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PA Bulletin, Doc. No. 14-2630


Riparian Buffer Amendment; Notice of Availability

[44 Pa.B. 7954]
[Saturday, December 20, 2014]

 The Clean Streams Law (act) (35 P. S. §§ 691.1—691.1001) was amended by the General Assembly on October 16, 2014, and signed into law by Governor Corbett on October 22, 2014 (P. L. 2600, No. 162). Act 162 specifically amended section 402 of the act (35 P. S. § 691.402) to add subsection (c). This new subsection is limited to and addresses riparian buffer requirements in 25 Pa. Code Chapter 102 (relating to erosion and sediment control). The amendments pertain to certain National Pollutant Discharge Elimination System (NPDES) applications administered by the Department of Environmental Protection (Department). The Department interprets Act 162 as being intended to provide flexibility to the building industry subject to the mandatory riparian buffer requirements in 25 Pa. Code Chapter 102. Act 162is effective on December 22, 2014. The amendment does not otherwise expressly alter the regulatory framework of 25 Pa. Code Chapter 102 or eliminate the use of riparian buffers or riparian forest buffers as a best management practice (BMP).

 Section 402(c)(1) of the act specifies that only activities requiring NPDES Permits for Stormwater Discharges Associated with Construction Activities are eligible for the alternative buffer requirement provided in section 402(c) of the act. This provision in Act 162 does not eliminate the use of the riparian buffer requirements for projects regulated under 25 Pa. Code Chapter 102, but rather provides that applicants for an NPDES Permit for Stormwater Discharges Associated with Construction Activities have as an option to the riparian buffer or riparian forest buffer BMP, the use of alternative BMPs or design standards that meet the requirements of section 402(c)(1)(ii) of the act.

 Act 162 does not apply to other types of permit authorizations required under 25 Pa. Code Chapter 102, such as State permit authorizations for timber harvesting, road maintenance or oil and gas activities (Erosion and Sediment Control Permits ''E&S permits'' or Erosion and Sediment Control General Permits, ''ESCGPs'').

 The Department's interpretation of Act 162 referred to herein is not adjudication or a regulation. There is no intent on the part of the Department to give the contents of this notice, and the Department's guidance referred to in this notice, that weight or deference. This notice explains the framework within which the Department will exercise its administrative discretion in the future, and the Department reserves the discretion to deviate from that framework if circumstances warrant.

 The Department is making several documents available to be utilized to implement Act 162 including:

 • Implementation Plan for Act 162 of 2014 (DEP ID 310-2135-001).

 • Frequently Asked Questions (FAQs) and Interim Final Technical Guidance Documents.

 Notice of availability of the Implementation Plan for Act 162 of 2014 (DEP ID 310-2135-001) is being published separately from this notice at 44 Pa.B. 7954 (December 20, 2014). This Availability of Technical Guidance notice makes this Interim Final Policy available for use and provides for a 60-day public comment period. Consult that announcement for instructions on how to provide comment.

 The public comment period for two additional interim final technical guidance documents, one dealing with the buffer equivalency demonstration (DEP ID 310-2135-002) and the other with buffer offsetting (DEP ID 310-2135-003), will be announced in the near future. The Department will invite public comments on these interim final technical guidance documents when notice of availability of these guidances is published.

 Following the specified comment period for each interim final technical guidance document, the Department will review all submitted comments, prepare a comment and response document and the final documents package for these technical guidances. Availability of the final technical guidance documents will be announced in the Pennsylvania Bulletin.

 The FAQs regarding Act 162 are available on the Department's web site at (DEP Keyword: Act 162).

Acting Secretary

[Pa.B. Doc. No. 14-2630. Filed for public inspection December 19, 2014, 9:00 a.m.]

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