The letter continues, "There is a fine line between protection and over-regulation. High quality water is the basis for many of the healthy, viable, rural communities in Wayne and Pike Counties. The Upper Delaware Council is committed to protecting the water quality in this region, and scientific evidence verifies that current land use practices in Pennsylvania are successfully accomplishing that task… We see no benefit to pre-empting local zoning and land use regulations given the good to excellent quality of the waters in the Upper Delaware watershed."
It is noted that the proposed policy would actually threaten the region’s economic vitality through its application of an arbitrary point system and its best management practices that could require cost-prohibitive new development models to implement.
"Furthermore, the proposed policy was derived from an Environmental Hearing Board Decision. Is the DEP not concerned that the required signing of a Declaration of Environmental Covenant that binds the land in perpetuity to the designated size and use could potentially be viewed as inverse condemnation by the court system?" the UDC asks.
The letter concludes by urging the PA DEP to address the valid concerns of the citizens in this affected region by discarding the draft policy.
A complete copy of the UDC’s May 2, 2013 letter is available on-line at www.upperdelawarecouncil.org or please call (845) 252-3022 to request a hard copy.
What we have proposed is not a guidance or a policy or a regulation. It is a technical guidance that solely exists in draft form. It is also a guidance that would not apply to an existing system or any project that has already secured sewage planning approval.
We developed it because a state environmental court ruled that the modeling we previously relied on when approving sewage planning for onlot systems near exceptional value or high quality watersheds was not protective of water supplies. The issue is not whether onlot systmes impact water supplies or waterways but how developers and DEP can prove that they don’t. That is the difficult legal issue the court has now presented DEP and the developers and as a result right now every sewage planning approval is vulnerable to a legal challenge. Absent this guidance, there is tremendous uncertainty from the regulated community.
The court case, Pine Creek Watershed Association v. DEP, was a challenge to an approved sewage plans for development near HQ watersheds. We have proposed a best management practice based approach in this guidance that developers can pick a number of tools, such as riparian buffers, the number of systems per acre or denitrification – or even present us with other methods – to show that the waters would be protected. The guidance does not require or prohibit anything – guidance by definition cannot do that.
If someone does not want to approach DEP for sewage planning approval using the guidance that we have proposed, they can certainly do that. They will just need to use an alternative approach that demonstrates water quality is protected. For example, the developer could conduct a technical analysis that shows water quality won’t be impacted. Such an analysis is costly, and the result of the analysis could show that water quality isn’t protected – necessitating the sort of best management practices we outlined in the draft.
We extended the public comment period on this because we want to hear other approaches on how to provide certainty to the regulated community. We want the economy to continue to grow and we want the environment to be protected. We are confident that there is a solution out there that DEP, the developers, the local governments and the state legislature can agree on.
Kevin Sunday | Deputy Press Secretary
Department of Environmental Protection | Office of Communications
400 Market Street | Harrisburg PA 17101
Phone: 717.787.1323 | Fax: 717.705.4980 www.dep.state.pa.us