AN ACT

 

1Amending the act of June 22, 1937 (P.L.1987, No.394), entitled,
2as amended, "An act To preserve and improve the purity of the
3waters of the Commonwealth for the protection of public
4health, animal and aquatic life, and for industrial
5consumption, and recreation; empowering and directing the
6creation of indebtedness or the issuing of non-debt revenue
7bonds by political subdivisions to provide works to abate
8pollution; providing protection of water supply and water
9quality; providing for the jurisdiction of courts in the
10enforcement thereof; providing additional remedies for
11abating pollution of waters; imposing certain penalties;
12repealing certain acts; regulating discharges of sewage and
13industrial wastes; regulating the operation of mines and
14regulating the impact of mining upon water quality, supply
15and quantity; placing responsibilities upon landowners and
16land occupiers and to maintain primary jurisdiction over
17surface coal mining in Pennsylvania," further providing for 
18potential pollution.; AND <-providing for protection of 
19existing riparian buffers, for restoration of impaired 
20riparian buffers, for exemptions, for municipal authority, 
21for powers and duties of department, for property 
22inspections, for delegation to a municipality, for municipal 
23action appeals, for penalties, civil action and liability for 
24costs and for effect on other Commonwealth laws or 
25regulations and municipal ordinances.

1The General Assembly of the Commonwealth of Pennsylvania
2hereby enacts as follows:

3Section 1. Section 402 of the act of June 22, 1937
4(P.L.1987, No.394), known as The Clean Streams Law, is amended
5by adding a subsection to read:

6Section 402. Potential Pollution.--* * *

<-7(c) (1) The use or installation of riparian buffers and
8riparian forest buffers may be used as a preferred choice or
9option among best management practices, design standards and
10alternatives to minimize the

<-11(c) (1) For persons proposing or conducting earth 
12disturbance activities when the activity requires a National 
13Pollutant Discharge Elimination System permit for storm water 
14discharge under 25 Pa. Code Ch. 102 (relating to erosion and 
15sediment control), the person may use or install either:

16(i) a riparian buffer or riparian forest buffer; or

17(ii) another option or options among available best
18management practices, design standards and alternatives that
19collectively are substantially equivalent to a riparian buffer
20or riparian forest buffer in effectiveness, to minimize the
21potential for accelerated erosion and sedimentation and to
22protect, maintain, reclaim and restore water quality and for
23existing and designated uses of a perennial or intermittent
24river, stream or creek or lake, pond or reservoir of this
25Commonwealth to ensure compliance with 25 Pa. Code Ch.93
26(relating to water quality standards).

27(2) <-Projects in A project located in a special protection
28watersheds that propose greater than one acre of <-watershed in a
29drainage list specified in 25 Pa Code § 93.9 (relating to
30designated water uses and water quality criteria) that proposes

1any earth disturbance within 100 feet of a surface water shall
2offset any reduction in the total square footage of the buffer
3zone that would have been utilized as a best management
4practice, with a replacement buffer elsewhere <-along special
5protection waters in the same drainage basin list and as close
6as feasible to the area of disturbance at a ratio of one-to-one.
7Any project incorporating such an alternative shall also include
8other best management practices to manage postconstruction
9stormwater to protect, maintain, reclaim and restore water
10quality and existing and designated uses of waters of this
11Commonwealth. Replacement planting costs shall be calculated
12using department guidance as specified in BMP 6.7.1: Riparian
13Buffer Restoration of the Pennsylvania Stormwater Best
14Management Practice Manual.

15(d) (1) Except as in accordance with subsection (g), a<-
16person proposing or conducting an earth disturbance activity
17when the activity requires a permit under this article or 25 Pa.
18Code Pt. 1, Subpt. A Art. II (relating to statements of policy),
19may not conduct earth disturbance activities within one hundred
20fifty feet of a pond or reservoir or a perennial or intermittent
21lake, river, stream or creek when the project site is located in
22an exceptional value or high quality watershed attaining its
23designated use as listed by the department at the time of
24application and shall protect an existing riparian buffer in
25accordance with this section.

26(2) Except as in accordance with subsection (g), a person 
27proposing or conducting an earth disturbance activity when the 
28activity requires a permit under this article or 25 Pa. Code 
29Pt.1, Subpt.1 Art. II where the project site is located in an 
30exceptional value or high quality watershed where there are
 

1waters failing to attain one or more designated uses as listed 
2in category four or five on Pennsylvania's Integrated Water 
3Quality Monitoring and Assessment Report at the time of the
4application and the project site contains, is along or within
5one hundred fifty feet of a pond or reservoir or a perennial or
6intermittent lake, river, stream or creek shall, in accordance
7with the requirements of this section, do one of the following:

8(i) protect a riparian forest buffer;

9(ii) convert a riparian buffer to a riparian forest buffer;
10or

11(iii) establish a riparian forest buffer.

12(e) To qualify as a riparian forest buffer under this 
13section, an existing, converted or newly established riparian
14forest buffer, whether mandatory or voluntary, must meet the
15following requirements related to composition, width and
16management:

17(1) A riparian forest buffer is a riparian buffer that
18consists predominantly of native trees, shrubs and forbs that
19provide at least sixty percent uniform canopy cover. A riparian 
20forest buffer does not have to be altered to establish 
21individual zones one and two under subparagraph (iii) and must
22have a total aggregate width of the combined zones under
23paragraph (2). The following apply:

24(i) A riparian buffer that consists predominantly of native
25woody vegetation that does not satisfy the composition of this
26paragraph or the width requirements in paragraph (2) shall be
27enhanced or widened, or both, by additional plantings in open
28spaces around existing native trees and shrubs that provide at
29least sixty percent uniform canopy cover. An existing riparian
30forest buffer does not have to be altered to establish

1individual zones one and two under subparagraph (iii) and must
2be a total aggregate width of the combined zones under paragraph
3(2). A noxious weed or invasive species shall be removed or
4controlled to the extent possible.

5(ii) On sites without native woody vegetation, a riparian
6forest buffer shall be established and be composed of zones in
7accordance with subparagraph (iii) and meet the width
8requirements in paragraph (2). A noxious weed or invasive
9species shall be removed or controlled to the extent possible.

10(iii) The following apply:

11(A) A zone one shall be maintained as follows:

12(I) Undisturbed native trees must begin at the top of the
13streambank or normal pool elevation of a lake, pond or reservoir
14and occupy a strip of land measured horizontally on a line
15perpendicular from the top of streambank or normal pool
16elevation of a lake, pond or reservoir.

17(II) Predominant vegetation must be composed of a variety of
18native riparian tree species.

19(B) A zone two shall be maintained as follows:

20(I) Managed native trees and shrubs must begin at the
21landward edge of zone one and occupy an additional strip of land
22measured horizontally on a line perpendicular from the top of
23streambank or normal pool elevation of a lake, pond or
24reservoir.

25(II) Predominant vegetation must be composed of a variety of
26native riparian tree and shrub species.

27(2) The following apply:

28(i) A total of one hundred feet, comprised of fifty feet in
29zone one and fifty feet in zone two for a newly established
30riparian forest buffer established under subsection (h)(3) along

1the rivers, perennial or intermittent streams, lakes, ponds or
2reservoirs.

3(ii) A total of one hundred fifty feet, comprised of fifty
4feet in zone one and one hundred feet in zone two on newly
5established riparian forest buffers along the rivers, perennial
6or intermittent streams, lakes, ponds or reservoirs in waters
7designated high quality and exceptional value designations.

8(iii) The average riparian forest buffer width shall be
9calculated based upon the entire length of streambank or
10shoreline that is located within or along the boundaries of the
11project site. When calculating the buffer length, the natural
12streambank or shoreline shall be followed.

13(3) An existing, converted and newly established riparian
14forest buffer shall be managed in accordance with a riparian
15forest buffer management plan in paragraph (4) and will be
16protected in accordance with subsection (j).

17(4) The riparian forest buffer management plan shall be a
18part of a post-construction stormwater management plan and
19include the following:

20(i) a planting plan for converted or newly established 
21riparian forest buffers that identifies the number, density and
22species of native trees and shrubs appropriate to geographic
23location that will achieve sixty percent uniform canopy cover;

24(ii) a maintenance schedule and measures for converted or
25newly established riparian forest buffers to ensure survival and
26growth of plantings and protection from competing plants and
27animals, including noxious weeds and invasive species over a
28five-year establishment period, including activities or
29practices used to maintain the riparian forest buffer, including
30the disturbance of existing vegetation, tree removal, shrub

1removal, clearing, mowing, burning or spraying in accordance
2with long-term operation and maintenance; and

3(iii) an inspection schedule and measures to ensure long-
4term maintenance and proper functioning of a riparian forest
5buffer meeting the requirements under paragraph (1), including
6measures to repair damage to the buffer from storm events
7greater than the two-year, twenty-four hour design storm.

8(f) The following apply:

9(1) The department shall promulgate regulations regarding
10stormwater and accelerated erosion and sedimentation so that it
11is managed to ensure that stormwater enters the area upgrade and
12along the riparian buffer as sheet flow or shallow concentrated
13flow during storm events up to and including the two-year,
14twenty-four hour design storm.

15(2) Wetlands located in the riparian buffer shall be
16protected and maintained consistent with regulations promulgated
17by the department.

18(3) A riparian buffer must be measured horizontally and
19perpendicularly to the bank with no more than a ten percent
20variation below the minimum width from the normal pool elevation
21for a lake, pond or reservoir and from the top of the
22streambank.

23(i) The following apply:

24(A) Subsection (d) does not apply for earth disturbance
25activities associated with the following:

26(I) A project site located greater than one hundred fifty
27feet from a river, stream, creek, lake, pond or reservoir.

28(II) An activity involving less than one acre of earth
29disturbance.

30(III) An activity when permit coverage is not required under

1this article or 25 Pa. Code Pt. 1, Subpt. A Art. II.

2(IV) An activity when a permit or authorization for the
3earth disturbance activity required under 25 Pa. Code Pt. 1,
4Subpt. A Art. II was obtained or application submitted prior to
5November 19, 2010.

6(V) A road maintenance activity so long as an existing
7riparian buffer is undisturbed to the extent practicable.

8(VI) The repair and maintenance of an existing pipeline and
9utility so long as an existing riparian buffer is undisturbed to
10the extent practicable.

11(VII) Oil and gas, timber harvesting or mining activity for
12which site reclamation or restoration is part of the permit
13authorization in 25 Pa. Code Chs. 78 (relating to oil and gas
14wells), 86 (relating to surface and underground coal mining:
15general), 87 (relating to surface mining of coal), 88 (relating
16to anthracite coal), 89 (relating to underground mining of coal
17and coal preparation facilities), 90 (relating to coal refuse
18disposal) and 102 (relating to erosion and sediment control) so
19long as an existing riparian buffer is undisturbed to the extent
20practicable.

21(VIII) A single family home that is not part of a larger
22common plan of development or sale and the parcel was acquired
23by the applicant prior to November 19, 2010.

24(IX) An activity authorized by a department permit under a
25chapter of 25 Pa. Code other than Chapter 102 that contains
26setback requirements and the activity complies with the setback
27requirements.

28(B) For an earth disturbance activity associated with the 
29following, the department, or a conservation district after
30consultation with the department, may grant a waiver from the

1requirements of subsection (a) or (b) upon a demonstration by
2the applicant that there are reasonable alternatives for
3compliance with this section, so long as an existing riparian
4buffer is undisturbed to the extent practicable and that the
5activity will otherwise meet the requirements of this article:

6(I) The project is necessary to abate a substantial threat
7to the public health or safety.

8(II) A linear project that may include a pipeline, public
9roadway, rail line or utility line.

10(III) An abandoned mine reclamation activity that is
11conducted under department authorization or permit.

12(IV) A project of a temporary nature where the site will be
13fully restored to its pre-existing condition during the term of
14the permit under this article.

15(V) A redevelopment project that may include a brownfield or
16use of other vacant land and property within a developed area
17for further construction or development.

18(VI) A project for which compliance with subsection (d) or
19(e) is not appropriate or feasible due to site characteristics,
20or existing structures at the project site.

21(C) The applicant shall submit a written request for a
22waiver to the department or a conservation district as part of
23the application for a permit under this article.

24(D) An applicant requesting a waiver may propose and the
25department may allow offsite protection, conversion or
26establishment of a riparian forest buffer or provide
27compensation to fund riparian forest buffer protection,
28enhancement or establishment.

29(E) A project qualifying for an exception under this
30subsection is not relieved from compliance with other applicable

1requirements of this article or other laws administered by the
2department.

3(g) The following apply:

4(1) Except for a riparian buffer protected under subsection 
5(d)(1) or (g), a riparian forest buffer meeting the requirements 
6of this section shall prevent thermal impacts and is a non-
7discharge alternative. The department shall promulgate
8regulations regarding anti-degradation implementation
9requirements for an erosion and sediment control plan or post
10construction stormwater management plan.

11(2) Except for a riparian buffer protected under subsection
12(d)(1) or (g) when protection of an existing or the conversion
13or establishment of a riparian forest buffer that meets the
14requirements of this section and is above baseline regulatory
15requirements, a credit may be available for trading or offsets
16in accordance with a procedure established by the department or
17a regulation related to trading or offsetting developed under 25
18Pa. Code.

19(3) A person that protects, converts or establishes a new
20riparian forest buffer meeting the requirements of this section,
21may qualify for benefits under paragraph (1) or (2).

22(h) The following apply:

23(1) The following practices and activities are prohibited
24within the riparian buffer:

25(i) Soil disturbance by grading, stripping of topsoil,
26plowing, cultivating or other practices except as allowed under
27paragraph (3)(i).

28(ii) Draining by a ditch, underdrain or other drainage
29system.

30(iii) Housing, grazing or otherwise maintaining animals for

1agricultural or commercial purposes.

2(iv) Storing or stockpiling materials.

3(v) Off-road vehicular travel.

4(2) When authorized by the department, the following
5practices and activities are allowable in the riparian buffer:

6(i) construction or placement of a road, bridge, trail,
7storm drainage, utility or other structure;

8(ii) water obstruction or encroachments; and

9(iii) restoration projects.

10(3) The following practices and activities are allowed
11within the riparian buffer:

12(i) activity or practice used to maintain the riparian
13buffer including the disturbance of existing vegetation and tree
14and shrub removal as needed to allow for natural succession of
15native vegetation and protection of public health and safety;

16(ii) timber harvesting activity in accordance with the
17riparian forest buffer management plan as part of the post-
18construction stormwater management plan;

19(iii) passive or low-impact recreational activity so long as
20the functioning of the riparian buffer is maintained;

21(iv) emergency response and other similar activity; and

22(v) research and data collection activity that may include
23water quality monitoring and stream gauging.

24(i) The following apply:

25(1) An existing, converted and newly established riparian
26buffer including access easements must be protected in
27perpetuity through deed restriction, conservation easement,
28local ordinance, permit conditions or other mechanism that
29ensures the long-term functioning and integrity of the riparian
30buffer.

1(2) For an existing or newly established riparian buffer,
2the boundary limits of the riparian buffer must be identified
3and clearly marked.

4(j) A person who protects an existing riparian buffer or
5converts or establishes a riparian buffer in accordance with
6this section shall complete data forms provided by the
7department and submit the forms to the department or
8conservation district within one year of establishment or
9protection.

10(k) As used in this section, the following words and phrases
11shall have the meanings given to them in this subsection unless
12the context clearly indicates otherwise:

13"Accelerated erosion." The removal of the surface of the
14land through the combined action of a human activity and the
15natural process at a rate greater than would occur because of
16the natural process alone.

17"Animal heavy-use area."

18(1) A barnyard, feedlot, loafing area, exercise lot or
19other similar area on an agricultural operation where due to
20the concentration of animals it is not possible to establish
21and maintain vegetative cover of a density capable of
22minimizing accelerated erosion and sedimentation by usual
23planting methods.

24(2) The term does not include entrances, pathways and
25walkways between areas where animals are housed or kept in
26concentration.

27"Best management practice" or "BMP." An activity, facility,
28measure, planning or procedure used to minimize accelerated
29erosion and sedimentation and manage stormwater to protect,
30maintain, reclaim and restore the quality of waters and the

1existing and designated use of waters within this Commonwealth
2before, during and after earth disturbance activity.

3"Channel." A natural or manmade water conveyance.

4"Conservation district." As defined in section 3(c) of the
5act of May 15, 1945 (P.L.547, No.217), known as the Conservation
6District Law and has the authority under a delegation agreement
7executed with the department to administer and enforce all or a
8portion of the erosion, sediment and stormwater management
9program in this Commonwealth.

10"Department." The Department of Environmental Protection of
11the Commonwealth.

12"Earth disturbance activity." A construction or other human
13activity that disturbs the surface of the land, including land
14clearing and grubbing, grading, excavation, embankment, land
15development, agricultural plowing or tilling, operation of a
16animal heavy-use area, timber harvesting activity, road
17maintenance activity, oil and gas activity, well drilling,
18mineral extraction and the moving, depositing, stockpiling or
19storing of soil, rock or earth material.

20"Erosion." The natural process by which the surface of the
21land is worn away by water, wind or chemical action.

22"Erosion and sediment control plan." A site-specific plan
23consisting of both drawings and a narrative that identifies BMPs
24to minimize accelerated erosion and sedimentation before, during
25and after earth disturbance activity.

26"Intermittent stream." A body of water flowing in a channel
27or bed composed primarily of substrates associated with flowing
28water that during periods of the year is below the local water
29table and obtains its flow from both surface runoff and
30groundwater discharges.

1"Long-term operation and maintenance." The routine
2inspection, maintenance, repair or replacement of a BMP to
3ensure proper function for the duration of time that the BMP is
4needed.

5"Municipality." A county, city, borough, town, township,
6school district, institution or authority or another public body
7created by or under the law of this Commonwealth.

8"Non-discharge alternative." An environmentally sound and
9cost-effective best management practice that individually or
10collectively eliminates the net change in stormwater volume,
11rate and quality for storm events up to and including the two-
12year, twenty-four hour design storm when compared to the
13stormwater rate, volume and quality prior to the earth
14disturbance activities to maintain and protect the existing
15quality of the receiving surface waters of this Commonwealth.

16"Normal pool elevation." Includes the following:

17(1) For bodies of water which have no structural
18measures to regulate height of water, the height of water at
19ordinary stages of low water unaffected by drought.

20(2) For structurally regulated bodies of water, the
21elevation of the spillway, outlet control or dam crest which
22maintains the body of water at a specified height.

23(3) The term does not apply to wetlands.

24"Oil and gas activity." An earth disturbance associated with
25oil and gas exploration, production, processing or treatment
26operations or transmission facilities.

27"Operator." A person who has one or more of the following:

28(1) Oversight responsibility of earth disturbance
29activity on a project site or a portion thereof and who has
30the ability to make modifications to the E&S Plan, PCSM Plan

1or site specifications.

2(2) Day-to-day operational control over earth
3disturbance activity on a project site or a portion thereof
4to ensure compliance with the E&S Plan or PCSM Plan.

5"Post-construction stormwater management plan." A site-
6specific plan consisting of both drawings and a narrative that
7identifies best management practices to manage changes in
8stormwater runoff volume, rate and water quality after an earth
9disturbance activity has ended and the project site is
10permanently stabilized.

11"Perennial stream." A body of water flowing in a channel or
12bed composed primarily of substrates associated with flowing
13waters and capable, in the absence of pollution or other manmade
14stream disturbances, of supporting a benthic macro-invertebrate
15community which is composed of two or more recognizable
16taxonomic groups of organisms which are large enough to be seen
17by the unaided eye and can be retained by a United States
18Standard No. 30 sieve (28 meshes per inch, 0.595 mm openings)
19and live at least part of their life cycles within or upon
20available substrates in a body of water or water transport
21system.

22"Person."

23(1) an operator, individual, public or private
24corporation, partnership, association, municipality or
25political subdivision of this Commonwealth, institution,
26authority, firm, trust, estate, receiver, guardian, personal
27representative, successor, joint venture, joint stock company
28or fiduciary;

29(2) a department, agency or instrumentality of Federal,
30State or local government or an agent or employee thereof; or

1(3) another legal entity.

2"Project site." The entire area of activity, development,
3lease or sale including:

4(1) The area of an earth disturbance activity.

5(2) The area planned for an earth disturbance activity.

6(3) Another area that is not subject to an earth
7disturbance activity.

8"Riparian buffer." A BMP that is an area of permanent 
9vegetation along surface waters.

10"Riparian forest buffer." A type of riparian buffer that
11consists of permanent vegetation that is predominantly native
12trees, shrubs and forbs along surface waters that is maintained
13in a natural state or sustainably managed to protect and enhance
14water quality, stabilize stream channels and banks and separate
15land use activities from surface waters.

16"Road maintenance activities."

17(1) An earth disturbance activity within the existing
18road cross-section or railroad right-of-way including the
19following:

20(i) Shaping or restabilizing an unpaved road.

21(ii) Shoulder grading.

22(iii) Slope stabilization.

23(iv) Cutting of an existing cut slope.

24(v) Inlet and endwall cleaning.

25(vi) Reshaping and cleaning a drainage ditch or
26swale.

27(vii) Pipe cleaning.

28(viii) Pipe replacement.

29(ix) Support activity incidental to resurfacing
30activity such as minor vertical adjustment to meet grade

1of resurfaced area.

2(x) Ballast cleaning.

3(xi) Laying additional ballast.

4(xii) Replacing ballast, ties and rails.

5(xiii) Other similar activities.

6(2) The existing road cross-section consists of the
7original graded area between the existing toe of a fill slope
8and top of a cut slope on either side of the road and an
9associated drainage feature.

10"Sedimentation." The action or process of forming or
11depositing sediment in waters of this Commonwealth.

12"Stormwater." Runoff from precipitation, snowmelt, surface
13runoff and drainage.

14"Surface waters." Perennial and intermittent streams,
15rivers, lakes, reservoirs, ponds, wetlands, springs, natural
16seeps and estuaries, excluding water at facilities approved for
17wastewater treatment such as wastewater treatment impoundments,
18cooling water ponds and constructed wetlands used as part of a
19wastewater treatment process.

20"Timber harvesting activity." An earth disturbance activity,
21including the construction of skid trails, logging roads,
22landing areas and other similar logging or silvicultural
23practices.

24"Top of streambank." First substantial break in slope
25between the edge of the bed of the stream and the surrounding
26terrain. The term can either be a natural or constructed
27feature, lying generally parallel to the watercourse.

28"Town." Includes an incorporated town.

29"Waters of this Commonwealth." A river, stream, creek,
30rivulet, impoundment, ditch, watercourse, storm sewer, lake,

1dammed water, wetlands, pond, spring or other body or channel of
2conveyance of surface and underground water, or parts thereof,
3whether natural or artificial, within or on the boundaries of
4this Commonwealth.

5Section 2. The act is amended by adding an article to read:

6ARTICLE IV-A

7RIPARIAN BUFFER PROTECTION

8Section 401-A. Definitions.

9The following words and phrases when used in this article
10shall have the meanings given to them in this section unless the
11context clearly indicates otherwise:

12"Department." The Department of Environmental Protection of
13the Commonwealth.

14"Earth disturbance." A construction or other human activity
15that disturbs the surface of the land, including land clearing
16and grubbing, grading, excavations, embankments, land
17development, agricultural plowing or tilling, operation of
18animal heavy use areas, timber harvesting activities, mineral
19extraction and the moving, depositing, stockpiling or storing of
20soil, rock or earth material.

21"Earth disturbance activity." An act that comprises,
22facilitates or results in earth disturbance.

23"Exceptional value water." Surface water of exceptional
24value that satisfies the provisions of 25 Pa. Code § 93.4b(b)
25(relating to qualifying as high quality or exceptional value
26waters).

27"Floodplain." A land area that:

28(1) is susceptible to flooding; and

29(2) has at least a 1% probability of flooding occurring
30in a calendar year based on the basin being fully developed

1as shown on a current land use plan. For an area without a
2mapped 100-year floodplain, the 100-year floodplain is
3considered to extend for a horizontal distance of 50 feet
4from the top of the stream bank.

5"High quality water." Surface water having quality that
6exceeds levels necessary to support propagation of fish,
7shellfish, wildlife and recreation in and on the water by
8satisfying the provisions of 25 Pa. Code § 93.4b(a).

9"Impaired riparian buffer." A riparian buffer that, as a
10result of land development activity, contains impervious cover
11or is no longer a natural riparian buffer.

12"Impervious cover." A surface that does not readily absorb
13precipitation and surface water. The term includes, but is not
14limited to:

15(1) a building;

16(2) a parking area;

17(3) a driveway;

18(4) a road;

19(5) a sidewalk;

20(6) a swimming pool;

21(7) an area in concrete, asphalt, packed stone or an
22equivalent surface, including a surface with a coefficient of
23runoff of 0.7 or higher; and

24(8) disturbed soil with a bulk density of 95% of the
25value at which plant growth limitation is expected for
26average plant material.

27"Land development." A land change, including, but not
28limited to, clearing, grubbing, stripping, removal of
29vegetation, dredging, grading, excavating, transporting and
30filling of land, construction, subdivision, paving or other

1increase in impervious cover.

2"Land development activity." An act that comprises,
3facilitates or results in land development.

4"Municipality." A political subdivision of this
5Commonwealth, including a county, city, borough, township,
6incorporated town or home rule municipality.

7"Natural riparian buffer." A riparian buffer dominated by
8native vegetation, including trees, shrubs or herbaceous plants,
9and providing any of the following functions:

10(1) maintaining the integrity of an adjacent stream
11channel or shoreline or helping stabilize a stream bank,
12including reducing erosion;

13(2) reducing the impact of an upland source of pollution
14by trapping, filtering or converting sediments, nutrients or
15other contaminants;

16(3) supplying food, cover, shelter, habitat or thermal
17protection to fish, other aquatic life or other wildlife;

18(4) protecting or benefiting the ecological and
19absorptive capacity of soil, floodplain or wetland area;

20(5) increasing storage and infiltration of floodwater
21and reducing floodwater velocity; or

22(6) reducing the impact of climate change by absorbing
23greenhouse gases.

24"Nonconforming use or structure." A use or structure that
25was legally established prior to the effective date of this
26section, but does not comply with the provisions of this
27article.

28"Nontidal wetlands." An area not influenced by tidal
29fluctuations that is inundated or saturated by surface water or
30groundwater at a frequency and duration sufficient to support,

1and under normal circumstances support a prevalence of
2vegetation typically adapted for life in saturated soil
3conditions.

4"One hundred-year floodplain." The area of land adjacent to
5a stream that is subject to inundation during a storm event that
6has a recurrence interval of 100 years.

7"Ordinance." An ordinance adopted by a municipality for
8riparian buffers.

9"Permit." A final permit issued by a municipality for
10undertaking a land development activity.

11"Person." An individual, partnership, firm, association,
12joint venture, public or private corporation, trust, estate,
13commission, board, public or private institution, utility,
14cooperative, city, county or other political subdivision and an
15interstate body or other legal entity.

16"Pollution." Contamination of waters of this Commonwealth,
17including, but not limited to, contamination by alteration of
18the physical, chemical or biological properties of the waters,
19or change in temperature, taste, color or odor thereof, or the
20discharge of a liquid, gaseous, radioactive, solid or other
21substance into the waters that does, will or is likely to:

22(1) degrade water quality;

23(2) create a nuisance;

24(3) render waters harmful, detrimental or injurious to:

25(i) public health, safety or welfare;

26(ii) domestic, municipal, commercial, industrial,
27agricultural, recreational or other legitimate beneficial
28use; or

29(iii) livestock, a wild animal, a bird, fish or
30other aquatic life; or

1(4) cause or contribute to the failure of a water body
2to meet applicable water quality standards or criteria
3enacted by the Commonwealth or a river basin commission of
4which the Commonwealth is a voting member.

5"Riparian." Belonging or related to the bank of a water
6body, river, stream, wetland, lake, pond or impoundment.

7"Riparian buffer area." An area adjacent to a water body.

8"Riparian buffer restoration." Returning an impaired
9riparian buffer to a natural riparian buffer dominated by native
10vegetation, including trees, shrubs or herbaceous plants.

11"Sewage facility." As defined in the act of January 24, 1966
12(1965 P.L.1535, No.537), known as the Pennsylvania Sewage
13Facilities Act.

14"Stream." A perennial or intermittent watercourse with a
15defined channel, bed and banks.

16"Stream bank." Sloping land that contains a stream channel
17and the normal flow of the stream.

18"Stream channel." The part of a watercourse either naturally
19or artificially created that contains an intermittent or
20perennial base flow of groundwater origin. A base flow of
21groundwater origin may be distinguished by any of the following
22physical indicators:

23(1) Hydrophytic vegetation, hydric soil or other
24hydrologic indicators in the area where groundwater enters
25the stream channel in the vicinity of the stream headwaters,
26channel bed or channel banks.

27(2) Flowing water not directly related to a storm event.

28(3) A historical record of a local high groundwater
29table, such as a well or stream gauge record.

30"Vernal pond." A small body of standing water that forms in

1the spring from meltwater and is often dry by midsummer or may
2be dry before the end of the spring growing season.

3"Water body." A natural or manmade pond, lake, wetland,
4impoundment, stream or watercourse. The term does not include a
5pond or facility designed and constructed solely to contain
6storm water.

7"Watercourse." A channel of conveyance of surface water
8having a defined bed and banks, such as a stream, river, brook,
9or creek, whether natural or artificial, with perennial,
10intermittent or seasonal flow. The term does not include a
11channel or ditch designed and constructed solely to carry storm
12water.

13"Watershed." The land area that drains into a particular
14stream, water body or watercourse.

15Section 402-A. Protection of existing riparian buffers.

16(a) Prohibition.--Except as provided below, land development
17shall not be permitted within a riparian buffer area.

18(b) Width of riparian buffer area.--Except as required under
19subsection (c), the width of the riparian buffer area protected
20under subsection (a) shall be a minimum of 100 feet on each side
21of the stream as measured from the top of the bank.

22(c) Additional width requirements.--The following apply:

23(1) If the water body is designated as high quality or
24exceptional value, the minimum width shall be 300 feet on
25each side of the water body as measured from the top of the
26bank.

27(2) In the case of the presence of a nontidal wetland or
28vernal pond wholly or partially within the riparian buffer
29area, an additional 25 feet shall be added to the widths in
30subsection (a) from the wetland or vernal pond boundary.

1(3) The following additional distances shall be added to
2the minimum width provided above based on the following
3formula:

4(i) ten feet if slope is 10% - 15%;

5(ii) twenty feet if slope 16% - 17%;

6(iii) thirty feet if slope is 18% - 20%;

7(iv) fifty feet if slope is 21% - 23%;

8(v) sixty feet if slope is 24% - 25%; or

9(vi) seventy feet if slope exceeds 25%.

10(4) If the water body has been identified as impaired in
11accordance with section 303 of the Federal Water Pollution 
12Control Act (114 Stat. 870, 33 U.S.C. § 1313) and
13implementing State regulations, an additional 50 feet shall
14be added to the minimum 100 foot width. In the case of a
15water body that has been identified as impaired by the
16department, the developer may choose to either extend the
17riparian buffer area an additional 50 feet from the top of
18the bank beyond the other requirements or to implement the
19following improvements in the riparian buffer area and in the
20developed area adjacent to the riparian buffer area:

21(i) The improvements to the buffer area shall be as
22follows:

23(A) Fifty percent or more of trees planted in
24the riparian buffer area must be of two inch caliper
25or greater. Tree species composition shall consist of
26a diverse mix of native tree species planted in the
27proper hydrologic zone as listed in Appendix B of the
28Pennsylvania Stormwater Best Management Practice
29Manual.

30(B) An applicant shall develop and implement an

1operation and maintenance plan for the riparian
2buffer to be approved by the department. The
3operation and maintenance plan shall require
4maintenance activities for a minimum of five years,
5include measures to control invasive species, deer
6and rodent damage and require replacement of all
7deceased trees for a minimum of the first three
8years.

9(C) An applicant shall provide permanent
10protection of a riparian buffer area by placing a
11conservation easement on the property.

12(ii) The improvements to the adjacent area shall be
13as follows:

14(A) Achieve no net increase in predevelopment to
15postdevelopment volume, rate, peak and concentration
16of pollutants in water quality using alternative site
17design, low impact development principles such as
18limiting disturbance, infiltration best management
19practices and other environmentally sound storm water
20best management practices.

21(B) Through deed restriction for the lots sold
22and as a condition of a final land development plan
23approval, ban the use of fertilizers, pesticides,
24herbicides or other chemicals on lawns and other
25portions of the property, except that herbicides may
26be used for invasive species control in riparian
27buffer areas if part of an operation and maintenance
28plan approved by the department.

29(C) A development shall replace the trees
30removed during the development process with the

1caliper of removed trees matched by the sum of the
2caliper of replacement trees.

3(d) Condition of other approvals and permits.--Full
4compliance with the provisions of this article shall be a
5condition of an approval or permit by a Commonwealth agency or
6political subdivision, including, but not limited to, the
7following:

8(1) an approval of land development activity;

9(2) a building permit;

10(3) a zoning hearing board approval;

11(4) a conditional use approval;

12(5) a subdivision approval;

13(6) an erosion and sediment control permit;

14(7) a grading permit;

15(8) an encroachment permit;

16(9) a National Pollutant Discharge Elimination System
17permit; or

18(10) an approval for a planning module for a sewage
19facility.

20Section 403-A. Restoration of impaired riparian buffers.

21(a) General rule.--For a property with an impaired riparian
22buffer, riparian buffer restoration shall be a condition of a
23governmental approval or permit, including, but not limited to,
24the following:

25(1) an approval of land development activity;

26(2) a building permit;

27(3) a zoning hearing board approval;

28(4) a conditional use approval;

29(5) a subdivision approval;

30(6) an erosion and sediment control permit;

1(7) a grading permit;

2(8) an encroachment permit;

3(9) a National Pollutant Discharge Elimination System
4permit; or

5(10) an approval for a planning module for a sewage
6facility.

7(b) Requirement.--Riparian buffer restoration shall conform
8to the width requirements set forth in section 402-A.

9(c) Trees and plants.--As part of riparian buffer
10restoration, 50% or more of the trees planted in the riparian
11buffer area must be of two inch caliper or greater. Plant
12species composition shall consist of a diverse mix of native
13species planted in the proper hydrologic zone as listed in
14Appendix B of the Pennsylvania Stormwater Best Management
15Practice Manual.

16Section 404-A. Exemptions.

17(a) Land development activity.--The following land uses
18shall be exempt from a prohibition or requirement under section
19402-A or 403-A:

20(1) A land use existing as of the effective date of this
21article, except as follows:

22(i) when the existing land use or a building or
23structure involved in the use is enlarged, increased or
24extended to occupy a greater area of land;

25(ii) when the existing land use or a building or
26structure involved in the use is moved, in whole or in
27part, to another portion of the property; or

28(iii) when the existing land use ceases for a period
29of more than one year.

30(2) Agricultural production that is consistent with

1Federal and State law, the regulations promulgated by the
2department and best management practices established by the
3State Conservation Commission and the Department of
4Agriculture.

5(3) Selective logging provided that the logging
6practices comply with the best management practices set forth
7by the Bureau of Forestry, provided the logging does not
8occur within 100 feet of a stream.

9(4) A crossing by a transportation facility or utility
10line. The issuance of a permit for a use or activity under
11this paragraph is contingent upon the completion of:

12(i) A feasibility study that identifies alternative
13routing strategies that do not impact a riparian buffer
14area.

15(ii) A mitigation plan to minimize impacts on the
16riparian buffer area utilizing natural channel design
17practices to the greatest degree possible.

18(5) A temporary stream restoration project, stream bank
19restoration project or vegetation restoration project to
20restore the stream or riparian zone to an ecologically
21healthy state utilizing natural channel design practices to
22the greatest degree possible.

23(6) A structure that, by its nature, cannot be located
24anywhere except within the riparian buffer area. The
25structure shall include a dock, boat launch, public water
26supply intake structure, facility for natural water quality
27treatment and purification and public wastewater treatment
28plant sewer line or outfall. The structures shall provide for
29the minimum practicable disturbance of the riparian buffer
30area by minimizing size and location and by taking advantage

1of collocation, if possible. A storm water conveyance
2structure or outfall that is not included in this group and
3shall be located outside of the buffer area.

4(7) A wildlife and fisheries management activity
5consistent with the purposes of, but not limited to:

6(i) The act of December 5, 1972 (P.L.1277, No.283),
7known as the Pennsylvania Scenic Rivers Act.

8(ii) The act of April 28, 1978 (P.L.87, No.41),
9known as the Pennsylvania Appalachian Trail Act.

10(iii) The act of June 23, 1982 (P.L.597, No.170),
11known as the Wild Resource Conservation Act.

12(iv) 30 Pa.C.S. (relating to fish).

13(v) 34 Pa.C.S. (relating to game).

14(8) Construction of a single-family residence, including
15the usual appurtenances, provided that:

16(i) Based on the size, shape or topography of the
17property, as of the effective date of this section, it is
18not reasonably possible to construct a single-family
19dwelling without encroaching upon the riparian buffer
20area.

21(ii) The land development conforms with all other
22zoning and land use regulations.

23(iii) The dwelling is not located in whole or part
24in a 100-year floodplain.

25(iv) A septic tank, septic drain field or other
26sewage management facility is not located within the
27riparian buffer area.

28(v) To the maximum extent practicable the dwelling
29avoids disturbance of the riparian buffer area.

30(vi) An encroachment into the riparian buffer area

1is offset by an equal amount of wider riparian buffer
2width elsewhere on the same property so the average width
3and total area of the riparian buffer meet the
4requirements as set forth in section 402-A.

5(vii) The construction, dwelling or property was not
6originally presented for approval and following the
7effective date of this article, is not part of a multilot
8subdivision.

9(9) Other uses permitted by the department under this
10act and the act of November 26, 1978 (P.L.1375, No.325),
11known as the Dam Safety and Encroachments Act.

12(b) Requirements.--The exempted uses, structures and
13activities shall comply with the requirements of 25 Pa. Code Ch.
14102 (relating to erosion and sediment control) and the
15applicable best management practices and may not diminish water
16quality except as permitted by the department.

17(c) Location.--The exempted uses shall be located as far
18from the stream bank as reasonably possible.

19Section 405-A. Municipal authority.

20(a) Authority.--A municipality may enact a local land use
21ordinance to protect, preserve and restore riparian buffers. A
22riparian buffer ordinance adopted by a municipality shall
23conform to the provisions of this article.

24(b) Existing ordinance.--A municipality that has enacted a
25riparian buffer ordinance prior to the effective date of this
26section may continue to enforce the ordinance until:

27(1) the municipality revises or amends the ordinance; or

28(2) the municipality is required by law to update a
29municipal ordinance necessary to implement an applicable
30watershed storm water management plan under the act of

1October 4, 1978 (P.L.864, No.167), known as the Storm Water
2Management Act, or fulfill a legal obligation regarding its
3Municipal Separate Storm Sewer Program or total maximum daily
4load. At this time, the municipality shall amend the
5ordinance to conform to the provisions of this article.

6(c) Variances.--A municipality that enacts an ordinance
7under this article shall provide for the consideration of
8variances. The following apply:

9(1) In granting a variance, the municipality may allow
10the buffer width to be relaxed and the permitted buffer area
11to become narrower at some points as long as the average
12width and total area meet the requirements under section 402-
13A. The averaging of the buffer area may be used to allow for
14the presence of an existing structure or to recover a lost
15lot, however, the buffer width may not be narrowed by more
16than 25%, and new land development activity may not take
17place within the 100-year floodplain.

18(2) The municipality may offer credit for additional
19density elsewhere on the site in compensation for the loss of
20developable land due to the requirements of this article. The
21compensation may increase the total number of dwelling units
22on the site up to the amount permitted under the base zoning
23requirements.

24(3) A municipality may grant a variance if the applicant
25demonstrates any of the following:

26(i) Strict compliance would prevent all economic use
27of the property or constitute a legally defined taking.

28(ii) The project would serve a public need and no
29feasible alternative is available.

30(iii) The project consists of the repair and

1maintenance of public improvements where avoidance and
2minimization of adverse impacts to the riparian buffer
3area have been addressed.

4(4) The following procedures apply:

5(i) An applicant shall submit a written request for
6a variance to the municipality. The application shall
7include specific reasons justifying the variance and any
8other information necessary to evaluate the proposed
9variance request.

10(ii) The municipality may require an alternatives
11analysis that clearly demonstrates that no other feasible
12alternatives exist and that minimal impact will occur as
13a result of the project or development.

14(iii) In granting a request for a variance, the
15municipality may require additional site design,
16landscape planting, fencing, the placement of signs and
17the establishment of water quality best management
18practices in order to reduce impacts on water quality,
19wetlands and floodplains.

20(d) Inspections.--The municipality may conduct
21investigations where probable cause exists to carry out its
22authority as prescribed in this article. For this purpose, the
23municipality may enter where probable cause exists upon public
24or private property to investigate and inspect property that
25contains riparian buffers.

26(e) Enforcement.--The following apply:

27(1) The zoning enforcement officer or other person
28designated by the governing body of a municipality shall
29enforce the requirements of this article in accordance with
30this section.

1(2) If, upon inspection or investigation, the zoning
2enforcement officer or other authorized agent determines that
3an activity violates the requirements of this article, the
4activity shall be considered to be in violation of this
5article.

6(3) Upon the determination of a violation, the
7municipality shall issue a notice of violation to the permit
8holder, property owner or party in charge of the activity on
9the property. The notice must be in writing and require the
10immediate stoppage of the work on the property. The notice
11shall include:

12(i) The name and address of the owner.

13(ii) The address or description and location of the
14property where the violation occurred.

15(iii) A description of the violation.

16(iv) A description of the corrective actions needed
17to return to compliance and a time schedule to complete
18the corrective actions.

19(4) Where an emergency exists, a written notice shall
20not be required to stop work. Written notice of the stop-work
21order shall be presented to the appropriate responsible
22parties within three business days of the emergency order.

23Section 406-A. Powers and duties of department.

24(a) General rule.--The department may grant a variance for a
25property located in any municipality that does not enact an
26ordinance pursuant to this article.

27(b) Buffer area.--In granting a variance, the department may
28allow the buffer width to be relaxed and the permitted buffer
29area to become narrower at points if the average width and total
30area meet the requirements set forth in section 402-A. The

1averaging of the buffer area may be used to allow for the
2presence of an existing structure or to recover a lost lot. The
3buffer width may not be narrowed by more than 25%, and new land
4development activity may not take place within the 100-year
5floodplain.

6(c) Grant criteria.--The department may grant a variance if
7an applicant for the variance demonstrates any of the following:

8(1) Strict compliance would prevent all economic use of
9the property or constitute a legally defined taking.

10(2) The project would serve a public need and a feasible
11alternative is not available.

12(3) The project consists of the repair and maintenance
13of public improvements which addressed avoidance and
14minimization of adverse impacts to the riparian buffer area.

15(d) Application requirements.--In determining whether to
16grant a request for a variance, the following apply:

17(1) An applicant for a variance must submit a written
18request for a variance to the department. The application
19shall include specific reasons justifying the variance and
20any other information necessary to evaluate the proposed
21variance.

22(2) The department may require an analysis clearly
23demonstrating that feasible alternatives do not exist and
24that minimal impact will occur as a result of the project.

25(3) The department may require additional site design,
26landscape planting, fencing, the placement of signs and the
27establishment of water quality best management practices in
28order to reduce impacts on water quality, wetlands and
29floodplains.

30Section 407-A. Property inspections.

1(a) General rule.--The department may enter upon a property
2at a reasonable time for the purpose of inspecting property that
3contains riparian buffers to enforce the provisions of this
4article.

5(b) Entry denial prohibited.--A person may not deny entry to
6any agent of the department conducting an inspection under
7subsection (a) or otherwise obstruct, hamper or interfere with
8the agent while conducting the inspection.

9(c) Violations.--If the department determines that an
10activity violates the requirements of this article as a result
11of an investigation under subsection (a), the activity shall be
12in violation of this article.

13(d) Violation notice.--Except as provided in subsection (e),
14upon determining a violation occurred under this article, the
15department shall issue a written notice of the violation to the
16permit holder, property owner or party in charge of the activity
17on the property. The notice shall require the immediate stoppage
18of all work on the property. The notice shall include all of
19following:

20(1) The name and address of the owner.

21(2) The address or description of the property where the
22violation occurred.

23(3) A description of the violation.

24(4) A description of the corrective actions needed to
25return to compliance under this article and a time schedule
26to complete the corrective actions.

27(e) Emergency order.--When an emergency exists as determined
28by the department, the department shall issue a stop-work order
29and may not provide the written notice required under subsection
30(d). Written notice as required under subsection (d) shall not

1be issued later than three business days of the order.

2Section 408-A. Delegation to a municipality.

3(a) Authority to delegate.--The department may delegate to a
4municipality any responsibilities under this article. The
5municipality acting under the agreement shall have the same
6powers and duties otherwise vested in the department under this
7article.

8(b) Supervision.--The department shall monitor the
9activities of a municipality that acts under an agreement under
10subsection (a).

11(c) Appeals.--No later than 30 days after notice of an
12action by a municipality under an agreement under subsection
13(a), any person aggrieved by the action may appeal to the
14Environmental Hearing Board in accordance with the act of July
1513, 1988 (P.L.530, No.94), known as the Environmental Hearing
16Board Act.

17Section 409-A. Municipal action appeals.

18(a) General rule.--No later than ten days after notice of an
19action by a municipality imposed under this article, any person
20aggrieved by the action may appeal in writing to the zoning
21hearing board. No later than 45 days after the zoning hearing
22board receives the appeal, the person shall receive a hearing
23before the zoning hearing board.

24(b) Judicial review.--Any person aggrieved by an action of a
25municipality imposed under this article shall have the right to
26appeal de novo to the court of common pleas of the county where
27the municipality is located.

28Section 410-A. Penalties, civil action and liability for costs.

29(a) Penalties.--The penalties that may be assessed for a
30violation of this article may include:

1(1) If, through inspection, it is determined that the
2corrective actions specified in a stop-work order have not
3been completed within the specified time, the responsible
4party shall be deemed in violation, and in addition to other
5penalties, a performance bond shall be subject to forfeiture.

6(2) A permit issued by the department or a municipality
7may be suspended, revoked or modified if, through inspection,
8it is determined the corrective actions specified in a stop-
9work order have not been completed within the specified time.

10(3) A person who violates a provision of this article,
11regulation or ordinance authorized under this article, permit
12condition or stop-work order and the owner of the land where
13the violation occurs shall be liable for a civil penalty of
14not less than $1,000 and not more than $2,000 per violation
15per day. Each day the violation continues shall constitute a
16separate offense.

17(4) The following apply:

18(i) If a person violates a provision of this
19article, regulation or ordinance authorized by this
20article, permitting conditions or stop-work order, the
21Commonwealth or municipality may issue a citation to the
22owner of the land where the violation occurs or other
23responsible person, requiring the person to appear in the
24appropriate court to answer charges for the violation.

25(ii) Upon conviction, the owner of the land where
26the violation occurs or other responsible person shall be
27liable for a criminal penalty in the form of imprisonment
28for not more than 90 days or a fine of not less than
29$1,000 and not more than $2,000 per violation per day, or
30both. Every day that the violation continues will be

1considered a separate offense.

2(b) Civil action for recovery of damages.--The following
3apply:

4(1) In addition to any other sanction authorized under
5this article, a person who fails to comply with the
6provisions of this article or a regulation or ordinance
7authorized by this article shall be liable to the
8Commonwealth or municipality in a civil action for damages
9equal to one and one-half times the cost of restoring the
10buffer.

11(2) The damages recovered under this subsection shall be
12used for the restoration of buffer systems or for the
13administration of programs for the protection and restoration
14of water quality, streams, wetlands and floodplains.

15(c) Liability for costs.--A person who violates a provision
16of this article or of a regulation or ordinance authorized by
17this article may be liable for a cost or expense incurred by the
18Commonwealth or a municipality as a result.

19Section 411-A. Preemption and limitation.

20The provisions of 58 Pa.C.S. (relating to oil and gas) shall
21not be deemed to be preempted or limited by the provisions of
22this article.

23Section 3. If a provision of this act or a regulation or 
24ordinance authorized by this act is declared invalid or 
25unconstitutional by a court of competent jurisdiction, the 
26validity of the remainder shall not be affected thereby.

27Section 2 4. Any and all regulations are abrogated to the<- 
28extent of any inconsistency with this act. The regulation of the<- 
29Department of Environmental Protection in 25 Pa.Code § 102.14 is 
30abrogated.

1Section 3 5. This act shall take effect in 60 days.<-