PERMIT APPLICATIONS
§ 105.11. Permit requirements.
(a) A person may not construct, operate, maintain, modify, enlarge or abandon a dam, water obstruction or encroachment without first obtaining a written permit from the Department.
(b) An existing dam, water obstruction or encroachment constructed under a license or permit issued in compliance with the act of June 8, 1907 (P. L. 496, No. 322) (53 P. S. § 16834 note and 55 P. S. § § 332.1 and 332.2) or the Water Obstructions Act, shall be deemed to comply with the construction and operating permit requirements of this section. These projects shall, after September 27, 1980, comply with the operating, maintenance, monitoring and other requirements of this chapter.
(c) The owner of an existing dam, water obstruction or encroachment who does not hold a permit issued under the act of June 8, 1907 (P. L. 496, No. 322) or the Water Obstructions Act shall apply for and receive a permit to operate and maintain the facility under the act on or before January 1, 1981. For purposes of this subsection, a limited power permit issued under the Limited Power and Water Supply Act will be deemed to have been issued under the Water Obstructions Act. These projects shall comply with the operating, maintenance, monitoring and other requirements established under the act.
(d) A permit issued by the Department after July 1, 1979, for the construction and operation of a water obstruction or encroachment will incorporate authorization for normal repairs and maintenance of permitted structures conducted within the original specifications for the water obstruction or encroachment. A repair or maintenance involving modification of the water obstruction or encroachment from its original specifications and a repair or reconstruction involving a substantial portion of the structure shall require the prior written permit of the Department under subsection (a).
(e) A water obstruction or encroachment or modification thereof, constructed or authorized pursuant to the terms of a permit issued under this chapter prior to October 12, 1991, will be deemed to comply with the construction permit requirements of this subchapter. These projects must, after October 12, 1991, comply with the operating, maintenance, monitoring and other requirements of this chapter.
(f) A dam or modification thereof, constructed or authorized pursuant to the terms of a permit issued under this chapter prior to January 8, 2011, will be deemed to comply with the construction permit requirements of this subchapter. These projects must, after January 8, 2011, comply with the operating, maintenance, monitoring and other requirements of this chapter.
Authority The provisions of this § 105.11 amended under the Dam Safety and Encroachments Act (32 P. S. § § 693.1–693.27); The Clean Streams Law (35 P. S. § § 691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. § 597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § § 194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § § 679.101—679.601).
Source The provisions of this § 105.11 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911; amended January 7, 2011, effective January 8, 2011, 41 Pa.B. 219. Immediately preceding text appears at serial pages (336612) to (336613).
Notes of Decisions Cause of Action
A builder’s allegation that the township approved a subdivision plan in the absence of a permit from the Department of Environmental Protection is not a cognizable cause of action because it is the Department which enforces this regulation, not the local agency; furthermore, this regulation does not create a private cause of action. Shafer v. Waite, 43 D. & C. 4th 91 (1999).
Failure to Obtain Permit
Appellant, who placed fill on his land without a permit which constituted an unlawful encroachment on wetlands in violation of the law, could not claim Department of Environment Protection’s issuing of compliance order effected an unconstitutional, regulatory taking of property rights because Appellant failed to apply for a permit. Baehler v. Department of Environmental Protection, 863 A.2d 57, 59—60 (Pa. Cmwlth. 2004).
Cross References This section cited in 25 Pa. Code § 105.14 (relating to review of applications); 25 Pa. Code § 105.52 (relating to inspection); 25 Pa. Code § 105.53 (relating to inspections by permittees or owners and inspection reports); and 25 Pa. Code § 105.443 (relating to nature of a general permit; substitution for individual applications and permits).
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