Pittsburgh, PA
The Foundation Water Law Newsletter
(By Lisa Bruderly & Mackenzie Moyer)
On January 27, 2023, the Pennsylvania Department of Environmental Protection (PADEP) released the final 2022 Pennsylvania State Water Plan (Plan). The Plan is intended to inform decision making and educate the commonwealth on sustainable use of the commonwealth’s aquatic resources. It identifies regional and statewide water resource priorities and recommends over 100 statewide and legislative actions to address those priorities.
Background
The Water Resources Planning Act of 2002, 2002 Pa. Legis. Serv. Act 2002-220, requires PADEP to collaborate with statewide and regional committees to update the Plan every five years. However, the last State Water Plan was published in 2009.
PADEP identified five main goals for the Plan update:
- A reviewed and updated State Water Plan having the input, guidance, and advice from a repopulated and reinstated statewide committee, six regional committees, and the public.
- Approved and updated critical area resource plans (CARPs) within the Potomac and the Ohio planning areas left unfinished from the 2009 Plan Update.
- Enhanced web-based applications and tools to deliver improved access to water resource information, data, and statistics for educational and water planning purposes.
- Plan provisions to implement applicable water resource-related strategies outlined in the 2018 Pennsylvania Climate Action Plan.
- An updated 2009 State Water Plan Atlas using a web-based GIS application.
The Plan is meant to be a source of water resource data, the latest information, and policy recommendations. It will assist PADEP and other state agencies with developing and implementing policies, programs, and projects that correspond with Pennsylvania’s current and future water needs.
Plan Recommendations
The updated Plan recommends over 100 actions in areas such as flood control, stormwater management, water withdrawal, legacy coal mining impacts, legacy oil and gas wells, drinking water and wastewater treatment, contaminants of emerging concern, and agricultural nonpoint source pollution.
Regarding stormwater, the Plan’s recommendations include: providing a streamlined and more efficient stormwater management program for the regulated community, establishing legislation that allows local authorities, utilities, and management districts to collect “reasonable fees” and “generate sustainable revenues” dedicated to planning, maintaining, improving, and repairing stormwater management infrastructure, and continuing to create opportunities for delegated county conservation districts to implement chapter 102 (Erosion and Sediment Control) and chapter 105 (Dam Safety and Water Way Management) permitting.
Other recommendations in the Plan include establishing an emerging contaminants program, considering regionalization and consolidation of treatment systems to address acid mine drainage from abandoned coal mines, and providing additional funding to identify and address inactive, abandoned, and orphaned wells.
Jumping off the work completed for the 2009 State Water Plan, the 2022 Plan identifies four watersheds as critical water planning areas (CWPAs). CWPAs are areas where existing or future water demands threaten to exceed water availability. These four watersheds are the Marsh and Rock Creek watersheds in Adams County; the Back Creek watershed in Fayette County; and the Laurel Hill Creek watershed in Somerset and Fayette Counties. After a watershed is identified as a CWPA, a CARP is developed. The CARP will identify CWPA-specific recommendations to better manage water-use in the CWPA and ensure future use.
Environmental justice (EJ) and climate change have been top priorities for PADEP, and the Plan complements these priorities. On climate change, the Plan includes and incorporates recommendations found in the 2018 and 2021 Pennsylvania Climate Action Plans. For example, the 2018 Climate Action Plan highlighted opportunities to use stormwater best management practices and water conservation to meet climate change goals. These goals tie nicely with the goals of the State Water Plan and have been incorporated into the Plan. For EJ, the Plan aims at providing educational opportunities and soliciting participation from EJ areas in state water planning processes. PADEP hopes to bring public awareness to the State Water Plan and include vulnerable communities in water-use planning to ensure availability of water resources for all communities into the future.
According to PADEP, the next step is for PADEP and committee members “to reach out to legislative, government, advocacy, and business leaders statewide with information on how they may implement the strategies and actions to benefit all members of their communities.” PADEP, “Pennsylvania State Water Plan,” https://www.dep.pa.gov/Business/Water/PlanningConservation/StateWaterPlan/Pages/default.aspx.
PADEP Rescinds 2022 Guidance on Evaluating Aquatic Resource Compensatory Mitigation
In early 2022, the Pennsylvania Department of Environmental Protection (PADEP) published a technical guidance document entitled “Pennsylvania Function-Based Aquatic Resource Compensation Protocol,” PADEP Doc. No. 310-2137-001 (effective Mar. 1, 2022) (Mitigation Guidance). See Vol. 55, No. 1 (2022) of this Newsletter. On January 7, 2023, PADEP published a notice in the Pennsylvania Bulletin rescinding the Mitigation Guidance for re-evaluation. 53 Pa. Bull. 107 (Jan. 7, 2023).
The Pennsylvania Dam Safety and Encroachments Act, 32 Pa. Stat. §§ 693.1–.27, and its implementing regulations, 25 Pa. Code ch. 105, require a person to obtain a permit from PADEP to construct, operate, maintain, modify, enlarge, or abandon a dam, water obstruction, or encroachment that alters the course, current, or cross section of a body of water. Mitigation Guidance at 1. A mitigation plan is typically required with the permit application, including, as applicable, a plan to compensate for the impact to regulated waters as a result of the project. Id. at 2.
The Mitigation Guidance was meant to provide a standardized system for evaluating functional compensation offsets associated with proposed aquatic resource impacts, determining compensatory mitigation requirements, assisting in identifying measures to minimize proposed project impacts, reducing subsequent compensation requirements, and evaluating compensation proposals. Id. Prior to the Mitigation Guidance, Pennsylvania’s method for determining compensation for losses to aquatic resources was based on acreage and linear feet.
Due to pushback from affected entities, including mitigation banks and permittees, PADEP formed a stakeholder working group to review the Mitigation Guidance. PADEP officially rescinded the Mitigation Guidance “to reevaluate its effectiveness and review potential revisions through stakeholder outreach.” 53 Pa. Bull. at 107. Until new guidance is developed, the previous acre-and-feet method will be used to identify and calculate mitigation needs and requirements.
Copyright © 2023, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
