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Environmentalists, developers debating new state rules

Published December 21. 2009 05:00PM

Opponents are lining up on opposite sides of the stream on proposed changes to Pennsylvania rules concerning development, waterways and developers' permit fees.

Among other changes, the amendments are to enhance and control sediment erosion during and after earth-moving activities in riparian buffer zones, according to the DEP. Riparian refers to the bank of a river or watercourse.

Among advocates representing the environmentalists' viewpoint was Cathy Frankenberg, Program Organizer, Clean Water Action, Bethlehem.

Among advocates representing the developers' viewpoint was Mark S. Mitman, The Mitman Group, Bethlehem, testifying on behalf of the Lehigh Valley Builders Association and the Home Builders Association of Bucks, Montgomery, Chester and Delaware counties.

The EQB will review the document of testimony from the three hearings. There will be additional reviews by the DEP, a legislative committee and a review panel before the proposal is presented to the commonwealth attorney general.

An estimated 60 attended an Oct. 5 hearing in the Salisbury Township Municipal Building, one of three held statewide by the Environmental Quality Board (EQB).

The other hearings were held Sept. 29 in Chambersburg and Oct. 1 in Harrisburg. Written comments were taken by EQB until Nov. 30.

More than one dozen spoke during two hours of the hearing held in Salisbury.

Also, representatives of the Pennsylvania Department of Environmental Protection (DEP) presented one hour of testimony outlining proposed rules.

Those testifying included David McGuire, Issue Coordinator, Lehigh Valley Sierra Club; Donald P. Oaks of Pine Grove, forestry consultant; Ben Howells, Allentown; Caroline Anderson, Macungie; Marshall Jordan Pysher, Emmaus; and Mark Wirth, Lower Saucon Township.

Frankenberg said Clean Water Action advocates mandatory forested buffer zones for rivers and streams.

"One hundred foot buffers should be applied universally across Pennsylvania with better protections going to more sensitive streams: 150 feet for headwaters and impaired streams, and 300 feet for exceptional value and high quality waters," Frankenberg said.

She noted that Clean Water Action worked with Lehigh Valley communities, including Plainfield Township, Northampton County, to adopt 100-foot buffer zone regulations in its township ordinances.

According to Frankenberg, a Clean Water Action survey of municipalities in more than a dozen counties found that 192 municipalities had a riparian buffer ordinance and more than 30 percent required 100 foot or greater buffers on some streams.

"Research has shown that a minimum of 100-foot buffers give the most benefit in terms of protecting against runoff and erosion," she said.


The permit-by-rule plan allows for developers to bypass a technical review by the DEP, according to Clean Water Action, which opposes the proposed permit-by-rule regulation.

"We commend the fact that the plan proposes buffer protections for Exceptional Value streams. However, these streams make up less than 2 percent of our waterways, and the plan does nothing to grant better protections to High Quality streams or impaired watersheds," she said.

"In addition, there is inadequate time for the public to comment on proposed E&S [erosion and sedimentation] or storm water plans. The minimum comment period should be no less than 30 days.

"The strangest part of the proposed regulations even allows for developers who do not have a stream on their property to make use of the buffer loophole to avoid a technical review," Frankenberg said.

"And although the plan claims to only apply to 'low risk' developments, in fact, it can be used in larger developments as well, so long as they are developed 15 acres at a time," she continued.

"We should also state that developers should be required to maintain post-construction storm water plans and Best Management Practices and should be monitored closely by the DEP. Regulations must apply to oil and gas developers, as well," said Frankenberg.

Drilling for natural gas is underway or proposed in Marcellus Shale zones in Pennsylvania.

Permit hike

Mitman said organizations he represents oppose the proposed 1,000 percent increase for a National Pollutant Discharge Elimination System (NPDES) permit, calling the hike "excessive.

"It is our understanding that these new fees would underwrite conservation district expenses, even though the districts have the power to set their own fee schedule in addition to the proposed fee schedule," he said.

"A $5,000 fee for an Individual NPDES permit on a small site does not seem proportional," Mitman said.

"So for example, under the proposed rules, a small project in Lehigh County proposing to disturb only five acres would be subject to combined fees of roughly $13,000 for its initial application. In many cases, the fee will exceed the cost to engineer such a small project.

"We would recommend a tiered fee schedule that ranges up to $2,500-$5,000 for the NPDES permits based upon project size, versus a flat rate for all projects. A three-acre site should not be charged the same as 30-acre site," he said.

"Regarding incomplete applications, we feel that the limitation of 60 days to complete or revise the application is too rigid. Applications have increased in complexity and may take more than 60 days to address deficiencies. We would recommend increasing the time to make revisions to 120 days," Mitman said.

"A slow or depressed housing market may dictate waiting on a permit, and, an applicant shouldn't be punished by having to re-pay the application fees if they are pro-actively staying in contact with the review agency by filing extensions."

"Our organizations are supportive of any effort to simplify and streamline an already overly-complicated and expensive regulatory review process. And, we appreciate the department's [DEP] attempt to create such a process in its proposed voluntary Permit-by-Rule program for low-impact projects," said Mitman.

Projects impact

"Incorporating the requirement for a 150-foot buffer on each side of EV [Exceptional Value] waters will result in many unbuildable projects.

"If the mandated buffers are expanded to HQ [High Quality] and non-special protection waterways - essentially all of Pennsylvania's 83,000 miles of streams - the burden would be profound.

"Taken to its full realization, a 100-foot buffer on each side of these streams would result in a regulatory taking of over 3,000 square miles, or, a land mass larger than the combined size of Bucks, Montgomery, Chester, Delaware, Lehigh, Northampton and Philadelphia counties," said Mitman.

"It is for these reasons we feel the more local, hands-on approach of Pennsylvania's municipalities are better suited for adopting riparian buffers than a rigid, statewide mandate," Mitman said.

The EQB is an independent board composed of 20 members from 11 commonwealth agencies. It is chaired by John Hanger, Secretary, DEP The hearing held in Salisbury was chaired by Wayne E. Gardner, a commissioner with the Pennsylvania Public Utility Commission, Harrisburg.

DEP representatives at the Salisbury hearing included Glenn H. Rider, II, Director, Bureau of Watershed Management, and Kenneth Murin, Chief, Division of Waterways, Wetlands and Stormwater Management, both Harrisburg.

Representing Salisbury were Cynthia Sopka, director, township planning and zoning, and Joseph Hebelka, secretary, township Planning Commission.

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