Analysis: A Battle Brewing On Eliminating Forested Stream Buffers, Again
When House Bill 1565 (Hahn-R-Lehigh) was originally introduced at the request of the PA Builders Association in 2013 it said simply, “The use or installation of riparian buffers and riparian forest buffers shall not be required under this section.”
Now the Builders Association is unhappy again because DEP is implementing the final language they agreed to in the final version of the bill signed into law as Act 162.
House Bill 1565 was introduced in response to 2010 changes to Chapter 102 of DEP’s regulations that required 150 foot stream buffers in Exceptional Value and High Quality Watersheds, Pennsylvania’s highest quality streams.
The regulations included a whole series of exemptions and waivers from the requirement, including: a project site located greater than 150 feet from a named waterbody; activities involving less than one acres of earth disturbance; activities when a permit is not required under Chapter 102; activities where the permit was acquired before November 19, 2010; road maintenance activities; repair and maintenance of existing pipelines and utilities; oil, gas, timber harvesting or mining activities; single family homes not part of a larger common plan or development; and activities authorized by a Department permit under another Chapter or title.
By the time is was signed into law as Act 162 in late 2014, the bill was opposed by environmental groups, but still supported by the PA Builders Association.
The final language allowed DEP to impose the stream buffer or “another option or options” that were “substantially equivalent” to a riparian buffer in all watersheds.
For projects in Exceptional Value and High Quality Watersheds, Act 162 required that developers offset any reduction in total square footage of forest buffer proposed as an alternative to a buffer to be made up by a replacement stream buffer in another part of the watershed.
The PA Builders Association is now unhappy, again, with the way DEP is implementing the law the Association supported because they think it’s too complicated.
DEP announced a series of technical guidance documents beginning in December to implement Act 162 and define very vague language in the act like “substantially equivalent,” how alternatives to a forested buffer would be evaluated by DEP and how the agency would judge proposals to offset the reduction of stream buffers in other parts of the watershed.
DEP also did away with the waivers to the Chapter 102 buffer requirements because Act 162 outlined new procedures for buffers in special protection watersheds.
DEP declined to require stream buffers in all watersheds, even though Act 162 specifically authorizes it.
Now the Builders Association is saying DEP’s process is too complicated, too costly and too slow. DEP, they say, missed the point of Act 162, which they said was to simplify the process.
DEP says they are just following the law and they are.
It was unreasonable of the Builders to expect the permit process to be simpler when the language they agreed to had undefined terms like “substantially equivalent,” allowed DEP to evaluate alternatives to buffers and very general language outlining an offset program which did not even define where replacements could be sited.
Although the final language of Act 162 was a significant improvement, from an environmental viewpoint, over the original prohibition, the fact is the Builders agreed to a more complex permit process. In fact, they and members of the Senate at the time were told that.
Now the Builders are complaining again.
With those complaints they reveal, again, their real position-- they don’t want to be “burdened” by the buffer requirement, even though the developer behind the Builders Association initiative told the Chesapeake Bay Foundation they use buffers and recognize them as a selling point in their high end, lakefront developments.
Yes, there were legitimate, very narrow circumstances where DEP’s original Chapter 102 buffer requirement did cause problems. But the Builders Association tried to use a meataxe, rather than a scalpel to deal with the problem, frankly like they usually do.
With the Builders Association agitating again on stream buffers, the environmental community will have to once again gear up for battle.
This time the Builders might go for what they really want-- to eliminate the buffer requirement entirely, even though it is one of the most cost-effective ways to reduce nutrient and sediment pollution going to streams.
Be watching. Common sense may not prevail.