Pennsylvania Opens Public Comment Period for Proposed Revisions to Chapter 105 Regulations

Environmental Alert

(by Lisa Bruderly)

On December 5, 2020, the Pennsylvania Environmental Quality Board (EQB) published in the Pennsylvania Bulletin proposed revisions to more than 30 provisions of the dam safety and waterway management regulations under 25 Pa. Code Chapter 105. The public comment period will remain open until February 3, 2021.

The revisions will significantly amend the Pennsylvania Department of Environmental Protection (PADEP) regulations regarding the permitting of obstructions and encroachments of waters of the Commonwealth under Chapter 105. The proposed revisions are expected to create expansive new requirements, almost certainly increasing the time and effort required to complete individual/joint Chapter 105 permit applications.  These new requirements, if promulgated, will also likely increase PADEP application review times, particularly at the outset when the agency and the regulated community are becoming familiar with the new requirements.  Additionally, revised compensatory mitigation criteria could expand the extent of mitigation required for a project.  On the other hand, the addition of six new permit waivers means that certain projects may no longer be required to obtain a Chapter 105 permit.

According to the public comment notice, other revisions include adding or changing 18 definitions, adding antidegradation and cumulative impact subsections to the applicant information requirements, providing a new option for dam owners to satisfy proof of financial responsibility obligations, amending the wetland replacement criteria regarding compensatory mitigation for unavoidable impacts to aquatic resources, and adding new structures and activities that may be exempt from submerged lands licensing charges.

The proposed revisions to Chapter 105 have been anticipated for more than one year. In anticipation, PADEP solicited input from multiple Commonwealth agencies and commissions. It also consulted  its Agricultural Advisory Board, Water Resources Advisory Committee and Citizens Advisory Council. The EQB adopted the proposed revisions on July 21, 2020. The last comprehensive revisions to the wetland permitting provisions of Chapter 105 were promulgated in October 1991.

For additional information, please refer to the two articles published by Babst Calland earlier this year: PADEP Proposes Significant Changes to Permitting Process for Stream and Wetland Impacts (Rocky Mountain Mineral Law Foundation Water Law Newsletter, July 14, 2020) and PA Proposes Changes for Permitting Projects with Stream, Wetland Impacts (The Legal Intelligencer, June 11, 2020).

Babst Calland continues to analyze the practical effects of these proposed regulatory revisions and other water law-related developments. Please contact Lisa M. Bruderly at (724) 910-1117 or if you have questions regarding how these Chapter 105 revisions may affect your operations and/or plans for development.

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