applies to individual NPDES stormwater construction permitted projects located within 150 feet of a river, stream, creek, lake, pond, or reservoir designated high quality or exceptional value. Under the Implementation Plan, a permit applicant can choose to implement a riparian buffer or riparian forest buffer, depending on which is required under the circumstances, as described above. Alternatively, the applicant may complete an equivalency demonstration showing that they will use alternative best management practices (BMP) that are functionally equivalent to the applicable buffer.
The Implementation Plan, tracking Act 162, also provides that, for projects involving earth disturbance within 100 feet of a special protection water body, if the applicant chooses a BMP other than the riparian buffer, they must install an offset, replacement riparian buffer elsewhere along special protection waters in the same drainage list. The replacement buffer must be as close as feasible to the area of disturbance at a ratio of one-to-one. Moreover, according to the Implementation Plan, the replacement buffer must meet the requirements of 25 Pa. Code § 102.14(g), which address permanent protection of riparian buffers.
The Implementation Plan also stresses that there are no waivers or exceptions from these “replacement riparian buffer offsetting” requirements.
According to PADEP, other than changing the riparian buffer requirements, Act 162 does not alter the regulatory framework of Chapter 102.
What is the impact on other types of permits and pre-existing exemptions?
Notably, by its terms, Act 162 does not impact other types of permits issued under Chapter 102, such as erosion and sediment control permits for oil and gas activities, timber harvesting, and road maintenance. Additionally, to the extent that certain earth-disturbance activities were previously exempt from the riparian buffer requirements, those exemptions remain in place under the statute. One such exemption covers activities that do not require an NPDES permit under Chapter 102,[9] such as oil and gas activities involving less than five acres of earth disturbance.[10] There is likewise an exemption for oil and gas, timber harvesting, or mining activities that require site restoration pursuant to Chapters 78 and 86–90 of the Pennsylvania Code.[11]
What to watch for:
Applicants for NPDES stormwater construction permits should review the new requirements and carefully consider their options when their proposed earth-disturbance activities are within 150 feet of special protection waters.
Notes:
[1] See 25 Pa. Code § 102.14(b)-(c).
[2] See 25 Pa. Code § 102.14(b).
[3] 25 Pa. Code. § 102.14(a)(1).
[4] Id.
[5] See 25 Pa. Code § 102(a)(2).
[6] See 25 Pa. Code § 102.14(d) (exceptions).
[7] See 35 P.S. § 691.402(c)(2).
[8] 35 P.S. § 691.402.
[9] See 25 Pa. Code § 102.14(d)(1)(iii).
[10] See 25 Pa. Code § 102.5(c).
[11] See 25 Pa. Code § 102.14(d)(1)(vii).
