Regulatory Relief for Aquatic Resource Restoration Proponents in Pennsylvania

In past years, environmentally beneficial stream, floodplain and wetland restoration projects in Pennsylvania were subject to the same regulatory process as any other water obstruction or encroachment. In part, this was a result of the lack of clear language in the existing Dam Safety and Waterway Management regulations (25 Pa. Code Ch. 105) to support the Pennsylvania Department of Environmental Protection’s (PADEP) ability to issue permit waivers under §105.12(16). The continued prevalence of restoration projects over the last decade has laid bare the inadequacy of current regulatory standards, to the cost of restoration advocates and delayed action on high priority projects.

In a step towards progress, the Pennsylvania Environmental Quality Board published proposed revisions to Dam Safety and Waterway Management regulations in the PA Bulletin on December 5th, 2020. This is the first major update in nearly three decades, and is intended to provide clarity to the existing regulations and codify longstanding policy practices. Revisions to the regulations appear to target existing permit obstacles to restoration projects by providing guidelines on when these activities might be eligible for the ‘restoration’ waiver provided under §105.12(16), and when projects may be eligible for relief from certain permit application requirements that are not generally applicable.

Notable changes to the regulations as they relate to restoration and other environmentally beneficial projects include:

• A regulatory definition for restoration, identified as “the process of reestablishing or rehabilitating aquatic resources to natural characteristics and functions”;

• Addition of new permit waivers for certain low impact structures, such as non-motorized trails and elevated boardwalks in wetlands provided they are used for educational purposes;

• Clarification of requirements for existing permit waivers, including revision to the 100-acre drainage area waiver that disallows waivers for projects that impede flow or the passage of aquatic life;

• Provision that allows PADEP to waive certain permit requirements for restoration projects in writing;

• Amendment to the Environmental Assessment requirements that provides specific materials that need to be provided for restoration projects;

• Preference that applicants use the PADEP aquatic resource assessment protocols when evaluating impacts and resource functions for wetlands, rivers and lakes (Level 2 Rapid Assessment Protocols found here.)

• Requirement that applicants consider reasonably foreseeable development when assessing project alternatives and cumulative impacts to aquatic resources;

• Requirement for culverts and bridges to take into account the geomorphic stability of the stream when assessing hydraulic capacity.

Applicants seeking relief from permitting requirements may request a waiver in writing by submitting a restoration plan and Environmental Assessment to the appropriate regional PADEP office. Environmental Assessment’s for aquatic resource restoration projects will have different standards than those typically prepared for other projects, and will focus on identifying the benefits of the proposed project. Qualified professional individuals must prepare an Environmental Assessment pursuant to the proposed regulations.

PADEP may elect to issue policy documents outlining the specifics of the waiver process once the regulations are final. To avoid unnecessary effort and confusion, B&L suggests that applicants first contact PADEP in advance of a submission to discuss the merits of the project.

For the full summary and proposed text of the Dam Safety and Waterway Management regulations, check out this link. The solicitation period for public comments ended on February 3rd. Proposed changes will be effective when the final form regulations are published in the PA Bulletin. Applicants whose projects are not ultimately eligible for a permit waiver should expect to see updates to the Chapter 105 Joint Permit application and General Permit registration forms and instructions sometime in 2021.

B&L’s Stream Team provides engineering, scientific and regulatory services to clients pursuing stream, floodplain and wetland restoration projects in Pennsylvania and surrounding states. Please feel free to contact B&L Environmental Project Engineer Theron Bisko to discuss your project and public funding sources available to support aquatic resource restoration in your community.