§ 105.16. Environmental, social and economic balancing.
(a) If the Department determines that there may be an impact on natural, scenic, historic or aesthetic values of the environment, the Department will consult with the applicant to examine ways to reduce the adverse environmental impact. If, after consideration of mitigation measures, the Department finds that the adverse environmental impact will occur, the Department will evaluate the public benefits of the project to determine whether the public benefits outweigh the environmental harm.
(b) An application for a permit for a structure or activity which the Department determines will have an adverse impact on the environment or public natural resources will not be approved by the Department unless the applicant demonstrates and the Department finds that the public benefits of the proposed project outweigh the harm to the environment and public natural resources. Public benefits include, but are not limited to:
(1) Correction and prevention of pollution.
(2) Protection of public health and safety.
(3) Reduction of flood damages.
(4) Development of energy resources.
(5) Creation or preservation of significant employment.
(6) Provision of public utility services.
(7) Other essential social and economic development which benefits a substantial portion of the public.
(c) An application for a permit will not be approved by the Department in the following areas unless the applicant demonstrates and the Department finds that the project will not have an adverse impact upon the public natural resources:
(1) A project located in or within 100 feet of a watercourse or body of water that has been designated as a National or State wild or scenic river in accordance with 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).
(2) A project located in or within 100 feet of a Federal wilderness area designated in accordance with the Wilderness Act (16 U.S.C.A. § § 1131—1136) or the Federal Eastern Wilderness Act of 1975 (16 U.S.C.A. § 1132).
(3) A project 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 the Fish and Boat Code) or 34 Pa.C.S. (relating to the Game and Wildlife Code).
(4) A project located in waters designated as exceptional value in Chapter 93 (relating to water quality standards).
(d) In reviewing permit applications, it will be the policy of the Department to encourage activities that protect the natural condition of the watercourses or other body of water.
(e) This section does not apply to dams, water obstructions or encroachments located in, along, across or projecting into wetlands. These structures or activities will be evaluated under § § 105.17 and 105.18a—105.20.
Authority The provisions of this § 105.16 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 § 105.16 adopted 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. Immediately preceding text appears at serial pages (117652) to (117654).
Notes of Decisions Because the petitioner failed to utilize available alternatives, the Department was not required to consider the petitioner’s proposed mitigation measures. Hatchard v. Department of Environmental Resources, 612 A.2d 621 (Pa. Cmwlth. 1992).
Cross References This section cited in 25 Pa. Code § 105.442 (relating to authorization for general permits).
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