PRINTER'S NO. 500
No. 453 Session of 2007
INTRODUCED BY RAFFERTY, McILHINNEY, ERICKSON, C. WILLIAMS AND
FERLO, MARCH 14, 2007
REFERRED TO LOCAL GOVERNMENT, MARCH 14, 2007
AN ACT
1 Authorizing municipalities to adopt regulations applicable to
2 riparian buffers within municipal boundaries; providing
3 additional powers and duties for the Department of
4 Environmental Protection; and providing for penalties.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Pennsylvania
9 Riparian Buffer Ordinance Act.
10 Section 2. Legislative intent.
11 The intent of this act is to:
12 (1) Promote section 27 of Article I of the Constitution
13 of Pennsylvania which declares:
14 The people have a right to clean air, pure water, and
15 the preservation of the natural, scenic, historic and
16 esthetic values of the environment. Pennsylvania's
17 public natural resources are the common property of
18 all the people, including generations yet to come. As
1 trustee of these resources, the Commonwealth shall
2 conserve and maintain them for the benefit of all the
3 people.
4 (2) Improve surface water quality by reducing the amount
5 of nutrients, sediment, organic matter, pesticides and other
6 harmful substances that reach watercourses, wetlands,
7 subsurface and surface water bodies by using scientifically
8 proven processes, including filtration, deposition,
9 absorption, adsorption, plant uptake, sediment and phosphorus
10 attenuation and denitrification and by improving
11 infiltration, encouraging sheet flow and stabilizing
12 concentrated flows of storm water runoff.
13 (3) Assist in the implementation of pertinent State laws
14 concerning erosion and sediment control practices,
15 specifically the act of June 22, 1937 (P.L.1987, No.394),
16 known as The Clean Streams Law, and 25 Pa. Code Chs. 92
17 (relating to national pollutant discharge elimination system
18 permitting, monitoring and compliance) and 102 (relating to
19 erosion and sediment control), as administered by the
20 Department of Environmental Protection and county
21 conservation districts as well as provide specific authority
22 for municipalities to regulate riparian buffers with their
23 powers under section 601 of the act of July 31, 1968
24 (P.L.805, No.247), known as the Pennsylvania Municipalities
25 Planning Code.
26 (4) Improve and maintain the safety, reliability and
27 adequacy of the water supply for domestic, agricultural,
28 commercial, industrial and recreational uses along with
29 sustaining diverse populations of aquatic flora and fauna.
30 (5) Preserve and protect areas that intercept surface
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1 water runoff, wastewater, subsurface flow and deep
2 groundwater flows from upland sources, and function to remove
3 or buffer the effects of associated nutrients, sediment,
4 organic matter, pesticide or other pollutants prior to entry
5 into surface waters as well as provide wildlife habitat,
6 moderate water temperature in surface waters, attenuate flood
7 flow and provide opportunities for passive recreation.
8 (6) Regulate the use, siting and engineering of all
9 development to be consistent with the intent and objectives
10 of this act and accepted conservation practices and to work
11 within the carrying capacity of existing natural resources.
12 (7) Conserve natural features important to land or water
13 resources, such as headwater areas, groundwater recharge
14 zones, floodway, floodplain, springs, streams, wetlands,
15 woodlands, prime wildlife habitats and other features that
16 provide recreational value or contain natural amenities,
17 whether on developed or undeveloped land.
18 (8) Integrate with floodplain, steep slope and other
19 requirements that regulate environmentally sensitive areas to
20 minimize hazards to life, property and riparian features.
21 (9) Recognize that natural features contribute to the
22 welfare and quality of life of this Commonwealth's residents.
23 (10) Conserve natural, scenic and recreation areas
24 within and adjacent to riparian areas for this Commonwealth's
25 benefit.
26 Section 3. Definitions.
27 The following words and phrases when used in this act shall
28 have the meanings given to them in this section unless the
29 context clearly indicates otherwise:
30 "Department." The Department of Environmental Protection of
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1 the Commonwealth.
2 "Earth disturbance." Any land or vegetation change,
3 including, but not limited to, clearing, grubbing, stripping,
4 removal of vegetation, dredging, grading, excavating,
5 transporting and filling of land, that does not involve
6 construction, paving or any other installation of impervious
7 cover.
8 "Earth disturbance activity." An act or activity that
9 comprises, facilitates or results in earth disturbance.
10 "Exceptional value water." Surface water of exceptional
11 value that satisfies the provisions of 25 Pa.Code § 93.4b(b)
12 (relating to qualifying as high quality or exceptional value
13 waters).
14 "Floodplain." Any land area susceptible to flooding, that
15 has at least a 1% probability of flooding occurring in any
16 calendar year based on the basin being fully developed as shown
17 on a current land use plan.
18 "High quality water." Surface water having quality that
19 exceeds levels necessary to support propagation of fish,
20 shellfish and wildlife and recreation in and on the water by
21 satisfying the provisions of 25 Pa.Code § 93.4b(a) (relating to
22 qualifying as high quality or exceptional value waters).
23 "Impervious cover." A manmade paved, hardened or structural
24 surface, regardless of material, that prohibits the infiltration
25 of precipitation to the ground surface below. The term includes,
26 but is not limited to, a rooftop, street, road, deck, swimming
27 pool and any concrete, asphalt or like material.
28 "Land development." Any land change, including, but not
29 limited to, clearing, grubbing, stripping, removal of
30 vegetation, dredging, grading, excavating, transporting and
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1 filling of land, construction, paving and any other installation
2 of impervious cover.
3 "Land development activity." An act or activity that
4 comprises, facilitates or results in land development.
5 "Municipality." A city, borough, township, incorporated town
6 or home rule municipality.
7 "Nonconforming uses or structures." Any uses or structures
8 that were legally established prior to the effective date of
9 this section, but which do not comply with the provisions of
10 this act.
11 "Nontidal wetlands." Those areas not influenced by tidal
12 fluctuations that are inundated or saturated by surface water or
13 groundwater at a frequency and duration sufficient to support,
14 and that under normal circumstances do support, a prevalence of
15 vegetation typically adapted for life in saturated soil
16 conditions.
17 "One hundred-year flood plain." The area of land adjacent to
18 a stream that is subject to inundation during a storm event that
19 has a recurrence interval of 100 years.
20 "Ordinance." An ordinance adopted by a municipality for
21 riparian buffers.
22 "Permit." A final permit issued by a municipality for
23 undertaking any land development activity.
24 "Person." An individual, partnership, firm, association,
25 joint venture, public or private corporation, trust, estate,
26 commission, board, public or private institution, utility,
27 cooperative, city, county or other political subdivision of this
28 Commonwealth and an interstate body or other legal entity.
29 "Pollution." Contamination of any waters of this
30 Commonwealth that creates or is likely to create a nuisance or
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1 will render those waters harmful, detrimental or injurious to:
2 (1) public health, safety or welfare;
3 (2) domestic, municipal, commercial, industrial,
4 agricultural, recreational or other legitimate beneficial
5 uses;
6 (3) livestock, wild animals, birds, fish or other
7 aquatic life,
8 including, but not limited to, such contamination by alteration
9 of the physical, chemical or biological properties of such
10 waters, or change in temperature, taste, color or odor thereof,
11 or the discharge of any liquid, gaseous, radioactive, solid or
12 other substances into such waters.
13 "Riparian." Belonging or related to the bank of a river,
14 stream, wetland, lake, pond or impoundment.
15 "Riparian buffer." An area adjacent to a body of water that
16 provides any of the following functions:
17 (1) Maintains the integrity of adjacent stream channels
18 and shorelines.
19 (2) Reduces the impact of upland sources of pollution by
20 trapping, filtering and converting sediments, nutrients and
21 other chemicals.
22 (3) Supplies food, cover and thermal protection to fish
23 and other wildlife.
24 "Stream." A perennial watercourse.
25 "Stream bank." Sloping land that contains a stream channel
26 and the normal flows of the stream.
27 "Stream channel." The part of a watercourse either naturally
28 or artificially created that contains an intermittent or
29 perennial base flow of groundwater origin. Base flows of
30 groundwater origin can be distinguished by any of the following
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1 physical indicators:
2 (1) Hydrophytic vegetation, hydric soil or other
3 hydrologic indicators in the area where groundwater enters
4 the stream channel in the vicinity of the stream headwaters,
5 channel bed or channel banks.
6 (2) Flowing water not directly related to a storm event.
7 (3) Historical records of a local high groundwater
8 table, such as well and stream gauge records.
9 "Vernal pond." A small body of standing water that forms in
10 the spring from meltwater and is often dry by mid-summer or may
11 even be dry before the end of the spring growing season.
12 "Watershed." The land area that drains into a particular
13 stream.
14 Section 4. Authorization.
15 (a) General rule.--This act authorizes municipalities to
16 enact local land use ordinances to protect and preserve riparian
17 buffers.
18 (b) Compliance.--Municipalities may adopt a riparian buffer
19 ordinance as follows:
20 (1) Riparian buffer ordinances adopted by municipalities
21 shall conform to the provisions of this act.
22 (2) Communities that have enacted riparian buffer
23 ordinances prior to the effective date of this section may
24 continue to enforce the ordinances until such time as they
25 revise or amend the ordinances, at which time they must amend
26 their ordinances to conform to the provisions of this act.
27 Section 5. Contents of ordinance.
28 (a) Activities.--The ordinance shall apply to all lands that
29 are within the municipality and border streams. The provisions
30 of the ordinance shall apply to all activities which require any
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1 of the following:
2 (1) Building permit.
3 (2) Zoning hearing board approval.
4 (3) Conditional use approval.
5 (4) Subdivision or land development approval.
6 (5) Grading permit.
7 (6) Encroachment permit.
8 No approvals or permits shall be issued by the municipality
9 without full compliance with the terms of this ordinance, where
10 applicable.
11 (b) Exemptions.--The following land uses shall be exempt
12 from the ordinance:
13 (1) Existing land uses, except as follows:
14 (i) when the existing land use, or any building or
15 structure involved in that use, is enlarged, increased or
16 extended to occupy a greater area of land;
17 (ii) when the existing land use, or any building or
18 structure involved in that use, is moved, in whole or in
19 part, to any other portion of the property; or
20 (iii) when the existing land use ceases for a period
21 of more than one year.
22 (2) Agricultural production that is consistent with all
23 Federal and State laws, regulations promulgated by the
24 department and best management practices established by the
25 State Conservation Commission and the Department of
26 Agriculture of the Commonwealth.
27 (3) Selective logging provided that the logging
28 practices comply with the best management practices set forth
29 by the Bureau of Forestry, provided, however, that no logging
30 shall occur within 100 feet of any stream.
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1 (4) Crossings by transportation facilities and utility
2 lines. Issuance of permits for these uses or activities is
3 contingent upon the completion of a:
4 (i) Feasibility study that identifies alternative
5 routing strategies that do not impact a riparian buffer
6 area.
7 (ii) Mitigation plan to minimize impacts on the
8 riparian buffer area.
9 (5) Temporary stream restoration projects, stream bank
10 restoration projects and vegetation restoration projects to
11 restore the stream or riparian zone to an ecologically
12 healthy state.
13 (6) Structures that, by their nature, cannot be located
14 anywhere except within the riparian buffer area. These
15 structures shall include docks, boat launches, public water
16 supply intake structures, facilities for natural water
17 quality treatment and purification and public wastewater
18 treatment plant sewer lines and outfalls. The structures
19 should provide for the minimum practicable disturbance of the
20 forest riparian buffer area by minimizing size and location
21 and by taking advantage of collocation, if possible.
22 (7) Wildlife and fisheries management activities
23 consistent with the purposes of, but not limited to:
24 (i) 30 Pa.C.S (relating to fish).
25 (ii) 34 Pa.C.S. (relating to game).
26 (iii) The act of December 5, 1972 (P.L.1277,
27 No.283), known as the Pennsylvania Scenic Rivers Act.
28 (iv) The act of April 28, 1978 (P.L.87, No.41),
29 known as the Pennsylvania Appalachian Trail Act.
30 (v) The act of June 23, 1982 (P.L.597, No.170),
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1 known as the Wild Resource Conservation Act.
2 (8) Construction of a single-family residence, including
3 the usual appurtenances, provided that:
4 (i) Based on the size, shape or topography of the
5 property, as of the effective date of this section, it is
6 not reasonably possible to construct a single-family
7 dwelling without encroaching upon the forest riparian
8 buffer area.
9 (ii) The dwelling conforms with all other zoning
10 regulations.
11 (iii) No septic tanks or septic drain fields shall
12 be located within the riparian buffer area.
13 (iv) The dwelling avoids, to the maximum extent
14 practicable, disturbance of the riparian forest buffer
15 area.
16 (9) Other uses permitted by the department under the act
17 of June 22, 1937 (P.L.1987, No.394), known as The Clean
18 Streams Law, and the act of November 26, 1978 (P.L.1375,
19 No.325), known as the Dam Safety and Encroachments Act.
20 All exempted uses, structures or activities shall comply with
21 the requirements of 25 Pa. Code Ch. 102 (relating to erosion and
22 sediment control) and all applicable best management practices
23 and shall not diminish water quality except as otherwise
24 permitted by the department. All exempted uses shall be located
25 as far from the stream bank as reasonably possible.
26 Section 6. Size of riparian buffers.
27 (a) Width.--Except as otherwise required under subsection
28 (b), the width of the riparian buffer shall be a minimum of 35
29 feet on each side of the stream as measured from the top of
30 bank. If the stream is designated as high quality or exceptional
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1 value, the minimum width shall be a minimum of 100 feet on each
2 side of the stream as measured from the top of bank.
3 (b) Additional width.--In the case of the presence of a
4 nontidal wetland or vernal pond wholly or partially within the
5 riparian buffer, an additional 25 feet shall be added to the
6 widths in subsection (a) from the wetland or vernal pond
7 boundary.
8 Section 7. Variances.
9 (a) Criteria.--A municipality may grant variances for any of
10 the following, if deemed appropriate by the appropriate local
11 authority:
12 (1) The buffer width may be relaxed and the buffer
13 permitted to become narrower at some points, as long as the
14 average width and total area meet the requirements set forth
15 in section 6. This averaging of the buffer may be used to
16 allow for the presence of an existing structure or to recover
17 a lost lot; however, the buffer width may be narrowed by no
18 more than 25%, and no new structures may be built within the
19 100-year floodplain.
20 (2) The municipality may offer credit for additional
21 density elsewhere on the site in compensation for the loss of
22 developable land due to the requirements of this act. This
23 compensation may increase the total number of dwelling units
24 on the site up to the amount permitted under the base zoning
25 requirements.
26 (3) If the property owner demonstrates any of the
27 following:
28 (i) Strict compliance would result in practical
29 difficulty or financial hardship.
30 (ii) The project would serve a public need and no
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1 feasible alternative is available.
2 (iii) The project consists of the repair and
3 maintenance of public improvements where avoidance and
4 minimization of adverse impacts to the riparian buffer
5 area have been addressed.
6 (b) Procedures.--
7 (1) An applicant must submit a written request for a
8 variance to a municipality. The application shall include
9 specific reasons justifying the variance and any other
10 information necessary to evaluate the proposed variance
11 request.
12 (2) The municipality may require an alternatives
13 analysis clearly demonstrating that no other feasible
14 alternatives exist and that minimal impact will occur as a
15 result of the project or development.
16 (3) In granting a request for a variance, the
17 municipality may require additional site design, landscape
18 planting, fencing, the placement of signs and the
19 establishment of water quality best management practices in
20 order to reduce impacts on water quality, wetlands and
21 floodplains.
22 Section 8. Inspections.
23 (a) General rule.--The municipality may conduct
24 investigations as it may reasonably deem necessary to carry out
25 its duties as prescribed in this act and for this purpose shall
26 have the power to and may enter at reasonable time upon any
27 property, public or private, for the purpose of investigating
28 and inspecting property that contains riparian buffers.
29 (b) Prohibited conduct.--No person shall refuse entry or
30 access to any authorized representative or agent who requests
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1 entry for purposes of inspection, and who presents appropriate
2 credentials, nor shall any person obstruct, hamper or interfere
3 with any such representative while in the process of carrying
4 out official duties.
5 Section 9. Enforcement.
6 (a) General rule.--The zoning enforcement officer of a
7 municipality shall enforce the requirements of this act in
8 accordance with this section.
9 (b) Violations.--If, upon inspection or investigation, the
10 zoning enforcement officer or other authorized agent determines
11 that an activity violates the requirements of this act, the
12 activity shall be considered to be in violation of this act.
13 (c) Notice of violation.--Upon determination of a violation,
14 the municipality shall issue a notice of violation to the permit
15 holder, property owner or party in charge of the activity on the
16 property. The notice shall be in writing and require the
17 immediate stoppage of all work on the property. The notice shall
18 include:
19 (1) The name and address of the owner.
20 (2) The address or description and location of the
21 property where the violation occurred.
22 (3) A description of the violation or violations.
23 (4) A description of the corrective actions needed to
24 return to compliance and a time schedule to complete the
25 corrective actions.
26 (d) Emergency.--Where an emergency exists, no written notice
27 shall be required to stop work. Written notice of the stop-work
28 order shall be presented to the appropriate responsible parties
29 within three business days of the emergency order.
30 (e) Penalties.--The penalties that may be assessed for a
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1 violation of this act may include:
2 (1) If, through inspection, it is determined the
3 corrective measures specified in a stop-work order have not
4 been completed within the specified time, the responsible
5 party shall be deemed to be in violation, and, in addition to
6 other penalties, the performance bond shall be subject to
7 forfeiture.
8 (2) The permit may be suspended, revoked or modified by
9 the municipality if, through inspection, it is determined the
10 corrective measures specified in a stop-work order have not
11 been completed within the specified time.
12 (3) Any person who violates any provision of this act,
13 permitting conditions or stop-work order and the owner of the
14 land where the violation occurs shall be liable for a civil
15 penalty of not less than $1,000 and not more than $2,000 per
16 violation per day. Each day the violation continues shall
17 constitute a separate offense.
18 (4) (i) If any person violates any provision of this
19 act, permitting conditions or stop-work order, the
20 municipality may issue a citation to the owner of the
21 land where the violation occurs or other responsible
22 person, requiring such person to appear in the
23 appropriate court to answer charges for such violation.
24 (ii) Upon conviction, the owner of the land where
25 the violation or violations occur or other responsible
26 person shall be liable for a criminal penalty in the form
27 of imprisonment for not more than 90 days and a fine of
28 not less than $1,000 and not more than $2,000 per
29 violation per day, or both. Every day that such violation
30 or violations continue will be considered a separate
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1 offense.
2 (f) Civil action for recovery of damages.--
3 (1) In addition to any other sanction authorized under
4 this act, a person who fails to comply with the provisions
5 of an ordinance shall be liable to the municipality in a
6 civil action for damages in an amount equal to one and one-
7 half times the cost of restoring the buffer.
8 (2) Damages that are recovered under this subsection
9 shall be used for the restoration of buffer systems or for
10 the administration of programs for the protection and
11 restoration of water quality, streams, wetlands and
12 floodplains.
13 (g) Liability for costs of Commonwealth.--Any person who
14 violates a provision of an ordinance may be liable for any cost
15 or expenses incurred as a result thereof by the municipality.
16 Section 10. Administrative appeal.
17 (a) General rule.--Any person who is aggrieved by a decision
18 or order of a municipality imposed under this act may appeal the
19 decision or order in writing within ten days after receipt of
20 such action to the governing body of the municipality and shall
21 be entitled to a hearing before the governing body of the
22 municipality within 45 days of its receipt of the written
23 appeal.
24 (b) Judicial review.--Any person aggrieved by a decision or
25 order of a municipality imposed under this act shall have the
26 right to appeal de novo to the court of common pleas of the
27 county in which the municipality is located.
28 Section 11. Conflicts with laws and regulations.
29 Where the standards of an ordinance are in conflict with
30 other laws or regulations regarding streams, steep slopes,
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1 erodible soils, wetlands, floodplains, timber harvesting, earth
2 disturbance activities or other environmental protective
3 measures, the more restrictive shall apply.
4 Section 12. Conflicts with other laws.
5 Where any provision of this act is in conflict with another
6 law, the more restrictive shall apply.
7 Section 13. Severability.
8 If any clause, section or provision of this act or an
9 ordinance authorized by this act is declared invalid or
10 unconstitutional by a court of competent jurisdiction, the
11 validity of the remainder shall not be affected thereby.
12 Section 14. Effective date.
13 This act shall take effect January 1, 2008.
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