Political Attack on PA's Riparian Buffers Requires Immediate Action

The Pennsylvania state Senate is poised to vote on a bill that would remove protections for riparian buffers along streams designated as High Quality (HQ) and Exceptional Value (EV).  These are the kinds of streams that support naturally reproducing populations of trout and have the macroinvertibrate diversity to sustain trout populations.

State Rep. Marcia Hahn (R-Northampton)

HB1565 was introduced by Rep. Marcia Hahn (R-Northampton) and approved by the House last month.  The bill is now before the state Senate and could be voted on as early as next Tuesday when the Senate reconvenes after their Columbus Day weekend break.  If passed, the bill would eliminate the requirement for a 150-foot wide riparian buffer between a project involving earth disturbance and an adjacent EV or HQ stream.

“We have seen significant frustrations under the current regulations as businesses, landowners and homebuyers alike have expressed their concerns with the riparian buffer requirements and the negative impacts they have on development and land use in many areas of the Commonwealth,” said Hahn. “Oftentimes, this has been seen as an instance of eminent domain without compensation as landowners could be prevented from using their own property.”

No, Rep. Hahn. This is nothing like eminent domain. What we have now is a regulation that protects environmentally sensitive waters of the Commonwealth and the fish and other organisms living in and around them from irresponsible land uses that would degrade the downstream portions of these streams. A landowner does not have the right to use their property in a manner that poses a real threat of degrading HQ and EV waterways.  For Rep. Hahn to posture this bill as a landowner rights issue ignores the fact that Pennsylvania's natural resources, including its waterways, are “the common property of all the people, including generations yet to come (Article 1, Section 27 of the PA Constitution).”  Therefore, no landowner has the right to conduct activities on their land that can cause sedimentation or contaminants to enter EV or HQ streams.  Other than that, they may use their property in any legal manner they chose.

Earlier this week, HB1565 was amended and voted out in the Senate Environmental Resources & Energy Committee. The amendments, however, could not repair a bill that is fundamentally detrimental to environmentally sensitive waterways. The two amendments did the following:

(1) Clarified that replacement buffers must occur along special protection waters within the same drainage list. This means that buffers could be destroyed in one tributary of a main EV or HQ stream as long as the developer beefs up buffers in a section of another tributary of the same main stream. This is a nonsensical compromise.

(2) Allowed a concession that alternative Best Management Practices can be substituted instead of a buffer as long as the alternatives used are “collectively…substantially equivalent to a riparian buffer…” This amendment essentially recognizes that riparian buffers are the most effective management tool. So then why compromise at all and remove protections for riparian buffers?

Little Lehigh Creek in Lower Macungie Township, PA.
A designated HQ stream (photo by author).

So, Rep. Hahn, please do not frame this bill as a bogus landowners rights battle.  This bill seems like nothing more than an attempt to ingratiate yourself with developers seeking to squeeze a few more units into projects bordering environmentally sensitive streams.  Too bad those developers cannot comprehend that protecting adjacent streams has a positive effect on the value of their finished project.  Who wouldn’t want to live next to a pristine and well-protected stream?

Please email your state senator today and urge them to vote against HB1565 when it comes to a vote. There is not much time left to ensure our headwater streams remain protected with proper riparian buffers.

If you don’t know who your PA state senator is, you can look them up here (http://www.legis.state.pa.us/cfdocs/legis/home/findyourlegislator/index.cfm) and find their email address.  Please do it this weekend.

Winning With Open Space Preservation

What do we mean by open space preservation?  That’s a question that some residents here in Lower Macungie Township, where I live, are starting to ask.  Lower Macungie has the dubious distinction of having been the fastest growing municipality in Pennsylvania for the decade from 2000 to 2010.  In that decade, Lower Macungie's 22 square miles gained 11,413 new residents, a 59% increase from 2000.  We now have about 31,000 residents.

Many current residents, whether they have lived here 5 years or 45 years, are lamenting the loss of so much of the farmland that had originally attracted them to this once rural area.  So naturally, there has been talk of trying to get a coherent open space preservation policy established in Lower Macungie for quite some time.  But when locals say Lower Macungie needs to preserve open space, what exactly does that mean?

To answer that question, I first have to explain what has happened to the local farm land over the past several decades.  The problem with much of Lower Macungie's farmland is that, several decades ago, a significant portion of it was zoned to allow subdivision into residential lots with a minimum size of either 12,000 or 18,000 square feet.  That zoning decision effectively opened the door for developers to begin offering farmers a sizable nest egg for their retirement in exchange for purchasing their farms.

So if we want to preserve open space, are we talking about competing with developers to buy these local farms?  Not necessarily.  Buying land outright is not really an efficient way for a municipality to preserve open space.  Municipalities don't usually want to be in the farming business or the real estate management business.  Instead, the most straightforward way to preserve open space is to find a buyer for the land owner's development rights.  It could be the township.  It could be the county.  Or it could be a non-profit land trust organization.  Generally, the cost of the development rights is simply the difference between how much a developer would pay for that farm and how much another farmer would pay to buy the land to continue farming it.  And it could be a significant windfall for a self-employed farmer who needs to supplement meager retirement savings.

Buying development rights from land owners is a win-win.  The farmer wins because he or she gets paid for selling a valuable but intangible portion of their farm.  They can continue to farm their land and use it as they please.  They may also pass it down to their children to continue the farming tradition.  Severing the development rights simply makes the farm unmarketable to a developer.  So the rest of the community wins, because one less farm will be lost to development and all of the traffic, stormwater runoff and school crowding associated with it.

In a later post, I'll explain how to fund purchase of development rights.

Instead of rows of corn, picture rows of several hundred houses at this farm located in the heart of Lower Macungie. Over 300 new houses could be built on this 130-acre farm, bringing gridlock to one of the main north-south arteries in the township. (photo by author)