Friday, December 28, 2018

WHERE WE WANT TO BE: Growing A Cleaner, Greener Pennsylvania In 2019: Opportunities For The House And Senate Leadership

The new legislative session starting January 1 presents an important opportunity for House and Senate members to take a leadership role on a variety of environmental and energy issues to make Pennsylvania cleaner and greener in 2019.
These leadership opportunities are defined by some simple principles-- clean is better than dirty, saving money is better than wasting it and being organized and efficient is better than not.
Here are 5 critical environmental and energy leadership opportunities House and Senate members can take up in the coming year--
-- Reduce Water Pollution, Stormwater Flooding  
-- Address Chronic Underfunding Of Environmental Programs
-- Reduce Impacts, Threats From Pipelines
-- Mitigate Growing Impacts From Climate Change
-- Reauthorize Critical Federal Programs

Reduce Water Pollution, Stormwater Flooding
The last time the General Assembly took action to provide entirely new funding to support local, community-based projects to deal with the kinds of water pollution and small stream flooding threats we face now in Pennsylvania was 17 years ago in 2002.
Gov. Schweiker signed into law an expansion of the Growing Greener Program created by Gov. Ridge in 1999, 20 years ago  The expansion was funded with a new fee on waste disposed in Pennsylvania.
This was and remains the largest single new investment Pennsylvania ever made to support local watershed restoration, mine reclamation and farm conservation projects in the Commonwealth’s history.
Since then, groups like the Growing Greener Coalition have documented a 75 percent reduction in state funding for the Growing Greener Program and outlined the obvious need to restore local project funding for these efforts. Click Here for the latest.
Attempts to add “new” funding since 2002 were only trying to backfill the cuts or bring future revenue into the present in the case of the 2005 bond issue.  [Note: In 2008, a one-time bond issue did fund other “hard” drinking water, wastewater, flood control and dam infrastructure projects with gaming revenues under the H2O Program.]
One specific commitment Pennsylvania made-- to clean up rivers and streams in the 43 counties in the Pennsylvania portion of the Chesapeake Bay Watershed-- will be coming to a head in 2019 when the state must submit a credible plan on how the Commonwealth will meet our pollution reduction milestones.
It is clear no plan will be considered credible without a significant and sustained commitment of new, real, financial and technical help for farmers for conservation practices and local government stormwater pollution reduction efforts that will be critical to any pollution cleanup plan.  Click Here for the latest.
Pennsylvania communities face these pollution problems and stormwater flooding issues statewide, not just in the Bay Watershed..
At the beginning of the LAST legislative session-- January 24, 2017-- a bipartisan group of Pennsylvania House and Senate members on the Chesapeake Bay Commission wrote to all members of the General Assembly pointing out the obvious need for new, dedicated funding to address the water pollution cleanup problems across the state, but no action to fund the initiative was ever taken.
Another growing challenge is reducing stormwater flood damage.
As widespread “small stream” flooding from storms this past summer has made very clear, the frequency and severity of heavy precipitation events is increasing.  A Center for Rural Pennsylvania study last year found these heavy events (5-Year, 2-Day events) have increased in frequency and duration by 71 percent between 1958 and 2013.
Fortunately, there are potential solutions that uniquely fit this kind of flooding problem-- installation of green infrastructure.  
Green infrastructure is both cheaper than traditional channelization, levees and other engineered “solutions” and more effective, because it works with nature and, in the case of forested buffers and restored floodplains, literally grows more effective over time.
The other benefit of green infrastructure is it improves water quality by reducing nutrient and sediment runoff in addition to reducing damage from stormwater flooding-- offering 3 benefits in one project.
There isn’t one solution to these funding issues, there will be many, but they must all be focused on taking care of the real, priority water quality problems-- like helping farmers and communities reduce pollution and stormwater flood damage in ways that have multiple benefits so taxpayers are not hoodwinked into investing into limited practices with minor impacts on the problems.
Here are several ideas--
-- EITC For Farm Conservation: In 2007 the Resource Enhancement and Protection (REAP) Farm Conservation Tax Credit Program was established to provide tax credits to farmers installing best management practices.
Each year this program is oversubscribed with eligible requests over the $10 million appropriation.
This true public-private initiative could easily be expanded to allow other tax paying companies and individuals to fund local, on-farm conservation practices just like another successful initiative-- the Education Improvement Tax Credit Program provides funding for education programs.
Here's the chance for someone to become the “mother” or “father” of the EITC for farm conservation.
-- Pay-For-Success Public/Private Investment Program:  The Pay-For-Success model for putting farm conservation on the ground allows municipalities to satisfy stormwater pollution reduction requirements and returns profits to private capital investors who pay for those practices is gaining ground.
Recently, the National Resources Conservation Service awarded a Conservation Innovation Grant to the Chesapeake Bay Foundation-PA to develop a pilot Pay-For-Success Program with partners Red Barn Consulting of Lancaster, RETTEW Associates Consulting of Lancaster, Land O’Lakes, Inc., and Quantified Ventures of Washington, D.C.
A second NRCS grant funded a pay-for-success project in the Brandywine-Christiana Watershed that straddles the Pennsylvania-Delaware border which will bring an estimated $10 million in private investment into that watershed for farm conservation work.
This program has the potential to bring millions of dollars to Pennsylvania to pay for farm conservation practices.  (Click Here for more.)
-- Encourage BMP Construction In Local Development: Thousands of new developments go in every year all across Pennsylvania.  Encouraging these developments to incorporate stormwater BMPs to reduce nutrient and sediment loads could be huge.
The American Water Resources Association recently highlighted the Rock Lititz Floodplain Restoration Project in Lancaster County as an innovative private-public partnership to reduce sediment and nutrient loads going to the Chesapeake Bay without using any taxpayer money.
Mark Gutshall and Lindsey Freidly from LandStudies, Inc. describe how the world-famous entertainment technology company Clair Global planned its new 93.3 acre Rock Lititz campus in Warwick Township, Lancaster County to house 13 companies supporting live entertainment production.
Over 3,100 feet of Santo Domingo Creek runs through the site and offered an opportunity to maximize land area for development, reduce long-term site costs and employ best management practices to permanently reduce flooding and water pollution coming from the site.
Rock Lititz committed an estimated $755,000 for the floodplain restoration initiative because they recognized the environmental, community and economic benefits of using the floodplain restoration technique.  (Click Here for more.)
One of the hangups, was the length of time it took to get a DEP permit.
Expedited, priority permit review times for these sorts of public-private, no-cost-to-the-taxpayer projects would be a huge help in encouraging these types of projects.
-- Double-Down On Recreation Investments By Including Stormwater BMPs:
Parkland is often leftover land, land with environmental constraints such as wetlands, floodplains, and steep slopes, or land a developer did not want or could not develop. Parks and underutilized open space offer settings that help to address these challenges.
Instead of single-purpose solutions that may address one aspect of environmental challenges, solutions that consider all of a municipality’s assets, including parks and underutilized lands, may yield multiple benefits in stormwater management and reduced flooding.
In fact, both the Department of Conservation and Natural Resources and EPA have step-by-step guides and other resources to help communities realize these benefits.   (Click Here for more.)
Again, expediting permits, changing grant award criteria to encourage multiple benefit projects, could encourage more of these projects to more effectively use the scarce resources we now have.
  -- Keystone Tree Fund: Legislation creating the Keystone Tree Fund to provide funding for the TreeVitalize and Riparian Forest Buffer Grant Program by creating a $3 checkoff box on vehicle and drivers’ licenses was introduced in the House and Senate in 2018.   It’s another tool to not only providing funding, but to get more individuals involved in the effort to reduce water pollution. Click Here for more.
The data-driven Chesapeake Bay Watershed Planning Program now underway has already documented the most cost-effective green infrastructure solutions for nutrient and sediment reduction and that information can be a guide to adopting these strategies all across the state.
The Funding Workgroup of the PA Chesapeake Bay Watershed Planning Steering Committee will be presenting more specific funding suggestions in January or February.
In addition, counties like Lancaster, York, Adams and Franklin nowgoing through the locally-drive clean water planning process in Bay Watershed are coming up with their own ideas for how water quality programs can be funded and advanced.
The Penn State Agriculture and Environment Center’s 2019 PA In The Balance Conference February 6-8 will also result in more recommendations related to on-farm conservation funding and technical assistance needs and solutions.
These stakeholder-driven, locally-focused recommendations are something legislative leaders need to pay attention to.

Address Chronic Underfunding Of Environmental Programs
General Fund support for environmental protection programs in DEP has been cut 40 percent over the last decade and DEP’s staff by over 25 percent.  DEP now has about the same state funding it did in 1994-95, but with many more responsibilities.
If you have trouble visualizing the impact of these reductions, just think of a 3-legged dog.
At the beginning of the LAST legislative session-- February 22, 2017-- DEP’s Citizens Advisory Council wrote a letter to House and Senate Appropriations Committee Chairs expressing serious concerns about current funding levels at DEP saying, in part, “consistent cuts to DEP over the last 2 decades has reached an unsustainable level.”
The Council said, “Over the last 14 years, DEP has diligently done more with less funding, less staff, and less resources while fixed costs have continued to rise and unfunded mandates, both at the state and federal level, have also sharply risen.
“To respond to this gap, DEP has looked to the regulated community for increased permit and annual fees just to cover the general cost of operation and staffing levels to handle the increased permitting and inspection requirements that have been instituted on the department through legislation and the courts.”
The letter also points out DEP has received several notices from federal agencies citing failure to meet even minimum federal standards for programs DEP administers for the federal government.
For FY 2018-19, Gov. Wolf requested and the General Assembly appropriated additional funds to DEP to support 35 new positions for key programs like Safe Drinking Water, Mining, Air Quality and more, primarily geared to speeding up permit reviews or avoiding federal sanctions for not meeting minimum program standards.
On December 18, the Environmental Quality Board just adopted another $22 million in proposed and final regulations increasing permit fees for Air Quality, NPDES, Water Quality and Noncoal Mining Permits.
As more than one member of the Board said at the meeting, the unending increases in permit fees on businesses, local governments and individuals will reach a breaking point where the fees will be unaffordable.
As part of each proposed fee increase package, DEP also lists the steps it has taken to improve efficiencies in the program and reduce paperwork and permit review times to the extent it can within the resources it has.
DEP Secretary Patrick McDonnell outlined many of the agency-wide efficiency steps in his budget testimony last year and announced e-Permitting initiatives for oil and gas well drilling, Chapter 105 General Permit applications and more this past year.
Many of the e-Permitting initiatives remain a work in progress because of the limited resources DEP has to apply to them.
In February, the Senate adopted Senate Resolution 226 sponsored by Sen. John Yudichak (D-Luzerne), Minority Chair of the Senate Environmental Resources and Energy Committee, requiring the Legislative Budget and Finance Committee to do an independent performance evaluation of DEP’s Chapter 102 (Erosion and Sedimentation) and Chapter 105 (Water Obstruction and Encroachment) -- DEP’s basic land development permit programs.
The Committee is required to consider the efficiency and effectiveness of permitting programs by examining varied outlooks, including resources and workloads (overall and by office), performance levels, policies and procedures, fee and incentive structures, applications and outcomes, input and efforts by DEP and applicants, and best practices.
Recommendations for practical legislative solutions are to be provided in a report to the Senate. Currently, the report is scheduled be released in February or March.
These recommendations should be very helpful in guiding future legislative decision making on funding and permit reforms.
Specific Issues
Financial support for the state’s Hazardous Sites Cleanup Program has been highlighted as a critical issue in each of the last 2 years by DEP, but in September, DEP took it a step further by telling the Citizens Advisory Council the program faces a “fiscal cliff” in FY 2020-21.
In addition to all of the challenges HSCA faces, the emerging issue (at least in Pennsylvania) of PFAS groundwater contaminiation is likely to drive bipartisan discussion of funding for this program, particularly when the results of the water sampling being undertaken to identify sources of contamination around the state are released by the Governor’s PFAS Action Team.
The Joint State Government Commission and a special Senate Lead Exposure Task Force will be making recommendations on reducing exposure to another hazardous substance-- lead-- as early as April in 2019 as a result of Senate Resolution 33, sponsored by Sen. John Yudichak (D-Luzerne), Minority Chair of the Senate Environmental Resources and Energy Committee.
This also might become another bipartisan issue that drives further funding initiatives to deal with lead exposure from drinking water and from other sources.  Click Here for more.
The long-term investment needs of state parks and forest infrastructure will be highlighted by the PA Parks and Forest Foundation in a upcoming Legacy Of Pennsylvania’s State Parks And Forests: The Future Is In Our Hands report due out in early 2019.  The report was previewed in the Foundation’s newsletter in May of 2018.
How to provide for the financial stability of the Game and Fish and Boat Commissions was a contentious topic in the 2017-18 legislative session.  But, all 4 Chairs of the Senate and House Game and Fisheries Committees  “promised” in October to work on proposals to stabilize the financial futures of the Commissions in 2019, so we’ll see. Click Here for more.
The time has come for House and Senate members to recognize they had a big part in creating the financial fix DEP and other environmental programs find themselve in and it’s up to them to help fix it in real, meaningful ways.
Targeted investments to speed adoption of e-Permitting done the right way, provide needed staff in key programs-- like was done in FY 2018-19 in a limited way, and redistributing workloads and other management reforms are clearly what is needed to solve many of the permit review turnaround times and still meet state and federal statutory and public participation requirements.
There also needs to be cooperation on the part of permit applicants to give DEP permit  applications that are complete and able to be reviewed promptly.
These steps-- not so coincidentally-- are the same steps businesses take to ensure they serve their customers as effectively and efficiently as possible, something House and Senate members should understand.
Good managers don’t keep berating their own employees and cutting their support out from under them, if they want better results.

Reduce Impacts, Threats From Pipelines
The explosion of a brand new natural gas pipeline in Beaver County in September put an exclamation point, if one was needed, on safety, siting and inspection issues surrounding major pipelines in the state.
That explosion followed an explosion of another newly-constructed natural gas pipeline just across the border in West Virginia in July.
The PUC’s investigation of the Beaver County explosion is still active and ongoing.  DEP inspections in November found unreported landslides on the right-of-way and other issues.
Multiple hearings by the Senate and House in 2018 pointed to significant issues of concern to residents who live near and in some cases almost on natural gas and other hazardous liquid pipelines in the state.
A Senate hearing in March pointed to the need to hold pipeline companies accountable for impacts, providing for the safety of nearby residents and for better regulation of the routes taken by pipelines.
At another Senate Committee meeting in June, Sen. Don White (R-Indiana) took the highly unusual step of singling out one pipeline company by name.  He said if the issues raised at the Senate hearing are only about one company [Sunoco Mariner East Pipelines] “we should be able to deal with that company and put them out of business.”
A House hearing in July saw both the head of DEP and the vice-chair of the Public Utility Commission say there needs to be a “serious conversation” about how Pennsylvania can have a meaningful role in siting pipelines in the state.
The Public Utility Commission this year took over administrative responsibility for the enforcement of the PA One Call utility and pipeline damage prevention program, which consolidates some pipeline safety programs in one agency.
A number of Senate and House bills were also introduced on pipeline-related issues, but none of them saw final action.
A complaint filed with the Public Utility Commission by Sen. Andy Dinniman (D-Chester) on construction and safety issues surrounding the Mariner East 2 Pipeline resulted in a temporary order ceasing construction, but the bulk of the case is still making its way through the Administrative Law Judge process.
The PUC has taken a number of other actions against the Mariner East Pipelines on construction and safety issues during 2018, including most recently a proposed $225,000 penalty for an ethane/propane leak from Marine East 1.
DEP has also taken high-profile enforcement actions against the Mariner East 2 Pipeline, including collecting a record $12.6 million penalty for water quality and other violations and completely shutting down construction at one point.
Earlier in December, the District Attorney in Chester County announced he was opening a criminal investigation into Mariner East Pipelines construction practices.
Various legal challenges to the application of local zoning ordinances to pipelines and eminent domain in state and federal courts have gone nowhere, primarily because of federal laws regulating the siting and approvals for pipelines.
In April, however, Commonwealth Court agreed to hear an eminent domain challenge based on Pennsylvania’s unique Environmental Rights Amendment to the state constitution.
Just about 3 years ago-- in February 2016-- the Governor’s Pipeline Task Force presented a series of 184 suggestions to Gov. Wolf to help Pennsylvania achieve responsible development of natural gas pipeline infrastructure in the state, but there have been no systemic report on where the state is in implementing those suggestions.
By some estimates, another 30,000 to 35,000 miles of major pipelines will be built in Pennsylvania over the next decade.  Major investments in pipelines and other natural gas infrastructure are to continue at the same high levels through 2035, according to a recent study.
This issue is not going away and will continue through 2019 and beyond.  The question is, will the House and Senate provide the leadership Pennsylvanians are asking for to address the very real concerns residents have about pipelines.
Without action, the public will lose what confidence they have that their issues will be dealt with and it will only become harder to build the natural gas infrastructure needed for this in-demand resource.

Mitigate Growing Impacts From Climate Change
There have been a flurry of climate-related proposals of various types in the last 60 days in Pennsylvania.
But, when it comes down to taking any action on climate change-related issues in the House and Senate, the discussion will be driven by how to save Pennsylvania’s nuclear power plants from closing.
On November 29 the Senate-House Nuclear Energy Caucus released a report summarizing their findings on the impact of closing nuclear power plants in the state and outlining potential solutions.
The report, which was sent to all members of the General Assembly and to Gov. Wolf, included four options--  one of the options was to impose a carbon tax on energy sources.
Putting a price on carbon is also part of a rulemaking petition submitted to the Environmental Quality Board on November 27 proposing Pennsylvania adopted a California-style cap-and-trade program for greenhouse gas emissions.
DEP is reviewing the petition now, but any action to move ahead with the proposal will only come after a decision by the EQB to accept it for formal study.  The next meeting of the Board is in February.
DEP is scheduled to release its 2018 Update to the PA Climate Action Plan in February that includes a laundry list of recommendations on how to reduce greenhouse gas emissions.  That list will be judged against the emission reductions needed to meet the goals established in the 2015 U.N. Paris Climate Agreement.
Pennsylvania has already met the 2030 greenhouse gas reduction goals of the original EPA Clean Power Plan covering the power generation sector, largely due to the switch of electric generation to natural gas. Click Here for more.
On December 3, Auditor General Eugene DePasquale announced plans to prepare a special report exploring how Pennsylvania is responding to climate change.
DePasquale said his report will focus on state government’s response to climate change and steps that can better prepare the state for the future, noting the problem will impact communities of all sizes.
One specific mitigation issue was raised last year by the Center for Rural Pennsylvania study that found heavy precipitation events (5-Year, 2-Day events) have increased in frequency and duration by 71 percent between 1958 and 2013.
Studies like this point to a significant and policy issue-- our fundamental assumption in regulation and policy that a 2-year, 24-hour storm should be the standard on which to base the design of stormwater management practices and in calculating things like freeboard in waste impoundments-- is clearly wrong.
The Center for Rural Pennsylvania study made a series of recommendations for state action to respond to this increase in flooding events-- one of the most widespread and life-threatening issues in the state.
All this is not to say there won’t be leadership opportunities on some very specific issues, in particular related to energy and climate.  These initiatives were all introduced with bipartisan support in 2017-18--
-- Microgrids: creating a regulatory framework to encourage energy storage and microgrids to improve electric grid resiliency during disaster emergencies and other circumstances. Click Here for more.
-- Electric Vehicle Infrastructure: Encouraging the development of infrastructure for electric and natural gas fueled vehicles.  Click Here for more.
-- Act 129 Energy Conservation Program: Updating the very successful Act 129 utility Energy Conservation Program requirements for electric utilities and expanding them to natural gas utilities. Click Here for more.
-- Community Solar: Authorizing community solar electric generation systems. Click Here for more.

Reauthorize Critical Federal Programs
Reauthorization of the federal Abandoned Mine Reclamation fee is critical to the success of Pennsylvania’s efforts to deal with our second leading cause of polluted waterways-- drainage from abandoned coal mines.
DEP staff outlined the agency’s concerns at a July meeting of the Citizens Advisory Council and the short timeline for action-- the fee expires in 2021.
Over the last 5 years, DEP completed a total of 1,012 reclamation projects spending a total of over $120.5 million in federal, state and capital budget (for dedicate mine drainage treatment plants) funds.
DEP completes between 50 and 100 emergency reclamation projects every year, almost all supported by federal funding.
None of this could happen without federal funding support because state project funding through Growing Greener and other programs have been cut significantly. Click Here for more.
Also on the table in Congress is the bipartisan RECLAIM initiative that would provide funding for reclaiming local abandoned mine sites with economic development potential.  Click Here for more.
One recent bright spot in federal action was Congressional reauthorization of the federal Farm Bill that contains funding critical to farm and forest conservation efforts statewide and specifically for the 43 counties in the Pennsylvania portion of the Chesapeake Bay Watershed. Click Here for more.
There is also the ongoing battle over whether the current administration in Washington, D.D. will fund the bread-and-butter air, water and waste permit and cleanup programs Pennsylvania and other states administer for the federal government.
How critical are these funds?  About 30 percent of DEP’s funding now comes from the feds, 20 percent from the General Fund and 50 percent from fees and some fines.
Another critical program-- the federal Land and Water Conservation Fund-- expired on September 30 without being reauthorized by Congress.
The Land and Water Conservation Fund has provided more than $309 million in funding to support projects in Pennsylvania like public park development and land conservation in counties and municipalities across the state.  Click Here for more.
Congress also failed to pass the bipartisan federal Recovering America’s Wildlife Act that would provide stable funding for Pennsylvania’s fish and wildlife with the greatest conservation needs.
Both the Fish and Boat and Game Commission has been urging Congress to act on this critical legislation.  Click Here for more.
These are just a few of the major opportunities for leadership Senate and House members will be faced with in 2019.
And voters will be watching what legislators do on these issues.
They’re watching because it is our families, homes, jobs and communities that are on the line.
Voters need backup from the politicians they send to Harrisburg.  Let’s hope we get it.
(Photo: Award Winning Stream Restoration Project on Lancaster County Plain Sect Farm.)
(Written By: David E. Hess, Former Secretary Pennsylvania Department of Environmental Protection.  Send comments to:
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