Showing posts with label Delaware Riverkeeper Network. Show all posts
Showing posts with label Delaware Riverkeeper Network. Show all posts

Saturday, February 8, 2014

HB 1565 Riparian Buffers and Riparian Buffer Zones House Bill 1565 Testimony Oram Stream Buffers Size based on Science

HB 1565 - House Committee on Environmental Resources and Energy Hearing January 29, 2014 – Testimony by Mr. Brian Oram Geologist, Soil Scientist, Educator, and Citizen of Pennsylvania - Riparian Buffers and Riparian Buffer Zones

My name is Brian Oram and I wanted to thank you for this opportunity. I am a licensed professional geologist, soil scientist, and owner of B.F. Environmental Consultants, Inc.  I am lifelong resident of Northeastern Pennsylvania and currently reside in Dallas, Luzerne County. I am here today as a citizen and licensed professional in Pennsylvania in support of House Bill 1565.
The proposed house bill makes a slight change to the Clean Streams Law which would eliminate the requirement to use or install an arbitrary 100 foot riparian buffer on all streams and 150 foot a riparian buffer zone for EV and HQ streams.  The proposed wording change for HB 1565 is as follows:
“(c)  The use or installation of riparian buffers and riparian forest buffers shall not be required under this section.  Riparian buffers and riparian forest buffers may be used as a choice among best management practices, design standards and alternatives to minimize the potential for accelerated erosion and sedimentation and to protect, maintain, reclaim and restore water quality and for existing and designated uses.”
The reasons that I support this proposed change:
1. This proposed change in the law will not result in the destruction of riparian zones or significant encroachment or disrupt of these zones because existing environmental permitting processes are already in place to protect these areas.  The change in the law will permit the development of a site that permits the design professionals to evaluate all alternatives and select the approach that limits disturbance and manages the potential impacts.
Riparian zones can be divided into three broad zones:
a. Active Zone is the area within the banks of the stream and the channel bottom;
b. Zone 1 is typically associated with the floodway and floodplains; and
c. Zone 2 is typically associated with wetland areas, organic soils, and other transition zones.
Under the current laws in PA, the floodway, floodplains, and delineated wetland areas are protected from direct development and encroachment.  With respect to floodways and wetland areas, there are existing permit processes in place to address issues related to encroachment into these zones. 
2. The proposed legislative change allows for use of riparian buffers as a site-specific BMP as a function of the stream classification.  This approach is consistent with the criteria for HQ and EV streams as already outline in Chapter 93. (Currently, the Chapter 102 regulation is a standard not based on science or a site-specific analysis, but a universally applied arbitrary mandate).
The proposed legislation permits the establishment of riparian buffers zones or maintaining specific riparian buffers that are based on a site-based criteria/analysis.  This analysis includes the nature of the proposed development, proposed management system, current conditions, stream classification, and the water quality criteria/biological criteria provide in the law.  The proposed change will ensure that riparian buffers are sized and utilized in a manner that is consistent with the provisions of the Clean Streams Law.
3. The proposed change will prevent negative impacts to current or future stream quality.
In most cases, the concept around forest riparian zones is based on the principle that the zone is actively used to manage uncontrolled flow or to control nutrients and sediment.  When projects use engineering controls,  such as: bioretention devices, rain gardens, wet detention ponds, water reuse, land-based irrigation systems, groundwater recharge, and peak flow retention, treatment is provided by a combination of engineering controls and non-engineering controls that occur and are managed outside of the stream side “riparian zone” and/or wetland areas.
4. Many of the recommendations related to the size of a riparian buffer assume the buffer is the main active control system for post- construction stormwater management and includes provisions that will protect wildlife habitat.
For engineered projects, riparian buffers should not and are not the main system that is used to control sediment, water flow, volume reduction, or even nutrient control.  These riparian buffer’s primary role is to further polish that water after it already meets design criteria.  However, DEP’s current guidance suggests transporting managed water through the buffer in a pipe or swale directly to the receiving waterbody, which is inconsistent with the true role of the riparian buffer zone.
Criteria for riparian buffers- Buffers and set-backs for a stormwater management system should be based solely on maintaining in stream quality, downgradient use provisions, and biological criteria that are part of Chapter 93. Riparian buffers should not be established in stormwater management regulations to protect the general wildlife habitat for the watershed.  Chapter 93 provides wildlife protection to High Quality Waters if the water is a Class A Wild Trout Stream or where the Rapid Bioassessment Protocols for Use in Streams and Rivers: Benthic Macroinvertebrates and Fish resulted in a score of 83 % compared to a reference site. (Chapter 93)
RIPARIAN BUFFERS: WHAT ARE THEY and HOW DO THEY WORK? (http://www.soil.ncsu.edu/publications/BMPs/table.html
“Most decisions about buffer widths will be a compromise between ideal widths based on environmental goals (wildlife corridors, bank stabilization, and water quality protection) and sociologic or economic constraints. Science-based criteria, for which research data may be available to support an informed decision, include the functional value of the water resource; watershed, site, and buffer characteristics; adjacent land use; and buffer function. The functional value of the water resource is important for determining buffer width in that a highly valued resource may merit a wider buffer for increased protection.”
5. A project can use a riparian buffer zone as an additional management tool, but the minimum buffer should be based on site-specific analysis.  This analysis should be site and project specific and be done by licensed professionals and not an arbitrary non-scientific approach.
In the long-run, an arbitrary buffer zone will result in inadequate protection in areas with larger streams were a project proposes using little or no engineering control systems.  The minimum size of a riparian buffer zone should be site-specific and a function of the proposed project and proposed engineering and non-engineering controls.  The regulations, with this proposed change, will be more effective if they are less restrictive and permit the licensed professional in the state of Pennsylvania to make decisions based on the site-specific conditions, proposed nature of the development, and long-term management for the site.
 RIPARIAN BUFFERS: WHAT ARE THEY and HOW DO THEY WORK? (http://www.soil.ncsu.edu/publications/BMPs/table.html
“The current proposed buffer standards in North Carolina use a two-tiered riparian buffer: forested areas near the streams and grassed areas away from the stream. The proposed buffer width is 50 feet: 30 feet of forest and 20 feet of grass (NCDEHNR, 1997). Some streams, however, may need greater and some streams need less buffer width, depending not only on site location but also on the pollutant that is being controlled. For optimal performance, riparian forest buffer systems must be designed and maintained to maximize sheet flow and infiltration and impede concentrated flow”.
6. In Pennsylvania, we have enough examples of well-meaning guidance documents not specifically based on science and designed and package primarily in response to lawsuits. These guidance documents have caused the development of policy in PA that are ineffective, make the goals effectively un-achievable, potentially creates future problems, and creates significant other unintended consequences.
Recent examples would be the legislation that developed after the PA Guidance Document on Stormwater Management and the recent attempts to regulate nitrates from individual on-lot septic systems.
We do recommend some proposed wording changes to the proposed House Bill:
With respect to the proposed House Bill, we would suggest a slight wording change to clarify the scope and intent.
We recommend the phrase “and/or” should be included in the proposed language to account for the difference in the level and type of protection afforded to EV streams and HQ streams.  The level of protection afforded by the current law is not the same for EV and HQ streams.
and
We would recommend that the size of the buffer be based on a site-specific evaluation that takes into consideration the existing conditions, proposed use,  proposed engineering/non-engineering controls, and the proposed long-term management that are proposed by the project.
In conclusion, it is my personal and professional opinion that the change in the regulations would put the sizing and the development of stormwater management systems in the hands of professionals that have been licensed by the State of Pennsylvania and other professionals that provide facts and science-based information to make site-specific and project specific recommendations to meet the goals and objectives of Chapter 102 and to meet the water quality standards in Chapter 93.   We should not have a one-size-fits-all approach to stormwater management in Pennsylvania.
Prepared by:
Mr. Brian Oram, PG
B.F. Environmental Consultants Inc.
15 Hillcrest Drive
Dallas, PA 18612
http://www.bfenvironmental.com
Summary
Proposed Change DOES NOT
1. Eliminate or permit the disturbance of riparian buffers.
2. Does not waive any provisions of the law and makes using a Management Riparian Zone an Option with the size of the riparian zone based on science- therefore, it may be larger or smaller than 150 feet.
3. Provides for flexibility without reducing protection.
4. Does not create new waivers that could be challenge in the courts.

Note: If an organization tells you that the proposed change will eliminate or remove riparian buffers, destroy riparian zones, and permit uncontrolled development - they are fear mongers or groups looking for a check or both.   (There are a lot of environmental fear mongers and it is critical that you read the regulations before making your own decisions)

Friday, March 30, 2012

Pennsylvania Court Petitioned to Stop Act 13 Municipalities, Delaware Riverkeeper Network, and a Physician File Lawsuit



My perception - Not MY professional Opinion
Posted for Informational Purposes Only and as a place holder for me to review.  It does look like a case that is based on a conceptual ordinance that was deemed to be inconsistent with the Municipal Planning Code and authority given to municipalities by the PA.  

Counsel for Petitioners: John M. Smith, Esq., 724-745-5121; 
Jonathan M. Kamin, Esq., 412-281-1119;
Jordan B. Yeager, Esq., 267-898-0570;
William A. Johnson, Esq., 724-225-3955
Maya van Rossum, the Delaware Riverkeeper 215-369-1188 x102 (rings cell & office)
Tracy Carluccio, Deputy Director, DRN (o) 215-369-1188x104 (c) 215-692-2329

Pennsylvania Court Petitioned to Stop Act 13
Municipalities, Delaware Riverkeeper Network, and a Physician File Lawsuit
Based on Unconstitutionality of Act 13; Injunction Sought

                Harrisburg, PA – Seven municipalities, Delaware Riverkeeper Network, and Dr. Mehernosh Khan filed a legal pleading in Commonwealth Court today challenging Act 13, also known as HB1950, which was signed into law by Governor Corbett on February 14, 2012.  The municipalities are: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley Bucks County.  Act 13 amends the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development.  It also establishes an impact fee on natural gas.  The plaintiffs are challenging the new law on the grounds it violates the Pennsylvania and United States Constitutions and endangers public health, natural resources, communities and the environment.  “The Petition for Review in the Nature of a Complaint for Declaratory Judgment and Injunctive Relief” was filed today in Commonwealth Court in Harrisburg; the docket number is 284-MD-2012.  Read and download the Petition at (it is in two parts, due to large size file): 



The lawsuit details how the constitutional rights of all citizens of the Commonwealth are egregiously infringed upon by Act 13. The legal filing explains how the law strips away constitutional rights and violates equal protection principles; illegally benefits the oil and gas industry who are basically put in charge of future land use in the state; extinguishes all existing zoning and planning by permitting oil and gas operations anywhere in a municipality (including residential neighborhoods, by schools, hospitals, and day care centers, and sensitive natural and public resources); deprives municipal officials of carrying out their legally-binding duty to protect air, water, and natural environmental values as agents and trustees of the Commonwealth; prevents municipal officials from serving and protecting their jurisdictions through encouraging beneficial and compatible uses and planning through the Municipalities Planning Code, making predictable and comprehensive planning an exception rather than the rule; perverts the Commonwealth’s Police Powers by forcing oil and gas activities into municipalities through a state-mandated ordinance that does not serve the public health, safety, morality and general welfare interests of the community; economically devastates municipalities through sanctions and unreasonable unfunded demands; among other violations. 

As stated in the Petition: “By attempting to preempt and supersede local regulation of oil and gas operations, the Pennsylvania General Assembly, through Act 13, has assumed the power to zone for oil and gas operations, which is manifested through the promulgation of a uniform set of land-use regulations governing oil and gas operations throughout the Commonwealth. By crafting a single set of statewide zoning rules applicable to oil and gas drilling throughout the Commonwealth, the Pennsylvania General Assembly provided much sought-after predictability for the oil and gas development industry. However, it did so at the expense of the predictability afforded to Petitioners and the citizens of Pennsylvania whose health, safety and welfare, community development objectives, zoning districts and concerns regarding property values were pushed aside to elevate the interests of out-of-state oil and gas companies and the owners of hydrocarbons underlying each property, who are frequently not the surface owners.” (Petition, page 4) 

Jordan Yeager, Esq., representing Nockamixon Township and Delaware Riverkeeper Network, said, “Harrisburg sold out the citizens of the Commonwealth.  Harrisburg sold out our locally elected municipal governments.  Harrisburg sold out our state’s precious water resources, our agricultural soils, the clean air we need to survive.  We’re asking the court to say what we all know to be true:  Harrisburg went too far.”

"Act 13 must be challenged since it is unconstitutional and unfair, which is why Delaware Riverkeeper Network is joining forces with municipalities to overturn it. Among the many wrongs we're fighting is the violation of Article 1, Section 27 of the Pennsylvania Constitution -- municipalities are being stripped of their ability to protect public natural resources like water and air. By depriving municipal elected officials of their ability to use zoning and community decisionmaking to protect precious natural resources, schools, hospitals and homes from damaging industrial practices, and to ensure the rights of everyone are honored and protected, this law has undermined the very fabric of municipal and constitutional law in the Commonwealth. As a result, our water, air, kids and communities will be subjected to more pollution and degradation from gas development," said Maya van Rossum, the Delaware Riverkeeper and co-plaintiff in the case.

The filing today is expected to be filed by a request for a preliminary injunction, aimed at keeping Act 13’s zoning provision from going into effect on April 14, 2012.
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Note = I know there are webinars planned on this HB1950

Attend the Webinar and Get the Facts (PADEP Webinar Act 13)