§ 102.14. Riparian buffer requirements.

 (a)  General requirements for mandatory riparian buffers.

   (1)  Except as in accordance with subsection (d), persons proposing or conducting earth disturbance activities when the activity requires a permit under this chapter may not conduct earth disturbance activities within 150 feet of a perennial or intermittent river, stream, or creek, or lake, pond or reservoir when the project site is located in an exceptional value or high quality watershed attaining its designated use as listed by the Department at the time of application and shall protect any existing riparian buffer in accordance with this section.

   (2)  Except as in accordance with subsection (d), persons proposing or conducting earth disturbance activities when the activity requires a permit under this chapter where the project site is located in an Exceptional Value or High Quality watershed where there are waters failing to attain one or more designated uses as listed in Category 4 or 5 on Pennsylvania’s Integrated Water Quality Monitoring and Assessment report, as amended and updated, at the time of the application, and the project site contains, is along or within 150 feet of a perennial or intermittent river, stream, or creek, lake, pond or reservoir shall, in accordance with the requirements of this section do one of the following:

     (i)   Protect an existing riparian forest buffer.

     (ii)   Convert an existing riparian buffer to a riparian forest buffer.

     (iii)   Establish a new riparian forest buffer.

 (b)  Riparian forest buffer criteria. To qualify as a riparian forest buffer under this chapter, an existing, converted or newly established riparian forest buffer, whether mandatory or voluntary, must meet the following requirements related to composition, width and management:

   (1)  Composition. A riparian forest buffer is a riparian buffer that consists predominantly of native trees, shrubs and forbs that provide at least 60% uniform canopy cover. An existing riparian forest buffer does not have to be altered to establish individual Zones 1 and 2 under subparagraph (iii). At a minimum, it must have a total aggregate width of the combined zones under paragraph (2).

     (i)   Existing riparian buffer conversion to a riparian forest buffer. Riparian buffers that consist predominantly of native woody vegetation that do not satisfy the composition of this paragraph or the width requirements in paragraph (2) shall be enhanced or widened, or both, by additional plantings in open spaces around existing native trees and shrubs that provide at least 60% uniform canopy cover. An existing riparian forest buffer does not have to be altered to establish individual Zones 1 and 2 under subparagraph (iii). At a minimum, it must be a total aggregate width of the combined zones under paragraph (2). Noxious weeds and invasive species shall be removed or controlled to the extent possible.

     (ii)   Riparian forest buffer establishment. On sites without native woody vegetation, a riparian forest buffer shall be established and be composed of zones in accordance with subparagraph (iii), and meet the width requirements in paragraph (2). Noxious weeds and invasive species shall be removed or controlled to the extent possible.

     (iii)   Zones.

       (A)   Zone 1. Undisturbed native trees must begin at the top of the streambank or normal pool elevation of a lake, pond or reservoir and occupy a strip of land measured horizontally on a line perpendicular from the top of streambank or normal pool elevation of a lake, pond or reservoir. Predominant vegetation must be composed of a variety of native riparian tree species.

       (B)   Zone 2. Managed native trees and shrubs must begin at the landward edge of Zone 1 and occupy an additional strip of land measured horizontally on a line perpendicular from the top of streambank or normal pool elevation of a lake, pond or reservoir. Predominant vegetation must be composed of a variety of native riparian tree and shrub species.

   (2)  Average minimum widths.

     (i)   Waters other than special protection. A total of 100 feet (30.5 meters), comprised of 50 feet (15.2 meters) in Zone 1 and 50 feet (15.2 meters) in Zone 2 for newly established riparian forest buffers established under subsection (e)(3) along all rivers, perennial or intermittent streams, lakes, ponds or reservoirs.

     (ii)   Special protection waters. A total of 150 feet (45.7 meters), comprised of 50 feet (15.2 meters) in Zone 1 and 100 feet (30.5 meters) in Zone 2 on newly established riparian forest buffers along all rivers, perennial or intermittent streams, lakes, ponds or reservoirs in special protection waters (high quality and exceptional value designations).

     (iii)   Average riparian forest buffer width. The average riparian forest buffer width shall be calculated based upon the entire length of streambank or shoreline that is located within or along the boundaries of the project site. When calculating the buffer length the natural streambank or shoreline shall be followed.

   (3)  Management requirements. Existing, converted and newly established riparian forest buffers shall be managed in accordance with a riparian forest buffer management plan in paragraph (4) and will be protected in accordance with subsection (g).

   (4)  Management plan. The riparian forest buffer management plan shall be a part of the PCSM Plan and include, at a minimum, the following:

     (i)   A planting plan for converted or newly established riparian forest buffers that identifies the number, density and species of native trees and shrubs appropriate to geographic location that will achieve 60% uniform canopy cover.

     (ii)   A maintenance schedule and measures for converted or newly established riparian forest buffers to ensure survival and growth of plantings and protection from competing plants and animals including noxious weeds and invasive species over a 5-year establishment period including activities or practices used to maintain the riparian forest buffer including the disturbance of existing vegetation, tree removal, shrub removal, clearing, mowing, burning or spraying in accordance with long-term operation and maintenance.

     (iii)   An inspection schedule and measures to ensure long-term maintenance and proper functioning of riparian forest buffers meeting the requirements in paragraph (1), including measures to repair damage to the buffer from storm events greater than the 2-year/24-hour storm.

 (c) Mandatory requirements for all riparian buffers.

   (1)  Management of stormwater into the riparian buffer. Stormwater and accelerated erosion and sedimentation shall be managed in accordance with § §  102.4(b)—(e) and 102.8 (relating to erosion and sediment control requirements; and PCSM requirements) to ensure that stormwater enters the area upgrade and along the riparian buffer as sheet flow or shallow concentrated flow during storm events up to and including the 2 year/24 hour storm.

   (2)  Wetlands. Wetlands located in the riparian buffer shall be protected and maintained consistent with Chapter 105 (relating to dam safety and waterway management).

   (3)  Measurements. Riparian buffers must be measured horizontally and perpendicularly to the bank with no more than a 10% variation below the minimum width from the normal pool elevation for lake, pond or reservoir and from top of streambank.

 (d)  Exceptions.

   (1)  Subsection (a) does not apply for earth disturbance activities associated with the following:

     (i)   A project site located greater than 150 feet (45.7 meters) from a river, stream, creek, lake, pond or reservoir.

     (ii)   Activities involving less than 1 acre (0.4 hectare) of earth disturbance.

     (iii)   Activities when permit coverage is not required under this chapter.

     (iv)   Activities when a permit or authorization for the earth disturbance activity required under this chapter was obtained, or application submitted prior to November 19, 2010.

     (v)   Road maintenance activities so long as any existing riparian buffer is undisturbed to the extent practicable.

     (vi)   The repair and maintenance of existing pipelines and utilities so long as any existing riparian buffer is undisturbed to the extent practicable.

     (vii)   Oil and gas, timber harvesting, or mining activities for which site reclamation or restoration is part of the permit authorization in Chapters 78 and 86—90 and this chapter so long as any existing riparian buffer is undisturbed to the extent practicable.

     (viii)   A single family home that is not part of a larger common plan of development or sale and the parcel was acquired by the applicant prior to November 19, 2010.

     (ix)   Activities authorized by a Department permit under another chapter of this title which contains setback requirements, and the activity complies with those setback requirements.

   (2)  For earth disturbance activities associated with the following, the Department, or the conservation district after consultation with the Department, may grant a waiver from any of the requirements of subsections (a) and (b) upon a demonstration by the applicant that there are reasonable alternatives for compliance with this section, so long as any existing riparian buffer is undisturbed to the extent practicable and that the activity will otherwise meet the requirements of this chapter:

     (i)   The project is necessary to abate a substantial threat to the public health or safety.

     (ii)   Linear projects which may include pipelines, public roadways, rail lines or utility lines.

     (iii)   Abandoned mine reclamation activities that are conducted under Department authorization or permit.

     (iv)   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.

     (v)   Redevelopment projects which may include brownfields or use of other vacant land and property within a developed area for further construction or development.

     (vi)   Projects for which compliance with subsection (a) or (b) is not appropriate or feasible due to site characteristics, or existing structures at the project site.

   (3)  The applicant shall submit a written request for a waiver to the Department or the conservation district as part of the application for a permit under this chapter.

   (4)  An applicant requesting a waiver may propose and the Department may allow offsite protection, conversion or establishment of riparian forest buffers or provide compensation to fund riparian forest buffer protection, enhancement or establishment.

   (5)  Projects qualifying for an exception under this subsection are not relieved from compliance with other applicable requirements of this chapter or other laws administered by the Department.

 (e)  Utilization of riparian forest buffers.

   (1)  Antidegradation presumption. Except for riparian buffers protected under subsection (a)(1) or (d), a riparian forest buffer meeting the requirements of this section will prevent thermal impacts and is a nondischarge alternative. When included in an E&S Plan or PCSM Plan meeting the requirements of this chapter, the proposed earth disturbance activity will satisfy § §  102.4(b)(6) and 102.8(h), unless data or information provided or available to the Department during the permit application or authorization review process shows that the proposed earth disturbance activity will degrade water quality.

   (2)  Trading or offsetting credits. Except for riparian buffers protected under subsection (a)(1) or (d) when protection of existing, or conversion, or the establishment of a riparian forest buffer which meets the requirements of this section and is above baseline regulatory requirements, credits may be available for trading or offsets in accordance with any procedures established by the Department or any regulations related to trading or offsetting developed under this title.

   (3)  Voluntary riparian forest buffer. Persons that protect, convert or establish a new riparian forest buffer meeting the requirements of this section, may qualify for benefits under paragraph (1) or (2).

 (f)  Activities within a riparian buffer.

   (1)  The following practices and activities are prohibited within the riparian buffer:

     (i)   Soil disturbance by grading, stripping of topsoil, plowing, cultivating or other practices except as allowed in paragraph (3)(i).

     (ii)   Draining by ditching, underdrains or other drainage systems.

     (iii)   Housing, grazing or otherwise maintaining animals for agricultural or commercial purposes.

     (iv)   Storing or stockpiling materials.

     (v)   Off-road vehicular travel.

   (2)  The following practices and activities are allowable in the riparian buffer when authorized by the Department:

     (i)   Construction or placement of roads, bridges, trails, storm drainage, utilities or other structures.

     (ii)   Water obstructions or encroachments.

     (iii)   Restoration projects.

   (3)  The following practices and activities are allowed within the riparian buffer:

     (i)   Activities or practices used to maintain the riparian buffer including the disturbance of existing vegetation, and tree and shrub removal, as needed to allow for natural succession of native vegetation and protection of public health and safety.

     (ii)   Timber harvesting activities in accordance with the riparian forest buffer management plan as part of the PCSM Plan.

     (iii)   Passive or low impact recreational activities so long as the functioning of the riparian buffer is maintained.

     (iv)   Emergency response and other similar activities.

     (v)   Research and data collection activities, which may include water quality monitoring and stream gauging.

 (g)  Permanent protection of riparian buffers.

   (1)  Existing, converted and newly established riparian buffers including access easements must be protected in perpetuity through deed restriction, conservation easement, local ordinance, permit conditions or any other mechanisms that ensure the long-term functioning and integrity of the riparian buffer.

   (2)  For any existing or newly established riparian buffer, the boundary limits of the riparian buffer must be identified and clearly marked.

 (h)  Reporting. Persons who protect an existing riparian buffer or convert or establish a riparian buffer in accordance with this section shall complete data forms provided by the Department and submit the forms to the Department or conservation district within 1 year of establishment or protection.

Authority

   The provisions of this §  102.14 issued under sections 5 and 402 of The Clean Streams Law (35 P. S. § §  691.5 and 691.402); sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-17 and 510-20); and section 11(2) of the Conservation District Law (3 P. S. §  859(2)).

Source

   The provisions of this §  102.14 adopted August 20, 2010, effective November 19, 2010, 40 Pa.B. 4861; corrected September 17, 2010, effective November 19, 2010, 40 Pa.B. 5294.

Cross References

   This section cited in 25 Pa. Code §  102.8 (relating to PCSM requirements); and 25 Pa. Code §  102.11 (relating to general requirements).



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