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PA Bulletin, Doc. No. 03-2030

NOTICES

Proposed Chapter 105 General Permit BWM-GP-11 and 401 Water Quality Certification for the Maintenance, Testing, Repair, Rehabilitation or Replacement of Existing Water Obstructions and Encroachments

[33 Pa.B. 5250]

   In accordance with 25 Pa. Code § 105.446 (relating to procedure for issuance), prior to issuance of a Chapter 105 general permit the Department of Environmental Protection (Department) must publish in the Pennsylvania Bulletin, for public comment, notice of intent to issue a general permit, including the text of the proposed general permit. The notice published at 33 Pa.B. 4981 (October 4, 2003) announced the Department's intent to issue General Permit BWM-GP-11 to authorize the maintenance, testing, repair, rehabilitation or replacement of existing water obstructions or encroachments. The Department inadvertently omitted the text of the proposed general permit in the notice published at 33 Pa.B. 4981. Therefore, the Department is republishing the notice of intent to issue published at 33 Pa.B. 4981, along with the proposed text of General Permit BWM-GP-11 for public review and comment. This notice hereby extends the comment period on the proposed General Permit BWM-GP-11 published at 33 Pa.B. 4981 to December 17, 2003.

The Department of Environmental Protection (Department), under the authority of section 7 of the Dam Safety and Encroachments Act (act) (32 P. S. § 693.7) and 25 Pa. Code Chapter 105, Subchapter L (relating to general permits), proposes to authorize by General Permit BWM-GP-11 the maintenance, testing, repair, rehabilitation or replacement of any existing water obstructions or encroachments. Minor deviations in the structure's configuration or filled area, including those due to changes in materials, construction techniques, current construction codes or safety standards which are necessary to repair, to modify or to replace, are permitted, provided the environmental impacts resulting from the repair, rehabilitation, modification or replacement are minimal and there is no impact on public health and safety. This general permit also authorizes work being funded by the Natural Resources Conservation Service which qualifies as an ''exigency situation'' (requiring immediate attention) under its Emergency Watershed Protection Program. This permit may not be used for maintenance, repair, rehabilitation, removal or replacement of dams.
The Department is authorized by the act and regulations to issue general permits where it determines a category of projects are similar in nature and can be adequately regulated using standard specifications, performance criteria and conditions. The Department has found the maintenance, testing, repair, rehabilitation or replacement of water obstructions or encroachments to be a category of activity which meets the general permit requirements.
Authorization provided by this general permit will eliminate the need for filing an application for an individual permit by an owner who intends to test, repair, rehabilitate or replace an existing water obstruction or encroachment. The owner will be required to register the project by submitting written notice to the Department indicating the intent to do maintenance in accordance with the conditions and terms of the general permit. Applicants will be able to begin work after receiving a written response from the Department.
Since there is no individual permit application, there will be significant savings of both time and money for those using the general permit. In addition to the monetary savings, the general permit enables applicants to proceed on projects with reduced time and effort while still complying with the act. Traditionally, review times for individual permits reach 120 days. A general permit can be acknowledged in approximately 30 days. A review of the permit data from 1995 to the present indicates that approximately 22% of individual permit applicants will qualify for this proposed general permit.
401 Water Quality Certification
The projects covered by the proposed general permit BWM-GP-11 may also require a Federal license or permit. Section 401(a) of the Federal Clean Water Act (33 U.S.C.A. § 1341(a)) requires that an applicant for a Federal license or permit to conduct any activity which may result in any discharge into waters of the United States provide the Federal licensing or permitting agency with certification from the state in which the discharge will originate that the discharge will comply with applicable provisions of the Clean Water Act, as well as applicable state law related to water quality protection.
The Department, by this notice, proposes to certify that the testing, maintenance, repair, rehabilitation or replacement of an existing encroachment or water obstruction as proposed in general permit BWM-GP-11 complies with the applicable provisions of sections 301--303, 306 and 307 of the Clean Water Act (33 U.S.C.A. §§ 1311--1313, 1316 and 1317). The Department further proposes to certify that the testing, maintenance, repair, rehabilitation or replacement of these projects comply with applicable State laws related to water quality protection and standards, provided that the testing, maintenance, repair, rehabilitation or replacement complies with the criteria and conditions of the permit.
Comments concerning the proposed general permit and 401 Water Quality Certification should be directed to Kenneth R. Reisinger, Chief, Division of Waterways, Wetlands and Erosion Control, Bureau of Watershed Management, P. O. Box 8775, Harrisburg, PA 17105-8775, (717) 787-6827 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD). Comments must be submitted in writing and contain the name, address and telephone number of the person commenting and a concise statement of comments, objections or suggestions on this proposal. Comments submitted by facsimile will not be accepted. The Department will consider all relevant and timely comments received. Comments must be submitted by December 3, 2003.

KATHLEEN A. MCGINTY,   
Secretary

Proposed General Permit

BWM-GP-11

Maintenance, Testing, Repair, Rehabilitation, or Replacement of Water Obstructions and Encroachments

   1.  General Description and Fees--In accordance with the following Registration Requirements, the Special Conditions, and the Standard General Permit Conditions, the Department of Environmental Protection hereby authorizes by General Permit the maintenance, testing, repair, rehabilitation or replacement of existing water obstructions or encroachments, except as noted below. Minor deviations in the structure's configuration or filled area including those due to changes in materials, construction techniques, current construction codes or safety standards which are necessary to repair, modify or replace the water obstruction or encroachment are permitted, provided the environmental impacts resulting from such repair, modification or replacement are minimal, and there is no adverse impact on public health and safety. There is no registration fee required for a project authorized under this General Permit.

   2.  This general permit may not be used for the maintenance, repair, modification, removal, or replacement of dams.

   3.  Denial of Authorization--The Department shall have the discretion, on a case-by-case basis, to deny, revoke or suspend the authorization to use this general permit for any project which the Department determines to have a substantial risk to life, property or the environment or otherwise could not be adequately regulated by the provisions of this general permit.

   4.  Authority and Continuing Authorization--Authorization of this General Permit is under Section 7 of the Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27) and the rules and regulations promulgated thereunder at 25 Pa. Code §§ 105.441--105.449 (relating to General Permits). This General Permit shall authorize the maintenance, repair, rehabilitation, or replacement of existing water obstruction or encroachments except dams subject to the terms and conditions set forth herein. This General Permit becomes effective ____ , 2003 and will remain in effect unless specifically modified, suspended, or revoked by the Department.

   5.  Notification of Proposed Use of General Permit--Prior to the maintenance activity, the owner(s) shall submit the ''Registration Form'' along with the required attachments to the appropriate DEP Regional Office's Soils and Waterways Section (see attached listing). A copy of the ''Registration Form'' shall also be sent to the municipality and county in which the work will be performed. The owner may not begin work until he has received the acknowledged ''Registration Form'' from the Department.

   6.  Standard Definitions for General Permits--The terms as used in this General Permit shall have the following meanings:

   Body of water--Any natural or artificial lake, pond, reservoir, swamp, marsh or wetland.

   Department--The Department of Environmental Protection.

   Earth disturbance--Any construction or other human activity which disturbs the surface of the land including, but not limited to clearing and grubbing, grading, excavations, embankments, land development, subdivision development, mineral extraction and the moving, depositing or storing of soil, rock or earth. This includes any excavation or fill within a stream channel.

   Erosion and sediment control plan--A plan which is designed to minimize accelerated erosion and sediment developed in accordance with the requirements of 25 Pa. Code Chapter 102.

   Floodway--The channel of the watercourse and portions of the adjoining floodplains which are reasonably required to carry and discharge the 100-year frequency flood. Unless otherwise specified, the boundary of the floodway is as indicated on maps and flood insurance studies provided by the Federal Emergency Management.

   Agency (FEMA)--In an area where no FEMA maps or studies have defined the boundary of the 100-year frequency floodway, it is assumed, absent evidence to the contrary, that the floodway extends from the stream to 50 feet from the top of the bank of the stream.

   Owner--A person who owns, controls, operates, maintains, or manages a reservoir, water obstruction or encroachment.

   Regulated water of this Commonwealth--Watercourses, streams or bodies of water and their floodways wholly or partly within or forming part of the boundary of this Commonwealth.

   Submerged lands of this Commonwealth--Waters and permanently or periodically inundated lands owned by the Commonwealth, including lands in the beds of navigable lakes and rivers and beds of streams declared public highways which are owned and held in trust by the Commonwealth.

   Watercourse--A channel or conveyance of surface water having defined bed and banks, whether natural or artificial, with perennial or intermittent flow.

   Wetlands--Areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs and similar areas.

   7.  Special Conditions

   A.  No stream realignment, relocation, enclosure or channelization is authorized by this General Permit.

   B.  All projects will be designed and constructed to protect existing aquatic features and habitat.

   C.  Wetlands must be identified in accordance with the 1987 U. S. Army Corps of Engineers Manual for Identifying and Delineating wetland and properly flagged on the site to ensure they are protected. Wetland areas which cannot be avoided and which will be temporarily impacted during the maintenance activity must be identified on the plan and be properly restored at the conclusion of the activity. Wetland areas which cannot be avoided and which will be permanently impacted are limited to 0.05 acres.

   D.  Where it is necessary for construction equipment to cross the stream, a temporary stream crossing shall be provided for this purpose unless the stream flow is shallow and the streambed is on non-erodible material. This crossing can be a ford or a battery of pipes. Any fill material provided for the crossing shall be clean, granular material. Upon completion of the project, the temporary crossing shall be removed in its entirety and the disturbed areas restored, as close as possible, to its original condition.

   E.  Wherever possible paving metal bottom pipes, arches and culverts with concrete, grouting or the use of concrete for scour protection should be done in dry conditions.

   F.  Bridge or culvert maintenance, replacement projects, or upgrades to current standards including bridge superstructure replacements and roadway approach work are subject to the following:

   *  No significant reduction in existing water openings is permitted.

   * There will be no significant changes to grades of approach roadways or to overtopping characteristics.

   *  Increases in outside to outside structure width will be limited to a maximum of 12 feet on each side of the bridge or culvert.

   *  The removal of debris and accumulated sediment to ensure adequate hydraulic capacity for bridges or culverts is limited to fifty feet upstream and downstream of the bridge or culvert and shall be conducted in accordance with the Department's Guidelines for Channel Cleaning.

Hydraulic capacity.

   *  Bridge and culvert maintenance or replacement projects shall be designed and constructed in accordance with the following criteria:

   --The structure shall pass regulatory flood flows without loss of stability.

   --The structure may not create or constitute a hazard to life or property, or both.

   --The structure may not materially alter the natural regimen of the stream.

   --The structure may not so increase velocity or direct flow in a manner which results in accelerated erosion of stream beds and banks.

   --The structure may not increase water surface elevations for the 100-year flood elevation of the existing structure.

Multiple pipes and spans.

   *  Multi-culvert groups and multiple span bridges which may tend to collect debris, contribute to the formation of ice jams, and cause excessive and increases in head losses shall be avoided to the maximum extent practicable. Spans of less than 15 feet shall be by single-opening structure, except where conditions make it impractical to design the crossing with a single span.

Bridge piers.

   *  Bridge piers shall be kept to a minimum in number and cross-sectional area and shall be designed to offer the least obstruction to the passage of water and ice, consistent with safety and state of engineering practice.

   *  Bridge piers in channels subject to unstable or super critical flow shall require special investigation and shall be so designed as to minimize backwater and avoid standing waves downstream of the pier.

Bridge abutments.

   *  Bridge abutments shall be set well into stream banks in such manner as to assure minimal increase in water surface elevations.

   *  Bridge abutments shall be aligned with the flow of the stream for the design flood, generally the 100-year event. The Department may require, the construction of wing walls at the upstream side of the bridge to assist in directing flood flows through the bridge opening.

Culverts.

   *  Culverts shall be aligned with the stream flow.

   *  Culverts shall be of sufficient width to minimize narrowing of the stream channel.

   *  Culverts with a drainage area of 640 acres or less shall be installed with the invert a minimum of 6 inches below natural streambed and such that the gradient of the invert shall not deviate from that of the natural streambed.

   *  Culverts with a drainage area of greater than 640 acres or less shall be installed with the invert a minimum of 12 inches below natural streambed and such that the gradient of the invert shall not deviate from that of the natural streambed.

   *  Inlet of culverts shall be protected by wing walls, headwalls, or with other structures to provide a suitable transition for in directing flood flows into and through the culvert opening.

Professional Engineer Certification

   Plans, specifications and reports for bridges and culverts across a stream which are to be used by the general public such as an access to an industrial, commercial or residential development, etc., shall be prepared by a registered professional engineer and shall be affixed with their seal and certification which shall read as follows:

''I (name) do hereby certify pursuant to the penalties of 18 Pa.C.S.A. Sec. 4904 to the best of my knowledge, information and belief, that the information contained in the accompanying plans, specifications, and reports has been prepared in accordance with accepted engineering practice, is true and correct, and is in conformance with Chapter 105 of the rules and regulation of the Department of Environmental Protection.''

   G.  Pipelines and utilities:

   *  Trenches excavated for the maintenance and replacement of utility lines shall be the minimum width necessary.

   *  Trenches excavated for the maintenance and replacement of utility lines shall be backfilled with the original excavated material and restored to the original condition, elevation and stabilized.

   *  Backfill material must be stored out of the floodway to prevent its discharge to the waterway prior to its use as backfill, if it will be stored longer than 24 hours.

   H.  A copy of this General Permit along with the Erosion and Sedimentation Control Plan must be provided to all contracting and construction entities involved with the project and must be available on site during all phases of the project.

   8.  Erosion and Sediment Controls--Work must be done in compliance with Chapter 102 (relating to Erosion Control). The Erosion and Sedimentation Control Plan shall be available at the site.

   9.  Endangered Species Habitat--No regulated activity is authorized which is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, or which is likely to destroy or adversely modify the critical habitat of such species, as identified under the Federal Endangered Species Act of 1973, the Wild Resource Conservation Act, the Fish and Boat Code or the Game and Wildlife Code. Information is available through the Pennsylvania Natural Diversity Inventory Search at DCNR's Bureau of Forestry, Division of Forestry Advisory Services, P. O. Box 8552, Harrisburg, PA 17105-8552, telephone 717-787-3444.

   10.  Equipment--Use of heavy equipment in a watercourse, stream or body of water is limited to the minimum necessary to complete the project. Heavy equipment working in wetlands must be placed on mats or other measures must be taken to minimize disturbance.

   11.  Proper Maintenance--Water obstructions or encroachments which are authorized must be properly maintained to ensure public safety.

   12.  Aquatic Life Movements--No regulated activity may substantially disrupt the movement of those species of aquatic life indigenous to the watercourse, stream or body of water, including those species which normally migrate through the area.

   13.  Wild and Stocked Trout Waters--Maintenance activities in regulated waters of this Commonwealth are prohibited in the following streams for the specified time period unless written approval is obtained from the PA Fish and Boat Commission's Division of Environmental Services at 459 Robinson Lane, Bellefonte, PA 16823-9616. Stocked and wild trout stream locations are compiled and available through the Commission's Division of Fishery Management.

Stocked trout streams March 1 through June 15
Wild trout streams October 1 through December 31
Lake Erie tributaries March 1 through June 15 and Sept. 1 through Dec. 31

   14.  Waterfowl Breeding Areas--Breeding areas for migratory waterfowl must be avoided to the maximum extent practicable.

   15.  Suitable Material--Fill material must be free of trash, construction debris, tires, similar materials, contaminated materials, and toxic pollutants. Temporary fills for construction purposes (e.g. road embankments, equipment staging, etc.) shall consist of only clean rock material to prevent the introduction of sediment to water resources.

   16.  Avoidance and Minimization--Discharges of dredged or fill material into waters of the Commonwealth must be avoided or minimized to the maximum extent practicable at the project site.

   17.  Removal of Temporary Fills--Temporary fills must be removed in their entirety and the affected areas returned to their pre-existing elevations.

   18.  Navigation--No regulated activity shall hinder commercial or recreational navigation.

   19.  Effective Time Period--This General Permit will remain in effect indefinitely unless specifically modified, suspended or revised by the Department.

   20.  Submerged Lands of this Commonwealth--This General Permit shall not be effective to authorize any project over, across or occupying submerged lands of this Commonwealth until the owner has obtained a license from the Department authorizing the occupation of such submerged lands issued under Section 15 of the Dam Safety and Encroachments Act (32 P. S. § 693.15), Section 514 of the Administrative Code of 1929 (71 P. S. § 194), or other applicable laws. Upon receipt of notification from the owner, the Department will review the project, determine if its location is over, across or occupies submerged lands of the Commonwealth. If applicable, the Department will prepare a Submerged Lands License Agreement and forward same to the owner for execution prior to acknowledgement of registration to use the General Permit. No annual charge is required for facilities constructed, owned or operated by a Political Subdivision of the Commonwealth.

   21.  Use of Explosives--Prior to the use of explosives in a watercourse or body of water, the permittee shall secure a written permit from the Pennsylvania Fish and Boat Commission, under the Fish and Boat Code, Act 1980-175 Title 30 Pennsylvania Consolidated Statutes, Section 2906. Requests should be directed to the Pennsylvania Fish and Boat Commission, Division of Environmental Services (see Exhibit A).

   22.  Suspension, Modification or Revocation--The Department may suspend, modify or revoke this General Permit at any time upon notice in the Pennsylvania Bulletin.

   23.  Project Interference--This General Permit does not authorize any interference with any existing or proposed local, State, Federal or Federally licensed project, and permittee shall not be entitled to compensation for damage or injury to the work authorized herein which may be caused by or a result of existing or future operations undertaken by the United States or the Commonwealth of Pennsylvania or its Political Subdivisions in the public interest.

   24.  Inspection--As a condition of use of this General Permit, and of the owner's authority to conduct the activities authorized by this General Permit, the owner hereby authorizes and consents to allow authorized employees or agents of the Department, including the County Conservation District, without advance notice or a search warrant, at any reasonable time and upon presentation of appropriate credentials, and without delay, to have access to and to inspect all areas where the project is being constructed, operated or maintained. The authorization and consent shall include consent to conduct tests or sampling, to take photographs, to perform measurements, survey and other tests, to inspect the methods of construction, operation or maintenance, to examine and copy books, papers and records pertinent to any matter under investigation, and to take any other action necessary to assure that the project is constructed, operated or maintained in accordance with the terms and criteria of the General Permit. This General Permit condition is referenced in accordance with Section 16 of the Dam Safety and Encroachments Act, 32 P. S. § 693.16, and in no way limits any other powers granted under the Dam Safety and Encroachments Act.

   25.  Activities not in Accordance with the Terms or Conditions--If the Department determines, upon inspection, that the construction, operation or maintenance of a project has violated the terms or criteria of this General Permit or of the Chapter 105 Rules and Regulations, the Department may take such actions, legal or administrative, that it may deem to be appropriate.

   26.  Structure Removal--The owner shall remove all or any portion of this project upon written notification to the owner by the Department in the event the project is causing an adverse impact on public health, safety or the environment, or in any other manner violates the conditions of this General Permit or Chapter 105 Rules and Regulations.

   27.  Property Rights--This General Permit does not authorize trespassing on private property nor convey any property rights, either in real estate or material, or in any exclusive privileges; nor does it authorize any injury to property or invasion of rights or any infringement of Federal, State or local laws or regulations.

   28.  Water Quality Certification--The issuance of this General Permit also constitutes approval of Water Quality Certification under Section 401 of the Federal Clean Water Act (33 U.S.C.A. § 1341).

   29.  Other Permits--Nothing in this General Permit relieves the owner(s) of the obligation of complying with all Interstate Compacts, Federal, and state laws, and regulations.

   30.  Signature--The General Permit Registration Form shall be signed by the person responsible for installation, operation and maintenance of the authorized activity.

[Pa.B. Doc. No. 03-2030. Filed for public inspection October 17, 2003, 9:00 a.m.]


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