CBF-PA Tells DEP Act 162 Stream Buffer Requirements Should Apply To All Streams

The Chesapeake Bay Foundation-PA submitted comments this week to DEP saying Act 162 passed by the General Assembly last year requires stream buffers along all waterways when developers are applying for an NPDES permit, not just in Special Protection Watersheds.

CBF-PA’s comments were directed at an interim final technical guidance document DEP is using to implement Act 162.

They said it part, “CBF maintains that the Department is incorrect in applying Act 162 requirements only to special protection waters, such as High Quality (“HQ”) or Exceptional Value (“EV”) rivers, streams, creeks, lakes ponds, or reservoirs.

“The plain language of Section 402(c)(1) states that “…persons proposing or conducting earth disturbance activities when the activity requires a National Pollutant Discharge Elimination System [(“NPDES”)] permit for storm water discharge…” may install either a forested riparian buffer or a substantially equivalent alternative to ensure compliance with water quality standards. See. Act of October 22, 2014, P.L. 2600, No. 162.

“There is no mention of this only occurring in special protection waters. The only mention of EV/HQ watersheds, comes in Section 402(c)(2) of the law with regard to the need to “offset” activities within 100 feet of a special protection water.

“The failure to clearly state that buffers, or their functional equivalent, are only needed in EV/HQ watersheds where an NPDES permit is needed, while specifically mentioning the EV/HQ requirement in Section 402(c)(2), suggests a specific legal intent by the General Assembly.

“CBF contends that buffers or their substantial equivalent alternatives are now required wherever NPDES permits are to be issued for such activities.”

A copy of CBF-PA’s comments are available online.

CBF-PA also joined in comments submitted by the PA Campaign for Clean Water Stormwater Work Group saying the Act 162 guidance should be strengthened.

DEP Webinars

A series of four webinars have been scheduled by DEP on March 10 and 11 on implementation of the stream buffer requirements in Act 162.

DEP is also expected to publish additional guidance on implementing Act 162 in March covering determining equivalency and buffer offset requirements.

For more information, visit DEP’s Act 162 webpage.