Through Act 38 of 2005, also known as “ACRE” (Agriculture, Communities and Rural Environment) the Pennsylvania Office of the Attorney General (OAG) has specifically addressed this issue with a number of municipalities across the state. While each ordinance issue reviewed through ACRE is unique and fact specific, and the determinations of one review do not necessarily have predictive value as to how the OAG would handle future cases, the OAG has stated that “The [Pennsylvania Department of Environmental Protection’s (DEP] erosion and sediment control regulations do not require submission of an E&S plan to the Conservation District and the Conservation District has not role in DEP’s approving of such plans.” The OAG further stated “The Township may, at its own expense, submit an applicant’s E&S Plan to the Conservation District for review to check compliance with the regulations.”
Because the Conservation Districts’ authority is delegated to them by DEP, the Pennsylvania Forest Products Association wrote a letter to the Department in July of 2020 about this issue and requested that the Conservation Districts be provided with guidance on E&S plan reviews. In their December 2nd response, DEP provided the following guidance to the Conservation Districts, which might also be helpful to timber harvesters and administrators.
· Districts are not prohibited from reviewing E&S Plans under the ACRE law. If a landowner/operator or municipality requests a District to review an E&S Plan, the District may do so.
· Even where an E&S Plan is not required to be reviewed prior to earth disturbance, if an E&S Plan is required to be developed and implemented, it must be available on site during all stages of the earth disturbance activity (25 Pa. Code § 102.4(b)(8)). DEP or the District can request to review the E&S Plan at any time during an inspection or upon complaint (25 Pa. Code § 102.4(b)(9)). If a landowner/operator refuses to provide their E&S Plan upon request in one of these situations, the refusal may constitute a violation of Chapter 102 and should be addressed through appropriate enforcement means.
· According to the Attorney General, municipalities may not require a landowner/operator to submit an E&S Plan to DEP or a District if Chapter 102 does not require such a review. Although DEP does not enforce the ACRE law, DEP respects the opinion of the Attorney General. If a District is aware of a municipal ordinance that requires a landowner to submit an E&S Plan for review outside of Chapter 102 requirements, the District can suggest that the municipality review their ordinance and the opinions of the Attorney General’s office on this issue. The District cannot provide legal advice, however the Attorney General’s website provides publicly-available resources on the ACRE law that may be of assistance to the municipality (see, for example, www.attorneygeneral.gov/resources/acre/).
· Districts and municipalities may enter into MOUs that include the review of timber harvesting E&S Plans, however, in accordance with the opinion of the Attorney General, any such MOU should not require that landowners/operators submit E&S Plans to the District if not otherwise required to do so under Chapter 102. An MOU that allows the municipality to submit E&S Plans for review at the municipality’s sole expense is acceptable. Districts should review any existing MOUs with municipalities to ensure that the MOU is not in conflict with the opinions of the Attorney General regarding the ACRE law.
Both letters are available on the Pennsylvania SFI website.