NOTICES
Water Quality Certification Under Section 401 of the Federal Clean Water Act; Categorical Waiver from the Permit Requirements of the Dam Safety and Encroachments Act
[26 Pa.B. 4804] The Department of Environmental Protection proposes to certify that certain abandoned mine reclamation activities conducted under the authority of the Surface Mining Control and Reclamation Act of 1977 et seq., which may result in a discharge of dredge or fill material into waters of the Commonwealth, and which comply with the following conditions, will meet the requirements of section 401 of the Federal Clean Water Act (CWA) (33 U.S.C.A. § 1341), and these restoration plans qualify for a waiver of permit requirements set forth at 25 Pa. Code § 105.12(a)(16), Dam Safety and Waterway Management rules and regulations under the Dam Safety and Encroachments Act (DSEA) (32 P. S. §§ 693.1--693.27).
Section 401(a) of the CWA (33 U.S.C.A. § 1341(a)), requires that any applicant for a Federal license or permit, which may result in a discharge to waters of the United States, must provide the licensing or permitting agency with a certification from the state in which the discharge will originate verifying that the discharge resulting from the construction or operation of the project will comply with sections 301--303, 306 and 307 of the CWA (33 U.S.C.A. §§ 1311--1313, 1316 and 1317) including applicable State water quality requirements. Section 7(a) of the DSEA (32 P. S. § 693.7) provides for the waiver of permit requirements by regulation, for any category of dam, water obstruction or encroachment which is determined to have an insignificant effect upon the safety and protection of life, health, property and the environment. The regulations, identifying which structures and activities are waived from the permit requirements of the DSEA, are set forth at 25 Pa. Code § 105.12(a).
The Division of Wetlands Protection has reviewed the environmental assessment procedure under the requirements of the National Environmental Policy Act of 1969 (NEPA), as required for restoration projects under Title 4 of the Surface Mining Control and Reclamation Act of 1977 et seq. and finds that procedure to be consistent with the environmental assessment requirements of 25 Pa. Code § 105.15. The procedure includes an environmental assessment of the following factors, which are also found in Chapter 105:
State and Federal Threatened and Endangered Species
Public Water Supply
Water Quality Standards
Scenic Rivers
Wetlands
Recreational Resource Value
Historic and Cultural Resources
Fish and Wildlife Resources
Topography
This assessment process, along with the existing United States Fish and Wildlife Service Project Coordination Requirements required by Section 7 Consultation of the Endangered Species Act, provides an adequate measure of regulatory oversight without necessitating additional permit application and review actions. The Department therefore proposes to categorically waive under the provisions of section 105.12(a)(16), water obstruction and encroachment activities approved under Title 4 of the Surface Mining Control and Reclamation Act of 1977 et. seq. and which meet the following environmental parameters:
(a) The site contains less than 0.05 acre of vegetated wetlands as defined in the 1987 U. S. Army Corps of Engineers Wetland Delineation Manual, or
(b) the body of water or associated discharge from a body of water* has a pH <5.0 or any one of the following elevated total metal levels:
Aluminum >0.6 mg/l
Iron >7.0 mg/l
Manganese >4.0 mg/l*Body of water is defined as any natural or artificial lake, pond, reservoir, swamp, marsh or wetland.
Prior to commencing any activity set forth at 25 Pa. Code § 105.12(a)(16), the applicant must obtain all other necessary permits or approvals from the Department of Environmental Protection, including but not limited to those required by The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27), the Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003), the Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305) and the regulations promulgated thereunder including 25 Pa. Code chapters 91, 92, 93, 96, 102, 105 and 260--299.
For activities which impact wetlands, all delineations shall be conducted in accordance with Pennsylvania's procedures for wetland delineation. (The present procedure is published at 25 Pa. Code § 105.451.) On February 3, 1996, the Department adopted the Corps of Engineers Wetland Delineation Manual (Technical Report Y-87-1, 1987 Manual) with 6 March 1992 guidance as the methodology for delineating wetlands.
The exceptions to this waiver are those activities which require the construction, operation and maintenance of jurisdictional dams or projects located in floodways. Dams with drainage areas of greater than 100 acres, storage capacities of greater than 50 acre-feet, or with a maxi-mum depth of water greater than 15 feet as measured by the upstream toe of the dam, require Dam Permits from the Department (see section 105.3). If the proposed project is located within a floodway, a separate individual permit may need to be secured from the Regional Soils and Waterways Section. Unless otherwise specified, the boundary of the floodway is as indicated on maps and flood insurance studies provided by 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.
The Department retains the discretion, on a case-by-case basis, to deny or revoke certification under section 401(a) of the CWA for structures and activities listed in 25 Pa. Code § 105.12(16) if the Department finds upon investigation or complaint, that a particular project is violating, or will violate section 401(a) of the CWA or State water quality requirements.
Projects which do not meet the above provisions will be individually reviewed by the Department for consideration of waiver applicability or necessary permit action. Activities not qualifying for this proposed categorical waiver will be processed through the normal public notice process required for 401 Water Quality Certification or Chapter 105 permit applications, whichever is appropriate. This proposed procedure and action are the result of a cooperative effort among Department of Environmental Protection, U. S. Army Corps of Engineers, U. S. Fish and Wildlife Service, Fish and Boat Commission, Game Commission, U. S. Office of Surface Mining, and U. S. Environmental Protection Agency.
The Department seeks comments on this proposed action. Comments must be submitted within 30 days from the date of this notice to Fran Koch, Division of Wetlands Protection, Bureau of Dams, Waterways and Wetlands, P. O. Box 8554, Harrisburg, PA 17105-8554, (717) 787-6827. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5788 (voice users). 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. No comments submitted by facsimile transmission will be accepted. The Department will consider all relevant and timely comments received.
Comments may be submitted electronically to the Department at RegComments@A1.dep.state.pa.us. A subject heading of the proposal must be included in each transmission. Comments submitted electronically must also be received by the Department within 30 days of the publication of this proposed statement of policy.
This proposal has been submitted to the U. S. Army Corps of Engineers for consideration and approval under the PASPGP-1 permit processing procedure. In conjunction with this notice, the Corps of Engineers has also placed this proposal on public notice under the requirements of the Clean Water Act.
JAMES M. SEIF,
Secretary
[Pa.B. Doc. No. 96-1678. Filed for public inspection October 4, 1996, 9:00 a.m.]
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