Riparian Buffer ordinances
Summary of Model Riparian Buffer Ordinance for Municipalities
By Cahill Associates for Clean Water Fund/Delaware Riverkeeper Network/Green Valleys Association
Riparian Buffer Zone (RBZ) Definition:
- Zone 1: 25 foot setback, increased to 50 foot setback zone in Special Protection Waters, extending from top of the stream bank. No disturbance of vegetation or soil is allowed except for restoration activities.
- Zone 2: 75 foot managed buffer zone, increased to a 150 foot zone in Special Protection Waters, extending from zone 1. Disturbance of natural vegetative cover limited to selective logging and activities which minimally disrupt existing tree cover and soil mantle.
- Zone 3: A zone of varying width extending outward from Zone 2. Zone 3 is triggered where upslope areas adjacent to the RBZ are disturbed in the land development process and direct discharge of storm-water would otherwise exist. Zone 3 must include level spreading devices to ensure that any directly discharged stormwater flows are distributed as sheet flow and channelization and point source discharges are avoided. Zone 3 is triggered by certain conditions; Zone 3 width is likely to be minimum of 50 feet.
Uses Permitted in the RBZ:
- Zone 1:
o Uses permitted by right: passive open space uses including wildlife sanctuaries, nature and forest preserves, fishing areas, passive parkland, reforestation and streambank stabilization.
o Uses requiring municipal review and approval: crossings by farm vehicles and livestock, recreational trails, roads, railroads, centralized sewer and/or water lines, public utility transmission lines (provided that any disturbance is offset by buffer improvements). - Zone 2:
o Uses permitted by right: open space uses including wildlife sanctuaries, nature and forest preserves, passive parkland, recreational trails, reforestation, agricultural uses existing at the time of adoption of the ordinance (provided that appropriate conservation techniques are being applied), minimum required front, side and rear yards on private lots (provided that no yard may extend into Zone 2 more than half the distance between Zone 1 and Zone 2).
o Uses requiring municipal review and approval: new agricultural uses, crossings by farm vehicles & livestock, recreational trails, roads, railroads, centralized sewer & water lines, utility transmission lines (provided that disturbance is minimized and offset by buffer improvements). - Zone 3:
o Uses permitted by right: Uses which allow for level spreading and sheet flow to occur, including selective cutting of trees, camps, campgrounds, picnic areas and golf courses, active recreation areas (like ballfields, playgrounds) if designed in a way that will not permit concentrated flow, naturalized stormwater basins (must be 100 ft from edge of watercourse).
Download Protecting Your Water Resources - prepared by Clean Water Fund, Delaware Riverkeeper Network and Green Valleys Association
Uses Prohibited in the RBZ:
- Clear-cutting of trees and other vegetation in Zones 1 and 2. Selective cutting of trees and clearing of other vegetation in Zone 2, except as necessary to prepare for a permitted land use and where the effects are mitigated by revegetation. Removal of trees in excess of selective cutting except as necessary to eliminate dead/diseased/hazardous trees that jeopardize public safety or as part of a reforestation project, provided that the removal is approved by the township.
- Removal or disturbance of vegetation in a way inconsistent with erosion control & buffer protection.
- Storage of any hazardous or noxious materials.
- Use of fertilizers, pesticides, herbicides and/or other chemicals in Zones 1 and 2; in Zone 3, they may be applied consistent with industry standards or the recommendation of the Conservation District.
- Roads or driveways except where permitted as buffer crossings.
- Motor or wheeled vehicle traffic in any area not designed to accommodate traffic type and volume.
- Parking lots.
- Any type of permanent structure, including fences, except as needed for a permitted use.
- Subsurface sewage disposal areas.
- Sod farming.
BUFFERS AND TAKINGS
What is a “taking”?
The term “taking” stems from the United States Constitution. The Takings Clause of Article V of the United States Constitution states that “nor shall private property be taken for public use, without just compensation.” The Pennsylvania Constitution contains a similar provision.
These constitutional provisions mean that, when the government takes your property for public use, it must compensate you fairly for that loss.
Some overly-restrictive land use regulations can constitute a taking. For example, where a regulation authorizes a “physical invasion” of private property, it is a taking. Short of physical invasion, a regulation constitutes a taking only if it goes “too far,” such as when the regulation denies all economic use of the land, or when it or unjustly forces some people alone to bear public burdens that should be borne by the public as a whole.
Does restricting development in buffers along streams constitute a “taking”?
No. It would be exceedingly rare for reasonable limits on land use such as restricting development in riparian buffer areas along streams to constitute a “taking” under the United States or Pennsylvania Constitution. Courts have consistently upheld such regulations in the face of takings challenges. Takings concerns are nonexistent where the buffer regulation remains rationally related to legitimate police powers, draws upon existing science regarding the benefits of riparian buffers, allows for reasonable non-intrusive uses within buffer areas, and grandfathers existing structures.
Buffers 100 is a well-crafted proposal that does not pose any takings concerns.
A rule requiring developers to maintain forested buffers along streams within property being developed clearly serves the legitimate governmental interest of promoting health, safety and welfare. Ensuring that certain land uses do not destroy the important health, safety and environmental functions of forested riparian areas fits squarely within government's police powers.
Buffers 100 is a proposal grounded in sound science. The benefits of forested buffers—flood protection, pollution removal, increased property values, infrastructure cost savings, erosion control—are numerous and well-documented. So are the benefits of widths proposed in Buffers 100 —pollution removal is maximized when forested buffer widths are 100 feet or greater.
The proposal also allows reasonable uses of land to continue. Although invasive activities such as construction are prohibited within the buffer, disturbance of soil and vegetation to conduct minimally disruptive activities is still permitted. Moreover, developers are free to develop other portions of their properties outside of the buffer area. Finally, the rule does not apply to existing development, thus protecting any homes and structures already built in buffer areas.
Allowing development in buffers—the hidden taking.
Allowing development to proceed in buffers actually takes from all of us. Clean drinking water, healthy streams for fishing and swimming, protection from stormwater damage and flooding, and strong property values and local economies are all fair game when buffers are not protected.
