§ 105.18a. Permitting of structures and activities in wetlands.
(a) Exceptional value wetlands. Except as provided for in subsection (c), the Department will not grant a permit under this chapter for a dam, water obstruction or encroachment located in, along, across or projecting into an exceptional value wetland, or otherwise affecting an exceptional value wetland, unless the applicant affirmatively demonstrates in writing and the Department issues a written finding that the following requirements are met:
(1) The dam, water obstruction or encroachment will not have an adverse impact on the wetland, as determined in accordance with § § 105.14(b) and 105.15 (relating to review of applications; and environmental assessment).
(2) The project is water-dependent. A project is water-dependent when the project requires access or proximity to or siting within the wetland to fulfill the basic purposes of the project.
(3) There is no practicable alternative to the proposed project that would not involve a wetland or that would have less effect on the wetland, and not have other significant adverse effects on the environment. An alternative is practicable if it is available and capable of being carried out after taking into consideration construction cost, existing technology and logistics. An area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed to fulfill the basic purpose of the project shall be considered as a practicable alternative.
(4) The project will not cause or contribute to a violation of an applicable State water quality standard.
(5) The project will not cause or contribute to pollution of groundwater or surface water resources or diminution of resources sufficient to interfere with their uses.
(6) The cumulative effect of this project and other projects will not result in the impairment of the Commonwealth’s exceptional value wetland resources.
(7) The applicant shall replace affected wetlands in accordance with § 105.20a (relating to wetland replacement criteria).
(b) Other wetlands. Except as provided for in subsection (c), the Department will not grant a permit under this chapter for a dam, water obstruction or encroachment in, along, across or projecting into the wetland which is not an exceptional value wetland, or otherwise affecting the wetland, unless the applicant affirmatively demonstrates in writing and the Department issues a written finding that the following requirements are met:
(1) The project will not have a significant adverse impact on the wetland, as determined in accordance with § § 105.14(b) and 105.15. The determination of whether an adverse impact is significant includes an evaluation of the following factors:
(i) The areal extent of the wetland impacts.
(ii) The wetland’s values and functions.
(iii) Whether the affected wetlands values and functions are unique to the area or region.
(iv) Comments from other State and Federal environmental agencies concerning the scope and effect of the impact.
(2) Adverse environmental impacts on the wetland will be avoided or reduced to the maximum extent possible.
(3) There is no practicable alternative to the proposed project that would not involve a wetland or that would have less adverse impact on the wetland, and that would not have other significant adverse impacts on the environment. An alternative is practicable if it is available and capable of being carried out after taking into consideration construction cost, existing technology and logistics. An area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed to fulfill the basic purpose of the proposed project shall be considered as a practical alternative.
(i) It shall be a rebuttable presumption that there is a practicable alternative, not involving a wetland, to a nonwater-dependent project, and that the alternative would have less adverse impact on the wetland.
(ii) To rebut the presumption, an applicant for a permit under this chapter shall demonstrate with reliable and convincing evidence and documentation and the Department will issue a written finding that the following statements are true:
(A) The basic project purpose cannot be accomplished utilizing one or more other sites that would avoid, or result in less, adverse impact on the wetland.
(B) A reduction in the size, scope, configuration or density of the project as proposed and alternative designs to that of the project as proposed that would avoid, or result in fewer or less severe, adverse impacts on a wetland will not accomplish the basic purpose of the project.
(4) The project will not cause or contribute to a violation of an applicable State water quality standard.
(5) The project will not cause or contribute to pollution of groundwater or surface water resources or diminution of the resources sufficient to interfere with their uses.
(6) The cumulative effect of this project and other projects will not result in a major impairment of this Commonwealth’s wetland resources.
(7) The applicant will replace the affected wetlands to compensate for unavoidable impacts, in accordance with § 105.20a.
(c) The Department will not grant a permit under this chapter for a dam, water obstruction or encroachment which has a significant adverse impact on a wetland unless the applicant affirmatively demonstrates and the Department finds in writing that a project is necessary to abate a substantial threat to the public health or safety and that the requirements of subsection (b)(2)—(7) are met.
Source The provisions of this § 105.18a adopted October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911.
Cross References This section cited in 25 Pa. Code § 96.3 (relating to water quality protection requirements); and 25 Pa. Code § 105.16 (relating to environmental, social and economic balancing).
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