PERMIT ISSUANCE, TRANSFER AND REVOCATION
§ 105.21. Criteria for permit issuance and denial.
(a) In addition to the other requirements of this chapter, a permit application will not be approved unless the applicant demonstrates that the following conditions are met:
(1) The application is complete and accurate.
(2) The proposed project or action complies with the standards and criteria of this title and with other laws administered by the Department, the Fish and Boat Commission and river basin commissions created by interstate compact.
(3) The proposed project or action will adequately protect public health, safety and the environment.
(4) The proposed project or action is consistent with the environmental rights and values secured by Pa. Const. Art. I, § 27 and with the duties of the Commonwealth as trustee to conserve and maintain public natural resources of this Commonwealth.
(5) The applicant has not been found to be in continuing violation of this title or other laws administered by the Department, the Fish and Boat Commission, or a river basin commission created by interstate compact, including, but not limited to, a violation of an adjudication and order, agreement, consent order or decree, whether or not the applicant’s violation resulted in an order or civil penalty assessment.
(6) The applicant has submitted adequate proof of financial responsibility, if required under § 105.13b (relating to proof of financial responsibility).
(b) A permit issued under this chapter shall be subject to the general and special conditions regarding construction, operation, maintenance, inspection and monitoring of a project or action that the Department may deem necessary to assure compliance with the requirements and purposes of this chapter, the act, the Flood Plain Management Act (32 P. S. § § 679.101—679.601) and other laws administered by the Department, the Fish and Boat Commission and river basin commissions created by interstate compact.
(c) The Department may not issue a permit to operate and maintain a dam, water obstruction or encroachment constructed without a permit unless one of the following is met:
(1) The Department determines that the structure or activity complies with the standards and criteria of this title, including replacement in accordance with § 105.20a (relating to wetland replacement criteria), and with other laws administered by the Department, the Fish and Boat Commission and river basin commissions created by interstate compact.
(2) The Department determines that the structure or activity does not comply with the standards and criteria of this title and with other laws administered by the Department, the Fish and Boat Commission and river basin commissions created by interstate compact, that the effect on wetlands will be mitigated, and at least one of the following is met:
(i) Restoration would cause destruction of a dwelling occupied by a person who had no role in the planning or construction of the project.
(ii) Restoration may result in more long term damage than would be caused by allowing the project to remain in place.
(iii) Restoration would be unsuccessful due to material changes in the condition of the site and its surrounding area.
(iv) There are extraordinary circumstances which preclude restoration.
(d) The reason for denial of a permit application and appeal procedures will be communicated in writing to the applicant.
(e) In an appeal from a Department action concerning a permit application to operate and maintain a dam, water obstruction or encroachment, the applicant has the burden of proving that there is no reasonable basis for the Department’s action.
Authority The provisions of this § 105.21 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 § 105.21 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 November 2, 1979, effective November 3, 1979, 9 Pa.B. 3640; 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 (272287) to (272288).
Notes of Decisions The terms and conditions attached to a dredging permit are terms and conditions of the permit, as authorized under this section rather than rules and regulations. Warren Sand and Gravel Co. v. Department of Environmental Resources, 341 A.2d 556 (Pa. Cmwlth. 1975).
Cross References This section cited in 25 Pa. Code § 105.442 (relating to authorization for general permits).
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