December 22, 2020
Zachary J. Koslap
MGKF Special Alert
On December 5, 2020, the Environmental Quality Board (EQB) published a proposed rulemaking to amend the Pennsylvania Department of Environmental Protection’s (PADEP) Chapter 105 regulations, which are known as the state’s wetland permitting regulations and implement the Dam Safety and Encroachments Act. The proposed amendments amount to the first substantive revisions to the Chapter 105 regulations in nearly 30 years. Although the EQB’s stated intent in proposing these amendments is to improve the clarity, consistency, and efficiency of the implementation of Chapter 105, many of the proposed changes will place additional requirements on obtaining the necessary approvals for activities or structures that involve water obstructions or encroachments. A link to the proposed rulemaking is included here.
Many of the proposed amendments to Chapter 105 would formalize or expand existing permit application requirements already found in PADEP’s guidance or permit application forms. The proposed amendments, for example, would require applicants to provide an antidegradation demonstration and cumulative impact analysis as part of a permit application, which PADEP already requires through existing guidance. Other proposed changes to the regulatory language, however, may make existing permit application requirements more stringent. For example, applicants would be required to consider “reasonably foreseeable future development” within the watershed as part of the alternatives analysis used to demonstrate that impacts to wetlands and aquatic resources are avoided and minimized to the “maximum practicable extent.” And where impacts cannot be avoided, a compensatory mitigation plan must ensure that “no net loss” of “wetland resources” occurs as part of the proposed project, providing a regulatory basis that more wetland replacement acreage may be required beyond the existing 1:1 ratio of wetland replacement.
The following are among the other proposed changes to Chapter 105:
- New waivers to permitting requirements, including waivers for geotechnical or environmental site investigations, recreational trails, and temporary pads at wetland crossings.
- New restrictions on waivers to permitting requirements, including prohibiting the use of waivers for stream enclosures located in a drainage area less than 100 acres, in areas that are habitat for threatened or endangered species, or in historically significant areas that are recognized nationally, statewide, or even locally.
- New construction, operation, and maintenance requirements relating to dams.
- Clarification on PADEP’s policy relating to prior converted croplands.
The public comment period closes on February 3, 2021. Manko Gold Katcher and Fox maintains an active practice with respect to environmental permitting for land development projects, including wetland permitting. If you have any questions about the proposed amendments to Chapter 105, please contact: Zach Koslap (484-430-2330), Todd Kantorczyk (484-430-2359), Diana Silva (484-430-2347), or Tom Duncan (484-430-2358).