Is Act 162 Heading into Stormy Waters?

When Governor Corbett signed Act 162 of 2014 (introduced as HB 1565) back in December, many property owners and the development community saw this as a victory.  Act 162 was written to provide flexibility and alternatives to comply with the Clean Streams Law when proposing earth-disturbance activity within 150 feet of special protection waters.  It was intended to eliminate the mandatory one-size-fits-all riparian forested buffer and allow continued use of the buffer OR equivalent best management practices (BMPs) to obtain an NPDES permit.

Over the last two weeks, our stormwater experts have attended a DEP presentation at the PHRC Housing & Land Development Conference and various webinars to get a better understanding of DEP’s plan to implement Act 162. We have also spoken to both local and central office DEP staff.    

Here’s what wasn’t anticipated:

  • Elimination of waivers: All riparian buffer waivers under current DEP regulations have been eliminated from Chapter 102.  Therefore any disturbance that occurs within 150 feet of the body of water must follow Act 162 requirements.

  • Offsetting – Disturbance within 100 feet of water: When earth disturbance is proposed within 100 feet of the body of water, offsetting is now required.  Under Act 162, an existing riparian forest buffer cannot be deed-restricted to meet this requirement. Developers must identify a viable location to create a new forested buffer on or off-site.  

  • Equivalency – Disturbance between 100-150 feet from water: When earth disturbance encroaches on the 150 foot buffer area, but remains at least 100 feet from the water body, buffer equivalency must be demonstrated. Equivalency is the process of installing BMPs that provide the same pollutant removal attributes as the riparian buffer being disturbed and must take place on-site.  Therefore, applicants will now have to provide an additional level of BMPs.

Initial indications: Meeting both equivalency and offsetting criteria could be difficult and costly.

DEP is scheduled to release the draft technical guidance documents for public comment on 3/21/15.  We are tracking development of these regulations and will provide timely updates.   It’s important to note that while anything submitted to conservation districts after 12/21/14 is subject to the new regulations, the implementation of Act 162 is still a work in progress and the uncertainty could impact approval timelines.    

Greg Newell updating Legislators and HBA Members on Act 162 at the HBA Legislative Breakfast on March 13th.

 If you have questions or concerns, feel free to contact Greg Newell:
[email protected]