Federal and State Regulations for Protecting Vernal Pools in Pennsylvania

There are several federal and state laws that protect vernal pool wetlands and their associated plants and animals in Pennsylvania. These laws regulate impacts to vernal pool basins but fall short in their ability to protect the critical surrounding terrestrial upland habitat. While other states have legislation protecting terrestrial habitat adjacent to vernal pools, Pennsylvania currently does not. In the meantime, efforts to increase awareness about the value of vernal pools and voluntary implementation of best management practices (BMPs) are needed. BMPs are designed to prevent or minimize damage to the vernal pool basin and its immediate surroundings. BMPs recognize that vernal pool animals need upland habitat and include recommendations to ensure the surrounding forest provides adequate food and shelter for the land-dwelling adults. More information on BMPs is available in the Conservation and Management section of this website.

Federal Regulations

Vernal pools can receive protection under Section 404 of the Federal Clean Water Act¹, administered by the U.S. Army Corps of Engineers (ACOE). The ACOE cannot regulate "isolated wetlands" that lack a connection to a stream or waterway. However, the ACOE has some flexibility if an indirect connection can be demonstrated. For example a vernal pool may be considered connected to a waterway if it is connected to another wetland which drains into a stream, or if it is located in the floodplain of a stream, even if it does not usually have a direct surface connection to that stream.

The U.S. Environmental Protection Agency provides protection to threatened and endangered species through the Endangered Species Act². The law prohibits the ‘take’ of any listed fish or wildlife species, and the importation/exportation of any listed species. The northeastern bulrush (Scirpus ancistrochaetus) is a wetland plant that frequently occurs in seasonal pools. Proposed activities that would impact a wetland where northeastern bulrush grows may require an Endangered Species Act Section 7 review.

Pennsylvania Regulations

Vernal pools are protected in Pennsylvania under 25 Pennsylvania Code Chapter 105, Dam Safety and Waterway Management³. Vernal pool habitats are not specifically identified in the code, but the Department of Environmental Protection (DEP) includes them in the "body of water" category as defined in Section 105.1 as 'a natural or artificial lake, pond, reservoir, swamp, marsh or wetland.- Chapter 105 protects Pennsylvania's waters from encroachments including any structure or activity which changes the course, current, or cross section of a body of water. DEP has regulatory authority over the wetland itself but cannot enforce a protective upland buffer.

A DEP permit is needed to directly impact ANY wetland by fill or excavation, regardless of the size. Section 105.20a⁴ sets wetland replacement criteria for wetland losses. Mitigation (wetland replacement) is only required for alteration of wetlands over 0.05 acres in size. When a permit is granted for destruction of a wetland over 0.05 acres, it must be mitigated at a minimum 1:1 ratio. If a permit is granted for wetland losses after-the-fact a minimum 2:1 mitigation ratio is required.

Wetlands under 0.05 acres in size are considered 'deminimus' (for scale, a square with 47 feet per side is ~0.05 acres). Permittees are not required to mitigate the loss of these very small wetlands which include many vernal pools. But their acreage is added to the total acreage of wetlands lost. Pennsylvania has a 'net wetland gain' policy⁵ and has programs to create new wetlands to offset all lost acreage.

The DEP also implemented the Pennsylvania Wetland Replacement Project (PWRP)^6,7 to address issues specific to small wetlands. Wetlands under 0.50 acres are eligible to participate in this project. Mitigation can be in the form of physical wetland replacement, or, a monetary contribution to the PWRP fund.

The Pennsylvania Fish and Boat Commission⁸ is responsible for regulations concerning game and non-game fish, reptiles, amphibians, and aquatic invertebrates. Current regulations prohibit the collection or possession of the following species associated with seasonal pools: Jefferson salamanders (Ambystoma jeffersonianum), blue-spotted salamanders (Ambystoma laterale), marbled salamanders (Ambystoma opacum), four-toed salamanders (Hemidactylium scutatum), and spotted turtles (Clemmys guttata).

Additional protection for some seasonal pool species is provided under the Endangered Species section of the Pennsylvania Code (58 Pa. Code Chapter 75). Pennsylvania protects any of these [fish, amphibian, reptile, and invertebrate] species that is on the state's threatened or endangered species lists. Section 75.1 of the Pennsylvania Code states that ''The catching, taking, killing, possessing, importing to or exporting from this Commonwealth, selling, offering for sale or purchasing of any individual of these species, alive or dead, or any part thereof, without a special permit from the Executive Director is prohibited.- According to the Pennsylvania Code (Section 75), the eastern spadefoot toad (Scaphiopus holbrookii) and the blue-spotted salamander (Ambystoma laterale) are both state endangered amphibians that use seasonal pool habitats⁹.

References

1. Section 404 of the Clean Water Act
2. Summary of the Endangered Species Act
3. Chapter 105. Dam Safety and Waterway Management
4. 25 PA Code 105.20a. Wetland replacement criteria
5. PA DEP Wetlands Gain Strategy
6. PA DEP, 25 PA Code Chapter 105, Dam Safety and Waterway Management, Pennsylvania Wetland Replacement Project
7. Pennsylvania Wetland Replacement Project
8. Pennsylvania Fish and Boat Commission
9. 58 PA Code 75.1. Endangered species