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New Anti-Degradation Requirements Impact Property Owners Jeff Miller, 02/12/2010
New anti-degradation requirements in Pennsylvania may pose severe limitations on property owner’s ability to develop their property. Over the past few years, several watershed associations have brought challenges to past DEP land development approvals. Those challenges were on subdivisions located in Special Protection Watersheds. A special protection watershed is a watershed that is classified as either Exceptional Value or High Quality. Those challenges have sought to overturn those approvals based on the Commonwealth’s stream antidegradation policy. First some background.
Both the Federal Clean Water Act and the Commonwealth’s Clean Streams Law contain provisions to, at a minimum, maintain and ultimately to enhance the water quality of the Commonwealth’s water bodies. In Pennsylvania, it is the Environmental Hearing Board (EHB) that hears appeals to actions or approvals taken or issued by DEP.
In May 2008, the EHB issued a ruling in the Pine Creek Watershed Association v. DEP, District Township and Lipton et.al. That ruling changed how DEP could look at the anti-degradation issue. Before that ruling, land application based wastewater disposal systems were not considered “discharges” to a special protection watershed. The EHB disagreed with that position and mandated that DEP evaluate any potential impact. In response, DEP started to require anti-degradation evaluations; however, DEP has not issued clear state wide guidance on how to prepare those evaluations.
In 2009, the EHB issued a ruling in the case of the Crum Creek Watershed Association v. Pulte Homes of PA. In that case, the Crum Creek Watershed Association challenged the issuance of an NPDES stormwater permit to Pulte. While 75% of Pulte’s project drained to that part of the Crum Creek classified as a cold water fishery, 25% of the project drained to a tributary classified as Exceptional Value. It is important to note that during the application process, Pulte incorporated all of the suggested stormwater Best Management Practices into their stormwater design. The Crum Creek Watershed Association challenged the permit based on the concept that just including all of the suggested BMP’s does not demonstrate that the project will not degrade the stream. The EHB concurred.
During the intervening time Lipton et.al., reapplied for and DEP issued a second approval of their project based on certain studies Lipton et. al. had submitted in response to the first EHB decision. Those studies stated there would be no impact to the Pine Creek. The Pine Creek Watershed Association appealed that second DEP approval. The basis of the appeal includes a challenge to Lipton’s and DEP conclusion that the wetlands associated with the Pine Creek would not be impacted. This case is in the preliminary stages but should the Pine Creek Watershed Association prevail, any application located in a special protection watershed would have to affirmatively demonstrate that there would be no adverse impact on the receiving stream. An adverse impact is defined as any increase in the concentration of nitrogen in the stream, no matter how small.
To complicate matters, currently DEP will not allow in the calculations, an analysis of the impact in the change in land use. So if the property has historically been used for agricultural production, the nitrogen leaching from the field cannot be included in the predevelopment calculation and any nitrogen leaching from the property as a result of the construction of a new home or commercial development is additive to, not in lieu of, the pre-development condition. The current DEP policy makes it almost impossible to make an affirmative showing of no anti-degradation in the receiving stream.
Unlike groundwater analyses, the stream analysis does not consider lot sizes but rather the location of the proposed development in the watershed. The further the development is located downstream in the watershed, the more likely it is that a showing of no adverse impact can be produced. Also the impact is not measured on the main stem of the stream, but the closest perennial stream to the development. So while you may be located near the mouth of a stream, you may actually impact a first order tributary. The water quality in the tributary must be preserved.
So what is the ultimate impact? This could mean that DEP will no longer approve Planning Modules or NPDES Stormwater permits in special protection watersheds. Or simply put, no development is special protection watersheds. It could also have an adverse impact on the value of agricultural preservation easements for properties located in special protection watersheds. Ultimately, the value of those easements could go to zero.
For additional information you can contact Jeff Miller at Evans Mill Environmental, LLC or your local State Senator and Representative. |
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Updated: 18 Nov 2013
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