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House Committee Hears Overwhelming Opposition To Bill Banning Stream Buffer Mandate

The House Environmental Resources and Energy Committee Wednesday held a hearing on House Bill 1565 (Hahn-R-Northampton) which would eliminate the mandate on the use of stream buffers to control erosion and sedimentation in High Quality and Exceptional Value Watersheds under Chapter 102 of DEP’s regulations.  The regulations were adopted in May of 2010.

“Businesses and landowners alike have expressed their frustration with our 25 Pa. Code, Section 102.14 riparian buffer requirements and the negative impacts they have on development and land use in many areas of the Commonwealth,” said Rep. Marcia Hahn, prime sponsor of the bill.  “It seems to me that this regulation has resulted in a major shift of state policy, which in effect, amounts to a taking of property without legislative oversight or approval.”

Harry Campbell, PA Director for the Chesapeake Bay Foundation, presented testimony stressing the importance of streamside forested buffers as a means for improving and protecting the Commonwealth’s most sensitive and pristine waterways.

 “The science is robust, clear, and growing—forested streamside buffers provide a myriad of functions from the protection of drinking water resources to reducing the impacts of flooding, and even support of vital habitat for our economically important game fisheries, said Harry Campbell, CBF Pennsylvania Director. “Establishing or maintaining a streamside forested buffer no less than 150 feet wide for our most pristine streams, is a critical component of reducing pollution and improving water quality.”

For nearly two decades Pennsylvania has invested in restoring streamside forests. Protecting existing forested buffers, while at the same time re-establishing lost buffers, is an integral component of Pennsylvania’s efforts under the Chesapeake Bay Clean Water Blueprint.

“Without protected and restored streamside forests, the Commonwealth will have difficulty meeting targeted pollution reductions as established in the state Watershed Implementation Plan, and meeting our clean water goals will be far more challenging and costly,” Campbell continued.

Kelly Heffner, DEP Deputy Secretary for Water Programs, noted the importance and effectiveness of stream buffers in protecting water quality in streams.

“The Commonwealth has an obligation to maintain existing and designated water quality uses; however, there are several ways to adhere to this obligation, one - but not the only - of which is the use of riparian buffers and riparian forested buffers, Pennsylvania's riparian buffer requirements found in Chapter 102 were developed under the authority of the Clean Streams Law (Act 394 of 1937).

“These portions of the law not only underscore the inherent obligation to protect water quality as a trustee of the Commonwealth's resources, but also the economic necessity of maintaining clean waters.

“Since the Chapter 102 buffer requirements became effective in 2010, DEP has issued approximately 6,337 NPDES Stormwater Construction permits. Of those 6,337 permits, 155 permits (2.4 percent) included riparian buffers and of that subset of 155 permits, 75 permits (48.3 percent) qualified for waivers of the riparian buffer requirements.”

Heffner said DEP could be supportive of the bill, but only if the legislation gives the agency sufficient flexibility to ensure projects remain protective of water quality.

“The department should be authorized, on a case by case basis, to require riparian buffers or riparian forested buffers if the department determines that doing so is necessary to protect water quality,” she added.

Marel Raub, PA Director of the Chesapeake Bay Commission, said Pennsylvania is falling short of its goal under the Bay Watershed Implementation plan to install 158,813 acres of stream buffers by 2025 and outlined the consequences if the state does not meet that goal and related milestones.

 "Intact functional riparian buffers are an important and cost-effective practice that will help us meet and maintain our obligations for downstream water quality, reducing risk to the Commonwealth from federal backstop measures," said Raub. "Regulatory protection of these sensitive areas is meaningful and is complementary to state and federal efforts to restore buffers across the region."

Ann Swanson, Executive Director of the Chesapeake Bay Commission, explained how important stream buffers were, saying they are "no ordinary best management process, they are more important features of our landscape."

Joe Harcum, President, Duck Harbor Group, said he feels passionately that buffer zones should not be a requirement. He said Wayne County, where he resides, contains property where 93 percent of the land is not developable because of the buffer.  Harcum explained the land must be maintained in perpetuity forever and that homeowners pay for the buffers to be inspected and maintenance to be done.

"There are 35 best management practices approved by the DEP," pointed out Harcum. "We support the bill because it will give flexibility and creativity and license for people to do what needs to be done while ensuring water quality because other DEP mandates still have to be followed."

Brian Oran, CF Environmental Consultants, said the good qualities and values currently related to buffer zones are going to be protected because it is currently illegal to build in wetlands or floodways. He said most riparian buffer zones are currently in either of those areas and will not be affected by the bill.  Oran said a fact based scientific approach is the only way to determine which public policy will be best for developers and the environment.

Tom Reilly, Reilly Associates, PA Builders Association, explained there are many other options besides riparian buffer zones that will protect the environment. He said a small pond dug by a farmer many years ago requires the same 150 foot buffer as a large waterway or body of water. Reilly said customizing and tailoring how the buffer zones are used on sites can protect waterways while fitting the land in a more reasonable way. He called for a holistic and flexible approach to creating a plan that keeps the water clean without impeding economic competition.

Testimony was also submitted to the Committee by Craig Todd, District Manager, Monroe County Conservation District and Lisa Schaefer, County Commissioners Association of Pennsylvania.

A video of the hearing will be posted on the Committee’s website.

Rep. Ron Miller (R-York), Majority Chair of the Committee said he would be scheduling a second hearing on the legislation.

Rep. Greg Vitali (D-Delaware) serves as Minority Chair.

NewsClips:

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2/3/2014

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