417 Walnut Street Harrisburg, PA / FAX

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1 417 Walnut Street Harrisburg, PA / FAX Bureau of Waterways Engineering and Wetlands Division of NPDES Construction and Erosion Control Rachel Carson State Office Building P.O. Box 8460 Harrisburg, PA Re: Comments on Two Draft Technical Guidance Documents: Riparian Buffer or Riparian Forest Buffer Equivalency Demonstration Document No ; Riparian Buffer or Riparian Buffer Offsetting Document No Dear Ms. Orr: The Pennsylvania Chamber of Business and Industry (the Chamber ), the largest, broad-based business advocacy group in the Commonwealth, appreciates the opportunity to comment on the Pennsylvania Department of Environmental Protection s ( PA DEP or Department ) draft technical guidance documents entitled the Riparian Buffer or Riparian Forest Buffer Equivalency Demonstration (DEP ID ) and the Riparian Buffer or Riparian Buffer Offsetting (DEP ID ), collectively referred to as the Draft Guidance. For the past several decades, the Chamber has been actively involved in issues relating to stewardship of Pennsylvania s waterways, wetlands and other aquatic resources, bringing the perspective of the regulated community to issues such as the development and refinement of various water quality standards, policies and regulations. The Chamber also recognizes and appreciates the considerable efforts by Department staff in developing the Draft Guidance, and thanks the Department for considering the Chamber s comments and concerns. In preparing these comments, the Chamber has drawn upon resources and views from a range of its members. Our goal has been to draw the Department s attention to the real world experiences of those who are knowledgeable and familiar with the practical implications of the proposals reflected in the Draft Guidance. The Department is proposing the Draft Guidance in response to the enactment of Act 162 of 2014 ( Act 162 ), legislation which passed both chambers of the General Assembly in a bipartisan fashion. The Chamber, however, believes that the Department s implementation of Act 162 as set forth in the Draft Guidance and FAQs regarding Act 162 implementation is ignoring the plain meaning of Act 162, buttressed by the legislative intent of the General Assembly. In so doing, the Department is relying on a faulty interpretation of Act 162 to prohibit the continued use of waivers as set forth in the Department s Section 102 regulations. Therefore, for the reasons set forth below, the Chamber requests that the Department note in the final version of the Draft Guidance that the waiver provision set forth at Section (d)(2) remains an alternative compliance measure with respect to the Section 102 requirements.

2 Page 2 The Plain Meaning of Act 162 Demonstrates that Waivers Are Still Allowed The Department has taken the position that Section 402(c)(1)(ii) of Act 162 only provides the option of choosing equivalent alternatives to riparian buffers or riparian forest buffers for NPDES permitted activities. Act 162 does not include waivers as an option. See Frequently Asked Questions for Act 162 of 2014 Implementation (Dec. 18, 2014). The waivers that the Department believes are no longer an option are set forth at 25 Pa. Code Section (d)(2) and provide that a very limited set of activities can apply for a waiver upon a demonstration by the applicant that there are reasonable alternatives for compliance with this section, and the existing riparian buffer will be undisturbed to the extent practicable. Section 402(c)(1)(ii) of Act 162 states that, for persons needing a National Pollution Discharge Elimination System ( NPDES ) permit for stormwater discharges regulated under Section 102 of the Department s regulations, the person may use or install... another option or options among available best management practices, design standards and alternatives that collectively are substantially equivalent to a riparian buffer or riparian forest buffer in effectiveness. At the outset, it is important to note that the provision in Act 162 which prohibits the issuance of waivers as cited by the Department is not a mandatory provision, but a discretionary one: the permit applicant may use or install. Nothing in this provision suggests that the pre-existing waiver provisions are negated by this provision of Act 162. Furthermore, the waiver provision set forth at Section (d)(2) meets the requirements of being substantially equivalent to a riparian buffer or riparian forest buffer in effectiveness because to obtain a waiver, the applicant must demonstrate, to the Department s satisfaction, that there are reasonable alternatives for compliance with this section... and that the [proposed] activity will otherwise meet the requirements of this chapter. By requiring these demonstrations, the waiver provisions set forth in Section (d)(2) is, in fact, one of the options... that collectively are substantially equivalent to riparian buffers or riparian forest buffers in effectiveness. Offsetting buffers which may be removed by development by creating buffers in other areas of the same watershed is not the only option to comply with this requirement of Section 102, nor does Act 162 require it to be the only option. Therefore, the plain meaning of Act 162 allows waivers, as currently found in the Department s regulations, to be one of the options allowed by Act 162. The Existing Waiver Provisions in Chapter 102 Are Not Abolished by Act 162 and Must be Preserved Act 162 amended Section 402 of the Clean Streams Law to identify how persons proposing or conducting earth disturbance activities shall appropriately control erosion and sediment. Paragraph C(1) identifies the course of action for persons proposing or conducting activities authorized under NPDES storm water discharge permits, and paragraph C(2) identified the course of activity for persons proposing or conducting earth disturbance within 100 feet of a surface water located on the list of special protection watersheds specified in 25 Pa. Code Paragraph C(2) reads specifically that persons conducting such earth disturbance within 100 feet of a special protection waterway shall offset any reduction in the total square footage of the buffer zone that would have been utilized as a best management practice, with a replacement buffer elsewhere along special protection waters in the same drainage list and as close to the area of disturbance at a ratio one-to-one. Any project proposing such an alternative shall also include other best management practices to manage post-construction stormwater to protect, maintain, reclaim and restore water quality and existing and designated uses of waters of this Commonwealth.

3 Page 3 The Department s interpretation of this legislation has been to abandon a process in which project applicants can be waived from the Department s 150-foot riparian buffer requirement. This interpretation is presumably predicated on the language that projects shall offset. However, such an interpretation ignores the following sentence s use of the word alternative -- an alternative [that] shall also include other best management practices. As subparagraph C(2) is silent on the definition of alternative, the reader must refer back to subparagraph C(1), which holds that alternatives to riparian buffers are identified as another option or options among available best management practices, design standards and alternatives that collectively are substantially equivalent to a riparian buffer or riparian forest buffer in effectiveness. Further, to the extent that an applicant never was required to implement, utilize or preserve a riparian buffer zone as a stormwater best management practice (such as in cases where projects had previously been granted a waiver), no replacement buffer requirement would apply and the provisions of Act 162 would not be triggered. Indeed, the language of Act 162 is appropriately interpreted to retain the current waiver provisions within Chapter 102, particularly if the Department intends on preserving the existing provisions that provide exceptions to mandatory buffer requirements. First, Act 162 amended Section 402 of the Clean Streams Law by adding a new Paragraph (c). The Act did not amend Paragraphs (a) and (b) of Section 402 of the Clean Streams Law, and these paragraphs remain as originally written. Paragraph (a) notes that, in part, [w]henever the department finds that any activity [ ] creates a danger of pollution to the waters of the Commonwealth or that the regulation of the activity is necessary to avoid such pollution, the department may, by rule or regulation, require that such activity be conducted only pursuant to a permit issued by the department or may otherwise establish the conditions under which such activity shall be conducted [emphasis add]. Importantly, the controlling statute holds only that DEP may (not shall) require permits or conditions enabling activities that create a danger of pollution. It is through this statutory flexibility that the Department has in the past offered waivers to activities necessary for the protection of public health and safety and the enactment of Act 162 has left this section of the Clean Streams Law intact. It would be inconsistent and arbitrary for the Department to continue to allow Chapter 102 provisions providing exceptions to mandatory buffer requirements, but not waivers. The Legislative Intent of the Bill Was To Afford Regulatory Flexibility to Applicants, Not Remove It Act 162 originated as House Bill 1565 and was referred to the House Committee on Energy Resources and Environment on June 20, The bill was the subject of a hearing of the same committee on January 29, 2014, at which the prime sponsor, Representative Marcia Hahn, identified the intent of the legislation. As documented in the transcript of the hearing, Rep. Hahn said: To be specific, our Chapter 102 regulations essentially prohibit persons proposing or conducting earth-disturbance activities within 150 feet of a perennial or intermittent stream, river, creek, lake, pond or reservoir when the project site is located in an exceptional-value or high-quality watershed. [ T]hese regulations have effectively resulted in taking a private property without legislative oversight or approval. Therefore, with these considerations in mind, I have introduced House Bill 1565 to amend our Clean Stream Law simply to clarify that riparian buffers and riparian forested buffers may only be required as a choice among other best management practices to design standards to minimize pollution from erosion and sedimentation. And this way, those proposing different land disturbances could select tools that best meet the needs for

4 Page 4 each individual project. This would result in continued protection and enhancement over valuable water resources while providing flexibility in doing so. [Emphasis added] Also testifying at the hearing was Kelly Heffner, Deputy Secretary for the Office of Water Management with the Department. Ms. Heffner noted that riparian buffers are one tool among many that project developers can use to protect the water quality in exceptional-value or high-quality watersheds (special protection waterways). Her written testimony notes that [t]he Department can be supportive of this legislation given sufficient flexibility is included to ensure projects undertaken remain protective of water quality. 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. As floor debate on the bill proceeded in the House of Representatives on third consideration of the bill prior to a floor vote on Sept. 22, 2014, various members of the House of Representatives spoke to the intent of the legislation, which was to codify the waiver process and allow for the reasonable development of private property so long as the development could meet the water quality requirements set forth in the existing regulations adopted pursuant to the Clean Streams Law. Representatives noted that a property owner who is forced to maintain a 150-foot buffer when alternative best management practices exist that would provide sufficient water quality protections would have grounds for a takings lawsuit - hence the need for a waiver process. Representative Chris Ross, as transcribed in the House Legislative Journal for Sept. 22, 2014, noted that flexibility is absolutely necessary because we can interfere with property rights to the degree that we are making an environmental improvement. However, if someone were to propose an intrusion [into the 150 foot buffer] and provide for a fully protective environmental counterpoint or alternative and we were simply to hold to the 150-foot buffer regardless, there would be a very good case, from what I understand, to call that a taking and require the Commonwealth to pay the landowner for the value of the property because there would no longer be a reason to justify environmental protection in that situation. The Republican Majority Leader, Representative Mike Turzai, also introduced comments into the record that noted, By providing a choice among riparian buffers and other best management practices, HB 1565 allows both landowners and project developers the flexibility needed to ensure the proper protections while avoiding a one-size-fits-all approach to complying with our regulation. There should not be any misunderstanding about the legislature s intent with the bill: the legislature was firmly providing an additional means by which property developers can proceed with development within 150 feet of a Special Protection waterway. Riparian buffers were but one tool to protect water quality. Should alternative measures be available that provide protection to water quality, landowners and developers must be able to use them. To not allow them the option of alternative measures that are sufficiently protective of environmental features would justify a takings lawsuit. A Practical Solution is Needed to Address the Requirements of Public Utilities and Other Important Activities In interpreting Act 162 and the provisions of 25 Pa. Code , a practical solution is required to address the requirements of utilities such as sewage, electric and natural gas utility infrastructure. In particular, regarding gas and electric infrastructure, the Pennsylvania Public Utility Commission ( PUC ), the Federal Energy Regulatory Commission ( FERC ), and/or the PJM Interconnection grant siting

5 Page 5 approval for such utility infrastructure to provide adequate transmission of gas and electricity to sufficiently protect the public from the adverse health and safety consequences of not having reliable, affordable or available sources of heat and power. Such siting approvals are an appropriate exercise of police power wielded by the state to protect the public interest. Title 52 Pa. Code Chapter 57 Section 194 requires that an electric distribution company furnish and maintain adequate, efficient, safe and reasonable service and facilities [ ] necessary or proper for the accommodation, convenience and safety of its patrons, employees and the public. The service shall be reasonably continuous and without unreasonable interruptions or delay. Title 66 Pa. Code Chapter 66 also obligates that every public utility shall furnish and maintain adequate, efficient, safe and reasonable service and facilities [ ] as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees and the public. Included in the definition of public utility under Title 66 are Any persons or corporations [ ] transmitting, distributing or furnishing natural gas [or] electricity, and sewage collection, treatment or disposal for the public for compensation. The PUC is charged with ensuring that utilities comply with this requirement and may allow the utilities to proceed with eminent domain to comply with regulatory requirements on behalf of the public, or grant the utilities a certificate of public convenience to do so. While utilities may be granted eminent domain to condemn land for the construction of utility infrastructure, utilities are not granted eminent domain options to condemn land to satisfy environmental requirements, such as riparian buffer offsetting. Given that the obligations of PUC and FERC are to ensure a reliable system of distribution without interruption or delay -- and that Section 402 of the Clean Streams Law only holds that DEP may, but not shall, require permits or conditions sufficient to prevent a danger of pollution, the controlling government interest with these two statutory provisions should be to allow for utility service by granting waivers or finding another practicable pathway for the construction of utility infrastructure that would cross waterways otherwise requiring riparian buffers. We believe one such pathway may be found in 25 Pa. Code (f)(2), which is not part of the waiver provisions, but rather specifies what may be allowed within buffers. That section allows certain practices and activities within a buffer when authorized by the Department, including the construction or placement of roads, bridges, trails, storm drainage, utilities or other structures. Section (f)(2) does not specific the process by which such authorization takes place, and does not restrict its applicability to particular permits. By its plain language, it would allow such activities within a buffer if the Department authorizes the activity, and that can certainly mean if authorized under a Chapter 102 permit. We see nothing in Act 162 which negates that provision of the Ch. 102 regulations. In addition to public utilities, the limited set of activities potentially eligible for a waiver includes important environmentally-beneficial projects that would now be hampered by the Department s interpretation of Act 162. For example: Under the Department s interpretation, the Department can now no longer approve needed brownfield redevelopment projects located within 100 feet of a Special Protection watershed that include reasonable BMPs which comply with the requirements of 25 Pa. Code Chapter 102, unless the redeveloper can offset the reduction in the riparian buffer. Typically, brownfield redevelopment projects are located in previously-disturbed areas, without the ready availability of offsetting riparian buffers. We believe that such brownfield projects should still be allowed under

6 Page (f)(2)(iii) as restoration projects which are authorized by the Department under both Chapter 102 permits and Act 2. According to the Department s interpretation, abandoned mine reclamation activities located within 100 feet of a Special Protection water must now find offsetting riparian buffers, even though such reclamation projects would meet all of the other requirements of 25 Pa. Code Chapter 102. Again, we believe that such abandoned mine land projects should still be allowed under (f)(2)(iii) as restoration projects. Under the Department s position, projects that are necessary to abate a substantial threat to the public health or safety, that are located within 100 feet of a Special Protection water, now must find offsetting riparian buffers before they can obtain NPDES permits from the Department. As described above, nothing in Act 162 compels the Department to take the position that it has advanced. The waiver provisions remain part of 25 Pa. Code Chapter 102, and in any event 25 Pa. Code (f)(2) remains in place, and either or both should be available to members of the regulated community to invoke as a mechanism for allowing particular activities within buffer areas... This framework harmonizes Act 162 with the provisions of 25 Pa. Code Chapter 102 and effectuates the objectives that the General Assembly had in mind when it passed Act 162. The Legislative Intent of Act 162 Was Not to Remove the Waiver Process. The Intent of Act 162 Was, In Part, To Protect the Department from Takings Litigation On the floor of the Senate on October 14, 2014, Senator Lisa Baker noted that mandatory buffer requirements had created a regulatory environment against the prospects of property improvements. 1 The Senator noted that her interest is in giving relief to land owners who find that they cannot do improvements to their properties, costing jobs and opportunities that rural areas can ill afford to lose. Notably, the Senator also remarked that At one time, I thought the waiver process would be a solution, in theory at least. But in practical application, it has proved in-consistent, time consuming, and costly. I have one person who tried to redevelop a site that took 2 years and cost them more than $100,000 to achieve the waiver. So it is within our power to provide what I think is a reasonable and responsible remedy, what is contained in this bill strikes as something that is fair and balanced. The Senator s remarks should not be construed as a call for the removal of waivers as an option, only as a call for reforms to the regulatory process. The Chamber presumes that the Senator s constituents would have been seeking waivers allowed by the Department under Chapter (d)(2) for earth disturbance activities associated with property within a developed area for further construction or development [or] projects for which compliance with subsection (a) or (b) [relating to mandatory riparian buffer requirements] is not appropriate or feasible due to site characteristics, or existing structures at the project site. In order for the Department to grant a waiver for mandatory riparian buffer requirements to the applicant as afforded by Chapter 102, the Department has taken the position that the applicant must demonstrate the project will nevertheless meet stormwater requirements. Given Senator Baker s remarks and the fact that Act 162 does not expressly discuss amending the waiver provisions, it can reasonably be assumed that the legislature s intent was that project applicants seeking approval by the Department 1 Legislative Journal Senate. Oct. 14,

7 Page 7 should be afforded flexibility and an easier administrative burden than which was previously afforded by the Department regardless of whether the applicant is seeking a waiver or to demonstrate alternative best management practices that result in the substantially equivalent environmental protections as that of a riparian buffer. The Department s interpretation of Act 162 also clearly ignores the legislative intent to provide a means by which development can take place within 150 feet of a Special Protection waterway to avoid a claim of a regulatory taking. To reiterate the comments on the House floor by Rep. Ross on Sept. 22, 2014, if someone were to propose an intrusion [into the 150 foot buffer] and provide for a fully protective environmental counterpoint or alternative and we were simply to hold to the 150-foot buffer regardless, there would be a very good case, from what I understand, to call that a taking and require the Commonwealth to pay the landowner for the value of the property because there would no longer be a reason to justify environmental protection in that situation. The abandonment of the waiver process will, in the Chamber s estimation, open up the Department to takings litigation, which the Chamber does not believe is an outcome the legislature intended with Act 162 nor one the Department intended with its proposed implementation. As a practical matter, some of the members of the Chamber who are seeking authorization to proceed with development within 150 feet of Special Protection waterways are already finding that in some instances, it is impossible to find affordable and/or available land within the same drainage basin. In these situations, there are alternative measures available that would be substantially equivalent to riparian buffers and protect water quality as described in the Department s Best Management Practices Manual. As demonstrated by testimony and the journal of floor proceedings, the removal of the waiver provision was not the intent of the legislature. The Department Should Amend Its Implementation of Act 162 to Better Reflect the Language Contained in the Act Regarding the Type of Riparian Buffers to be Used or Installed Finally, the language contained in Act 162 reads that persons proposing to conduct earth disturbance activities within 100 feet of a surface water that is located in a special protection watershed must offset any reduction in the total square footage of the buffer zone that would have been utilized as a best management practice, with a replacement buffer that meets certain criteria. In the draft Offsetting and Equivalency Guidances, the Department has specified the replacement buffer must be a riparian forest buffer regardless of whether the special protection water is impaired or has a TMDL. The Department further defines the replacement buffer as a newly established or installed riparian forest buffer. However, the plain language of the Act does not support an implementation that the replacement buffer must be either forested or new. Paragraph C(1) of the Act allows for persons proposing or conducting earth disturbances requiring a Chapter 102 NPDES permit to use or install either a riparian buffer or riparian forest buffer. The more general phrase of Paragraph C(2), replacement buffer, does not establish the condition of that buffer (forested or not) or its use or installation (existing or new). Thus, replacement buffer should be read to allow persons conducting earth disturbance within 100 feet of a surface water in a special protection watershed to use or install either a riparian buffer or a riparian forest buffer, and, in either case, that buffer may be new or pre-existing. Should the Department believe there is ambiguity regarding the plain language of the Act, the Department should consider legislative intent by referring to the remarks of the prime sponsor of the legislation, Rep. Marcia Hahn, at the Jan. 29, 2014 meeting of the House Environmental Resources and Energy Committee, where the legislation was the subject of a hearing. Rep.

8 Page 8 Hahn noted that House Bill 1565 [will] amend our Clean Stream Law simply to clarify that riparian buffers and riparian forested buffers may only be required as a choice among other best management practices to design standards to minimize pollution from erosion and sedimentation, making clear that legislative intent was to allow for both riparian buffers and riparian forest buffers as BMP options for compliance with erosion and sedimentation requirements. The Draft Guidance should be amended to reflect this approach. In closing, on behalf of the members of the Chamber, I urge the Department to appropriately implement the waiver process set forth in 25 Pa. Code Section (d)(2) as one of a number of options by which development can occur within 150 feet of Special Protection waterways and revise the Draft Guidance accordingly. Sincerely, Kevin Sunday Manager, Government Affairs Pennsylvania Chamber of Business and Industry