[50 Pa.B. 6863]
[Saturday, December 5, 2020]
[Continued from previous Web Page]
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 105. DAM SAFETY AND WATERWAY MANAGEMENT
Subchapter A. GENERAL PROVISIONS
GENERAL § 105.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Abandonment—The discontinued construction, or operation and maintenance of a dam, water obstruction or encroachment by the owner or permittee.
Act—The Dam Safety and Encroachments Act (32 P.S. §§ 693.1—693.27).
* * * * * Appurtenant works—Structures or materials incident to or annexed to dams or water obstructions which are built or maintained in connection with the dams or water obstructions and are essential to their proper functioning. For dams, the term includes, but is not limited to:
(i) Structures such as spillways, either in the dam or separate therefrom.
(ii) Low level outlet works.
(iii) Conduits such as tunnels, pipelines or penstocks through the dam or its abutments.
Aquatic resource functions—Ecosystem services that result from the chemical, physical, or biological processes that occur in aquatic resources. Except for wetland functions protected under § 96.3(g) (relating to water quality protection requirements), this term does not refer to protected water uses or water quality standards under Chapter 93 (relating to water quality standards). This term includes hydrologic, biogeochemical, and habitat functions that may be recognized using current scientific principles.
Aquatic resource impacts—Changes associated with or resulting from a dam, water obstruction, or encroachment. This term does not refer to evaluations or assessments of protected water uses made under Chapter 93. The term includes the following types:
(i) Direct impacts—The filling or draining of an aquatic resource that results in an area loss or the conversion of an aquatic resource to another type such as converting a wetland to a pond or a stream to a reservoir.
(ii) Indirect impacts—Altering the chemical, physical, or biological characteristics of an aquatic resource to the extent that changes to the functions of the resource results.
(iii) Secondary impacts—Changes associated with but not the direct result of the construction or substantial modification of the dam or reservoir, water obstruction or encroachment in the area of the project and in areas adjacent thereto and future impacts associated with dams, water obstructions or encroachments, the construction of which would result in the need for additional dams, water obstructions or encroachments to fulfill the project purpose.
Aquatic resources—Regulated waters of this Commonwealth, including watercourses, streams, wetlands or other bodies of water and their floodways.
Archaeological site—A known site of archaeological significance based on the Comprehensive State Plan for Conservation of Archaeological Resources. The Comprehensive State Plan is available from the Historic and Museum Commission.
* * * * * Commercially navigable waters of the Delaware River and its navigable tributaries—Portions of the Delaware River from the Delaware border in the south to the railroad bridge at Morrisville in the north; the Schuylkill River below Fairmount Dam; Chester Creek below Ninth Street; Crum Creek below the Route 291 (Industrial Highway) Bridge; Darby Creek below 84th Street; Neshaminy Creek below the Route 13 Bridge; Pennypack Creek below the Frankford Avenue Bridge; and Ridley Creek below the Baltimore and Ohio Railroad Bridge in Chester.
Conservation district—As defined in section 3(c) of the Conservation District Law (3 P.S. § 851(c)), the term means the entity which has the authority under a delegation agreement executed with the Department to administer and enforce all or a portion of the categories of water obstructions and encroachments, or all or a portion of the erosion, sediment and stormwater management program covered by the delegation in this Commonwealth.
Construct—To erect, build, place or deposit including preliminary preparation of a site for construction.
Contributory drainage area—Area upstream of a proposed or existing dam, water obstruction or encroachment that contributes runoff to a watercourse.
Course—The path taken by a stream, floodway or body of water.
Crop production—An activity relating to agricultural products. The term includes:
(i) Plowing, cultivating, seeding, grazing or harvesting.
(ii) Crop rotation.
(iii) Federal or state government set aside programs.
Cross section—The area from the top of the bank to the top of the opposite bank of a stream, floodway or body of water as cut by a vertical plane passed at a right angle to the course of [the] a stream, floodway or body of water.
* * * * * Freeboard—The vertical distance between the water surface elevation experienced during the design flood and the crest elevation of a dam levee, floodwall or other embankment.
Groin structure—A long, narrow structure built out into the water from the shoreline to control wave action, manage shoreline erosion or trap and accumulate sand that would otherwise drift along the shoreline and nearshore zone.
Height of dam—The vertical measurement expressed in feet as measured from the downstream toe of the dam at its lowest point to the elevation of the top of the dam.
High hazard dam—A dam so located as to endanger populated areas downstream by its failure.
Hydrologic and hydraulic analysis—
(i) A study of the effects of an encroachment or water obstruction on the flow carrying capacity of a watercourse.
(ii) A study determining the watershed runoff into a dam and reservoir and the resulting routed outflow from the dam and its spillway structures.
[Incremental dam breach analysis] Incremental Dam Breach Analysis (IDBA)—A process to determine the highest runoff event during which a dam failure would cause a threat to life, health, property or the environment in areas below the dam in excess of the threat level caused by the same runoff event with no dam failure.
Inundation area—The land area subject to flood waters as the result of failure of a dam.
Letter of Amendment for dams—A letter from the Department amending an existing Dam Permit for major maintenance, repair or improvement projects which do not involve modification to the top-of-dam elevation or modification of the normal pool reservoir elevation.
Letter of Authorization for dams—A letter from the Department approving major maintenance, repair or improvement projects which do not involve modification to the top-of-dam elevation or modification of the normal pool reservoir elevation of a dam which has not been previously permitted by the Department and meets the waiver of permit requirements under § 105.12(b)(1) or (2) (relating to waiver of permit requirements).
Levee—An earth embankment or ridge constructed along a [water course] watercourse or body of water to confine water within prescribed limits; the term is also known as a dike.
Limited Power and Water Supply Act—The act of June 14, 1923 (P.L. 700, No. 293) (32 P.S. §§ 621—625); and the act of June 14, 1923 (P.L. 704, No. 294) (32 P.S. §§ 591—600), regarding Limited Power Permits and Limited Water Supply Permits from the Water Supply Commission of Pennsylvania and the conditions thereof, to the flooding and use by holders of Limited Power Permits of lands owned by the Commonwealth, to the unlawful use for water or steam power developments of dams and changes in streams hereafter constructed or made otherwise than under Limited Power Permits, and to proceedings for the enforcement of this act.
Maintenance—Periodic activities conducted to preserve the condition of a dam, water obstruction or encroachment as authorized by the Department.
Maintenance dredging—Periodic dredging conducted to accomplish one or more of the following purposes:
(i) Maintain adequate depths for navigation.
(ii) Assure proper passage of ice and flood flows.
(iii) Preserve the safety, stability and proper operation of the dam, water obstruction or encroachment.
(iv) Restore the natural or previously permitted reservoir capacity.
(v) Restore flood protection projects to original design dimensions.
* * * * * Owner—A person who owns, controls, operates, maintains or manages a dam or reservoir, water obstruction or encroachment.
[PMF—Probable maximum flood—The flood that may be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in an area. The PMF is derived from the probable maximum precipitation (PMP) as determined on the basis of the most recent data available from the National Oceanographic and Atmospheric Administration (NOAA).]
Parcel—A portion of land formally set forth and described in a conveyance.
Person—
(i) A natural person, partnership, association, corporation, public utility, municipality, municipal authority, political subdivision of this Commonwealth, receiver or trustee and a department, board, commission or authority of the Commonwealth.
(ii) Whenever used in a section prescribing and imposing a penalty or sanction, the term includes the members of an association and the officers of a corporation, municipality or municipal authority.
Political subdivision—A county, city, borough, incorporated town, township, school district, authority or other governmental unit or a combination thereof acting jointly.
Probable Maximum Flood (PMF)—The flood that may be expected from the most severe combination of critical meteorological and hydrologic conditions that are reasonably possible in an area. The PMF is derived from the probable maximum precipitation (PMP).
Probable Maximum Precipitation (PMP)—Theoretically, the greatest depth of precipitation for a given duration that is physically possible over a given storm area at a geographic location during a certain time of the year. The PMP may be derived from using the Department's most recently published Probable Maximum Precipitation Study for Pennsylvania or by completion of a detailed site-specific study.
Project—The entire area of the site encompassing a proposed or existing dam, water obstruction or encroachment. The term includes reasonably foreseeable areas planned to contain future dams, water obstructions or encroachments.
Project purpose—A description of the applicant's proposed project and the necessity for the project to be in or in close proximity to aquatic resources.
Public service corporation or public utility—A corporation, association or other corporate body having the powers and privileges of corporations not possessed by individuals or partnerships which entity renders a public utility service. The term does not include a municipality or municipal authority.
* * * * * Replacement—The construction of a new wetland or restoration of a previously destroyed wetland, or both.
Reservoir—Any basin which contains or will contain the water or other fluid or semifluid impounded by a dam.
Reservoir filling plan—A plan that sets a schedule for the initial filling of the reservoir behind a new dam or the refilling of a reservoir after the rehabilitation of an existing dam.
Restoration—The process of reestablishing or rehabilitating aquatic resources to natural characteristics and functions.
Safety—Security from the risk or threat of significant loss or injury to life, health, property and the environment.
Service areas—Watershed-based geographic areas that are used in siting the location of compensatory mitigation for unavoidable impacts to aquatic resources.
Small projects—Water obstructions or encroachments located in a stream or floodplain which will have an insignificant impact on safety and protection of life, health, property and the environment.
Spillway—A device which safely conveys the design flood of a dam without endangering the dam's safety or integrity.
Storage capacity—The volume as expressed in acre-feet of the impounded water to the maximum storage level, that is, the top of the dam.
Stormwater management facilities—Manmade measures [designed and constructed] designed, constructed and maintained to convey stormwater runoff away from structures or improved land uses, or to control, detain or manage stormwater runoff to avoid or reduce downstream damages. The term includes[, but is not limited to,] transportation and related facility drainage systems and manmade stormwater detention [basins] facilities, swales and ditches. The term does not include swales or ditches that have not been maintained and have developed into watercourses or other bodies of water, including wetlands. The term also does not include replacement wetlands or major dams and reservoirs constructed for water supply, recreation, river basin flood control or other regional or basin-wide purposes.
Stream—A watercourse.
* * * * * Watercourse—A channel or conveyance of surface water having defined bed and banks, whether natural or artificial, with perennial or intermittent flow.
Water dependent—The circumstance which requires a dam, water obstruction or encroachment to have access or proximity to, or siting within, aquatic resources to fulfill the basic purposes of the project.
Water obstruction—
(i) A dike, bridge, culvert, wall, wingwall, fill, pier, wharf, embankment, abutment or other structure located in, along or across or projecting into a watercourse, floodway or body of water.
(ii) In the case of ponds, lakes and reservoirs, a water obstruction is considered to be in or along the body of water if, at normal pool elevation, the water obstruction is either in the water or adjacent to and abutting the water's edge.
Water Obstructions Act—The act of June 25, 1913 (P.L. 555, No. 355) (32 P.S. §§ 681—691), repealed by section 27 of the act of October 23, 1979 (P.L. 204, No. 70) (32 P.S. § 693.27).
Wetland functions—Include[, but are not limited to,] the following:
(i) Serving natural biological functions, including food chain production; general habitat; and nesting, spawning, rearing and resting sites for aquatic or land species.
(ii) Providing areas for study of the environment or as sanctuaries or refuges.
(iii) Maintaining natural drainage characteristics, sedimentation patterns, salinity distribution, flushing characteristics, natural water filtration processes, current patterns or other environmental characteristics.
(iv) Shielding other areas from wave action, erosion or storm damage.
(v) Serving as a storage area for storm and flood waters.
(vi) Providing a groundwater discharge area that maintains minimum baseflows.
(vii) Serving as a prime natural recharge area where surface water and groundwater are directly interconnected.
(viii) Preventing pollution.
(ix) Providing recreation.
(x) Other aquatic resource functions pertaining to wetlands that may be recognized using current scientific principles.
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.
Wild trout streams—A stream identified as supporting naturally reproducing trout populations by the Pennsylvania Fish and Boat Commission under 58 Pa. Code § 57.11 (relating to listing of wild trout streams). For a list of wild trout streams, contact the Pennsylvania Fish and Boat Commission, [www.fish.state.pa.us] www.fishandboat.com.
§ 105.3. Scope.
(a) The following structures or activities are regulated under the act and section 302 of the Flood Plain Management Act (32 P.S. § 679.302):
* * * * * (b) For the purposes of this chapter, the Department's jurisdiction in and along Lake Erie will be defined by the high water elevation of [572.8] 573.4 feet International Great Lakes Datum (IGLD) and low water elevation of [568.6] 569.2 IGLD. Dams, water obstructions and encroachments constructed between elevation [572.8] 573.4 IGLD and elevation [568.6] 569.2 IGLD require a permit under section 6 of the act (32 P.S. § 693.6). Dams, water obstructions and encroachments constructed lakeward of elevation [568.6] 569.2 IGLD require both a permit under section 6 of the act and a Submerged Lands License Agreement under section 15 of the act (32 P.S. § 693.15). New or revised IGLD datum is incorporated when established by the United States Department of Commerce, National Oceanic and Atmospheric Administration (NOAA).
(c) The environmental assessment conducted under this chapter [is applicable] applies to dams, water obstructions and encroachments for which a permit or approval is required under this chapter.
§ 105.4. Delegations to local agencies.
(a) Under section 17 of the act (32 P.S. § 693.17) and subject to this section, the Department may by written agreement delegate to a county conservation district or other county agency one or more of its regulatory functions including enforcement and the power to permit, inspect and monitor specified categories of water obstructions and encroachments.
(b) No delegation may be made of the authority to issue permits or authorize registrations for a water obstruction or encroachment constructed, owned or maintained by the Commonwealth, a political subdivision or a public utility. Delegations may be made of the powers to inspect and monitor the activities, if the Department retains final authority to approve or disapprove permits, and concurrent authority to inspect, monitor and enforce the act.
* * * * * (d) A delegation agreement will:
(1) Specify the powers and duties to be performed by the delegated agency.
(2) Specify the categories of water obstructions and encroachment activities to be covered by the delegated agency.
(3) Provide for the commitment by the delegated agency of sufficient trained staff and resources to perform the powers and duties to be delegated.
(4) Require the delegated agency to maintain records of activities performed under the delegation.
(5) Provide for monitoring and supervision by the Department of performance by the delegated agency of the functions delegated under the agreement.
(e) A [permit for a] water obstruction or encroachment permit issued or a registration authorized by a delegated agency is subject to review by the Department, unless the right of review is waived by the Department. A permit issued or registration authorized by a delegated agency shall become effective 30 days following the receipt of notice by the Department of issuance or authorization, unless the permit is disapproved by the Department or an appeal is filed with the Department under section 17 of the act.
(f) When the Department delegates one or more of its regulatory functions to a local agency, the Department will retain the concurrent power to inspect and monitor categories of water obstructions and encroachments and to enforce the act and this chapter.
PERMIT APPLICATIONS § 105.12. Waiver of permit requirements.
(a) Under section 7 of the act (32 P.S. § 693.7), the requirements for a permit are waived for the following structures or activities, regardless of when commenced, unless the project does not meet the eligibility criteria in subsections (c) and (d). If the Department [upon] on complaint or investigation finds that a structure or activity which is eligible for a waiver, has a significant effect [upon] on safety or the protection of life, health, property or the environment, the Department may require the owner of the structure to apply for and obtain a permit under this chapter.
(1) A dam not exceeding 3 feet in height in a stream not exceeding 50 feet in width[, except] and not designated as a wild trout [streams designated] stream by the Pennsylvania Fish and Boat Commission.
(2) A water obstruction or encroachment in a stream or floodway with a drainage area of 100 acres or less that will not impede flow or aquatic life passage. This waiver does not apply to [wetlands] a water obstruction or encroachment proposing to impact a wetland located in the floodway, or to a stream enclosure.
(3) An aerial crossing of a [nonnavigable] stream or wetland by electric, telephone or communications lines which are not located in a Federal wilderness area or watercourse or body of water designated as a wild or scenic river under the Wild and Scenic Rivers Act of 1968 (16 U.S.C.A. §§ 1271—1287) or the Pennsylvania Scenic Rivers Act (32 P.S. §§ 820.21—820.29). This waiver applies to one or more wires attached aboveground to single poles. This does not apply to the maintenance and construction of towers, single poles with concrete foundations or pilings, roads or other water obstructions or encroachments.
(4) A dam subject to the requirements of the Mine Safety and Health Administration, 30 CFR 77.216-1 and 77.216-2 (relating to water, sediment or slurry impoundments and impounding structures; identification; and water, sediment, or slurry impoundments or impounding structures; minimum plan requirements; changes or modifications; certification), if the Department determines on the basis of preliminary data submitted by the applicant that the dam is of Size Classification C and Hazard Potential Classification [3] 4 as defined in § 105.91 (relating to classification of dams and reservoirs) and is not located in a watercourse or body of water designated as a wild and scenic river under the Wild and Scenic Rivers Act of 1968 or the Pennsylvania Scenic Rivers Act.
(5) A water obstruction or encroachment located in, along, across or projecting into a wetland or impoundment, constructed and maintained for the purpose of treating acid mine drainage, sewage or other waste, if the wetland or impoundment is a treatment facility constructed under a valid permit issued by the Department under the Surface Mining Conservation and Reclamation Act (52 P.S. §§ 1396.1—1396.31), The Clean Streams Law (35 P.S. §§ 691.1—691.1001), the Noncoal Surface Mining Conservation and Reclamation Act (52 P.S. §§ 3301—3326), the Solid Waste Management Act (35 P.S. §§ 6018.101—6018.1003), the Oil and Gas Act (58 P.S. §§ 601.101—601.605) and the Pennsylvania Sewage Facilities Act (35 P.S. §§ 750.1—750.20).
(6) A water obstruction or encroachment located in, along, across or projecting into a stormwater management facility or an erosion and sedimentation pollution control facility which meets the requirements in Chapter 102 (relating to erosion and sediment control), if the facility was constructed and continues to be maintained for the designated purpose.
(7) Maintenance of field drainage systems that were constructed and continue to be used for crop production. [Crop production includes:
(i) Plowing, cultivating, seeding, grazing or harvesting.
(ii) Crop rotation.
(iii) Government set aside programs.]
(8) Plowing, cultivating, seeding or harvesting for crop production.
(9) Construction and maintenance of ford crossings of streams for individual private personal use which require only grading of banks for approach roads and the placement of not more than 12 inches of gravel for roadway stability. Fords may not be used for commercial purposes and shall cross the [regulated waters of this Commonwealth] aquatic resource in the most direct manner. This waiver does not apply in exceptional value streams as listed under Chapter 93 (relating to water quality standards) or in wild trout streams.
(10) A navigational aid or marker, buoy, float, ramp or other device or structure for which a permit has been issued by the Pennsylvania Fish and Boat Commission under 30 Pa.C.S. § 5123(a)(7) (relating to general boating regulations).
(11) The removal of [abandoned] dams, water obstructions and encroachments [if the Department determines in writing on the basis of data, information or plans submitted by the applicant that the removal of the abandoned dam cannot] or the abandonment of water obstructions and encroachments. The Department will review the applicant's demonstration under § 105.15 (relating to environmental assessment) to determine whether the removal of a dam, water obstruction or encroachment or abandonment of a water obstruction or encroachment may imperil life or property, have a significant effect on coastal resources or have an adverse impact on the environment, and whether the applicant's plans provide for restoration and stabilization of the project area.
(12) The construction, operation or removal of staff gages, water recording devices, water quality testing devices, including, but not limited to, sensors, intake tubes, weirs and small buildings which contain required instruments and similar scientific structures.
* * * * * (15) The construction and maintenance of an encroachment or water obstruction on an abandoned mining site, where the Department has issued a notice of intent to forfeit the bond for a mining activity permitted after July 1982.
(16) Restoration activities undertaken and conducted pursuant to a restoration plan and environmental assessment under § 105.15 which [has] have been approved, in writing, by the Department.
(17) The construction and maintenance of a streambank fencing conservation practice associated with crop production, or temporary fencing for the protection of a conservation planting or practice located in or along a wetland, along a watercourse and along or in its floodway or along a lake, pond or reservoir. Fencing may not be constructed of materials that will collect flood debris resulting in the restriction of flow or the creation of a backwater condition and may not be installed in or across a watercourse, pond, lake or reservoir.
(18) The construction, operation and maintenance of a water obstruction or encroachment associated with low-impact and non-motorized recreational activities that include walking, hiking or biking trails under a plan which has been approved, in writing, by the Department. The single span bridge, culvert or other structure must be 75 feet or less in length and must not result in the inundation of adjacent property not in possession of the owner of the water obstruction or encroachment or impede the passage of aquatic life through aquatic resources. This waiver does not apply to stream enclosures. The plan must include:
(i) A detailed description of the proposed structure or activity.
(ii) The specific purpose, goals and objectives of the proposed structure or activity.
(iii) Resource identification information.
(iv) A location map.
(v) A determination or delineation of wetlands and accompanying data sheets.
(vi) Photographs.
(vii) The identification of the preparer and their qualifications.
(19) The construction, operation and maintenance of a walking path with an elevated boardwalk in a wetland for educational and interpretive purposes under a plan which has been approved, in writing, by the Department. The plan must include:
(i) A detailed description of the proposed structure or activity.
(ii) The specific purpose, goals and objectives of the proposed structure or activity.
(iii) Resource identification information.
(iv) A location map.
(v) A determination or delineation of wetlands and accompanying data sheets.
(vi) Photographs.
(vii) The identification of the preparer and their qualifications.
(20) The temporary emergency placement, operation and maintenance of a water obstruction or encroachment for water withdrawal related to crop production or fire protection if no alteration of the bank or bed of the watercourse, lake, pond, or reservoir is needed. This includes the placement, operation and maintenance of dry fire hydrants. This waiver is not eligible for use in wetlands and does not apply to parking or other areas for ancillary activities.
(21) Archeological, geotechnical or environmental activities where testing, monitoring or scientific investigations are of a temporary nature, not to exceed 1 year, including boring or placement of sensors to sample or test soil or rock material and other similar activities. This waiver does not apply to parking or other areas for ancillary activities.
(22) The placement, maintenance and removal of temporary mats and pads used for minimizing erosion and sedimentation at a wetland crossing. The wetland must be fully restored to its pre-existing condition.
(b) The requirements for a permit for existing structures or activities, as provided in section 6(c) of the act (32 P.S. § 693.6(c)), are waived for the following structures or activities, if construction was completed prior to July 1, 1979. If the Department [upon] on complaint or investigation finds that a structure or activity which is eligible for a waiver, has a significant effect [upon] on safety or the protection of life, health, property or the environment, the Department may require the owner of the structure or activity to apply for and obtain a permit under this chapter.
(1) [A dam not exceeding 5 feet in height in a nonnavigable stream operated and maintained for water supply purposes] A dam operated and maintained in a stream for water supply purposes, which does not exceed 5 feet in height and does not occupy submerged lands of this Commonwealth.
(2) A dam which the Department determines, on the basis of preliminary data submitted by the applicant, is of Size Category C and Hazard Potential Category 4, as defined in § 105.91 (relating to classification of dams and reservoirs) and does not have a significant effect on coastal resources or an adverse impact on the environment.
(3) A fill not located on navigable lakes and navigable rivers.
(4) A streambank retaining device.
(5) A stream crossing other than a crossing located on submerged lands of this Commonwealth and a crossing by pipelines for conveyance of petroleum products and gas.
(6) An outfall, headwall or water intake structure.
(7) A culvert, bridge or stream enclosure on a watercourse where the drainage area above the culvert, bridge or stream enclosure is 5 square miles or less.
(c) [Structures and activities shall meet the construction, operation, maintenance, monitoring and other requirements of this chapter. No other permits which may be required under a law other than the act are waived by this section.] A structure or activity is not eligible for a permit waiver under subsection (a) above if one of the following circumstances apply:
(1) The structure or activity will occupy submerged lands of the Commonwealth, except for a structure or activity constructed, operated and maintained by a Commonwealth agency or commission.
(2) The structure or activity is located within an area which serves as a habitat of a threatened or endangered species protected by the Endangered Species Act of 1973 (7 U.S.C.A. § 136; 16 U.S.C.A. §§ 4601-9, 460k-1, 668dd, 715i, 715a, 1362, 1371, 1372, 1402 and 1531—1543) or for a species which has been designated as a threatened or endangered species under the Wild Resource Conservation Act (32 P.S. §§ 5301—5314), 30 Pa.C.S. (relating to Fish and Boat Code) or 34 Pa.C.S. (relating to Game and Wildlife Code).
(3) The structure or activity is located within an area of historic, cultural, or archaeological sites as identified in the latest published version of the Pennsylvania Inventory of Historical Places or the National Register of Historical Places.
(4) The structure or activity is located within an area officially approved or recognized by a political subdivision as a local historical site.
(d) A structure or activity eligible for a permit waiver under this section must be properly designed, constructed, operated, maintained and monitored and otherwise must meet the requirements of this chapter. No other permits which may be required under a law other than the act are waived by this section.
§ 105.13. Regulated activities—information and fees.
(a) Application or registration for permits under this chapter [shall] must be submitted to the Department, in writing [, upon] or electronically, on forms or through electronic systems provided by the Department. Applicants are encouraged to request a meeting with the Department prior to submission of [their applications] an application or registration. An application for a permit, registration for a general permit, request for permit amendment, major or minor letter of amendment or authorization, major dam design revision, environmental assessments, permit transfer or annual dam registration under this chapter shall be accompanied by a check or other method of payment acceptable to the Department for the applicable fees except for submissions by Federal, State, county or municipal agencies or a municipal authority.
(b) Fees collected by the Dam Safety Program and Water Obstruction and Encroachment Program, including delegations to local agencies, will be deposited into a restricted revenue account known as the Clean Water Fund and utilized to offset the operating costs to implement respective programs.
(c) The fees are as follows:
(1) Dams based on size and hazard potential category as defined in § 105.91 (relating to classification of dams and reservoirs).
* * * * * (vi) Environmental assessment review fees for nonjurisdictional dams, letters of amendment or letters of authorization.
Size Category Fee A $1,400 B $1,000 C $900 (vii) Transfer of dam permit as required under § 105.25 (relating to transfer of permits).
Type of Dam Permit Transfer
Fee [No Proof of Financial Responsibility Required] Hazard Potential Category 1 and Category 2 dams as classified under § 105.91 $550 [Proof of Financial Responsibility Required] Hazard Potential Category 3 and Category 4 dams as classified under § 105.91 $300 (viii) Annual dam registration fees as required under § 105.131a (relating to annual dam registration).
Hazard Potential Category
1 2 3 4 Size Category A $1,500 $1,500 $800 $0 B $1,500 $1,500 $800 $0 C $1,500 $1,500 $800 $0 (A) Annual registration fees are due by July 1 of each year.
* * * * * (2) Water obstructions and encroachments.
Fee Title/Type Fee Water Obstruction and Encroachment Permit Application Fees Joint application Administrative filing fee (* plus applicable disturbance review fees) $1,750 General Permit Registration
FeesGP-1 Fish habitat enhancement structures $50 GP-2 Small docks and boat launching ramps $175 GP-3 Bank rehabilitation, bank protection and gravel bar removal $250 GP-4 Intake and outfall structures $200 GP-5 Utility line stream crossings $250 GP-6 Agricultural crossings and ramps $50 GP-7 Minor road crossings $350 GP-8 Temporary road crossings $175 GP-9 Agricultural activities $50 GP-10 Abandoned mine reclamation $500 GP-11* Maintenance, testing, repair, rehabilitation or replacement of water obstructions and encroachments $750 GP-15* Private residential construction in wetlands $750 * Disturbance review fees added to application, registration or other fees where applicable Permanent disturbance Waterways, floodways/floodplains and wetlands per tenth acre, minimum
0.1 acre$800 Temporary disturbance Waterways, floodways/floodplains and wetlands per tenth acre, minimum
0.1 acre$400 Other Fees not Added to Initial Application or Registration Fees Environmental assessment for waived activities (§ 105.12(a)(11) and (16) per § 105.15(d) (relating to environmental assessment)) $500 Major amendment to Water Obstruction and Encroachment Permit* $500 Minor amendment to Water Obstruction and Encroachment Permit $250 Transfer of permit with Submerged Lands License Agreement (SLLA) $200 Transfer of permit without SLLA $100
(i) Small projects require a joint application for a Water Obstruction and Encroachment Permit and follow the same fee requirements.
(ii) Additional General Permit registration requirements are as follows:
(A) General Permit registration for GP-11 and GP-15 also requires disturbance review fees when applicable.
(B) Conservation districts may charge additional review fees in accordance with section 9(13) of the Conservation District Law (3 P.S. § 857(13)).
(C) Registration fees for coverage under a General Permit issued under Subchapter L (relating to general permits) not otherwise specified in this section will be established in the General Permit. The applicability of the disturbance review fees will also be established in the General Permit.
(iii) Disturbance review fees are calculated by [individually] adding all of the individual permanent and temporary impacts to waterways, floodways, floodplains and bodies of water including wetlands, rounding this sum to the next highest tenth acre and multiplying the permanent and temporary impacts by the respective fees [and then these amounts are added to the other applicable fees].
(A) [The disturbance review fees are added to the joint application administrative filing fee, applicable General Permit registration fees and major amendments to Water Obstruction and Encroachment Permits] Submission of the disturbance review fee to the Department may occur during the technical or eligibility review and the entire disturbance review fee due must be submitted before the Department's decision on a permit application or registration. The disturbance review fee shall consist of the largest total area of disturbance to aquatic resources as determined during the final permit application or registration review.
(B) If a permit applicant is subject to payment of royalties to the Commonwealth under 58 Pa. Code § 51.92 (relating to royalty rates), the disturbance review fees are not required for the area of disturbance subject to the royalty payment.
(iv) Environmental Assessment for waived activities fee applies to use of the waivers at § 105.12(a)(11) and (16). Environmental Assessment for these waivers is required under § 105.15(d) [(relating to environmental assessment)].
* * * * * (vi) A major amendment of an existing Water Obstruction and Encroachment Permit, permit authorization or water quality certificate before its expiration is an amendment that is not a minor amendment.
(d) A single application may be submitted, or a single permit may be issued for multiple structures and activities which are part of a single project or facility or part of related projects and facilities, located in a single county or multiple counties, constructed, operated or maintained by the same persons. When a single application covers multiple structures or activities other than a single structure and related maintenance dredging, the application fee shall be the sum of fees in subsection (c) for the applicable structures and activities. Water obstructions and encroachments located within a single county or multiple counties shall be treated as a single structure or activity, but the application fee shall be the sum of fees for each water obstruction and encroachment.
(e) An application for or a registration of a permit must be accompanied by the following information, maps, plans, specifications, design analyses, test reports and other data specifically required under this chapter and additional information as required [under] by the Department to determine compliance with this chapter.
(1) [For all permit applications, except small projects, this information includes, but is not limited to, the following] Permit applications for a dam, water obstruction or encroachment, except a permit application for a small project in subsection (f), must include the following information:
(i) A site plan. A site plan must include:
(A) A complete demarcation of the floodplains and [regulated waters of this Commonwealth] aquatic resources on the site. The wetlands shall be identified and delineated in accordance with the Department's Wetland Delineation Policy in § 105.451 (relating to identification and delineation of wetlands—statement of policy). The demarcation of aquatic resources, including wetlands, must be verified through on-the-ground investigation or must otherwise be field-verified. Copies of FEMA floodplain maps must be included for the project, when the project is located in areas where FEMA maps have been prepared.
(B) Existing roads, utility lines, lots, other manmade structures and natural features such as contour lines and drainage patterns.
(C) Proposed temporary and permanent structures or activities included in the project, which [shall] must be identified by labeling.
(D) A minimum scale of one inch equals 200 feet or larger that adequately illustrates the scope of work proposed.
(E) A north arrow.
(F) The name of the persons who prepared the plan, and the date and name of the applicants.
(G) [A cross sectional view] Cross sections of the [regulated waters] aquatic resources to be impacted [before and after the structure or activity is constructed]. The cross sections must show the current or existing conditions and the proposed conditions of the aquatic resources. The cross sections must be provided at a minimum scale of one inch equals 20 feet so that the cross sections adequately illustrate the scope of work proposed.
(ii) A location map. The location map must be of a scale factor of 1:24000 (standard U.S.G.S. Topographic Map). The location map must show [all natural features including the names and boundaries of regulated waters of this Commonwealth, natural areas, wildlife sanctuaries, natural landmarks, political boundaries, locations of public water supplies and other geographical or physical features including cultural, archeological and historical landmarks within 1 mile of the site. U.S.G.S. maps may be reviewed at County Conservation District Offices or obtained by writing to United States Geological Survey Map Distribution, Box 25286 Federal Center, Denver, CO 80225.]:
(A) Topographic features.
(B) Names of aquatic resources.
(C) Locations of public water supplies.
(D) Names and boundaries of natural areas, wildlife sanctuaries and political jurisdictions.
(E) Names and locations of natural, cultural, archaeological and historical landmarks within 1 mile of the site.
(iii) Project description. A narrative of the project shall be provided which includes[, but is not limited to]:
(A) A description of the proposed [structure or activity] structures and activities.
(B) [The] A narrative discussion of the project purpose.
(C) [The] A narrative discussion of the effect the project will have on public health, safety or the environment.
(D) A [statement] narrative discussion and analysis on water dependency. [A project is water dependent when the project requires access or proximity to or siting within water to fulfill the basic purposes of the project] Water dependency must be based on the demonstrated unavailability of any practicable alternative location, route or design and the use of location, route or design to avoid or minimize the adverse impact of the dam, water obstruction or encroachment upon the environment and to protect the public natural resources of this Commonwealth.
(iv) Color photographs. Color photographs of the proposed site, [shall] including the location of all proposed or existing dams, water obstructions and encroachments, must be submitted. The [photos] photographs must accurately depict the project area and provide a relative scale of the project to the surrounding area [and a]. A map showing the location and orientation of each photograph must also be included.
(v) Stormwater management [analysis. If a watershed stormwater management plan has been prepared or adopted under the Storm Water Management Act (32 P.S. §§ 680.1—680.17), an analysis of the project's impact on the Stormwater Management Plan and a letter from the county or municipality commenting on the analysis shall be included]. A demonstration that the project is consistent with the Storm Water Management Act (32 P.S. §§ 680.1—680.17) and that any associated Post Construction Stormwater Management (PCSM) plan meets the requirements under § 102.8 (relating to PCSM requirements).
(A) If a watershed stormwater management plan has been prepared or adopted, and is current under the Storm Water Management Act (32 P.S. §§ 680.1—680.17) and a letter commenting on the project's consistency with that plan has been provided by the county or municipality, that letter must be included as part of the application.
(B) If a PCSM plan was prepared under § 102.8 (relating to PCSM requirements), the applicant must reference the corresponding Department Chapter 102 permit or permit application. The Department will use the PCSM plan for the analysis under this section.
(vi) Floodplain management [analysis] consistency. If the proposed dam, water obstruction or encroachment is located within a floodway delineated on a FEMA map, include an analysis of the project's impact on the floodway delineation and water surface profiles and [a letter from], when provided by the county or municipality, a letter commenting on the analysis as part of the application. When a dam, water obstruction or encroachment is being proposed by a Commonwealth agency, a political subdivision of the Commonwealth or a public utility, the floodplain management plan must be consistent with the Flood Plain Management Act (32 P.S. §§ 679.101—679.601) and Chapter 106 (relating to floodplain management).
(vii) Risk assessment. If the stormwater or the floodplain management analysis conducted in subparagraphs (v) and (vi) indicates increases in peak rates of runoff or flood elevations, include a description of property and land uses which may be affected and an analysis of the degree of increased risk to life, property and the environment. For coastal zone management areas, include an evaluation of short-term and long-term water elevation changes projected by the National Oceanic and Atmospheric Administration.
(viii) Alternatives analysis. [A] An alternatives analysis is a detailed analysis of onsite and offsite alternatives to the proposed [action] dam, water obstruction or encroachment, including alternative locations, routings or designs to avoid or minimize adverse environmental impacts. The alternatives analysis must meet the following criteria:
(A) The level of detail required must be commensurate with the anticipated environmental impact.
(B) A project alternative that may impact a wetland must demonstrate with reliable and convincing evidence that the requirements under § 105.18a(a)(3) and (b)(3) (relating to permitting of structures and activities in wetlands) will be met.
(C) A project alternative that may impact aquatic resources other than a wetland must include a reliable and representative demonstration consistent with § 105.16 (relating to environmental, social and economic balancing).
(D) The analysis must identify present conditions and the effects of reasonably foreseeable future development within the affected body of water, including a wetland, wetland complex, or watercourse upstream and immediately downstream of the proposed dam, water obstruction or encroachment.
(E) A dam, water obstruction or encroachment must be designed, constructed, operated and maintained to assure adequacy and compliance with this chapter, taking into account reasonably foreseeable development within the watershed.
(ix) Mitigation plan. [Actions to be taken in accordance with the definition of mitigation in this chapter] When an applicant or the Department identifies impacts to aquatic resources, the applicant must provide statements, plans, maps or other materials demonstrating that the impacts have been avoided and minimized to the maximum practicable extent. If impacts to aquatic resources are identified and cannot be avoided or minimized, the applicant must provide a plan to compensate for the impacts under the mitigation requirements of this chapter consistent with § 105.20a (relating to compensation for impacts to aquatic resources).
(x) Impacts analysis. A detailed analysis of the [potential impacts, to the extent applicable, of the] proposed project [on water quality, stream flow, fish and wildlife, aquatic habitat, Federal and State forests, parks, recreation, instream and downstream water uses, prime farmlands, areas or structures of historic significance, streams which are identified candidates for or are included within the Federal or State wild and scenic river systems and other relevant significant environmental factors. If a project will affect wetlands the project description shall also include:
(A) A narrative of the delineation process supported by the appropriate data sheets and copies of appropriate soil maps and descriptions from soil conservation service soil surveys. Soil conservation service soil surveys may be obtained from the county conservation district offices.
(B) An analysis of whether the wetland is exceptional value as classified in § 105.17 (relating to wetlands).
(C) A statement on water dependency. A project is water dependent when the project requires access or proximity to or siting within water to fulfill the basic purposes of the project.] impacts. This analysis is not an assessment or evaluation of protected water uses or water quality standards performed under Chapter 93. This analysis must address the following:
(A) Potential threats to life or property created by the dam, water obstruction or encroachment.
(B) Potential threats to safe navigation created by the dam, water obstruction or encroachment.
(C) The effect of the dam, water obstruction or encroachment on the property or riparian rights of owners upstream, downstream or adjacent to the project.
(D) Aquatic resource impacts. The direct, indirect and secondary impacts of the construction, modification or operation of the dam, water obstruction or encroachment on aquatic resources and aquatic resource functions, including impacts on flow regime and ecology, water quality, stream flow, fish and wildlife, aquatic habitat, public water supplies, instream and downstream water uses and other relevant significant environmental factors.
(E) Other impacts. The direct, indirect and secondary impacts of the dam, water obstruction or encroachment on nearby local, Federal and State forests or parks, recreation, natural areas, wildlife sanctuaries, prime farmlands, areas or structures of National, State or local cultural, historical or archeological significance, streams which are identified candidates for or are included within the Federal or State wild and scenic river systems, recreational areas and other relevant significant environmental factors.
(xi) When a project will affect a wetland, the project description, narrative discussion and analysis on water dependency must also include:
(A) A narrative of the delineation process supported by the appropriate information, including data sheets and copies of appropriate soil maps and descriptions from USDA Natural Resource Conservation Service soil surveys.
(B) The type, size, a description of wetland functions, an analysis of whether the wetland is exceptional value as classified in § 105.17 (relating to wetlands), and a demonstration that satisfies the requirements contained in § 105.18a (relating to permitting of structures and activities in wetlands).
(xii) Antidegradation. A demonstration must be provided that the proposed project is consistent with State antidegradation requirements under this chapter and Chapters 93, 96 and 102 (relating to water quality standards; water quality standards implementation; and erosion and sediment control) and the Clean Water Act (33 U.S.C.A. §§ 1251—1376).
(xiii) Cumulative impact analysis. A permit applicant shall provide a projectwide cumulative impact analysis using available resources, which assesses the cumulative impact of the project and other reasonably foreseeable or existing dams, water obstructions or encroachments on wetlands. The applicant's analysis must identify piecemeal impacts and the impacts on each wetland resource in the proposed project area and must consider the wetland resource as part of a complete and interrelated wetland area. The applicant must demonstrate that the proposed project, along with other potential or existing dams, water obstructions or encroachments, does not result in an impairment of the Commonwealth's wetland resources under § 105.18a(a)(6) or a major impairment of the wetlands under § 105.18a(b)(6).
(2) An application for a project which will affect less than 1 acre of wetland where the wetland is not exceptional value wetland shall also include a description of functions and values of the existing wetlands to be impacted by the project, as defined in § 105.1.
(3) An application for a project which may have an effect on an exceptional value wetland or on 1 or more acres of wetland must also include an assessment of the wetland functions and values using a methodology accepted by the Department and a survey, conducted by a licensed professional land surveyor, of the wetland boundary as delineated and of the property lines of the parcel where the project is located.
(4) When the Department, conservation district or delegated local agency determines that an application or registration is incomplete or [contains insufficient information to determine] inadequate to demonstrate compliance with this chapter, it will notify the applicant in writing. The applicant shall have [60 days] a specified period, as stated by the Department in writing, to provide the information necessary to complete the application or registration and provide the information necessary to demonstrate compliance with this chapter. [Thereafter,] If the applicant does not submit the items for completeness or additional information to demonstrate compliance with this chapter, the Department, conservation district or delegated local agency [will] may either consider the application or registration to be withdrawn by the applicant [. Requests for] or deny the application or registration under § 105.21 (relating to criteria for permit issuance and denial). An applicant may request a specific extension [may be sought by the applicant] in writing, setting forth the need for the extension. The Department, conservation district or delegated local agency will confirm or reject the applicant's request for a time extension in writing. The applicant will be notified in writing when an application or registration is considered withdrawn or denied. When an application or registration is considered withdrawn, the Department, conservation district or delegated local agency will close the application file and will not take further action to review the [file] application or registration. The Department, conservation district or delegated local agency will evaluate an application or registration under the criteria in § 105.21 after the applicant has submitted additional completeness and information items in the time period provided by the Department.
(5) If the application has been withdrawn [in accordance with] or denied under paragraph (4), the fees associated with filing the application will not be refunded.
(f) A permit application for a small [projects] project located in [streams] a stream or [floodplains] floodplain must be accompanied by the following information. This permit application may not be used for [projects] a project located in [wetlands] a wetland. If [upon] on review the Department determines that more information is [required] necessary to determine whether a small project will have an insignificant impact on safety and protection of life, health, property or the environment, the Department may require the applicant to submit additional information and processing fees required under this chapter.
* * * * * (2) [A cross sectional view. A cross sectional view of the affected regulated waters of this Commonwealth before and after the structure or activity is constructed] Cross sections. The upstream and downstream cross sections must show the current or existing conditions and the proposed conditions of aquatic resources. The cross sections must be provided at a minimum scale of one inch equals 20 feet so that the cross sections adequately illustrate the scope of work proposed.
(3) A location map. A map showing the geographic location of the project. U.S.G.S. topographic maps, FEMA maps or municipal maps are acceptable. [FEMA and municipal maps may be obtained from local government offices. U.S.G.S. maps may be reviewed at county conservation district offices or obtained by writing to United States Geological Survey Map Distribution, Box 25286 Federal Center, Denver, CO 80225.]
(4) Project description. A narrative of the project shall be provided which includes, but is not limited to:
(i) A description of the proposed structure or activity.
(ii) The project purpose.
(iii) The effect the project will have on public health, safety or the environment.
(iv) The project's need to be in or in close proximity to water.
(5) Color photographs. Color photographs of the proposed site must be submitted. The [photos] photographs must accurately depict the project area and provide a relative scale of the project to the surrounding area [and a]. A map showing the location and orientation of each photograph must also be included.
(g) [Except for small projects, an] An application for a permit under this chapter [shall] must be accompanied by proof of an application for [an Earth Disturbance Permit] a permit or an erosion and sedimentation control plan [for activities in the stream and earthmoving activities] under Chapter 102 (relating to erosion and sediment control). The erosion and sedimentation control plan must conform to requirements [in] under Chapter 102 [(relating to erosion and sediment control)] and, unless reviewed by the Department, must include a copy of a letter from the conservation district in the county where the project is located indicating that the conservation district has reviewed the erosion and sediment control plan [of] provided by the Chapter 102 permit applicant and considered it to be satisfactory, if applicable. [Earthmoving] Earth disturbance activities, including small projects, [shall] must be conducted [pursuant to an earth disturbance] under an erosion and sediment control plan that satisfies Chapter 102 requirements. The erosion and sediment control plan must be available at the project site. Best management practices required under the erosion and sediment control plan must be implemented and maintained before, during and after construction.
(h) An application [shall] must be signed and submitted by the person who owns or has primary responsibility for the proposed dam or reservoir, water obstruction or encroachment. In the case of a partnership, one or more members of the partnership authorized to sign and submit on behalf of the entire partnership shall sign and submit the application. In the case of a corporation, the president or vice president and the treasurer, assistant treasurer, secretary or assistant secretary authorized to sign on behalf of the corporation shall sign and submit the application. In the case of a political subdivision, the chief officer of the political subdivision or other responsible official empowered to sign for the political subdivision shall sign and submit the application. If an application is submitted by a person with primary responsibility for the structure or activity, the owner of a dam or reservoir, water obstruction or encroachment will not thereby be relieved of legal duties or responsibilities for the structure or activity as imposed by the act or this chapter. An applicant may electronically sign and submit an application to the Department, consistent with the Electronic Transactions Act of 1999 (73 P.S. §§ 2260.101—2260.501).
[(i) An application shall be signed by the owners of the dam or reservoir, water obstruction or encroachment, or the persons exercising primary responsibility for the dam or reservoir, water obstruction or encroachment. In the case of a partnership, one or more members of the partnership authorized to sign on behalf of the entire partnership shall sign the application. In the case of a corporation, it shall be signed by the president, vice president or other responsible official empowered to sign for the corporation. In the case of a political subdivision, it shall be signed by the chief officers of the political subdivision or other responsible official empowered to sign for the political subdivision, with the seal affixed and attested by the clerk.
(j)] (i) Plans, specifications and reports accompanying [applications] an application for any category of [dams] dam, or for [bridges] a bridge and other water [obstructions] obstruction or [encroachments which] encroachment that would pose a threat to human life or substantial potential risk to property [shall], must be affixed with the seal of a registered professional engineer and a certification, signed by the registered professional engineer consistent with the requirements under the Commonwealth's Engineer, Land Surveyor and Geologist Registration Law (63 P.S. §§ 148—158.2) or, if submitted electronically, consistent with the requirements under 73 P.S. § 2260.303 (relating to Legal recognition of electronic records, electronic signatures and electronic contracts), which [shall] must 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 regulations of the Department of Environmental Protection.''
(j) The following application materials must be affixed with the seal of a registered professional geologist or engineer consistent with the requirements under the Commonwealth's Engineer, Land Surveyor and Geologist Registration Law (63 P.S. §§ 148—158.2), or if submitted electronically, consistent with the requirements under section 303 of the Electronic Transactions Act (73 P.S. § 2260.303):
(1) Plans, specifications, reports and other information that accompanies an application for a dam or levee, or other type of water obstruction or encroachment, that details geologic borehole locations, profiles, logs and interpretations.
(2) A report on coastal geology concerning bluff and beach erosion and subsequent transportation and deposition of sediment, if applicable.
(k) The Department may waive the specific information requirements of this [section] chapter in writing[, in the record of decision,] if [upon review of the permit application,] the Department finds that the specific information is not necessary to [review the application] ensure compliance with this chapter. This waiver of specific information requirements includes information related to the restoration of aquatic resources and other activities which protect the natural ecosystem characteristics and aquatic resource functions.
(l) The Department will review the adequacy of the fees in this [section] chapter at least once every 3 years and provide a written report to the [EQB] Environmental Quality Board. The report will identify any disparity between the amount of program income generated by the fees and the costs to administer these programs, and it will contain recommendations to adjust fees to eliminate the disparity, including recommendations for regulatory amendments.
§ 105.13a. Complete applications and registrations.
(a) An application or registration for a permit is complete when the necessary information is provided and requirements under the act and this chapter have been satisfied by the applicant or registrant and verified by the Department, conservation district or other delegated agency. A complete application or registration is one that meets both of the following:
(1) Satisfies principal completeness requirements.
(2) Contains information that is necessary to demonstrate compliance with the Act, the Clean Streams Law and this chapter, including the identification of all proposed impacts to aquatic resources.
(b) When the Department, conservation district or other delegated agency determines that an application or registration is incomplete or [contains insufficient information] substantially inadequate, it will notify the applicant in writing. The applicant [shall have 60 days] will be provided a specified period from the date of [the Department's letter] a Department, conservation district or other delegated agency notification to complete the application or registration and to provide the information necessary for the Department, conservation district or other delegated agency to determine compliance with this chapter. If the applicant fails to complete the application or registration or fails to provide the necessary information, the Department [will], conservation district or other delegated agency may either consider the application or registration to be withdrawn[. Requests for] or deny the application or registration under § 105.21 (criteria for permit issuance and denial). An applicant may request a specific extension [shall be submitted by the applicant] in writing, setting forth the need for the time extension. The Department, conservation district or other delegated agency will confirm or reject in writing the applicant's request for a specific extension. The applicant will be notified in writing when an application or registration is considered withdrawn or denied. The Department, conservation district or delegated local agency will evaluate an application or registration under the criteria in § 105.21 after the applicant has submitted additional completeness and information items in the time period provided by the Department. If the applicant chooses to reapply [for a permit] or re-register, a new complete application or registration and fee will be required.
§ 105.13b. Proof of financial responsibility.
For continued operation and maintenance of all existing Hazard Potential Category 1 or Category 2 dams, as classified in § 105.91 (relating to classification of dams and reservoirs), and water obstructions or encroachments which present a substantial potential risk to life [or], property, or the environment; and as a requirement for approval of a permit under this chapter for a Hazard Potential Category 1 or Category 2 dam, and water obstruction or encroachment which presents a substantial potential risk to life [or], property, or the environment, the Department will require proof of financial responsibility or security assuring the proper construction, repair, operation and maintenance, inspection and monitoring and removal, if necessary, of the facility or project. For dams, water obstructions or encroachments, the Department may require proof of financial responsibility or security to assure the proper construction, repair, operation and maintenance, inspection and monitoring of a compensatory mitigation project site under § 105.20a.
(1) As proof of responsibility or security, the Department may require one or more of the following:
(i) A certificate of public convenience from the Public Utility Commission if the owner of the proposed facility is subject to regulation under 66 Pa.C.S. (relating to Public Utility Code).
(ii) Ownership or management of the facility or project by an agency of the Federal, State, county or municipal government or of an interstate compact.
(iii) A bond or other legal device of a form acceptable to the Department, payable to the Commonwealth, which guarantees proper construction, repair, operation and maintenance, inspection and monitoring, and removal, if necessary, of the facility or project. The amount of bond or legal device must be sufficient to cover the costs of entry, repair, correction, operation, maintenance, inspection, monitoring or removal of the facility or project by the Commonwealth in the event of failure of the owner to comply with orders of the Department, terms and conditions of the permit, this chapter and the act and section 302 of the Flood Plain Management Act (32 P.S. § 679.302).
(iv) Enrollment and continued good standing in the Commonwealth's Private Dam Financial Assurance Program (PDFAP) established under section 1603-N of the act of June 22, 2018 (P.L. 281, No. 42), known as the Fiscal Code (72 P.S. § 1603-N).
(2) The Department may, upon review, request an increase in the amount of the bond or other legal device noted in paragraph (1)(iii) as necessary to ensure that sufficient funds are available. The Department may not increase this amount more than once every 10 years unless the facility is being modified by permit.
* * * * * § 105.14. Review of applications and registrations.
(a) An application or registration will be reviewed under this chapter to determine the proposed project's effect on life, health, safety, property and the environment, [in accordance with] with an adequate margin of safety, using prevailing practices in the engineering profession, and in accordance with current scientific and environmental principles and practices.
(b) In reviewing an application or registration for a permit [application] under this chapter, the Department will use the following factors, when applicable, to make a determination of impact:
(1) Potential threats to [life or property] life, health, safety, property, or the environment created by the dam, water obstruction or encroachment.
(2) Potential threats to safe navigation created by the dam, water obstruction or encroachment.
(3) The effect of the dam, water obstruction or encroachment on the property or riparian rights of owners upstream, downstream or adjacent to the project.
(4) The effect of the dam, water obstruction or encroachment on regimen and ecology of the watercourse or other body of water, water quality, stream flow, fish and wildlife, aquatic habitat, instream and downstream uses and other significant environmental factors.
(5) The impacts of the dam, water obstruction or encroachment on nearby natural areas, wildlife sanctuaries, public water supplies, other geographical or physical features including cultural, archaeological and historical landmarks, National wildlife refuges, National natural landmarks, National, State or local parks or recreation areas or National, State or local historical sites.
(6) Compliance by the dam, water obstruction or encroachment with applicable laws administered by the Department, the Pennsylvania Fish and Boat Commission, other Commonwealth agencies or commissions and the river basin commissions created by interstate compact.
(7) The extent to which a project is water dependent and thereby requires access or proximity to or siting within water to fulfill the basic purposes of the project. The dependency must be based on the demonstrated unavailability of any practicable alternative location, route or design and the use of location, route or design to avoid or minimize the adverse impact of the dam, water obstruction or encroachment upon the environment and protect the public natural resources of this Commonwealth.
(8) Present conditions and the effects of reasonably foreseeable future development within the affected watershed upstream and downstream of the dam, water obstruction or encroachment:
(i) A dam, water obstruction or encroachment shall be designed, constructed and operated to assure adequacy and compliance with this chapter, taking into account reasonably foreseeable development within the watershed.
(ii) In assessing the impact of future development upon a dam, water obstruction or encroachment, the Department may require the applicant to submit data regarding estimated development potentials and municipal, county and regional planning related to the affected watershed.
(9) Consistency with State and local floodplain and stormwater management programs, the State Water Plan and the Coastal Zone Management Plan.
(10) Consistency with the designations of wild, scenic and recreational streams under the Wild and Scenic Rivers Act of 1968 (16 U.S.C.A. §§ 1271—1287) or the Pennsylvania Scenic Rivers Act (32 P.S. §§ 820.21—820.29)[, including identified 1-A candidates].
(11) Consistency with State antidegradation requirements [contained in] under this chapter and Chapters 93[, 95], 96 and 102 [(relating to water quality standards; wastewater treatment requirements; and erosion and sediment control)] and the Clean Water Act (33 U.S.C.A. §§ 1251—1376).
(12) Secondary impacts associated [with] with, but not [the direct result of] directly resulting from, the construction or substantial modification of the dam or reservoir, water obstruction or encroachment in the area of the project and in areas adjacent thereto and future impacts associated with dams, water obstructions or encroachments, the construction of which would result in the need for additional dams, water obstructions or encroachments to fulfill the project purpose.
(13) For dams, water obstructions or encroachments located in, along, across or projecting into [a wetland as defined in § 105.1 (relating to definitions),] aquatic resources, including wetlands, the Department will [also consider the impact on the wetlands values and] evaluate the effects of the proposed project on aquatic resources, including aquatic resource functions, in making a determination of adverse [impact] environmental impact. The Department will evaluate whether the proposed compensatory mitigation demonstration under § 105.20a provides adequate compensation for the proposed environmental impacts.
(14) The cumulative impact of this project and other potential or existing projects. In evaluating the cumulative impact, the Department will consider whether numerous piecemeal changes may result in a major impairment of the wetland resources. The Department will evaluate a particular wetland site for which an application is made with the recognition that it is part of a complete and interrelated wetland area.
(c) In reviewing a permit application under § 105.11(c) (relating to permit requirements) and section 6(c) of the act (32 P.S. § 693.6(c)) for the operation and maintenance of an existing dam, water obstruction or encroachment, the Department will use the following factors:
(1) Potential threats to life, property or safe navigation created by the continuing operation or maintenance of the project.
(2) Adverse impact on stream flow, water quality or the environment which might be reduced or mitigated by reasonable changes in the operation of the project.
(3) Compliance of the operation and maintenance of the project with applicable laws administered by the Department, the Pennsylvania Fish and Boat Commission, other state agencies and commissions and the river basin commissions created by interstate compact.
(d) The Department may review a permit application for the operation and maintenance of existing projects without regard to the design criteria and construction requirements in Subchapters B—J. If the Department finds that an existing dam, water obstruction or encroachment is unsafe or adversely affects property or the environment, it may consider application of criteria and requirements reasonably necessary to correct the conditions.
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