[40 Pa.B. 4861]
[Saturday, August 21, 2010]
[Continued from previous Web Page] § 102.15. Permit-by-rule for low impact projects with riparian forest buffers.
The final-form rulemaking does not include the permit-by-rule that was included in the proposed rulemaking. In response to recommendations from commentators, this section in its entirety has been removed from the final-form rulemaking.
§ 102.22. Site stabilization.
In the proposed rulemaking, § 102.22 (relating to site stabilization) was retitled ''site stabilization'' to reflect the addition of temporary stabilization standards in § 102.22(b) that if earth disturbance will cease for a period of 3 days or more that the site shall be seeded, mulched or otherwise protected. During the public comment period, several commentators and IRRC commented that the requirement of 3 days for temporary stabilization could be impractical and costly and could be problematic because of holiday weekends. In response to these comments, the Board revised the final-form rulemaking so that the amount of days of cessation of earth disturbance activities that would require temporary site stabilization was changed from 3 to 4 days. This change will address the concerns regarding 3-day holiday weekends.
§ 102.31. Applicability.
There were not revisions to proposed in § 102.31 from the current regulations.
§ 102.32. Compliance and enforcement provisions.
In the proposed rulemaking, the Board revised this section to add subsection (c), which states that a person aggrieved by an action of a CD may request an informal hearing with the Department, and subsection (d), which allows the Department or a CD to collect and recover from the responsible party the costs and expenses involved in taking an enforcement action. Several commentators requested additional details regarding the informal hearing process and how it would work. The Department revised the regulations between the proposed and final-form rulemaking to replace the word ''may'' with ''shall'' and added language that ''the Department will schedule the informal hearing and make a final determination within 30 days of the request.''
§ 102.41. Administration by conservation districts.
The only revision made from the existing regulation was to delete the word ''county'' from ''county conservation districts'' to be consistent with the rest of the regulations. There were no other changes between the proposed and final-form rulemaking for this section.
§ 102.42. Notification of application for permits.
The only revision made to the proposed rulemaking was to delete ''5 acres'' and insert ''1 acre.'' This revision was proposed to be consistent with the change in § 102.5. There were no other changes proposed between the proposed and final-form rulemaking for this section.
§ 102.43. Withholding permits.
In the proposed rulemaking, the Board inserted the phrase at the start of the first sentence ''With the exception of local stormwater approvals or authorizations a.'' This was added to clarify that a municipality or county may approve and issue stormwater approvals or authorizations but may not issue building permits or final approvals until the appropriate Department permit coverage is obtained. A commentator submitted comments that the use of the word ''final'' in this section may be problematic as municipalities may issue preliminary approvals. The Board agreed that removing the word ''final'' would clarify that municipalities must not issue any authorization that would allow for earth disturbance activity to occur prior to the necessary Chapter 102 permit approval. Therefore, the word ''final'' was removed between the proposed and final-form rulemaking for this section.
References for scientific data, studies regarding riparian buffers and riparian forest buffers
• Abernethy, B. and I. D. Rutherfurd. 1998. Where along a river's length will vegetation most effectively stabilize stream banks? Geomorphology. 23(1):55—75.
• Burby, R. 1988. Cities Under Water: A Comparative Evaluation of Ten Cities' Efforts to Manage Floodplain Land Use. Institute of Behavioral Science #6. Boulder, CO. 250 pp.
• Chesapeake Bay Foundation. 1996. A Dollars and Sense Partnership: Economic Development and Environmental Protection. Chesapeake Bay Foundation. Annapolis, MD.
• Desbonnet, A., P. Pogue, V. Lee, and N. Wolff. 1994. Vegetated Buffers in the Coastal Zone: A Summary Review and Bibliography. Coastal Resources Center, University of Rhode Island.
• Dosskey, M. G., M. J. Helmers, D. E. Eisenhauer, T. G. Franti, and K. D. Hoagland. 2002. Assessment of concentrated flow through riparian buffers. Journal of Soil and Water Conservation. 57:336—343.
• Fausold, C. and R. Liliehilm. 1996. The Economic Value of Open Space: A Review and Synthesis. Lincoln Institute of Land Policy, Cambridge, MA.
• Jones, K. L., G. C. Poole, J. L. Meyer, W. Bumback, and E. A. Kramer. 2006. Quantifying expected ecological response to natural resource legislation: a case study of riparian buffers, aquatic habitat, and trout populations. Ecology and Society. 11:15.
• Jordan, T. E., D. L. Correll, and D. E. Weller. 1993. Nutrient interception by a riparian forest receiving inputs from adjacent cropland. Journal of Environmental Quality. 22:467—473.
• Lowrance, R., R. Todd, J. Fail, O. Hendrickson, Jr., R. Leonard, and L. Asmussen. 1984. Riparian forests as nutrient filters in agricultural watersheds. BioScience. 34:374—377.
• Lowrance, R., L. et al., 1997. Water quality functions of riparian forest buffer systems in the Chesapeake Bay Watershed. Environmental Management. 21:687—712.
• Mayer, P. M., S. K. Reynolds, Jr., M. D. McCutchen, and T. J. Canfield. 2007. Meta-analysis of nitrogen removal in riparian buffers. Journal of Environmental Quality. 36:1172—1180.
• Meyer, J. L. et al., Where Rivers Are Born: The Scientific Imperative for Defending Small Streams and Wetlands, Washington, DC, American Rivers, Sierra Club, 2003.
• Newbold, J. D., et al. 2010. Water Quality Functions of a 15-Year-Old Riparian Forest Buffer System. Journal of the American Water Resources Association. 1-12. DOI: 10.1111/j.1752-1688.2010.00421.x.
• Northwest Regional Planning Commission. 2004. The Shoreline Stabilization Handbook http://nsgd.gso.uri.edu/lcsg/lcsgh04001.pdf.
• Palone, R. S. and A. H. Todd (eds.). 1997. Chesapeake Bay riparian handbook: a guide for establishing and maintaining riparian forest buffers. USDA Forest Service Northeastern Area State and Private Forestry NA-TP-02-97. Radnor, PA. www.chesapeakebay.net/pubs/subcommit tee/nsc/forest/handbook.htm.
• Peterjohn, W. T. and D. L. Correll. 1984. Nutrient dynamics in an agricultural watershed: observations on the role of a riparian forest. Ecology. 65:1466—1475.
• Schueler, Thomas, R. 1995. Site Planning for Urban Stream Protection. Center for Watershed Protection, Ellicott City, MD. Prepared for the Metropolitan Washington Council of Governments, Washington, DC.
• Southwick Associates. 2007. Hunting in America: An Economic Engine and Conservation Powerhouse. Produced for the Association of Fish and Wildlife Agencies with funding from Multistate Conservation Grant Program.
• Southwick Associates. 2007. Sportfishing in America: An Economic Engine and Conservation Powerhouse. Produced for the Association of Fish and Wildlife Agencies with funding from Multistate Conservation Grant Program.
• Sweeney, B. W. Streamside Forests and the Physical, Chemical, and Trophic Characteristics of Piedmont Streams in Eastern North America, Water Science Technology Journal, 1993.
• Sweeney, B. W. et al. 2004. Riparian Deforestation, Stream Narrowing and Loss of Stream EcosystemSer- vices. Pennsylvania Natural Academy of Sciences. 101:39, 14132—14137.
• Sweeney, B. W. and Blaine, J. G. 2007. Resurrecting the In-Stream Side of Riparian Forests. Journal of Contemporary Water Research & Education. 136, 17—27.
• Vidon, P. G. F. and A. R. Hill. 2004. Landscape controls on nitrate removal in stream riparian zones. Water Resources Research 40.
• Welsch, D. J., Riparian Forest Buffers, Function and Design for Protection and Enhancement of Water Resources, U.S.D.A. Forest Service, Northeastern Area, Radnor, PA, NA-PR-07-91, 1991, http://www.na.fs.fed.us/spfo/pubs/n_resource/buffer/cover.htm.
• Wenger, S. A Review of the Scientific Literature on Riparian Buffer Width, Extent, and Vegetation, Publication of the Office of Public Service and Outreach, Institute of Ecology, University of Georgia, 1999.
References for scientific data, studies regarding E&S control and PCSM
• Braden, J. B. and D. M. Johnston. 2004. Downtown economic benefits from storm-water management. Journal of Water Resources Planning and Management. 498—505.
• Burton, A. and R. Pitt. Stormwater Effects Handbook: A Toolbox for Watershed Managers, Scientists, and Engineers. CRC Press 2001. http://rpitt.eng.ua.edu/Publications/BooksandReports/Stormwater%20Effects%20 Handbook%20by%20%20Burton%20and%20Pitt%20book/MainEDFS_Book.html.
• Center for Watershed Protection. The economics of watershed protection. Watershed Protection Techniques. 2:4, 469—481.
• Center for Watershed Protection. The economics of stormwater treatment: An update. Technical Note #90, Watershed Protection Techniques. 2:4, 395—499.
• Chester County Water Resources Authority. Reducing Stormwater and Flooding, The Ten Principles of Effective Stormwater Management, December 2004, http://www.chesco.org/water.
• Conservation Research Institute. Changing Cost Perceptions: An Analysis of Conservation Development. Illinois Conservation Foundation & Chicago Wilderness, February 2005.
• Financing Stormwater Management Programs. Choices and Options: http://water.nstl.gov.cn/MirrorRe sources/2537/index.html.
• Government of Ontario, Ministry of the Environment. The 2003 Stormwater Management Planning and Design Manual, http://www.ene.gov.on.ca/gp/4329e_5.htm.
• Heaney, J. P., R. Pitt and R. Field. Innovative Urban Wet-Weather Flow Management Systems, http://rpitt.eng.ua.edu/Publications/BooksandReports/Innovative/MainIUWW_Book.html.
• Kang, J., P. T. Weiss, J. S. Gulliver, and B. C. Wilson. Maintenance of Stormwater BMPs Frequency, effort, and cost, Stormwater The Journal for Surface Water Quality Professionals. November-December 2008, http://www. stormh2o.com/november-december-2008/bmp-mainten ance-cost.aspx.
• Kloss, C. and C. Calarusse, Rooftops to Rivers: Green Strategies for Controlling Stormwater and Combined Sewer Overflows, June 2006.
• National Resources Council. Urban Stormwater Management in the United States, October 2008), http://www.epa.gov/npdes/stormwater.
• National Resources Defense Council. Stormwater Strategies: Community Responses to Runoff Pollution, May 1999.
• PA DEP. Erosion and Sediment Control Program Manual (PADEP # 363-2134-008), http://www.depweb. state.pa.us/watershedmgmt/cwp/view.asp?a=1437&q= 518836&watershedmgmtNav=¦.
• PA DEP. Pennsylvania Stormwater Best Management Practices Manual (PADEP # 363-0300-002), http://www. depweb.state.pa.us/watershedmgmt/cwp/view.asp?a=14 37&q=518836&watershedmgmtNav=¦.
• PA DEP. Water Quality Standards Triennial Review, http://www.depweb.state.pa.us/watersupply/cwp/view.asp ?a=1261&Q=531653&watersupplyNav=¦.
• Philadelphia Stormwater Management Guidance Manual. Philadelphia Water Department, http://www. phillyriverinfo.org/Programs/SubprogramMain.aspx?Id= StormwaterManual.
• The Stormwater Manager's Resource Center. Center for Watershed Protection, Inc., http://www.stormwatercen ter.net/.
• United States Environmental Protection Agency, Office of Water, Economic Analysis of Final Effluent Limitation Guidelines and Standards for the Construction and Development Industry, November 23, 2009. http://www. epa.gov/guide/construction/files/economic.pdf.
• United States Environmental Protection Agency, Phase I and II Rulemaking (55 FR 47990 and 64 FR 68722, respectively).
• Urban Stormwater Economics: A Comparable Cost Benefit Study of Site Technologies and Strategies for the City of Toronto.
• Villanova Urban Stormwater Partnership. http://www.villanova.edu/vusp.
References regarding EHB decisions.
• Valley Creek Coalition v. DEP, 1999 EHB 935, http://ehb.courtapps.com/corpus/12%2D15%2D1999.98228.html.
• Blue Mountain Preservation Association v. DEP and Alpine Rose Resorts, 2006 EHB 589, http://ehb.courtapps. com/corpus/50119072005077.pdf.
• Crum Creek Neighbors v. DEP and Pulte Homes of PA, LP, EHB Docket No. 2007-287-L, October 22, 2009 Adjudication, http://ehb.courtapps.com/corpus/503063 92007287.pdf.
F. Benefits, Costs and Compliance
The final-form rulemaking provides benefits to the health and safety of the citizens of this Commonwealth. The provisions will improve water quality and mitigate flooding potential by controlling increases in sediment and other pollutant discharges during and after earth disturbance activities. Controlling discharges through this final-form rulemaking will limit the risk for increased pollutant levels to waters of this Commonwealth and protect against adverse impacts on aquatic ecosystems. To ensure protection against adverse impacts from stormwater runoff, the final-form rulemaking includes provisions for long-term operation and maintenance of PCSM facilities. In support of the Federal NPDES stormwater construction rulemakings, the EPA cited benefits including the benefits to navigational operations regarding the reduced sediment loads requiring dredging, the benefits of water storage in reservoirs with regained water capacity from reduced sediment build-up and the benefits to drinking water treatment with reduced costs for treatment of sediment in turbidity.
The revisions will also provide benefits through the restructuring and clarification of planning and permit application requirements, as well as the codification of the existing PCSM requirements. This final-form rulemaking reflects a continuing commitment to integrate regulatory obligations for stormwater management including requirements under the Storm Water Management Act (Act 167) (32 P. S. §§ 680.1—680.17), the NPDES MS4 program and permitting of earth disturbance activities. Local governments with Act 167 or NPDES MS4 regulatory obligations may rely on the regulatory structure provided by this final-form rulemaking. This reliance on existing State stormwater programs represents a significant cost savings to local governments.
§ 102.6—Benefits of permit fee structure
The citizens of this Commonwealth, the regulated community and State and local governments will benefit from this final-form rulemaking because surface waters will be protected, maintained and improved through requirements that minimize accelerated erosion and sedimentation and strengthen PCSM.
The Commonwealth will benefit from increased permit fees that are based on the estimated cost of administering the program. Amendments to Chapter 92 in 1999 and Chapter 102 in 2000 included modifications to permit fees, but these were administrative filing fees and did not cover cost of program operations. This final-form rulemaking is the first effort by the Department to cover the Chapter 102 program costs through permit fees.
Benefactor Benefit Annual Approx. Value Source Department Revenue to operate the 102 program $7,573,200 Permits and other associated review fees Finally, this final-form rulemaking is beneficial because it continues to support the delegation of the E&S control and stormwater management programs to local county CDs. CDs and the Department have had a successful and effective partnership that allows the Commonwealth to meet the Federal requirements of the NPDES program. Additionally, the delegation to the local government provides more accessibility to the community and regulated parties and ensures local involvement in oversight of the program.
§ 102.8—Benefits of post construction stormwater management
Economic impacts of PCSM design and implementation
The costs associated with contemporary stormwater strategies cannot be judged without the context of benefits, particularly the benefits of low impact development, better site design and environmental site design approaches, collectively referred to as LID. It is more cost-effective to prevent the pollutants from entering the stormwater or into waters of this Commonwealth than it is to remove the pollutants once they are in the system or in the waters.
A partial list of the additional benefits for developers, communities and municipalities includes the following: downstream economic benefits (reduced flooding damages, reduced treatment costs, increased property values, and the like); reduced needs for infrastructure; higher property values (increased sales, higher sale/resale prices and shorter on-market time); increased tax revenue; increased tourism and recreation; and reduced performance bonding for infrastructure (local/municipal requirements).
A comparative cost-benefit study of different technologies used in the management of urban stormwater consistently raised examples of how LID methods save money in both construction and long-term operation and maintenance, from the broad metropolitan scale down to the site level and further down to a comparison of specific stormwater technologies (Urban Stormwater Economics, Appendix D).
The summary of conclusions include the following:
• At the site level, significant cost savings can be achieved from cluster development, including costs for clearing and grading, stormwater and transportation infrastructure, and utilities.
• Installation costs can be between $4,400 and $8,850 cheaper per acre for natural, native landscaping than for turf grass approaches.
• Better site design can reduce paving costs.
• While conventional paving materials are less expensive then conservation alternatives, porous materials can help total development costs go down, sometimes as much as 30%, by reducing stormwater conveyance and detention needs.
• Swale conveyance and naturalized BMPs are less costly than pipe systems, as much as 80%.
• Costs of stormwater retention or detention cannot be examined in isolation, but must instead be analyzed in combination with conveyance costs (pipe, inlets and curb), at which point low impact methods have a cost advantage, by eliminating these facilities. The cost saving is two-fold. One from the cost of design and implementation and second from the reduction of impervious surface that these conveyances cause.
• Infiltration strategies and water conservation measures, in combination with landscape planning methods, usually require less space, when fully accounted for, than traditional end-of-pipe infrastructure.
• Public infrastructure costs are higher when a development is built within the context of urban sprawl, as compared to compact growth patterns that conserve land.
In addition to preserving agricultural land, open space is now expected to serve important ecological roles by providing natural habitat, reducing runoff volumes, limiting landscaping and lawn maintenance, and providing natural cooling. These ecological benefits in turn translate into higher levels of residential satisfaction (Urban Stormwater Economics, Appendix D).
A study by the EPA of 17 case studies of developments across the country that used LID practices (infiltration, ET and reuse of rainwater) found that these practices could save money for developers, property owners and communities. Most of the cost reductions were in the 25% to 35% range. In addition, there are many amenities and associated economic benefits that go beyond actual cost saving, such as enhanced property values, improved habitat, aesthetic amenities and improved quality of life. In all cases, LID provided other benefits that were not monetized and factored into the project bottom line. These benefits include improved aesthetics, expanded recreational opportunities, increased property values due to the desirability of the lots and their proximity to open space, increased total number of units developed, increased marketing potential and faster sales. The case studies also provided environmental benefits such as reduced runoff volumes and pollutant loadings to downstream water, and reduced incidences of combined sewer overflows.
Failure to enact these changes to the proposed rulemaking will allow increases in stormwater runoff to occur. Increases in stormwater causes degradation of lakes, streams and wetlands and reduces property values, raises our public water utility bills and reduces tourism and related business income. These negative impacts will cause an increase in costs for local municipalities and this Commonwealth. Comments from the Philadelphia Water Department indicated that the proposed changes will improve water quality and reduce illnesses from drinking water and reduce their treatment costs.
Preventing contamination of raw drinking water supplies is more efficient than trying to identify and remove that contamination from the water stream at the treatment plant. By dedicating funds to restore and protect source water areas, communities are saving tremendous amounts of money over the long-term. The survey in Table 1 regarding water treatment and chemical costs based on percent of watershed that is forested indicates that operating treatment costs decreases as forest cover in a source area increases (Urban Stormwater Economics, Appendix D). For every 10% increase in forest cover in the source area (up to 60% forest cover), treatment and chemical costs decreased approximately 20%. Approximately 50% to 55% of the variation in operating treatment costs can be explained by the percent of forest cover in the source area. Not enough data were obtained on suppliers that had more than 65% forest cover in their watersheds to draw conclusions; however, the researchers believe that treatment costs level off when forest cover is between 70% and 100%. The remaining 45% to 50% variation in treatment costs that cannot be explained by the percent forest cover in the watershed is likely due to varying treatment practices, economies of scale, the location and intensity of development or row crops, or both, in the watershed, and the prevalence of agricultural, urban and forestry BMPs.
Table 1. Water treatment and chemical costs based on percent of watershed that is forested
% of Watershed Forested Treatment and Chemical Costs per million gallons % Change in Costs Average Treatment Costs (at 22 mgd) Per Day Per Year 10% $115 19% $2,530 $923,450 20% $93 20% $2,046 $746,790 30% $73 21% $1,606 $586,190 40% $58 21% $1,276 $465,740 50% $46 21% $1,012 $369,380 60% $37 19% $814 $297,110
Economic impacts of PCSM operation and maintenance
• Delaware Natural Resources identified that routine stormwater maintenance range from $100 to $500 per acre of drainage area (low to highly intensive maintenance).
• Maintenance cost savings range between $3,950 and $4,583 per acre per year over 10 years for native landscaping approaches over turf grass approaches (Urban Stormwater Economics, Appendix D).
• A study by North Carolina State University estimated annual maintenance costs for a 10-acre project: ponds, $4,000 +; wetland treatment, $750; bioretention, $600; and other natural systems equated to normal landscaping maintenance costs.
§ 102.14—Benefits of riparian buffers
Economic benefits of riparian forest buffers
Savings to the Commonwealth, its political subdivisions and the private sector will be realized because of the value of the many services that riparian buffers provide such as the following:
• Stormwater treatment. Stormwater treatment systems that integrate natural areas, like riparian forest buffers, are less expensive to construct than storm drain systems and provide better environmental results. Costs of engineered stormwater BMPs range from $500 to $10,000 per acre and will cost that much again in 20 to 30 years when the structures need to be replaced. It is much more cost effective to manage storm water by including the preservation and maintenance of riparian forests in the stormwater management plan. The cost of preserving or replanting riparian forest buffers ranges from $0 to $4,723 per acre and can be relatively cost free once established. (Department's Draft Riparian Forest Buffer Guidance (Document 394-5600-001, 2009).)
• Maintenance of optimal water quality. This would include protection of water quality for activities such as boating, swimming and wildlife viewing. Riparian forest buffers also protect areas for fishing, hunting and other outdoor recreational activities. Trout require the cold waters enhanced by the shading provided by forest buffers (Jones et al., 2006). Fishing contributes over $2 billion to this Commonwealth's economy with close to 1 million anglers (Southwick, 2007).
• Flood control. Riparian buffers moderate floodwaters and are a tool to protect human land use and investments from localized and flashy events and hazards associated with stream dynamics and shore erosion. Riparian buffers protect investments from hazards associated with stream flooding and erosion by providing a critical right-of-way for streams and rivers during large floods and storms. When riparian forest buffers contain the entire 100-year floodplain, they are extremely cost-effective in flood damage prevention for both communities and individual property owners (Burby, 1988).
• Passive recreational activities. Riparian buffers provide natural surroundings for relaxation, observation of wildlife, photography, hunting, fishing and other activities important to the people of this Commonwealth. Pervious paths that are cut through riparian areas and can be used for hiking, bicycling, jogging, bird watching and leisurely walks.
• Intrinsic and aesthetic values. Mature riparian forest buffers composed of predominantly native vegetation enhance the preservation of natural functioning ecosystems and biological diversity. The aesthetic values associated with greenways, which include riparian forest buffers, have economic benefits and can increase property values as well as contribute to a sense of pride and well being for communities and property owners. These greenways can also have a positive impact on the value of surrounding property nearby. Pennypack Park, a managed greenway along Pennypack Creek in Philadelphia, has been credited with a 33% increase in the value of adjacent property (Chesapeake Bay Foundation, 1996).
• Ice damage control. The trees in Zone 1 of a mature riparian forest buffer insulate and warm the waters on the near shoreline/streambank area. This protects human land use and investments from ice damage on the near shoreline/streambank and from affects of ice jamming and subsequent upstream flooding (Abernathy et al., 1998).
Ecological benefits of riparian buffers
Land development activities change natural features of the land and alter stormwater runoff characteristics. The resulting alterations by stormwater runoff on volume, rate and water quality can cause stream bank scour, stream destabilization, sedimentation, reduction of groundwater recharge and loss of base flow, localized flooding, habitat modification and water quality and quantity impairment, which constitute pollution as that term is defined in section 1 of the act.
Riparian buffers, which are areas of permanent vegetation along surface waters, play a vital role in mitigating the effects of stormwater runoff from land development activities. They are useful in mitigating or controlling point and nonpoint source pollution by both keeping the pollutants out and increasing the level of instream pollution processing. Used as a component of an integrated management system including nutrient management along with E&S control practices, riparian buffers can produce a number of beneficial effects on the quality of water resources. Riparian buffers can be effective in removing excess nutrients and sediment from surface runoff and shallow groundwater, stabilizing streambanks and shading streams and rivers to optimize light and temperature conditions for aquatic plants and animals. Riparian buffers provide significant flood attenuation and storage functions within the watershed. They prevent pollution both during and after earth disturbance activities, and provide natural, long-term sustainability for aquatic resource protection and water quality enhancement.
A riparian forest buffer is a type of riparian buffer that consists of permanent vegetation that is predominantly native trees and shrubs and along surface waters. The riparian forest buffer, when mature, will provide a minimum of 60% canopy cover and may have forbs in the understory.
The efficacy of riparian forest buffers in reducing the quantities of nonpoint source pollutants found in stormwater entering streams has been well established by hundreds of reports published in the peer-reviewed scientific literature (Mayer et al., 2007; and Wenger et al., 1999). Scientific literature also supports the riparian forest buffer (with stormwater entering the buffer as sheet flow or shallow concentrated flow) as the only BMP that can provide all of the following benefits:
• Reduced effects of storm events. Mature riparian forest buffers that are sufficiently wide can slow the speed and reduce the volume of surface runoff from upland areas. The spongy floor of a riparian forest buffer along a pond, lake or reservoir slows the affect of direct precipitation and runoff from areas adjacent to the riparian forest buffers. This protects stream channel beds and banks from powerful flash flooding that can scour and erode the channel. It also protects lake shorelines from erosive forces during large storms events and flooding.
• Infiltration and maintenance of streamflow. Riparian forest buffers slow overland runoff allowing for infiltration of surface water that helps to maintain base flow in streams and rivers.
• Filtration and processing of pollutants in runoff. Runoff containing pollutants such as sediments, nutrients, pathogens and toxics from rooftops, streets, lawns, farm fields and parking lots can flow into a riparian forest buffer from the area up grade and be considerably cleaner when it enters the perennial or intermittent stream, lake, pond or reservoir (Mayer et al., 2007; Peterjohn and Correll, 1984; Lowrance et al., 1984; Jordan et al., 1993; Clement et al., 2003; and Vidon and Hill, 2004). The floor of the riparian forest buffer soaks up the water and makes pollutants contained in it available for processing into less harmful forms. Trees in a riparian forest buffer, their fallen leaves and the plants and animals that live on, in and under the trees form an ecosystem that is capable of processing pollutants such as sediments, nutrients and toxics in the water that passes through the riparian forest buffer as sheet flow. The tree roots can also remove pollutants from shallow groundwater flowing beneath the forest floor to the waterbody. The leaves of native trees in the riparian forest buffer that wash into the stream serve as a rich food source for benthic macroinvertebrates which are capable of in-stream pollutant processing (Sweeny et al., 2007).
• Streambank and shoreline stabilization. The canopy of a mature riparian forest buffer collects water and protects the ground below in storm events. The rain water also tracks along the trunk of the large trees before reaching the ground. This reduces the force of the water as it reaches the forest floor. The root network of the riparian forest buffer is tightly intertwined and binds soil particles together increasing the strength of the soil matrix, securing against the forces of both direct precipitation and stormwater runoff from areas surrounding the riparian forest buffer. This enhances streambank and lake shoreline stability, which are important for reducing soil and property loss from the bank or shore, reducing sediment input to the waterbody and maintaining overall channel stability. Mature trees also protect lakeshores from wave action (Wenger et al., 1999).
• Light control and water temperature moderation. A riparian forest buffer lowers light levels in the streambank or shoreline area of a waterbody that inhibits the growth and production of harmful algae and helps maximize stream width by shading out grasses. The shading that a riparian forest buffer provides helps to lower water temperatures in summer and moderates harsh winter temperatures by trapping back-radiation. Both light control and water temperature moderation maximize dissolved oxygen content in lake and stream waters and increase the amount of in-stream pollutant processing (Sweeney et al., 1993).
• Flood attenuation. Riparian forest buffers provide space for channel meanders, stream movement and floodwaters to spread out horizontally. This dissipates stream energy and protects channel stability and shoreline integrity in receiving waterbodies. The spongy floor of a riparian forest buffer along a pond, lake or reservoir slows the affect of direct precipitation and runoff from areas adjacent to the riparian forest buffers and protects shorelines during floods.
• Ice damage control. Riparian forest buffers along streams and rivers trap ice slabs during spring breakup, reducing the potential of jamming at downstream constrictions. Jamming can result in backwater and flooding upstream, which can lead to channel instability. Mature riparian forest lakeshore buffer zones are able to absorb the pressures of midwinter ice push, protecting upland development from ice damage (Northwest Regional Planning Commission, 2004).
Further, a review of scientific literature on the subject emphasizes that many site specific factors influence the efficiency of a riparian forest buffer in providing the benefits previously outlined, but there is general agreement that wider buffers are more effective. A minimum width of 150 feet and the type of vegetation, primarily native trees and shrubs, has been firmly established by scientific studies as providing substantial ecological benefit (Mayer et al., 2007; and Wenger, 1999).
Scientific literature also supports a ''zoned'' approach to the composition of newly established riparian forest buffers (Palone et al., 1997; and Welsch, 1991). Zone 1, being directly adjacent to the waterbody and consisting primarily of native trees, is most critical to the ecological health of the waterbody by providing bank stability, thermal moderation, aquatic and terrestrial habitat, and an energy source to maintain a stable ecological community. Zone 2, consisting of native trees and shrubs, provides opportunity for significant sequestration and trapping of overland and subsurface pollutants as well as maximizing habitat potential for a variety of aquatic and terrestrial species.
Zone 1 or, at a minimum, the first 50 feet of a riparian forest buffer, directly adjacent to the stream, river lake, pond, reservoir or impoundment should remain essentially ''untouched.'' Some limited management of forest resources may occur in Zone 2. Activities within the riparian forest buffer must be limited so as to maintain its integrity and functions.
Newly established riparian forest buffers will be managed for a period of at least 5 years, during which time the following are used: a planting plan that identifies the number, density and species of native trees and shrubs that are appropriate to the geographic location and will achieve 60% uniform canopy cover; measures to ensure protection from competing plants and animals including noxious weeds and invasive species; and an inspection schedule with measures identified and implemented to ensure proper functioning of the riparian forest buffer.
Management involves the maintenance and monitoring of a newly established or existing riparian forest buffer. The most critical period after establishing a riparian forest buffer is the time spent maintaining the trees until their growth gives adequate shade to control weed competition. Ongoing maintenance and monitoring practices are necessary for at least 5 years to ensure establishment of a thriving riparian forest buffer, especially if smaller seedling plant material has been used. Even when large plants are involved, deer browse, invasion by exotic plant species and competition by forbs will be a continuing problem. Maintenance and monitoring plans should be written for the specific site.
Invasive plants have characteristics that make them extremely threatening to the survival of a new riparian forest buffer. Noxious weeds are not necessarily invasive plants; they are plants that have proved to be a significant threat to agriculture, human health or the environment, thereby earning the designation of noxious weed from the Department of Agriculture.
Invasive plants and noxious weeds need to be controlled because they pose a threat due to their ability to spread aggressively, reproduce prolifically and are very difficult to control once established. Invasive plants can overrun native vegetation and prevent the long-term sustainability of native riparian vegetation. Non-native species can diminish the pollution prevention capacity of a vegetated riparian forest buffer significantly and also degrade the habitat for wildlife (Sweeney et al., 1993).
Controlling noxious weeds and invasive plants as soon as the plants are noticed (preferably before they bloom and the seeds are released) can be more cost effective than waiting one or more years when the invasive plants and noxious weeds are already established.
The 5-year management period begins when planting of a riparian forest buffer is complete and ends when 60% uniform canopy cover is achieved which should be within 5 years of establishment. The riparian forest management plan should continue to be implemented until 60% uniform canopy cover is achieved. Sixty percent uniform canopy cover is achieved when an area of ground shaded by a vertical projection of the leafy crown of predominantly native shrubs and trees reaches 60% throughout the riparian forest buffer.
A sample riparian forest buffer management plan and methodology for determining percent canopy cover can be found in the Department's Riparian Forest Buffer Guidance (Doc. No. 394-5600-001).
Compliance Costs
Note: When possible, the Department attempted to determine, quantify and calculate the dollar value for the costs, savings and benefits attributable to the final-form rulemaking based on available information on the environmental impacts, social costs, economic impact analysis and benefit analyses. However, not all of the costs, savings and benefits can be readily quantified.
Note: To estimate the potential cost to the regulated community, local and State governments, the total number of permits processed by the Department over the 3 year period of 2006-2008 was examined and broken into each of the three categories. It was determined that over that 3-year sample, the regulated community performed 80%, local governments 12% and State government 8% of the permitted earth disturbance activities in this Commonwealth.
This final-form rulemaking should not result in significant increased compliance costs for persons proposing or conducting earth disturbance activities. Moderate increased costs may be incurred due to the following: increased permit application fees for activities requiring permits; PCSM Plan licensed professional oversight and preparation of record drawings; and long-term operation and maintenance of PCSM facilities.
Generally, there will be cost savings as a result of eliminating outdated and unnecessary requirements, while increasing the protection of valuable water resources in this Commonwealth. Additionally, the emphasis in the final-form rulemaking on nonstructural ''low-impact'' stormwater management approaches should result in lower construction costs and long-term operation and management costs.
The final-form rulemaking will apply to individuals or entities seeking authorization to perform activities regulated under Chapter 102.
Existing regulations
It is difficult to assess the ultimate cost of compliance because projects vary greatly in size, scope and purpose. Additionally, land developers have discretion when choosing BMPs to control stormwater both during and after construction. The choices include fairly high cost traditional BMPs as well as lower cost ''low-impact'' BMPs, which are encouraged in this final-form rulemaking. The choice remains with the land developer.
Cost-bearer Expenditures Annual Approx Value Source Municipalities Administrative $24,720 NPDES IP $79,110 GPs Total $103,830 Private Administrative $164,800 NPDES IP $527,400 GPs Total $692,200 Commonwealth Administrative $16,480 NPDES IP $52,740 GPs Total $69,220 Total $219,375 The annual approximate value for NPDES stormwater construction permits noted in the previous chart is based on a 3-year (2006-2008) average of permit fees collected and reported in eFACTS and by CDs.
Proposed rulemaking
Cost-bearer Expenditures Annual Approx Value Source Municipalities Administrative $74,160 NPDES IP Administrative $158,220 GPs Administrative $676,400 Disturbance Fee Total $908,784 Private Administrative $494,400 NPDES IP Administrative $1,054,800 GPs Administrative $4,509,400 Disturbance Fee Total $6,058,560 Commonwealth Administrative $49,440 NPDES IP Administrative $105,480 GPs Administrative $450,900 Disturbance Fee Total $605,856 Total $7,573,200
The additional costs in the final-form rulemaking are for increased permitting fees and the addition of a disturbance fee. The annual approximate value noted in the previous chart is based on an average of 3 years (2006-2008) of activities performed by the Department and the new fee applied to each activity.
Commonwealth
The final-form rulemaking may add approximately $605,856 in additional costs but will provide revenue of $7,573,200 for State government annually associated with the Chapter 102 E&S Control Program. These estimates were calculated utilizing a 3-year average of activities conducted by the Chapter 102 E&S Control Program and projecting these averages with an associated activity cost due to the final-form rulemaking.
The final-form rulemaking ensures protection and maintenance of environmental quality and should reduce costs to the State and local governments as a result of savings from reduced sediment loadings, reduced in-stream pollutant concentrations and reduced pollution associated with changes to stream flow volume and velocity. The final-form rulemaking will also result in savings from BMPs that reduce flooding potential and associated flood damage.
Municipal
This final-form rulemaking is a codification of existing requirements and therefore only minimal costs associated with increased permit fees are anticipated for local government.
The final-form rulemaking will add approximately $804,954 in additional costs associated with the Chapter 102 E&S Control Program which is the difference between $103,830 ($24,720 NPDES IP plus $79,110 NPDES GP) and the increase of fees to $908,784 ($74,160 base NPDES Stormwater Construction IP fee plus $158,220 NPDES GP plus $676,400 disturbance fee) to local governments annually. The Department does not anticipate that CDs delegated the administration of the program will experience any decrease in revenue based from fees under this final-form rulemaking. In addition, CDs could supplement these revenues with their own review fees. The Conservation District Fund Allocation Program also provides revenue to CDs to partially cover the cost of technical positions to implement the program.
Local governments may realize reduced water treatment costs (as a result of reduced sediment and in-stream pollutant loadings), reduced infrastructure maintenance costs (due to reduced stormwater volumes) and reduced costs associated with flooding potential (due to stormwater management practices that reduce or eliminate flood potential). However, specific cost savings to be realized as a result of this final-form rulemaking are difficult to establish with any certainty and are therefore not identified in this analysis.
This final-form rulemaking reflects a continuing commitment to integrate regulatory requirements with other stormwater management obligations including requirements under Act 167 and the NPDES MS4 program. Local governments with State Act 167 or NPDES MS4 regulatory obligations may rely on the regulatory structure for baseline requirements provided by this final-form rulemaking. This reliance on existing State stormwater programs can represent a significant cost savings to local governments in the form of baseline requirements for E&S control, PCSM and riparian buffer implementation.
Private sector
The cost/benefit to the five largest affected industries with the new Chapter 102 E&S control regulations cannot be addressed since E&S and NPDES are not reoccurring authorizations, nor are they limited to a certain type of industry or project and identifying affected corporations is not possible.
This final-form rulemaking is primarily a codification of existing requirements and therefore costs associated with increased permit fees, as-built drawings and onsite licensed professionals have been considered as potential new costs. Sustainable, natural BMP options that provide lower costs for the regulated community are encouraged. Ultimately, the costs and impacts associated with this final-form rulemaking are decided by the person undertaking the activity and their design professional through the design choices they make. The final-form rulemaking requires that a licensed professional regularly inspect the implementation of critical stages of BMP construction and submit a certification that the BMP is properly constructed. This certification will acknowledge that the BMPs have been properly constructed and are in working order and therefore there will be an improved expectation of optimal performance for the long-term operation. As every project varies in size, scope and design choice, it is difficult for the Department to calculate what a definitive cost will be to the regulated community. The Department is providing the following estimates for time and costs associated with record drawings (2—16 hours) and licensed professional monitoring of critical stages of construction (0—70 hours). The Department calculated the cost for inspection of critical stages and certification of BMP implementation by simply using an average cost for monitoring and certification of $80 per hour for routine monitoring by a designee of a licensed professional and a cost of $115 per hour for the licensed professional services. These services were multiplied by the average of the estimated number of hours for each of the services provided—35 hours for oversight and 8 hours for certification. The resulting value of $2,800 for monitoring and $920 for certification was then multiplied by the average number of permitted activities (2,463 per year) which was derived from program data. The result for average estimated cost for the regulated community is $9,162,360. Again, the costs incurred by a permittee for these new requirements are in direct relation to the type of design chosen for the project. While this is a cost to the regulated community, it also provides benefits of increased assurance that the BMPs will perform as designed thereby providing the desired level of environmental protection or improvement.
The final-form rulemaking will add approximately $5,366,360 in additional costs associated with the Chapter 102 E&S Control and NPDES Stormwater Construction Programs which is the difference between $692,200 ($164,800 NPDES IP plus $527,400 NPDES GP) and the increase of fees to $6,058,560 ($494,400 base NPDES stormwater construction IP fee plus $1,0547,800 NPDES GP plus $4,509,400 disturbance fee) to the private sector annually. The new fees for the Chapter 102 E&S Control Program will close the cost deficit for the administration of the program. Fee schedules have not been updated since 2000 when there was not a per acre of earth disturbance fee for NPDES stormwater construction permits and fees were $250 per permit for GPs and IP fees were $500 per permit. In an effort to reduce the deficit between funds generated and expenditures required to manage the program, this final-form rulemaking sets permit fees as follows: a base administration fee for GPs of $500 per permit or an IP fee of $1,500 per permit, plus a per acre earth disturbance fee of $100 for all permit applications. The fees were developed based on the number of permits issued and number of acres disturbed per permit over the last 3 years. In addition, implementation costs were calculated based upon projected administration, review and implementation time for the program. A more detailed analysis can be found in the fee report form. It should be noted that even though these increases will affect the regulated community, they still will not cover the total Department expenditures required to implement the program.
Potential Riparian Forest Buffer Costs
Land development activities change natural features of the land and alter stormwater runoff characteristics. The resulting alterations of stormwater volume, rate and water quality which can cause stream bank scour, stream destabilization, sedimentation, loss of groundwater recharge, loss of base flow, localized flooding, habitat modification and water quality and quantity impairment, which constitute pollution as that term is defined in section 1 of the act. Riparian buffers, particularly riparian forest buffers, play a vital role in mitigating the effects of stormwater runoff from land development activities. The Department proposes to revise the riparian buffer section to expand riparian buffers in all special protection watersheds and to restore water quality in impaired waters. The final-form rulemaking includes mandatory riparian buffers for activities permitted under Chapter 102 when the project is located along EV or HQ waters. Specifically, protection of existing riparian buffers along EV and HQ waters when the waters are attaining their designated uses and riparian forest buffers where EV or HQ waters are impaired. The mandatory obligation to maintain and protect a 150-foot riparian buffer will be required when the project site contains, is along or within 150 feet of a river, stream, creek, lake, pond or reservoir, and located in either of the following: an EV watershed meeting its designated use at the time of application; or a HQ watershed meeting its designated use at the time of application.
In addition, a mandatory obligation to establish and protect a new riparian forest buffer when the project site contains, is along or within 150 feet of a river, stream, creek, lake, pond or reservoir, when a riparian forest buffer does not currently exist and is located in either of the following: an EV watershed that is listed as impaired at the time of the application; or an HQ watershed that is listed as impaired at the time of application.
EV and HQ waters are afforded the greatest degree of protection under the Department's existing regulations in Chapter 93. Based on the scientific data, riparian buffers are one of the most effective stormwater management BMPs for protecting aquatic resources.
The potential costs regarding the riparian forest buffer requirements in the final-form rulemaking have been calculated by considering how much it could cost to establish a new riparian buffer when a riparian buffer does not exist as well as enhancing or maintaining an existing riparian buffer. Recognizing that a number of possibilities need to be considered when quantifying total costs that may be experienced when establishing riparian forest buffers throughout this Commonwealth, dollars per acre of riparian forest acre established can range from $385 to $4,723 per acre. The minimum estimate is based on the cost of planting 110 (12-inch to 18-inch) hardwood trees spaced 20 feet apart at $3.50 per tree as a minimum to establish a riparian forest buffer. The maximum potential cost is based on planting 435 (12-inch to 18-inch) hardwood trees ten feet apart at $3.50 per tree as well as removal of invasive species ($200 per acre), reinforcement planting ($175 per acre), seedling protection ($2,175 per acre), competition control such as herbicides and mowing ($650 per acre) altogether could cost as much as $4,723 per acre. However, it is most likely that actual establishment of riparian forest buffers will be less than the maximum estimate due to the variety of conditions in the field. It is also possible that riparian forest buffers already exist when projects may fall within the requirements of this part of the final-form rulemaking. The cost would be $0 per acre when this is the case. The Department estimated potential cost to establish riparian forest buffers on a per acre basis. However, it is nearly impossible to determine the number and size of projects that will occur within impaired HQ and EV watersheds requiring establishment of riparian forest buffers, therefore estimates of total acres are not included.
Potential Riparian Forest Buffer Savings
The potential savings that will result from the development of riparian forest buffers are likely to be experienced through the increase of property values resulting from riparian forest buffers being installed in this Commonwealth along impaired EV and HQ streams as a result of this final-form rulemaking. Establishing a riparian forest buffer is expected to increase property values at least $19,104 per acre (adjusted for inflation). This estimate is based on the 1988 Burby study which examined ten programs throughout the United States that diverted development away from flood-prone areas.
Although the mandatory riparian forest buffer requirement for permitted projects located in EV and HQ watersheds is new, this requirement should not necessarily result in substantial new or increased costs to the regulated community.
Riparian forest buffers may result in a savings when compared to structurally engineered nondischarge BMPs. Additionally, the installation of riparian forest buffers has been shown to increase property values by 5% to 25%, increase and protect water quality and decrease the necessity and cost of restoring impaired waters.
According to EPA estimates, available data regarding post construction stormwater can be found in National studies developed by the EPA and others; however, it would not be accurate to infer potential costs and savings for this Commonwealth based on National studies due to the extreme variability of conditions, size of projects and State requirements. According to EPA estimates published in Federal Register on December 8, 1999, estimated post construction costs were $56,122,317 to $227,040,284 (adjusted for inflation) Nationwide annually. This estimate was based on an average costs for PCSM BMPs on project sites of 1, 3, 5 and 7 acres. Annual benefits of the PCSM requirements by the EPA published in Federal Register on December 8, 1999, indicate a potential annual benefit of the Phase II Storm Water Rule to be approximately $131 million to $410,200,000 Nationally, after E&S control benefits were removed from the EPA total benefit estimate.
Assumptions
If the average of the estimated activities performed by the Department exceeds the estimated numbers, the Commonwealth could have a significant benefit to the new regulations because the fees collected will be more than the estimated values. If the average of the estimated activities performed by the Department does not exceed the estimated numbers, the Commonwealth could have a significant loss to the new regulations because the fees collected will not be more than the estimated values.
The final-form rulemaking will result in moderate compliance costs for persons proposing or conducting earth disturbance activities. Moderate increased costs may be incurred due to the following: increased permit application fees for activities requiring permits; PCSM Plan licensed professional oversight and preparation of record drawings; and long-term operation and maintenance of PCSM facilities.
Generally, there is an anticipated cost savings as a result of the eliminating outdated and unnecessary requirements, while increasing the protection of valuable water resources in this Commonwealth. Additionally, the emphasis in the final-form rulemaking on nonstructural ''low-impact'' stormwater management approaches should result in lower long-term operation and management costs.
Compliance Assistance Plan
The regulated community will be notified of fee changes by notice in the Pennsylvania Bulletin.
The Department assists the regulated community in complying with this final-form rulemaking through technical and educational assistance, largely provided in partnership with county CDs. These efforts have resulted in local community based initiatives that stimulate awareness and achieve regulatory compliance. Department staff has worked with CDs to develop and enhance their professional abilities for effective administration of the program. The development of compliance strategies that focus on negotiation, total quality management, mediation and professional development has greatly enhanced the Department's ability to protect this Commonwealth's water resources. County CD staff provide an efficient and effective local source of assistance as well as an efficient mechanism for the protection of valuable resources. Evaluations of district performance have shown that district staff can provide a quick response to process, review and acknowledge permit applications.
By involving advisory committees in the development of this final-form rulemaking, and pursuing initiatives with the regulated community and various other stakeholders, the Department's outreach efforts have allowed stakeholders to work together with regulators to work towards the goal of protecting water quality and the aquatic environment through E&S and stormwater management efforts. Involvement of the public and the regulated community in the development of this final-form rulemaking fosters subsequent compliance with standards and practices developed as a result of these efforts, and are an important form of compliance assistance.
The Department assists the regulated community with compliance by its development of technical guidance documents, standard checklists, worksheets and permit review letters to aid persons responsible for earth disturbance activities and their plan designers in developing sound pollution prevention plans. The Department also assists compliance by assuring that Department and CD reviews are timely, effective and consistent. Finally, the final-form rulemaking incorporates a performance-based approach, which allows persons conducting earth disturbance broad latitude and flexibility in designing BMPs to achieve compliance.
Finally, the effective date of this final-form rulemaking is November 19, 2010 so that the Department may provide the necessary training, compliance assistance, guidance and other information necessary to comply with the final-form rulemaking.
Paperwork Requirements
The majority of the final-form rulemaking codifies existing requirements; therefore, only minor changes to forms, fact sheets and technical guidance are anticipated.
G. Pollution Prevention
Chapter 102 prevents sediment and stormwater pollution to surface waters of this Commonwealth from earth disturbance activities through a tiered regulatory framework built upon BMP requirements. This chapter covers both agricultural and nonagricultural earth disturbance activities, with distinct regulatory requirements for these two broad categories. Regardless of the category, earth disturbance activities shall utilize BMPs to minimize accelerated erosion and sedimentation for the duration of earth disturbance activities. Additionally, some earth disturbance activities require preparation of a written E&S Plan. Finally, earth disturbance activities exceeding specified acreage thresholds may trigger the requirement to obtain permit coverage, which in turn includes the obligation to prepare and implement a written PCSM Plan.
The final-form rulemaking will improve protection from earth disturbance activities not only through the inclusion of PCSM requirements, but also through the addition of the riparian forest buffer provisions, which are one of the most effective and sustainable BMPs for protecting, maintaining, reclaiming and restoring surface waters of this Commonwealth.
Effective pollution prevention also requires robust inspection, oversight and enforcement authority, which are retained and enhanced in this final-form rulemaking. The final-form rulemaking adds requirements such as mandatory preconstruction meetings, and licensed professional documentation requirements.
H. Sunset Review
This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfills the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 19, 2009, the Department submitted a copy of the notice of proposed rulemaking, published at 39 Pa.B. 5131 (August 29, 2009), to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees (Committee) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 8, 2010, the Senate Environmental Resources and Energy Committee and on June 15, 2010, the House Environmental Resources and Energy Committee notified IRRC of their intent to review the final-form rulemaking.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on July 2, 2010, after the conclusion of the additional review period requested by the Committees, the final-form rulemaking was deemed approved by the Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 17, 2010, and approved the final-form rulemaking.
J. Findings
The Board finds that:
(1) Notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 39 Pa.B. 5131.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this preamble.
K. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code, Chapter 102, are amended by amending §§ 102.1, 102.2, 102.4—102.7, 102.11, 102.22, 102.31, 102.32 and 102.41—102.43 and adding §§ 102.8 and 102.14 to read as set forth in Annex A.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect on November 19, 2010.
JOHN HANGER,
Chairperson(Editor's Note: The proposal to add § 102.15, included in the proposed rulemaking published at 39 Pa.B. 5131, has been withdrawn by the Board.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 3753 (July 3, 2010).)
Fiscal Note: Fiscal Note 7-440 remains valid for the final adoption of the subject regulations.
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