Riparian Buffer Waivers

Riparian Buffer Waivers

6 Waiver Provisions in 102.14(d)(2)(i-vi) The project is necessary to abate a substantial threat to public health or safety. Linear projects which may include pipelines, public roadways, rail lines or utility lines. Abandoned mine reclamation activities that are conducted under Department authorization or permit. Projects of a temporary nature where the site will be fully restored to its preexisting condition during the term of the permit under this chapter. Redevelopment projects which may include brownfields or use of other vacant land and property within a developed area for further construction or development. Projects for which compliance with subsection (a) and (b) is not appropriate or feasible due to site characteristics, or existing structures at the project site.

How does an applicant apply for a waiver? Part of the application for the project Cannot submit stand alone applications for waivers

Buffer Waiver Requests By Region

Waiver Request Must Contain Alternatives analysis Existing buffers will be protected All other aspects of Chapter 102 will be met

Department and Conservation District Presumption Presumed that the 150 foot buffer can be achieved To rebut the presumption that a practicable alternative does exist, the applicant shall demonstrate with reliable and convincing evidence and documentation that: The basic project purpose cannot be accomplished utilizing one or more other sites that would avoid, or result in less, adverse impact on the buffer A reduction in the proposed project s size, scope or density or an alternative project design or configuration that would avoid, or result in less severe, adverse impacts on a buffer would not accomplish the basic purpose of the project

Elements of the alternatives analysis On-site avoidance Environmental consistency

On-site avoidance The purpose of the on-site analysis is to identify opportunities to avoid the buffer impact altogether and minimize any impacts to the maximum extent possible when total avoidance is determined to not be practicable The applicant shall submit and the Department and conservation district shall take into consideration the following information in the evaluation of on-site avoidance and minimization: o The spatial requirements of the proposed project; o The location of any existing structural or natural features that may dictate the placement or configuration of the proposed project; o The purpose of the proposed project, and how the purpose relates to placement, configuration or density; o Sensitivity of the site design to buffers; o Efforts to reduce the scope of the proposed project; remove or accommodate site constraints including local zoning requirements, existing infrastructure, site access, or natural features; and otherwise avoid or minimize adverse impacts.

Environmental Consistency An alternative should be considered not practicable if it will have a significant adverse impact on other resources or environmental values: Special Concern Species and Resources Consideration of Local Comprehensive Plans and Zoning Ordinances Existing wetlands

What is the process for evaluating projects? Joint evaluation by DEP and the conservation district

Public Health and Safety Project must be certified by the Pennsylvania Emergency Management Agency (PEMA), the Federal Emergency Management Agency (FEMA), another emergency management entity, or Project must qualify as a High Hazard Dam according to the list maintained by the Bureau of Waterways Engineering, Dam Safety Division, or Project must have a justified reason for encroachment into the floodway (installation of a levee or other flood control structure), or Project must be necessary as a right of way for emergency vehicle access, or Project must be required to meet current transportation safety standards, or Project must meet requirements of HSCA (Act 1998-108), CERCLA U.S. Title 42, Chapter 103, Act 2 (Act 1995-2) for environmental cleanup activities, or Other projects not described but applicable to apply for a waiver under this section. Corroborating letter

Linear Projects Projects that include a decreased area for buffer installation due to physical site constraints, or Projects may contain leased areas that are not owned by permittee, or Projects that must maintain right of way (ROW) areas on adjacent lands, or Other projects not described but applicable to apply for a waiver under this section. A pre-survey must be done to document existing conditions, which should be replicated in replacement.

Abandoned Mine Drainage Projects where land necessary for AMD treatment system may preclude land available for buffers, or Projects where the degree of pre-existing site disturbance is high due to abandoned mining impacts, or Other projects not described but applicable to apply for a waiver under this section. Stormwater from area on the site or routed around the site should be treated with non-structural BMPs to the extent possible (up to 25%)

Temporary Projects Projects where the impact is temporary, or Other projects not described but applicable to apply for a waiver under this section. Should be a pre-survey and post-survey to make sure things are going back to pre-impact conditions (or better).

Redevelopment Projects Projects on lands that are vacant, eroding or impervious areas that are being reclaimed and put into use, or Other projects not described but applicable to apply for a waiver under this section.

Projects where compliance is not feasible due to site characteristics or existing structures Projects where there is not enough physical area for a buffer, or Projects where there is not the proper alignment for a buffer, or Projects where soil conditions that cannot grow vegetation, or Projects where certain structures must be placed in the buffer area (e.g., sewage interceptor), or Projects where the applicant does not own intervening land between stream and buffer area, or Projects where there are specific site conditions that applicant wants to maintain (e.g., golf course, lake front property) for economic reasons, or Projects where existing infrastructure in phased projects forces the layout and buffer impacts Other projects not described but applicable to apply for a waiver under this section. A pre-survey must be done to document existing conditions, which should be replicated in replacement.

Questions JENNIFER ORR (717)772-5961 JEORR@STATE.PA.US