A coalition of nonprofit organizations is pressing Pennsylvania to better protect its extensive network of waterways by requiring that a broad swath of trees be preserved-and planted if necessary-along streams and rivers that flow through construction sites.

If successful, the requirement would be one of the most sweeping protection measures for streamside buffers in the Chesapeake watershed.

Nearly 130 groups want the state Department of Environmental Protection to incorporate the proposal in a rewrite of stormwater regulations that would affect new construction projects. The proposed revisions will be debated in the spring of 2009.

Known as Buffers 100, the proposal would require a minimum 100-foot forested buffer on both sides of streams for any new construction site needing a stormwater permit. The required buffer width would expand to 150 feet along headwater streams and 300 feet along streams formally categorized as "high quality" or "exceptional value."

The groups are seeking statewide regulation to provide a blanket measure of protection for water resources and to avoid a jurisdiction-by-jurisdiction fight for such protections in each of the state's more than 2,000 local governments. Pennsylvania has no mandatory requirements for protecting streamside buffers on construction sites.

Campaign chair Bob Wendelgass said that a statewide regulation is both practical and fair.

Pennsylvania counties have no authority to regulate land use. But roughly 2,500 cities, boroughs and townships are empowered to set their own buffer regulations-or set none at all.

"A large number of municipalities don't even have zoning," Wendelgass said. "So the odds of all of these municipalities adopting buffer regulations are slim to none."

Wendelgass said that statewide regulation would offer baseline protection for water resources across Pennsylvania, which has more than 80,000 miles of rivers and streams. More than 16,000 miles are considered impaired, most from various forms of runoff.

Along with protecting wildlife habitat, streamside forest buffers help to reduce problems with nitrogen, phosphorus and sediment levels that plague streams throughout the Chesapeake region. Forest buffers slow the speed of stormwater runoff, providing more time for vegetation to trap sediment and for their roots to absorb pollutants. The process not only improves water quality, but decreases erosion and flooding. The Chesapeake Bay Program has set a goal to buffer 70 percent of all streams in the Bay watershed.

Wendelgass also said that a statewide regulation would prevent the work of one jurisdiction from being undone by another.

"The degree of disparity between land use regulations is huge," he said. "One municipality can have a fabulous buffer requirement, but if it's downstream from a municipality that doesn't, its water quality is victimized by an upstream failure."

The coalition wants forested buffers to be a required part of developers' stormwater management plans. Developers are already required to submit such plans for approval to secure a stormwater discharge permit, but forest buffers are not a mandatory part of the process.

The Pennsylvania Department of Environmental Protection is drafting revisions to those regulations, known as Chapter 102.

"The department is evaluating the methodology and science of the Buffers 100 proposal, to make sure it all adds up," said DEP spokesman Tom Rathburn. "At that time, we'll make a decision about whether to put it into the updates and how it would be written."

Rathbun said that the DEP understands the value of buffers and has programs in place to encourage their protection on farmland. But Buffers 100 is aimed at new construction, not farmland, and he expects the proposal to be thoroughly debated.

The Buffers 100 coalition says that the benefits of preserving 100- to 300-foot wide buffers, depending on the terrain, is supported by a large amount of scientific evidence.

Their proposal specifies that buffers should be forested, not simply "vegetated," with native species, and that the developer should be responsible for maintaining the buffer for five years, which is the duration of the permit.

Developers have concerns about the scope of Buffers 100 and its impact on private property.

"I don't think anyone would disagree that the objectives to clean up our waters, prevent flooding and protect habitat are worthy goals, but we have several problems with this method of doing it," said Grant Gulibon of the Pennsylvania Builders Association.

Gulibon said that the blanket nature of Buffers 100 could put unnecessary burdens on property owners, developers and consumers. Gulibon and others are concerned that the science supporting 100-foot buffers doesn't account for variables in the slope, soil or presence of other effective stormwater management practices that might make a 100-foot buffer unnecessary on some sites.

"Buffers 100 has a rigid, one-size-fits-all approach," Gulibon said. "There are already a number of efforts under way to control stormwater runoff, like the DEP manual on best management practices. Those are the things that we need to try to work with and find the solutions most appropriate for the sites in question."

Land within the 100-foot buffer width would also become ineligible for development.

"This represents, potentially, the uncompensated taking of hundreds of thousands of acres of private property," Gulibon said. "It would reduce the supply of developable land and raise housing prices for consumers."

He also argued that long-term maintenance would be a challenge. "Builders aren't in the business of maintaining best management practices. It's not a core function of our industry," Gulibon said. "It also creates problems for pricing a house. How do you build in those costs?"

Ultimately, the Pennsylvania Builders Association would like to draw from a more flexible list of options, responsive to local conditions.

"Keeping these decisions at the local level lends itself to better decision-making because people there are closer to the situation on the ground," Gulibon said. "It would do a much better job of balancing the environmental and economic considerations at play."

To date, 127 organizations support Buffers 100. American Rivers, the Chesapeake Bay Foundation and Clean Water Action are among the regional endorsers, along with scores of Pennsylvania-based conservation groups and local-level watershed organizations.

Some Pennsylvania governments have already elected to set their own buffer regulations, but none have yet to formally support the campaign. "We've heard from a number of municipalities that want to sit on the sidelines and quietly cheer, or not take a position, but we haven't heard any opposition at this point," Wendelgass said.

The Pennsylvania Council of Churches is one of the few endorsing groups whose primary mission is not defined by environmental concerns.

"For us it involves preserving all of the aspects of the creation we've been given, including the humans who are sustained by clean water sources," said director of advocacy Sandy Strauss. "To the extent we can, property rights should be sustained, but there's a responsibility for those with property to make sure they don't do things to the detriment of others."

Frederick County, MD, recently went through a similar debate. This summer, it became one of the latest jurisdictions in the Bay watershed to enact buffer regulations-with an ordinance much like the one proposed for Pennsylvania.

Maryland's Critical Areas Act protects buffers in tidal areas, but protection farther inland is left to local government discretion. In Frederick County, the research and debate ended with an August vote.

Frederick County developers must now plant and protect forested buffers at least 100 feet wide along all streams on new construction sites, and up to 150 feet wide on steep slopes, using native vegetation.

County planner Tim Goodfellow said the ordinance is bold and was many years in the making. It evolved from a series of studies and recommendations that moved cautiously toward strong buffer protections that applied first to the watershed of a local reservoir, and then to the county as a whole.

"We researched the scientific literature on the role and functions of buffers, and we researched the codes all over Maryland and in other states to see what was out there," Goodfellow said.

Some members of the development community voiced opposition.

"The ordinance was to apply retroactively to any subdivision project in the review process that didn't yet have preliminary approval," Goodfellow said. "Staff advocated the retroactive clause, but developers were very opposed to it."

Some were concerned that the buffers were wider than necessary. A number of diverse groups in the county seemed willing to accept smaller widths. "I felt like we were taking it even further without what I saw as demonstrable evidence that the additional setback had enough meaningful science to support it," said county Commissioner Charles Jenkins.

The ordinance passed with both the retroactive clause and the 100-foot minimum. Jack Lynch of the conservation organization Friends of Frederick County is pleased.

"We have our own resources to protect and, if the state isn't going to do it, then we're going to do it," he said.

In Pennsylvania, Wendelgass estimates that two dozen local municipalities require buffer widths of 100 feet or more, some of them in the Delaware Bay watershed. Others require buffers in the range of 25 to 50 feet, but the number isn't clear.

John Hoekstra, director of the Green Valleys Association and member of the Buffers 100 committee, would like to see the proposed regulation to relieve municipalities of liability and become a major step forward in water resource protection.

"This could be one of most meaningful things to occur in the commonwealth in years," Hoekstra said. "I'm very hopeful."

For more information, visit the Buffers 100 webpage.

NewsClips: Builders Opposing Clean Water Buffer Regs

Op-Ed: Environmental Buffer Plan Would Raise Cost Of Housing

Op-Ed: Buffer Plan Would Be A Good Development

Letter: Streamside Buffers Offer Many Economic Benefits

Coalition Says Buffers Needed For Clean Water

(This article was written byLara Lutz and reprinted from the December Chesapeake Bay Journal)

12/5/2008