§ 105.14. Review of applications.
(a) An application will be reviewed to determine the proposed project’s effect on health, safety and the environment, in accordance with prevailing practices in the engineering profession and in accordance with current environmental principles.
(b) In reviewing a permit application under this chapter, the Department will use the following factors to make a determination of impact:
(1) Potential threats to life or property 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 Fish and Boat Commission and 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 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 Chapters 93, 95 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 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.
(13) For dams, water obstructions or encroachments in, along, across or projecting into a wetland, as defined in § 105.1 (relating to definitions), the Department will also consider the impact on the wetlands values and functions in making a determination of adverse impact.
(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 Fish and Boat Commission and 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.
Authority The provisions of this § 105.14 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 § 105.14 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 (313652) to (313654) and (336615).
Notes of Decisions Reservoir was not an ‘‘available’’ alternative supplemental cooling water source within the meaning of 25 Pa. Code § 105.14(b)(7) where there was substantial evidence to support conclusion that such use of the reservoir was technically not feasible, there were legal impediments to such use and it would be unfair to give all unallocated water to one consumptive user. Del-Aware Unlimited, Inc. v. Department of Environmental Resources, 508 A.2d 348 (Pa. Cmwlth. 1986); appeal denied 523 A.2d 1132 (Pa. 1986).
Cross References This section cited in 25 Pa. Code § 105.15 (relating to environmental assessment); 25 Pa. Code § 105.18a (relating to permitting of structures and activities in wetlands); and 25 Pa. Code § 105.442 (relating to authorization for general permits).
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