The Chesapeake Bay Foundation-PA wrote to members of the Senate today (Tuesday) opposing House Bill 1565 (Hahn-R-Northampton) saying the bill may violate the federal Clean Water Act anti-degradation requirement for special protection watersheds.
The bill is set to run in the Senate today (Tuesday) and must return to the House for a concurrence vote if unchanged from its current form. As of this moment, the Senate and House are set to adjourn for the year on Wednesday.
The text of their letter follows—
Dear Senators:
On behalf of the Chesapeake Bay Foundation (“CBF”), I am writing, once again, to express our strong opposition to House Bill 1565 (P.N. 4258). This legislation, if passed, would eliminate the existing requirement of a forested riparian buffer for new development requiring a National Pollution Discharge Elimination System (“NPDES”) permit in a High Quality or Exceptional Value watershed.
Given the innumerable societal and ecological benefits provided by forested riparian and riparian buffers, CBF maintains that House Bill 1565 (P.N. 4258) is fundamentally flawed and could result in undesired consequences for Pennsylvania.
Pennsylvania’s Chesapeake Bay Blueprint plan, which consists of the Total Maximum Daily Load and the State’s Watershed Implementation Plan, relies heavily on protecting and restoring forested buffers. According to a recent assessment of Pennsylvania’s two-year milestones goals, it is estimated that the current rate of implementation of 6.44 acres of riparian buffers per day will need to be increased to 50.13 acres per day in order to meet the Commonwealth’s 2017 target for forested riparian buffers.
This bill will make the 2017 goal of 109,735 acres of forested riparian buffers more challenging since we will most likely begin losing existing forested buffers and forgoing opportunities to create new forested buffers that are absent of federal and state subsidies. Failure to meet established Chesapeake Bay milestone goals could result in the use of backstops by the Federal Environmental Protection Agency (“EPA”).
Passage of this legislation could set the Commonwealth back with regards to the federal requirements for riparian buffers in the Chesapeake Bay Watershed, as well as anti-degradation requirements in special protection waters.
The Clean Water Act (“CWA”) requires the restoration and maintenance of the “chemical, physical and biological integrity of the Nation’s waters.” (CWA, 33 U.S.C. § 1251(a)). The CWA and regulations promulgated pursuant to the CWA require states to adopt water quality standards consistent with the requirements of the CWA. (CWA, 33. U.S.C. § 1313 and 40 CFR § 131.1, et seq.).
Once a state identifies the water quality standards of a particular water body, it may not change laws that maintain and protect those standards without a substantial and convincing justification and EPA review and approval. 33 USC § 1313(b)(4)(B); 40 CFR § 131.12. This law is called the CWA anti-degradation policy and specifically applies to high-quality waters and applies to any activity that may cause degradation of a water body.
Since the EPA has approved the Commonwealth’s antidegradation policy found at 25 Pa. Code 93.4a, et seq., and PA has designated water bodies as exceptional value and high-quality, House Bill 1565 (P.N. 4258) could be considered a revision of Pennsylvania’s water quality standards in violation of Pennsylvania’s EPA approved antidegradation regulations and policy.
This issue should be addressed before the Senate votes on the bill.
While CBF recognizes the attempts that have been made to improve House Bill 1565 (P.N. 4258), the language is ambiguous while the science is clear—there is simply no scientifically equivalent practice equal to forested riparian buffers.
Forested riparian buffers have been shown in large and growing number of scientific studies to be the best means of protecting and enhancing the quality of the biological, chemical, and physical habitat in rivers and streams, including in Pennsylvania.
And, any attempt to remove this requirement will impact water quality in our special protection waters.
In fact, forested riparian buffers are so desirable that bills such as this should be set aside while we focus our efforts on legislation that supports clean water, such as Senator Rafferty’s bill, Senate Bill 1465, (P.N. 2256).
We strongly urge you to support clean water and vote “NO” on House Bill 1565 (P.N.4258) . Thank you for your time and attention to this matter.
Sincerely,
Harry Campbell
Pennsylvania Office Director
Chesapeake Bay Foundation