The Pennsylvania Department of Environmental Protection (PADEP) is proposing significant revisions to its regulations and guidance regarding the permitting of obstructions and encroachments of waters of the commonwealth under 25 Pa. Code Chapter 105. The regulatory revisions, if promulgated, are expected to significantly change the Chapter 105 permitting process by increasing the level of required effort to complete an individual (joint) permit application and potentially increasing the time for the PADEP to review such applications.

The 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. Later this year, the proposed revisions are expected to be presented to the Environmental Quality Board, with a public comment period to follow. The 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.

Proposed Regulatory Changes to Chapter 105

Proposed revisions to Chapter 105 include the following:

Permit Waivers—Addition of six new permit waivers to 25 Pa. Code Section 105.12, including new waivers for temporary environmental investigation activities and for temporary mats and pads used to minimize erosion and sedimentation at wetland crossings.

Alternatives Analysis—Addition of criteria to the alternatives analysis requirements at 25 Pa. Code Section 105.13(e)(viii), including identification of the effects of "reasonably foreseeable future development" within the wetland or watercourse upstream and immediately downstream of the proposed project and demonstration that project alternatives impacting other regulated waters would meet the requirements of 25 Pa. Code Section 105.16, regarding environmental, social and economic balancing.

Impacts Analysis—Addition of requirements for impacts analyses under 25 Pa. Code Section 105.13(e)(x), including detailed analysis of the "potential secondary impacts" (undefined) of a proposed project on an expanded list of resources, including public water supplies, natural areas, areas or structures of cultural significance, parks, recreational areas, historical sites and certain designated streams.

Projects would also require a "narrative discussion and analysis" on water dependency. Projects affecting a wetland 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 Section 105.18a have been met.

Antidegradation—Addition of a requirement under 25 Pa. Code Section 105.13(e)(xii) to demonstrate that the proposed project is consistent with antidegradation requirements under applicable Pennsylvania regulations and the Clean Water Act.

Cumulative Impacts—Addition of a requirement under 25 Pa. Code Section 105.13(e)(xiii) to perform a "projectwide cumulative wetland impact analysis," including a demonstration that the proposed project does not result in an impairment of wetland resources or major impairment of the wetlands under 25 Pa. Code Section 105.18a.

Environmental Assessment for Aquatic Resource Restoration—Creation of new PADEP criteria to evaluate environmental assessments of projects involving aquatic resource restoration under 25 Pa. Code Section 105.15(a)(4), including consideration of the project's goals and objectives, wetland delineation and watercourse reports, the resource type and uses, historic and modern land uses, the anticipated aquatic resource restoration improvement and benefit, and various geomorphic, geologic and geotechnical information.

Compensatory Mitigation—Replacement of existing wetland mitigation criteria under 25 Pa. Code Section 105.20a with more expansive provisions applying to all 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 by the PADEP 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."

The 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 or permittee responsible mitigation site, so long as the mitigation site is located within the same state water plan sub-basin as the project impacts or within the designated watershed boundaries identified by the PADEP.

Draft Final Guidance Regarding Chapter 105 Alternatives Analysis

Among other information, the 21-page Chapter 105 Alternatives Analysis TGD provides an overview of the alternatives analysis process and a template checklist of the items the PADEP expects to be submitted as part of the alternatives analysis demonstration. Example tables for the submittal of information are also provided. The PADEP has indicated that the TGD may be issued for public comment in the second half of 2020. A trenchless technology TGD has also been drafted and is expected to be finalized with the alternatives analysis TGD.

Key Takeaways

The proposed revisions would 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.

Lisa Bruderly is a shareholder and chair of the environmental group of Babst Calland Clements & Zomnir.  She primarily focuses on regulatory issues associated with water resources and wastewater management. Contact her at 412-394-6495 or [email protected].

Daniel P. Hido is an associate in the environmental group of the firm. He assists clients on environmental regulatory matters in the context of compliance counseling, enforcement defense, remediation obligations and business transactions. Contact him at 412-394-6580 or [email protected].