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
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 “taking” or 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 would require an Endangered Species Act Section 7 review.
Vernal pools are protected in Pennsylvania under 25 PA 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
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 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.
- Section 404 of the Clean Water Act
- Summary of the Endangered Species Act
- Chapter 104. Dam Safety and Waterway Management
- 25 PA Code 105.20a. Wetland replacement criteria
- PA DEP Wetlands Gain Strategy
- PA DEP, 25 PA Code Chapter 105, Dam Safety and Waterway Management, Pennsylvania Wetland Replacement Project
- Pennsylvania Wetland Replacement Project
- Pennsylvania Fish and Boat Commission
- 58 PA Code 75.1. Endangered species