2010-04-22 / Local & State

Regulations May Require Forested Streamside Buffers On Private Property

By Donald P. Oaks GOVERNMENTAL AFFAIRS, PA COUNCIL OF PROFESSIONAL FORESTERS, INC

Environmental organizations and some members of the General Assembly are championing legislation that will lead to mandatory forest buffers on all streams in Pennsylvania. Two essentially identical bills currently reside in the General Assembly, HB1390 and SB524. The Short Title of the legislation follows:

“An Act updating and expanding the storm water planning requirements to be undertaken by counties; authorizing counties to regulate storm water within a watershed based planning area; authorizing the formation of water resources management authorities; enabling counties, municipalities and water resources management authorities to develop integrated water resources management plans; imposing duties and conferring powers on the Department of Environmental Protection, the Environmental Quality Board, counties, municipalities and water resources management authorities; providing for financing and for waiver of use for certain grant or loan funds; and making related repeals.”

SB 524 remains in the Senate Environmental Resource and Energy Committee while HB 1390, which was referred to the House Local Government Committee on April 15, 2009, and reported as amended December 15, 2009, for first consideration and tabled that same day, was removed from the table and recommitted to the Appropriations Committee the next day. Three considerations are required for final passage by the Gouse. The bill is progressing in a normal manner.

The bills would replace the local Soil Conservation District’s oversight of storm water and erosion and sedimentation control replacing it with County and Local Municipal Planning Code implementation and enforcement. Local governments could instead create storm water management authorities to accomplish these objectives.

What about Authorities? The bills state that counties can be the responsible entity designated to implement a comprehensive storm water management plan or integrated water resources management plan or both. However, authorities, created as permitted by the proposed legislation, will likely be where the action is. Authorities are corporations created by government agencies that have the power of government, but once created are not subject or accountable to the taxpaying voter. Once created, authorities have their own power and are not directed by elected officials but by appointed directors. Government officials have no say over the authority except to create or terminate the authority. Authorities cannot tax but in the preceding legislation authorities are empowered to “Fix, alter, charge and collect fees” in the area they serve. “The fee may be based, in whole or part, as a user or service fee, special assessment fee, impact fee, bonding or other fee for services.” If the county or another municipality were to be the “responsible entity,” they would be empowered to assess millage above that otherwise permitted to pay for the unfunded mandate but they would have to submit the issue to voters for approval.

The bills provide that any authority created may levy a fee on property owners, users or consumers of the services provided by the authority to pay for all costs associated with planning, implementation, administration and enforcement of the act including preparation of integrated water resource management plans. The fee (fees) may be based, in whole or part, as a user or service fee, special assessment fee, impact fee, bonding or other fee for services which reflect the implementation of the comprehensive storm water management plan or integrated water resources management plan.

The bills provide for entry upon private land for surveys and inspections and for the issuance of search warrants when entry is denied by the landowner or tenant. The bill provides for civil remedies declaring that any activity conduced in violation of the provisions of the act or of any comprehensive storm water plan or integrated water resources management plan; or regulations; or ordinances adopted under the Act can be declared a public nuisance. The costs, attorney fees and other expenses associated with proceeding against violations shall be recoverable from the violator. In addition any person injured by conduct which violates the provisions of the Act may, in addition to any other remedy provided under the Act, recover damages caused by a violation from the landowner or other responsible person. This provision will permit environmental organizations and other parties to sue landowners where violations occur. In the end forest buffers will be a major component of plans prepared under these acts.

Pennsylvanians are encouraged to familiarize themselves with the bills and to discuss them with their state legislators.

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