Articles, Newsletters and Advisories
RMMLF Water Law Newsletter
The Pennsylvania Department of Environmental Protection (PADEP) is proposing comprehensive changes to its regulations and guidance regarding the permitting of obstructions and encroachments of waters of the commonwealth. See 25 Pa. Code ch. 105. The regulatory revisions, if promulgated, are expected to significantly change the chapter 105 permitting process by increasing the amount of time and effort necessary to complete an individual (joint) permit application and likely causing delays in obtaining a permit.
PADEP has presented the regulations and guidance to several of its advisory committees, including, most recently, the Water Resources Advisory Committee (WRAC) on May 28, 2020. The proposed revisions are expected to be presented to the Environmental Quality Board in the second half of 2020, with a 60-day public comment period to follow. PADEP’s draft final technical guidance document (TGD) on alternatives analysis requirements is expected to be finalized and published in coordination with the proposed regulatory revisions. Documents related to the proposed rulemaking are available here.
Proposed Regulatory Changes to Chapter 105
According to PADEP, the proposed chapter 105 revisions are intended to clarify existing requirements, update/delete outdated references, and codify existing practices. The revisions would add or change 18 definitions, revise several existing permit waivers, and add six new waivers under 25 Pa. Code § 105.12, including waivers for temporary environmental investigation activities and for temporary mats and pads used to minimize erosion and sedimentation at a wetland crossing. The proposal would also significantly expand requirements for individual permit applications under 25 Pa. Code § 105.13. Some of the notable proposed revisions are discussed below.
Alternatives Analysis. The proposed revisions would add criteria required for the alternatives analysis accompanying a permit application under section 105.13(e)(1)(viii). For example, project alternatives impacting wetlands would be required to clearly demonstrate compliance with requirements for permitting a structure in a wetland, and project alternatives impacting other regulated waters would be required to demonstrate compliance with the requirements of 25 Pa. Code § 105.16, regarding environmental, social, and economic balancing. Identification of present conditions and the effects of “reasonably foreseeable future development” within the affected wetland or watercourse would also be required.
Impacts Analysis. The proposed revision to section 105.13(e)(1)(x), regarding impacts analysis, would require detailed analysis of the “potential secondary impacts” of a project on an expanded list of resources, including public water supplies, natural areas, wildlife sanctuaries, areas or structures of cultural or archaeological significance, parks, recreational areas, and certain designated streams.
A “narrative discussion and analysis” on a project’s water dependency would also be required, whereas the existing regulations require only a “statement.” Projects affecting wetlands would require a narrative discussion of the wetland delineation process, an analysis of whether a wetland is exceptional value, and a demonstration that the requirements for permitting structures or activities in wetlands under 25 Pa. Code § 105.18a have been met.
Antidegradation. Under the proposed revisions to section 105.13(e)(1)(xii), applicants would be required to demonstrate that the proposed project is consistent with antidegradation requirements under Pennsylvania regulations and the federal Clean Water Act.
Cumulative Impacts. The proposed revisions would add a potentially expansive new requirement under section 105.13(e)(1)(xiii) to perform a “projectwide cumulative wetland impact analysis.” The cumulative impact analysis would require a demonstration that the proposed project and “other potential” obstructions and encroachments would not result in an impairment of wetland resources or major impairment of the wetlands under section 105.18a. Identification of “piecemeal impacts” and consideration of “the wetland resource as part of a complete and interrelated wetland area” would be required.
Environmental Assessment for Aquatic Resource Restoration. The proposed revisions would create new PADEP criteria to evaluate environmental assessments of projects involving aquatic resource restoration under 25 Pa. Code § 105.15(a)(4). The environmental assessment would be required to consider, among other things, the project’s goals and objectives, wetland delineation and watercourse reports, an evaluation of the resource type and uses, historical and modern land uses, the anticipated aquatic resource restoration improvement and benefit, and geomorphic, geologic, and geotechnical data.
Compensatory Mitigation. The revisions propose replacement of existing wetland mitigation criteria under 25 Pa. Code § 105.20a with more comprehensive provisions applying to regulated waters of the commonwealth. Rather than specific ratios, compensatory mitigation for unavoidable impacts would require “replacing the resource functions that will be impacted” or providing substitute resources. The amount of compensatory mitigation would be determined based on new criteria, including the direct, indirect, and secondary impacts of the project, and the value of the proposed mitigation actions to “reestablish and rehabilitate environmental resources.”
PADEP would also be required to “track wetland losses and gains” occurring through chapter 105, with the goal of ensuring “no net loss of wetland resources within the service areas.” Although “service areas” are not defined, compensatory mitigation could be achieved through a PADEP-approved mitigation bank, in-lieu fee program, and/or permittee responsible mitigation site, as long as the mitigation site is located within the same State Water Plan subbasin as the project impacts or within the designated watershed boundaries identified by PADEP.
Draft Final Guidance Regarding Chapter 105 Alternatives Analysis
PADEP has also developed a draft final TGD on alternatives analysis requirements. See Bureau of Waterways Eng’g & Wetlands, PADEP, “Chapter 105 Alternatives Analysis Technical Guidance Document” (Apr. 17, 2020) (draft). The TGD is intended to (1) clarify the level of analysis required to evaluate alternatives to projects requiring an individual chapter 105 permit; (2) provide guidelines for determining whether an alternative is practicable; and (3) establish a “common, complete, and consistent” understanding of the information PADEP requests for review of alternatives analyses. Id. at 1.
The TGD addresses project-specific considerations for land development projects, linear utility projects, transportation projects, and restoration and pollution abatement projects. Among other information, the 21-page TGD provides an overview of the alternatives analysis process and a template checklist of the items PADEP expects to be submitted as part of the alternatives analysis demonstration. Example tables for the submittal of information are also provided. PADEP has indicated that the TGD may be issued for public comment in the second half of 2020 and published in coordination with the chapter 105 revisions.
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