THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY MENSCH, McILHINNEY, D. WHITE, FOLMER, ALLOWAY, SMUCKER, ARGALL AND EICHELBERGER, FEBRUARY 29, 2012

REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, FEBRUARY 29, 2012  

AN ACT

Amending the act of June 22, 1937 (P.L.1987, No.394), entitled,

as amended, "An act to preserve and improve the purity of the

waters of the Commonwealth for the protection of public

health, animal and aquatic life, and for industrial

consumption, and recreation; empowering and directing the

creation of indebtedness or the issuing of non-debt revenue

bonds by political subdivisions to provide works to abate

pollution; providing protection of water supply and water

quality; providing for the jurisdiction of courts in the

enforcement thereof; providing additional remedies for

abating pollution of waters; imposing certain penalties;

repealing certain acts; regulating discharges of sewage and

industrial wastes; regulating the operation of mines and

regulating the impact of mining upon water quality, supply

and quantity; placing responsibilities upon landowners and

land occupiers and to maintain primary jurisdiction over

surface coal mining in Pennsylvania," providing for access by

abutting landowners, for use of equal or superior alternative

design measures, for pre-application grant of design waiver

or waiver or variance requests, for offsite mitigation and

funding, for use of non-fact-based assumptions, for permitted

professional certifications and for recorded notice of

postconstruction storm water management best management

practices; and making an editorial change.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Article VII heading of the act of June 22, 1937

(P.L.1987, No.394), known as The Clean Streams Law, is amended  

to read:

ARTICLE VII

[SCOPE AND PURPOSE] MISCELLANEOUS PROVISIONS

Section 2.  The act is amended by adding sections to read:

Section 703.  Access by Abutting Landowners.--No

administrative agency of the Commonwealth or any political

subdivision thereof, whether by regulation, ordinance or

otherwise, shall prohibit access by a landowner whose property

contains or abuts any stream, river, lake or pond from:

(1)  accessing and using the stream, river, lake or pond for

recreational purposes, including, but not limited to, boating,

fishing and swimming; or

(2)  constructing on the property of the landowner reasonable

facilities relating to such access and use, including, but not

limited to, accessways, ramps and docks.

Section 704.  Use of Equal or Superior Alternative Design

Measures.--(a)  (1)  Whenever a permit or approval is required

by this act, or by the regulations, rules or administrative

policies issued under this act, the applicant for the permit or

approval may propose storm water or water quality design

practices other than those required or mandated by the

regulations, rules or administrative policies. The department

shall approve the permit or issue the approval if the applicant

demonstrates and the department finds that the alternative

approach:

(i)  will be at least as protective to the regulated waters

as the measures required or mandated by the regulations, rules

or administrative policies; or

(ii)  will maintain and protect existing water quality and

existing and designated uses by maintaining the site hydrology,

water quality and erosive impacts of the conditions prior to the

initiation of any earth disturbance activities for the project.

(2)  The burden of establishing the compliance of the

alternative approach to the standards set forth in this section

shall be upon the applicant.

(b)  The following procedure shall apply to an application

for a permit or approval subject to subsection (a):

(1)  The applicant must request in writing that the

department specify the scientific results which the specific

measures required or mandated by the regulations, rules or

administrative policies issued under this act are intended to

achieve with respect to stream quality.

(2)  Within thirty days of the receipt of the request, the

department shall provide in writing the requested information

and the reference to the scientific studies upon which the

department's findings are based.

(3)  Thereafter, the applicant may submit an alternative

design with supporting scientific studies confirming that the

alternative design will achieve or exceed the scientific

results, with respect to stream quality, that would have been

achieved based upon the department's response to the applicant's

written request. The applicant may rely upon published, peer-

reviewed studies or on site-specific studies and tests.

(c)  With respect to any municipal ordinance, in existence on

or after the effective date of this section, which regulates the

subject matter of this act, the municipality shall apply the

same procedures specified in subsections (a) and (b) for

approving proposed alternative designs submitted by the

applicant and that alleged will achieve or exceed the scientific

results, with respect to stream quality, that would have been

achieved based upon the municipality's response to the

applicant's written request to the municipality to specify the

scientific results which the specific measures required or

mandated by the municipal ordinance are intended to achieve,

with respect to stream quality, and the reference to the

scientific studies upon which the municipality's conclusions are

based.

(d)  If the measures required or mandated by the regulations,

rules or administrative policies issued under this act from

which the applicant seeks relief by alternative design are also

required by municipal ordinance, the applicant shall process its

request for use of alternative design only with the department

and the decision of the department shall also be binding on the

municipality.

Section 705.  Pre-application Grant of Design Waiver or

Waiver or Variance Requests.--(a)  (1)  Whenever this act, or

the regulations, rules or administrative policies issued under

this act, allow an applicant to request a variance or waiver

from the requirements and mandates of this act, or the

regulations, rules or administrative policies issued under this

act, the department shall determine the grant or denial of the

variance or waiver prior to the submission of the actual permit

application for the project.

(2)  The applicant and the department shall follow the

procedures in this section with respect to the proposed variance

or waiver.

(3)  If requested by the applicant, the department shall hold

a pre-variance or waiver application meeting with the applicant

to discuss the proposed design and the materials the department

deems to be essential to the issuance of its decision on the

request for the variance or the waiver.

(4)  The applicant must request in writing the issuance of

the variance or waiver, which request must include:

(i)  A narrative and, where necessary, supporting plans and

materials describing the proposed variance or waiver.

(ii)  The alternative design proposed by the applicant.

(iii)  A description of the manner in which the application

complies with the regulatory or statutory requirements, if any,

for the grant of a variance or waiver.

(5)  The applicant may rely upon published, peer-reviewed

studies or on site-specific studies and tests as supporting

materials for its variance or waiver request.

(6)  Within thirty days of the receipt of the request, the

department shall issue a written decision on the issuance or

denial of the variance or waiver or inform the applicant what

additional materials are needed by the department in order to

issue its decision, including a reference to this section of the

act, the regulations, rules or administrative policies issued

under this act, to which the requested additional information

relates.

(7)  If additional materials are requested by the department

and supplied by the applicant, within thirty days of its receipt

of the additional materials, the department shall issue a

written decision on the issuance or denial of the variance or

waiver. The department may condition any grant of a variance or

waiver upon the subsequent permit application's being consistent

with the materials submitted by the applicant in support of its

variance or waiver request.

(8)  An approved variance or waiver shall govern any permit

application which is filed within two years of the issuance of

the variance or waiver for development or use of the property

for which the variance or waiver was granted by the department.

(9)  Failure of the department to issue a decision, or a

request for additional materials with the required references to

the relevant section of this act, or the regulations, rules or

administrative policies issued under this act, within the

applicable thirty-day period shall be deemed an approval of the

variance or waiver as requested.

(10)  At any time after an applicant has received a variance

or waiver, either by written decision or deemed approval, the

applicant, at the applicant's expense, may publish notice of the

grant of the variance or waiver in a newspaper of general

circulation for the area in which the project is located. The

notice shall state the name of the applicant, the address of the

property, the nature of the variance or waiver and the date of

issuance or deemed approval.

(11)  Any appeal of the grant or deemed approval of a

variance or waiver not filed with the Environmental Hearing

Board within thirty days of the publishing of the notice shall

be quashed as untimely.

(b)  With respect to any municipal ordinance, in existence on

or after the effective date of this section, which regulates the

subject matter of this act, the municipality shall provide for

and apply the same procedures specified in subsection (a) for

approving design waiver or variance requests.

Section 706.  Off-site Mitigation and Funding.--(a)  Whenever

compliance with the regulations, rules or administrative

policies issued under this act is not practicable due to actual

site characteristics, the department, based upon documentation

by the applicant of the actual site characteristics and their

impact on compliance with the regulations, rules or

administrative policies, shall allow the applicant to vary the

requirements and mandates of the regulations, rules or

administrative policies so that the storm water volume reduction

and water quality treatment or infiltration on-site will be

required only to maintain the existing water quality and the

existing volume of flow leaving the site given the actual site

characteristics.

(b)  The department shall allow the variance if the applicant

provides additional mitigation measures that improve water

quality on a separate site in the same watershed or, in lieu

thereof, provides a payment in an amount not to exceed the cost

of providing such off-site mitigation measures to a fund

established by the department.

Section 707.  Use of Non-Fact-Based Assumptions.--(a)  In

order to assure to the greatest extent possible that the effects

of storm water management designs will not degrade the quality

or use of existing streams and waters, the department shall only

permit or require the use of non-fact-based assumptions in the

calculation of existing or projected flows, infiltration,

evapotranspiration or other factors relevant to storm water

management design or permit issuance, when, and then only to the

extent that, factual information is unavailable or is available

at an unreasonable or within an unreasonable time. Where non-

fact-based assumptions are used, the department shall do so

based on existing or, where relevant, expected conditions.

(b)  With respect to any municipal ordinance in existence on

or after the effective date of this section, which regulates the

subject matter of this act, the municipality shall apply the

same requirements, prohibitions and procedures specified in

subsection (a) with respect to the use of non-fact-based

assumptions in the design of plans or processing of permits or

approvals under the municipal ordinance.

 Section 708.  Permitted Professional Certifications.--(a)

(1)  With respect to any permit issued by the department

pursuant to this act, the department may require the issuance of

a certification or certifications from registered professionals

that the improvements constructed pursuant to the permit have

been constructed pursuant to the permit, its conditions and any

plans upon which the permit was based, including any field or

post-permit issuance modifications approved by the department.

In issuing such certifications, the registered professionals may

rely upon, including, but not limited to, the contents of

municipal inspection reports issued by inspectors for the

municipality whose observations were based on on-site

verification or scientifically acceptable testing.

(2)  The department may not require that the certification by

registered professionals or the applicant that the proposed

improvements, constructed pursuant to the permit, its conditions

and any plans upon which the permit was based, comply with this

act, or the regulations, rules or administrative policies issued

under this act.

(b)  With respect to any municipal ordinance, in existence on

or after the effective date of this section, which regulates the

subject matter of this act, the municipality shall apply the

same requirements, prohibitions and procedures specified in

subsection (a) with respect to the issuance of a certification

or certifications from registered professionals.

Section 709.  Recorded Notice of Postconstruction Storm Water

Management Best Management Practices.--(a)  (1)  Whenever a

permit with postconstruction storm water management best

management practices is required by this act, or the

regulations, rules or administrative policies issued under this

act, the permittee or co-permittee shall record a notice

instrument with the recorder of deeds in the county in which the

property is located which will assure disclosure of the

practices, and the related obligations under the permit relating

to the practices, in the ordinary course of a title search of

the subject property.

(2)  The recorded instrument must identify the permit by date

of issuance and permit number, identify the practices and

provide notice that the responsibility for long-term operation

and maintenance of the practices is an obligation that runs with

the land for so long as the practices are required by law.

(3)  The extinguishment or modification of the practices

shall terminate or modify the obligations under the permit to

maintain and, unless elected by the permittee or co-permittee,

the notice shall not be a permanent covenant or restriction that

binds the land once the requirement for the practices are

extinguished.

(4)  The department may not require the creation of a

permanent deed restriction or easement, including, but not

limited to, one which would remain even when the practices are

no longer required, as a condition of the issuance of a permit

pursuant to this act, or the regulations, rules or

administrative policies issued under this act.

(b)  With respect to any municipal ordinance in existence on

or after the effective date of this act, which regulates the

subject matter of this act, the municipality shall apply the

same requirements, prohibitions and procedures specified in

subsection (a) with respect to recording notice of

postconstruction storm water management best management

practices.

Section 3.  All existing rules, regulations and policies of

the department that are inconsistent with the provisions of this

act are hereby abrogated to the extent of such inconsistency.

The department shall not enforce or adopt any rule, regulation

or policy which is inconsistent with the provisions of this act.

Section 4.  This act shall take effect in 60 days.