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 20070S0453B0500 - 2 -
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 20070S0453B0500 - 3 -
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 20070S0453B0500 - 4 -
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 20070S0453B0500 - 5 -
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 20070S0453B0500 - 6 -
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 20070S0453B0500 - 7 -
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. 20070S0453B0500 - 8 -
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), 20070S0453B0500 - 9 -
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 20070S0453B0500 - 10 -
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 20070S0453B0500 - 11 -
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 20070S0453B0500 - 12 -
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 20070S0453B0500 - 13 -
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 20070S0453B0500 - 14 -
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, 20070S0453B0500 - 15 -
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. B2L27DMS/20070S0453B0500 - 16 -