Pennsylvania Proposal Could Affect Water-Dependent Projects

The Pennsylvania Department of Environmental Protection proposed wide-ranging amendments to its Chapter 105 regulations governing dam safety and “stream encroachments,” the Commonwealth’s rules that govern the filling of wetlands. DEP is imposing additional regulatory obligations with respect to wetlands, while also creating some exemptions. If promulgated, the measures could significantly affect applications for and approval of water-dependent projects throughout the Commonwealth. 

Importantly, real estate developers and owners, as well as operators of dams, agribusinesses, and developers of linear infrastructure projects—such as utility corridors and pipelines—should note that the Department will accept public comments through February 3, 2021.

Read the proposed amendments.

The key proposed amendments include:

1. Revisions to regulations requiring developments that impact waters of the Commonwealth to provide wetland fill mitigation projects. The rule would clarify the types of acceptable compensation. Generally, provisions would be satisfied by a developer-funded mitigation project, contribution to a wetland bank or similar organization, or payment of a fee-in-lieu of the value of a required compensatory project to the Commonwealth. 
2. Stricter evaluation of dredge or fill materials proposed to fill wetlands and other waterbodies to be consistent with the department’s Management of Fill Policy to avoid contamination of water resources.    
3. Institution of new provisions to assess proposed restoration projects to assure that the projects are beneficial to human health and the environment.
4. Clarification of application requirements for Chapter 105 permits that could result in beefier assessment requirements before submitting a permit application, including detailed alternatives analysis—for instance, asking if a project could be less impactful on the waters of the Commonwealth.
5. Revisions to regulations and charges governing Submerged Lands License Agreements, the tool enabling waterfront developers to build into and/or above waters of the Commonwealth by paying “rent” to the Commonwealth. The rule would clarify that “private recreation docks” that are exempt from licensing requirement include water encroachments, such as docks and boat ramps. The rule would also exempt from licensing requirements environmentally beneficial projects, such as habitat restoration and projects where impacts are temporary.
6. Clarification of process for reconverting former cropland to agricultural uses. Specifically, clarification of the process for managing areas of fields that naturally developed features potentially classifiable as wetlands while former cropland lay fallow.
7. Overhaul of dam safety regulations through stricter inspection and operational requirements for Class I and Class II dams.
8. Development of additional permit waivers for projects that have minimal impacts on water resources, such as raised boardwalks on hiking trails.

Lawyers in Ballard Spahr’s Environment and Natural Resources Group advise clients on national and regional compliance, permitting, rulemaking, development, business planning, and contamination matters.

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