Current through Register Vol. 55, No. 13, March 29, 2025
(a)
Exceptional value
wetlands. Except as provided for in subsection (c), the Department
will not grant a permit under this chapter for a dam, water obstruction or
encroachment located in, along, across or projecting into an exceptional value
wetland, or otherwise affecting an exceptional value wetland, unless the
applicant affirmatively demonstrates in writing and the Department issues a
written finding that the following requirements are met:
(1) The dam, water obstruction or
encroachment will not have an adverse impact on the wetland, as determined in
accordance with §§
105.14(b) and
105.15 (relating to review of
applications; and environmental assessment).
(2) The project is water-dependent. A project
is water-dependent when the project requires access or proximity to or siting
within the wetland to fulfill the basic purposes of the project.
(3) There is no practicable alternative to
the proposed project that would not involve a wetland or that would have less
effect on the wetland, and not have other significant adverse effects on the
environment. An alternative is practicable if it is available and capable of
being carried out after taking into consideration construction cost, existing
technology and logistics. An area not presently owned by the applicant which
could reasonably be obtained, utilized, expanded or managed to fulfill the
basic purpose of the project shall be considered as a practicable alternative.
(4) The project will not cause or
contribute to a violation of an applicable State water quality
standard.
(5) The project will not
cause or contribute to pollution of groundwater or surface water resources or
diminution of resources sufficient to interfere with their uses.
(6) The cumulative effect of this project and
other projects will not result in the impairment of the Commonwealth's
exceptional value wetland resources.
(7) The applicant shall replace affected
wetlands in accordance with §
105.20a (relating to wetland
replacement criteria).
(b)
Other wetlands. Except
as provided for in subsection (c), the Department will not grant a permit under
this chapter for a dam, water obstruction or encroachment in, along, across or
projecting into the wetland which is not an exceptional value wetland, or
otherwise affecting the wetland, unless the applicant affirmatively
demonstrates in writing and the Department issues a written finding that the
following requirements are met:
(1) The
project will not have a significant adverse impact on the wetland, as
determined in accordance with §§
105.14(b) and
105.15. The determination of
whether an adverse impact is significant includes an evaluation of the
following factors:
(i) The areal extent of
the wetland impacts.
(ii) The
wetland's values and functions.
(iii) Whether the affected wetlands values
and functions are unique to the area or region.
(iv) Comments from other State and Federal
environmental agencies concerning the scope and effect of the
impact.
(2) Adverse
environmental impacts on the wetland will be avoided or reduced to the maximum
extent possible.
(3) There is no
practicable alternative to the proposed project that would not involve a
wetland or that would have less adverse impact on the wetland, and that would
not have other significant adverse impacts on the environment. An alternative
is practicable if it is available and capable of being carried out after taking
into consideration construction cost, existing technology and logistics. An
area not presently owned by the applicant which could reasonably be obtained,
utilized, expanded or managed to fulfill the basic purpose of the proposed
project shall be considered as a practical alternative.
(i) It shall be a rebuttable presumption that
there is a practicable alternative, not involving a wetland, to a
nonwater-dependent project, and that the alternative would have less adverse
impact on the wetland.
(ii) To
rebut the presumption, an applicant for a permit under this chapter shall
demonstrate with reliable and convincing evidence and documentation and the
Department will issue a written finding that the following statements are true:
(A) The basic project purpose cannot be
accomplished utilizing one or more other sites that would avoid, or result in
less, adverse impact on the wetland.
(B) A reduction in the size, scope,
configuration or density of the project as proposed and alternative designs to
that of the project as proposed that would avoid, or result in fewer or less
severe, adverse impacts on a wetland will not accomplish the basic purpose of
the project.
(4) The project will not cause or contribute
to a violation of an applicable State water quality standard.
(5) The project will not cause or contribute
to pollution of groundwater or surface water resources or diminution of the
resources sufficient to interfere with their uses.
(6) The cumulative effect of this project and
other projects will not result in a major impairment of this Commonwealth's
wetland resources.
(7) The
applicant will replace the affected wetlands to compensate for unavoidable
impacts, in accordance with §
105.20a.
(c) The Department will not grant a permit
under this chapter for a dam, water obstruction or encroachment which has a
significant adverse impact on a wetland unless the applicant affirmatively
demonstrates and the Department finds in writing that a project is necessary to
abate a substantial threat to the public health or safety and that the
requirements of subsection (b)(2)-(7) are met.
This section cited in 25 Pa. Code §
96.3 (relating to water quality
protection requirements); and 25 Pa. Code §
105.16 (relating to environmental,
social and economic balancing).
