§ 105.1. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Act—The Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27).

   Along—Touching or contiguous; to be in contact with; to abut upon.

   Appurtenant works—Structures or materials incident to or annexed to dams or water obstructions which are built or maintained in connection with the dams or water obstructions and are essential to their proper functioning. For dams, the term includes, but is not limited to:

     (i)   Structures such as spillways, either in the dam or separate therefrom.

     (ii)   Low level outlet works.

     (iii)   Conduits such as tunnels, pipelines or penstocks through the dam or its abutments.

   Archaeological site—A known site of archaeological significance based on the Comprehensive State Plan for Conservation of Archaeological Resources. The Comprehensive State Plan is available from the Historic and Museum Commission, Bureau of Historic Preservation, Box 1026, Harrisburg, Pennsylvania 17108.

   Body of water—A natural or artificial lake, pond, reservoir, swamp, marsh or wetland.

   Bridge—A structure and its appurtenant works erected over the regulated waters of this Commonwealth.

   Commercially navigable waters of the Delaware River and its navigable tributaries—Portions of the Delaware River from the Delaware border in the south to the railroad bridge at Morrisville in the north; the Schuylkill River below Fairmount Dam; Chester Creek below Ninth Street; Crum Creek below the Route 291 (Industrial Highway) Bridge; Darby Creek below 84th Street; Neshaminy Creek below the Route 13 Bridge; Pennypack Creek below the Frankford Avenue Bridge; and Ridley Creek below the Baltimore and Ohio Railroad Bridge in Chester.

   Construct—To erect, build, place or deposit including preliminary preparation of a site for construction.

   Course—The path taken by a stream, floodway or body of water.

   Cross section—The area from the top of the bank to the top of the opposite bank of a stream or body of water as cut by a vertical plane passed at a right angle to the course of the stream.

   Culvert—A structure with appurtenant works which carries a stream under or through an embankment or fill.

   Current—The rate or velocity of flow of water in a stream, floodway or body of water.

   Dam—An artificial barrier, together with its appurtenant works, constructed for the purpose of impounding or storing water or another fluid or semifluid, or a refuse bank, fill or structure for highway, railroad or other purposes which does or may impound water or another fluid or semifluid.

   Design flood—A specified discharge for which the hydraulic capacity of a structure is designed.

   Discharge of dredged material—An addition, deposit, disposal or discharge of dredged material into the regulated waters of this Commonwealth including, but not limited to, the addition of dredged material to a specific disposal site located in the regulated waters of this Commonwealth and the runoff or overflow of dredged material from a contained land or water disposal area. The term does not include plowing, cultivating, seeding and harvesting for the production of food, fiber and forest products.

   Discharge of fill material—

     (i)   An addition, deposit, disposal or discharge of fill into the regulated waters of this Commonwealth, including, but not limited to, the following types of construction:

       (A)   Fill that is necessary for the construction of a structure in a regulated water of this Commonwealth.

       (B)   A structure or impoundment requiring rock, sand, soil or other material for its construction.

       (C)   Site-development fills for recreational, industrial, commercial, residential and other uses.

       (D)   Causeways or roadfills.

       (E)   Dams and dikes.

       (F)   Artificial islands.

       (G)   Property protection or reclamation devices, such as riprap, groins, seawalls, breakwaters and revetments.

       (H)   Levees.

       (I)   Fill for structures such as sewage treatment facilities.

       (J)   Intake and outfall pipes associated with power plants and subaqueous utility lines.

       (K)   Artificial reefs.

     (ii)   The term does not include plowing, cultivating, seeding and harvesting for the production of food, fiber and forest products.

   Dredge—To remove sand, gravel, mud or other materials from the beds of regulated waters of this Commonwealth.

   Dredged material—A material that is excavated or dredged from the regulated waters of this Commonwealth.

   Encroachment—A structure or activity which changes, expands or diminishes the course, current or cross section of a watercourse, floodway or body of water.

   FEMA—The Federal Emergency Management Agency.

   Fill—Sand, gravel, earth or other material placed or deposited to form an embankment or raise the elevation of the land surface. The term includes material used to replace an area with aquatic life with dry land or to change the bottom elevation of a regulated water of this Commonwealth.

   Flood—A general but temporary condition of partial or complete inundation of normally dry land areas from the overflow of streams, rivers or other waters of this Commonwealth.

   Floodplain—The lands adjoining a river or stream that have been or may be expected to be inundated by flood waters in a 100-year frequency flood.

   Floodway—The channel of the watercourse and portions of the adjoining floodplains which are reasonably required to carry and discharge the 100-year frequency flood. Unless otherwise specified, the boundary of the floodway is as indicated on maps and flood insurance studies provided by FEMA. In an area where no FEMA maps or studies have defined the boundary of the 100-year frequency floodway, it is assumed, absent evidence to the contrary, that the floodway extends from the stream to 50 feet from the top of the bank of the stream.

   Freeboard—The vertical distance between the water surface elevation experienced during the design flood and the crest elevation of a dam levee, floodwall or other embankment.

   Height of dam—The vertical measurement expressed in feet as measured from the downstream toe of the dam at its lowest point to the elevation of the top of the dam.

   High hazard dam—A dam so located as to endanger populated areas downstream by its failure.

   Inundation area—The land area subject to flood waters as the result of failure of a dam.

   Levee—An earth embankment or ridge constructed along a water course or body of water to confine water within prescribed limits; the term is also known as a dike.

   Limited Power and Water Supply Act—The act of June 14, 1923 (P. L. 700, No. 293) (32 P. S. § §  621—625); and the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. § §  591—600).

   Maintenance dredging—Dredging conducted as part of construction of a dam, water obstruction or encroachment, and periodic dredging conducted to accomplish one or more of the following purposes:

     (i)   Maintain adequate depths for navigation.

     (ii)   Assure proper passage of ice and flood flows.

     (iii)   Preserve the safety, stability and proper operation of the dam, water obstruction or encroachment.

   Mitigation—

     (i)   An action undertaken to accomplish one or more of the following:

       (A)   Avoid and minimize impacts by limiting the degree or magnitude of the action and its implementation.

       (B)   Rectify the impact by repairing, rehabilitating or restoring the impacted environment.

       (C)   Reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action.

     (ii)   If the impact cannot be eliminated by following clauses (A)—(C), compensate for the impact by replacing the environment impacted by the project or by providing substitute resources or environments.

   Normal pool elevation—

     (i)   For bodies of water which have no structural measures to regulate height of water, the height of water at ordinary stages of low water unaffected by drought.

     (ii)   For structurally regulated bodies of water, the elevation of the spillway, outlet control or dam crest which maintains the body of water at a specified height.

     (iii)   This term does not apply to wetlands.

   100-year frequency flood—The flood magnitude expected to be equaled or exceeded on the average of once in 100 years; it may also be expressed as the flood having a 1.0% chance of being equaled or exceeded in a given year.

   Operation—Elements of the use, control and functioning of a dam, water obstruction or encroachment during the lifetime of the dam, water obstruction or encroachment, including its removal, which may affect primarily the storage, release or flow of water; the structural safety of a dam, water obstruction or encroachment; or navigation, with due consideration of the other purposes of the act.

   Ordinary low water mark—The water surface elevation at ordinary stages of low water, unaffected by drought and unchanged by artificial means.

   Owner—A person who owns, controls, operates, maintains or manages a dam or reservoir, water obstruction or encroachment.

   PMF—Probable maximum flood—The flood that may be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in an area. The PMF is derived from the probable maximum precipitation (PMP) as determined on the basis of data obtained from the National Oceanographic and Atmospheric Administration (NOAA).

   Parcel—A portion of land formally set forth and described in a conveyance.

   Person—A natural person, partnership, association, corporation, public utility, municipality, municipal authority, political subdivision of the Commonwealth, receiver or trustee and a department, board, commission or authority of the Commonwealth.

   Political subdivision—A county, city, borough, incorporated town, township, school district, authority or other governmental unit or a combination thereof acting jointly.

   Public service corporation or public utility—A corporation, association or other corporate body having the powers and privileges of corporations not possessed by individuals or partnerships which entity renders a public utility service. The term does not include a municipality or municipal authority.

   Public service line—The term includes, but is not limited to, electric transmission lines, gas pipelines, telephone lines, water lines, railroad trackage and other facilities owned or operated by public service corporations.

   Public utility service—The rendering of one or more of the following services for the public:

     (i)   Gas, electricity or steam production, generation, transmission or distribution.

     (ii)   Water diversion, pumping, impoundment or distribution.

     (iii)   Railroad transportation of passengers or property.

     (iv)   Operation of a canal, turnpike, tunnel, bridge, wharf or similar structure.

     (v)   Transportation of natural or artificial gas, crude oil, gasoline or petroleum products, materials for refrigeration or other fluid substances by pipeline or conduit.

     (vi)   Telephone or telegraph communications.

     (vii)   Sewage collection, treatment or disposal.

   Regulated waters of this Commonwealth—Watercourses, streams or bodies of water and their floodways wholly or partly within or forming part of the boundary of this Commonwealth.

   Replacement—The construction of a new wetland or restoration of a previously destroyed wetland, or both.

   Reservoir—A natural or artificial basin, which contains or will contain the water or other fluid or semifluid impounded by a dam.

   Safety—Security from the risk or threat of significant loss or injury to life, health, property and the environment.

   Small projects—Water obstructions or encroachments located in a stream or floodplain which will have an insignificant impact on safety and protection of life, health, property and the environment.

   Spillway—A device which safely conveys the design flood of a dam without endangering its safety or integrity.

   Storage capacity—The volume as expressed in acre-feet of the impounded water to the maximum storage level, that is, the top of the dam.

   Stormwater management facilities—anmade measures designed and constructed to convey stormwater runoff away from structures or improved land uses, or to control, detain or manage stormwater runoff to avoid or reduce downstream damages. The term includes, but is not limited to, transportation and related facility drainage systems and manmade stormwater detention basins. The term does not include replacement wetlands or major dams and reservoirs constructed for water supply, recreation, river basin flood control or other regional or basin-wide purposes.

   Stream—A watercourse.

   Stream crossings—A pipeline, aerial cable or similar structure which is placed in, along, under, across or over the regulated waters of this Commonwealth.

   Stream enclosure—A bridge, culvert or other structure in excess of 100 feet in length upstream to downstream which encloses a regulated water of this Commonwealth.

   Submerged lands of this Commonwealth—Waters and permanently or periodically inundated lands owned by the Commonwealth, including lands in the beds of navigable lakes and rivers and beds of streams declared public highways which are owned and held in trust by the Commonwealth.

   U.S.G.S.—United States Geological Survey.

   Watercourse—A channel or conveyance of surface water having defined bed and banks, whether natural or artificial, with perennial or intermittent flow.

   Water obstruction—

     (i)   A dike, bridge, culvert, wall, wingwall, fill, pier, wharf, embankment, abutment or other structure located in, along or across or projecting into a watercourse, floodway or body of water.

     (ii)   In the case of ponds, lakes and reservoirs, a water obstruction is considered to be in or along the body of water if, at normal pool elevation, the water obstruction is either in the water or adjacent to and abutting the water’s edge.

   Water Obstructions Act—The act of June 25, 1913 (P. L. 555, No. 355) (32 P. S. § §  681—691), repealed by section 27 of the act of October 23, 1979 (P. L. 204, No. 70) (32 P. S. §  693.27).

   Wetland functions—Include, but are not limited to, the following:

     (i)   Serving natural biological functions, including food chain production; general habitat; and nesting, spawning, rearing and resting sites for aquatic or land species.

     (ii)   Providing areas for study of the environment or as sanctuaries or refuges.

     (iii)   Maintaining natural drainage characteristics, sedimentation patterns, salinity distribution, flushing characteristics, natural water filtration processes, current patterns or other environmental characteristics.

     (iv)   Shielding other areas from wave action, erosion or storm damage.

     (v)   Serving as a storage area for storm and flood waters.

     (vi)   Providing a groundwater discharge area that maintains minimum baseflows.

     (vii)   Serving as a prime natural recharge area where surface water and groundwater are directly interconnected.

     (viii)   Preventing pollution.

     (ix)   Providing recreation.

   Wetlands—Areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs and similar areas.

   Wild trout streams—A stream classified as supporting naturally reproducing trout populations by the Fish Commission. For a list of wild trout streams, the Fish Commission can be contacted at: Fish Commission, Bureau of Fisheries, Division of Fisheries Management, 450 Robinson Lane, Bellefonte, Pennsylvania 16823-9616.

   The provisions of this §  105.1 amended under the Dam and Safety Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.1 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended October 6, 1978, effective October 7, 1978, 8 Pa.B. 2723; amended November 2, 1979, effective November 3, 1979, 9 Pa.B. 3640; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended February 18, 1983, effective February 19, 1983, 13 Pa.B. 781; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (139040), (117637) to (117640) and (141411).

 The purposes of this chapter are to:

   (1)  Provide for the comprehensive regulation and supervision of dams, reservoirs, water obstructions and encroachments in the Commonwealth in order to protect the health, safety, welfare and property of the people.

   (2)  Assure proper planning, design, construction, maintenance, monitoring and supervision of dams and reservoirs, including preventive measures necessary to provide an adequate margin of safety.

   (3)  Assure proper planning, design, construction, maintenance and monitoring of water obstructions and encroachments, in order to prevent unreasonable interference with water flow and to protect navigation.

   (4)  Protect the natural resources, environmental rights and values secured by PA. CONST. art. I, §  27 and conserve and protect the water quality, natural regime and carrying capacity of watercourses.

 (a)  The following structures or activities are regulated under the act and section 302 of the Flood Plain Management Act (32 P. S. §  679.302):

   (1)  Dams on a natural or artificial watercourse, other than those licensed under the Federal Power Act (16 U.S.C.A. § §  791a—825s), where one or more of the following occur:

     (i)   The contributory drainage area exceeds 100 acres.

     (ii)   The greatest depth of water measured by upstream toe of the dam at maximum storage elevation exceeds 15 feet.

     (iii)   The impounding capacity at maximum storage elevation exceeds 50 acre-feet.

   (2)  Dams used for the storage of water not located on a watercourse and which have no contributory drainage where the greatest depth of water measured at upstream toe of the dam at maximum storage elevation exceeds 15 feet and the impounding capacity at maximum storage elevation exceeds 50 acre-feet.

   (3)  Dams used for the storage of fluids or semifluids other than water, the escape of which may result in air, water or land pollution or in danger to persons or property.

   (4)  Water obstructions and encroachments other than dams located in, along or across, or projecting into a watercourse, floodway or body of water, whether temporary or permanent.

   (5)  Flood control projects constructed, owned or maintained by a governmental unit.

 (b)  For the purposes of this chapter, the Department’s jurisdiction in and along Lake Erie will be defined by the high water elevation of 572.8 feet International Great Lakes Datum (IGLD) and low water elevation of 568.6 IGLD. Dams, water obstructions and encroachments constructed between elevation 572.8 IGLD and elevation 568.6 IGLD require a permit under section 6 of the act (32 P. S. §  693.6). Dams, water obstructions and encroachments constructed lakeward of elevation 568.6 IGLD require both a permit under section 6 of the act and a Submerged Lands License Agreement under section 15 of the act (32 P. S. §  693.15).

 (c)  The environmental assessment conducted under this chapter is applicable to dams, water obstructions and encroachments for which a permit or approval is required under this chapter.

   The provisions of this §  105.3 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.3 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended October 6, 1978, effective October 7, 1978, 8 Pa.B. 2723; amended November 2, 1979, effective November 3, 1979, 9 Pa.B. 3640; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (141412) and (117643).

   Fill site must be sufficiently close to wetlands so as to be ‘‘along’’ them in order to invoke jurisdiction in action under the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27). Game Commission v. Department of Environmental Resources, 509 A.2d 877 (Pa. Cmwlth. 1986); appeal granted 521 A.2d 934 (Pa. 1987); affirmed 555 A.2d 812 (Pa. 1989).

 (a)  Under section 17 of the act (32 P. S. §  693.17) and subject to this section, the Department may by written agreement delegate to a county conservation district or other county agency one or more of its regulatory functions including enforcement and the power to permit, inspect and monitor specified categories of water obstructions and encroachments.

 (b)  No delegation may be made of the authority to issue permits for a water obstruction or encroachment constructed, owned or maintained by the Commonwealth, a political subdivision or a public utility. Delegations may be made of the powers to inspect and monitor the activities, if the Department retains final authority to approve or disapprove permits, and concurrent authority to inspect, monitor and enforce the act.

 (c)  To the extent delegated by the agreement, the delegations may include the authority to enforce the act and this chapter and to exercise other powers and duties otherwise vested in the Department to implement the act with respect to the categories of water obstructions and encroachments covered by the delegation.

 (d)  A delegation agreement shall:

   (1)  Specify the powers and duties to be performed by the delegated agency.

   (2)  Specify the categories of water obstructions and encroachment activities to be covered by the delegated agency.

   (3)  Provide for the commitment by the delegated agency of sufficient trained staff and resources to perform the powers and duties to be delegated.

   (4)  Require the delegated agency to maintain records of activities performed under the delegation.

   (5)  Provide for monitoring and supervision by the Department of performance by the delegated agency of the functions delegated under the agreement.

 (e)  A permit for a water obstruction or encroachment issued by a delegated agency is subject to review by the Department, unless the right of review is waived by the Department. A permit issued by a delegated agency shall become effective 30 days following the receipt of notice by the Department of issuance, unless the permit is disapproved by the Department or an appeal is filed with the Department under section 17 of the act (32 P. S. §  693.17).

 (f)  When the Department delegates one or more of its regulatory functions to a local agency, the Department will retain the concurrent power to inspect and monitor categories of water obstructions and encroachments and to enforce the act and this chapter.

   The provisions of this §  105.4 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.4 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117643) to (117644).

   This section cited in 25 Pa. Code §  105.446 (relating to procedure for issuance).

PERMIT APPLICATIONS

§ 105.11. Permit requirements.

 (a)  A person may not construct, operate, maintain, modify, enlarge or abandon a dam, water obstruction or encroachment without first obtaining a written permit from the Department.

 (b)  An existing dam, water obstruction or encroachment constructed under a license or permit issued in compliance with the act of June 8, 1907 (P. L. 496, No. 322) (53 P. S. §  16834 note and 55 P. S. § §  332.1 and 332.2) or the Water Obstructions Act, shall be deemed to comply with the construction and operating permit requirements of this section. These projects shall, after September 27, 1980, comply with the operating, maintenance, monitoring and other requirements of this chapter.

 (c)  The owner of an existing dam, water obstruction or encroachment who does not hold a permit issued under the act of June 8, 1907 (P. L. 496, No. 322) or the Water Obstructions Act shall apply for and receive a permit to operate and maintain the facility under the act on or before January 1, 1981. For purposes of this subsection, a limited power permit issued under the Limited Power and Water Supply Act will be deemed to have been issued under the Water Obstructions Act. These projects shall comply with the operating, maintenance, monitoring and other requirements established under the act.

 (d)  A permit issued by the Department after July 1, 1979 for the construction and operation of a water obstruction or encroachment shall incorporate authorization for normal repairs and maintenance of permitted structures conducted within the original specifications for the water obstruction or encroachment. A repair or maintenance involving modification of the water obstruction or encroachment from its original specifications and a repair or reconstruction involving a substantial portion of the structure shall require the prior written permit of the Department under subsection (a).

 (e)  A dam, water obstruction or encroachment or modification thereof, constructed or authorized pursuant to the terms of a permit issued under this chapter prior to October 12, 1991, shall be deemed to comply with the construction permit requirements of this subchapter. These projects shall, after October 12, 1991, comply with the operating, maintenance, monitoring and other requirements of this chapter.

   The provisions of this §  105.11 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.11 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117644) to (117645).

   Cause of Action

   A builder’s allegation that the township approved a subdivision plan in the absence of a permit from the Department of Environmental Protection is not a cognizable cause of action because it is the Department which enforces this regulation, not the local agency; furthermore, this regulation does not create a private cause of action. Shafer v. Waite, 43 D. & C. 4th 91 (1999).

   Failure to Obtain Permit

   Appellant, who placed fill on his land without a permit which constituted an unlawful encroachment on wetlands in violation of the law, could not claim Department of Environment Protection’s issuing of compliance order effected an unconstitutional, regulatory taking of property rights because Appellant failed to apply for a permit. Baehler v. Department of Environmental Protection, 863 A.2d 57, 59—60 (Pa. Cmwlth. 2004).

 (a)  Under section 7 of the act (32 P. S. §  693.7), the requirements for a permit are waived for the following structures or activities, regardless of when commenced. If the Department upon complaint or investigation finds that a structure or activity which is eligible for a waiver, has a significant effect upon safety or the protection of life, health, property or the environment, the Department may require the owner of the structure to apply for and obtain a permit under this chapter.

   (1)  A dam not exceeding 3 feet in height in a stream not exceeding 50 feet in width, except wild trout streams designated by the Fish Commission.

   (2)  A water obstruction in a stream or floodway with a drainage area of 100 acres or less. This waiver does not apply to wetlands located in the floodway.

   (3)  An aerial crossing of a nonnavigable stream or wetland by electric, telephone or communications lines which are not located in a Federal wilderness area or watercourse or body of water designated as a wild or scenic river under the Wild and Scenic Rivers Act of 1968 (16 U.S.C.A. § §  1271—1287) or the Pennsylvania Scenic Rivers Act (32 P. S. § §  820.21—820.29). This waiver applies to one or more wires attached aboveground to single poles. This does not apply to the maintenance and construction of towers, roads or other water obstructions or encroachments.

   (4)  A dam subject to the requirements of the Mine Safety and Health Administration, 30 CFR 77.216-1 and 77.216-2 (relating to water, sediment or slurry impoundments and impounding structures; identification; and water, sediment, or slurry impoundments or impounding structures; minimum plan requirements; changes or modifications; certification), if the Department determines on the basis of preliminary data submitted by the applicant that the dam is of Size Classification C and Hazard Potential Classification 3 as defined in §  105.91 (relating to classification of dams and reservoirs) and is not located in a watercourse or body of water designated as a wild and scenic river under the Wild and Scenic Rivers Act of 1968 or the Pennsylvania Scenic Rivers Act.

   (5)  A water obstruction or encroachment located in, along, across or projecting into a wetland or impoundment, constructed and maintained for the purpose of treating acid mine drainage, sewage or other waste, if the wetland or impoundment is a treatment facility constructed under a valid permit issued by the Department under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.31), The Clean Streams Law (35 P. S. § §  691.1—691.1001), the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. § §  3301—3326), the Solid Waste Management Act (35 P. S. § §  6018.101—6018.1003), the Oil and Gas Act (58 P. S. § §  601.101—601.605) and the Pennsylvania Sewage Facilities Act (35 P. S. § §  750.1—750.20).

   (6)  A water obstruction or encroachment located in, along, across or projecting into a stormwater management facility or an erosion and sedimentation pollution control facility which meets the requirements in Chapter 102 (relating to erosion and sediment control), if the facility was constructed and continues to be maintained for the designated purpose.

   (7)  Maintenance of field drainage systems that were constructed and continue to be used for crop production. Crop production includes:

     (i)   Plowing, cultivating, seeding, grazing or harvesting.

     (ii)   Crop rotation.

     (iii)   Government set aside programs.

   (8)  Plowing, cultivating, seeding or harvesting for crop production.

   (9)  Construction and maintenance of ford crossings of streams for individual private personal use which require only grading of banks for approach roads and the placement of not more than 12 inches of gravel for roadway stability. Fords may not be used for commercial purposes and shall cross the regulated waters of this Commonwealth in the most direct manner. This waiver does not apply in exceptional value streams as listed under Chapter 93 (relating to water quality standards) or in wild trout streams.

   (10)  A navigational aid or marker, buoy, float, ramp or other device or structure for which a permit has been issued by the Fish Commission under 30 Pa.C.S. §  5123(a)(7) (relating to general boating regulations).

   (11)  The removal of abandoned dams, water obstructions and encroachments if the Department determines in writing on the basis of data, information or plans submitted by the applicant that the removal of the abandoned dam water obstruction or encroachment cannot imperil life or property, have significant effect on coastal resources or have an adverse impact on the environment, and the plans provide for restoration and stabilization of the project area.

   (12)  The construction, operation or removal of staff gages, water recording devices, water quality testing devices, including, but not limited to, sensors, intake tubes, weirs and small buildings which contain required instruments and similar scientific structures.

   (13)  A bridge or culvert purchased from an operating railroad company subsequent to the abandonment of the railroad line, track, spur or branch pursuant to the approval of the Interstate Commerce Commission. Major maintenance or reconstruction, or stream dredging may not be undertaken until the new owner obtains a permit under this chapter.

   (14)  The maintenance of an artificial pond or reservoir to its original storage capacity where:

     (i)   The contributory drainage area is less than or equal to 100 acres.

     (ii)   The greatest depth of water at maximum storage elevation is less than or equal to 15 feet.

     (iii)   The impounding capacity at maximum storage elevation is less than or equal to 50 acre feet.

   (15)  The construction and maintenance of an encroachment or water obstruction on an abandoned mining site, where the Department has issued a notice of intent to forfeit the bond for a mining activity permitted after July 1982.

   (16)  Restoration activities undertaken and conducted pursuant to a restoration plan which has been approved, in writing, by the Department.

 (b)  The requirements for a permit for existing structures or activities, as provided in section 6(c) of the act (32 P. S. §  693.6(c)), are waived for the following structures or activities, if construction was completed prior to July 1, 1979. If the Department upon complaint or investigation finds that a structure or activity which is eligible for a waiver, has a significant effect upon safety or the protection of life, health, property or the environment, the Department may require the owner of the structure or activity to apply for and obtain a permit under this chapter.

   (1)  A dam not exceeding 5 feet in height in a nonnavigable stream operated and maintained for water supply purposes.

   (2)  A dam which the Department determines, on the basis of preliminary data submitted by the applicant, is of Size Classification C and Hazard Potential Classification 3, as defined in §  105.91 and does not have a significant effect on coastal resources or an adverse impact on the environment.

   (3)  A fill not located on navigable lakes and navigable rivers.

   (4)  A streambank retaining device.

   (5)  A stream crossing other than a crossing located on submerged lands of this Commonwealth and a crossing by pipelines for conveyance of petroleum products and gas.

   (6)  An outfall, headwall or water intake structure.

   (7)  A culvert, bridge or stream enclosure on a watercourse where the drainage area above the culvert, bridge or stream enclosure is 5 square miles or less.

 (c)  Structures and activities shall meet the construction, operation, maintenance, monitoring and other requirements of this chapter. No other permits which may be required under a law other than the act are waived by this section.

   The provisions of this §  105.12 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.12 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117645) to (117647).

 (a)  Application for permits under this chapter shall be submitted to the Department, in writing, upon forms provided by the Department. Applicants are encouraged to request a meeting with the Department prior to submission of their applications.

 (b)  An application for a permit under this chapter, except applications submitted by Federal, State, county or municipal agencies or a municipal authority for a dam, water obstruction or encroachment shall be accompanied by a check payable to ‘‘Commonwealth of Pennsylvania’’ in accordance with the following schedule:

   (1)  Dams.

   (2)  Water obstructions and encroachments.

 (c)  A single application may be submitted or a single permit may be issued for multiple structures and activities which are part of a single project or facility or part of related projects and facilities, located in a single county, constructed, operated or maintained by the same persons. When a single application covers multiple structures or activities other than a single structure and related maintenance dredging, the application fee shall be the sum of fees in subsection (b) for the applicable structures and activities. Stream crossings located within a single county for the installation of a public service line shall be treated as a single structure or activity but the application fee shall be the sum of fees for each stream crossing.

 (d)  An application for a permit shall be accompanied by information, maps, plans, specifications, design analyses, test reports and other data specifically required by this chapter and additional information as required by the Department to determine compliance with this chapter.

   (1)  For all permit applications, except small projects, this information shall include, but is not limited to, the following:

     (i)   A site plan. A site plan shall include:

       (A)   A complete demarcation of the floodplains and regulated waters of this Commonwealth on the site. The wetlands shall be identified and delineated in accordance with the Department’s Wetland Delineation Policy as published at §  105.451 (relating to identification and delineation of wetlands—statement of policy).

       (B)   Existing roads, utility lines, lots, other manmade structures and natural features such as contour lines and drainage patterns.

       (C)   Proposed structures or activities included in the project, which shall be identified by labeling.

       (D)   A scale of one inch equals 200 feet or larger.

       (E)   A north arrow.

       (F)   The name of the persons who prepared the plan, and the date and name of the applicants.

       (G)   A cross sectional view of the regulated waters to be impacted before and after the structure or activity is constructed.

     (ii)   A location map. The location map shall be of a scale factor of 1:24000 (standard U.S.G.S. Topographic Map). The location map shall show all natural features including the names and boundaries of regulated waters of this Commonwealth, natural areas, wildlife sanctuaries, natural landmarks, political boundaries, locations of public water supplies and other geographical or physical features including cultural, archeological and historical landmarks within 1 mile of the site. U.S.G.S. maps may be reviewed at County Conservation District Offices or obtained by writing to: United States Geological Survey Map Distribution, Box 25286 Federal Center, Denver, CO 80225.

     (iii)   Project description. A narrative of the project shall be provided which includes, but is not limited to:

       (A)   A description of the proposed structure or activity.

       (B)   The project purpose.

       (C)   The effect the project will have on public health, safety or the environment.

       (D)   A statement on water dependency. A project is water dependent when the project requires access or proximity to or siting within water to fulfill the basic purposes of the project.

     (iv)   Color photographs. Color photographs of the proposed site shall be submitted. The photos shall accurately depict the project area and provide a relative scale of the project to the surrounding area and a map showing the location and orientation of each photograph.

     (v)   Stormwater management analysis. If a watershed stormwater management plan has been prepared or adopted under the Stormwater Management Act (32 P. S. § §  680.1—680.17), an analysis of the project’s impact on the Stormwater Management Plan and a letter from the county or municipality commenting on the analysis shall be included.

     (vi)   Floodplain management analysis. If the proposed dam, water obstruction or encroachment is located within a floodway delineated on a FEMA map, include an analysis of the project’s impact on the floodway delineation and water surface profiles and a letter from the municipality commenting on the analysis.

     (vii)   Risk assessment. If the stormwater or the floodplain management analysis conducted in subparagraphs (v) and (vi) indicates increases in peak rates of runoff or flood elevations, include a description of property and land uses which may be affected and an analysis of the degree of increased risk to life, property and the environment.

     (viii)   Alternatives analysis. A detailed analysis of alternatives to the proposed action, including alternative locations, routings or designs to avoid or minimize adverse environmental impacts.

     (ix)   Mitigation plan. Actions to be taken in accordance with the definition of mitigation in this chapter.

     (x)   Impacts analysis. A detailed analysis of the potential impacts, to the extent applicable, of the proposed project on water quality, stream flow, fish and wildlife, aquatic habitat, Federal and State forests, parks, recreation, instream and downstream water uses, prime farmlands, areas or structures of historic significance, streams which are identified candidates for or are included within the Federal or State wild and scenic river systems and other relevant significant environmental factors. If a project will affect wetlands the project description shall also include:

       (A)   A narrative of the delineation process supported by the appropriate data sheets and copies of appropriate soil maps and descriptions from soil conservation service soil surveys. Soil conservation service soil surveys may be obtained from the county conservation district offices.

       (B)   An analysis of whether the wetland is exceptional value as classified in §  105.17 (relating to wetlands).

       (C)   A statement on water dependency. A project is water dependent when the project requires access or proximity to or siting within water to fulfill the basic purposes of the project.

   (2)  An application for a project which will affect less than 1 acre of wetland where the wetland is not exceptional value wetland shall also include a description of functions and values of the existing wetlands to be impacted by the project, as defined in §  105.1 (relating to definitions).

   (3)  An application for a project which may have an affect on an exceptional value wetland or on 1 or more acres of wetland shall also include an assessment of the wetland functions and values using a methodology accepted by the Department and a survey, conducted by a licensed professional land surveyor, of the wetland boundary as delineated and of the property lines of the parcel where the project is located.

 (e)  A permit application for small projects located in streams or floodplains shall be accompanied by the following information. This permit application may not be used for projects located in wetlands. If upon review the Department determines that more information is required to determine whether a small project will have an insignificant impact on safety and protection of life, health, property or the environment, the Department may require the applicant to submit additional information and processing fees required by this chapter.

   (1)  A site plan. A site plan shall include:

     (i)   The floodplains and regulated waters of this Commonwealth on the site, including wetlands, existing roads, utility lines, lots, other manmade structures, natural features such as slopes and drainage patterns, proposed structures or activities included in the project.

     (ii)   The names of the persons who prepared the plan.

     (iii)   The date and the name of applicants.

     (iv)   A north arrow.

   (2)  A cross sectional view. A cross sectional view of the affected regulated waters of this Commonwealth before and after the structure or activity is constructed.

   (3)  A location map. A map showing the geographic location of the project. U.S.G.S. topographic maps, FEMA maps or municipal maps are acceptable. FEMA and municipal maps may be obtained from local government offices. U.S.G.S. maps may be reviewed at county conservation district offices or obtained by writing to: United States Geological Survey Map Distribution, Box 25286 Federal Center, Denver, CO 80225.

   (4)  Project description. A narrative of the project shall be provided which includes, but is not limited to:

     (i)   A description of the proposed structure or activity.

     (ii)   The project purpose.

     (iii)   The effect the project will have on public health, safety or the environment.

     (iv)   The project’s need to be in or in close proximity to water.

   (5)  Color photographs. Color photographs of the proposed site shall be submitted. The photos shall accurately depict the project area and provide a relative scale of the project to the surrounding area and a map showing the location and orientation of each photograph.

 (f)  Except for small projects, an application for a permit under this chapter shall be accompanied by proof of an application for an Earth Disturbance Permit or an erosion and sedimentation control plan for activities in the stream and earthmoving activities. The plan shall conform to the requirements contained in Chapter 102 (relating to erosion and sediment control) and shall include a copy of a letter from the conservation district in the county where the project is located indicating that the district has reviewed the erosion and sediment control plan of the applicant and considered it to be satisfactory, if applicable. Earthmoving activities, including small projects, shall be conducted pursuant to an earth disturbance plan.

 (g)  An application shall be submitted by the person who owns or has primary responsibility for the proposed dam or reservoir, water obstruction or encroachment. If an application is submitted by a person with primary responsibility for the structure or activity, the owner of a dam or reservoir, water obstruction or encroachment will not thereby be relieved of legal duties or responsibilities for the structure or activity as imposed by the act or this chapter.

 (h)  An application shall be signed by the owners of the dam or reservoir, water obstruction or encroachment, or the persons exercising primary responsibility for the dam or reservoir, water obstruction or encroachment. In the case of a partnership, one or more members of the partnership authorized to sign on behalf of the entire partnership shall sign the application. In the case of a corporation, it shall be signed by the president, vice president or other responsible official empowered to sign for the corporation. In the case of a political subdivision, it shall be signed by the chief officers of the political subdivision or other responsible official empowered to sign for the political subdivision, with the seal affixed and attested by the clerk.

 (i)  Plans, specifications and reports accompanying applications for any category of dams, or for bridges and other water obstructions or encroachments which would pose a threat to human life or substantial potential risk to property shall be affixed with the seal of a registered professional engineer and a certification, signed by the registered professional engineer, which shall read as follows:

  ‘‘I (name) do hereby certify pursuant to the penalties of 18 Pa.C.S.A. Sec. 4904 to the best of my knowledge, information and belief, that the information contained in the accompanying plans, specifications and reports has been prepared in accordance with accepted engineering practice, is true and correct, and is in conformance with Chapter 105 of the rules and regulations of the Department of Environmental Resources.’’

 (j)  The Department may waive the specific information requirements of this section in writing, in the record of decision, if upon review of the permit application, the Department finds that specific information is not necessary to review the application.

   The provisions of this §  105.13 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.13 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117647) to (117649).

   Needs Analysis

   Where the applicant failed to submit a proper alternatives/justification analysis and parking needs could have been met elsewhere, the Environmental Hearing Board concluded that petitioner did not justify the need to fill wetlands. Hatchard v. Department of Environmental Resources, 612 A.2d 621 (Pa. Cmwlth. 1992).

 (a)  An application will be reviewed to determine the proposed project’s effect on health, safety and the environment, in accordance with prevailing practices in the engineering profession and in accordance with current environmental principles.

 (b)  In reviewing a permit application under this chapter for construction or substantial modification of a dam or reservoir, water obstruction or encroachment, the Department will use the following factors to make a determination of impact:

   (1)  Potential threats to life or property created by the dam, water obstruction or encroachment.

   (2)  Potential threats to safe navigation created by the dam, water obstruction or encroachment.

   (3)  The effect of the dam, water obstruction or encroachment on the property or riparian rights of owners above, below or adjacent to the project.

   (4)  The effect of the dam, water obstruction or encroachment on regimen and ecology of the watercourse or other body of water, water quality, stream flow, fish and wildlife, aquatic habitat, instream and downstream uses and other significant environmental factors.

   (5)  The impacts of the dam, water obstruction or encroachment on nearby natural areas, wildlife sanctuaries, public water supplies, other geographical or physical features including cultural, archaeological and historical landmarks, National wildlife refuges, National natural landmarks, National, State or local parks or recreation areas or National, State or local historical sites.

   (6)  Compliance by the dam, water obstruction or encroachment with applicable laws administered by the Department, the Fish Commission and river basin commissions created by interstate compact.

   (7)  The extent to which a project is water dependent and thereby requires access or proximity to or siting within water to fulfill the basic purposes of the project. The dependency shall be based on the demonstrated unavailability of any alternative location, route or design and the use of location, route or design to avoid or minimize the adverse impact of the dam, water obstruction or encroachment upon the environment and protect the public natural resources of the Commonwealth.

   (8)  Present conditions and the effects of reasonably foreseeable future development within the affected watershed above and below the dam, water obstruction or encroachment:

     (i)   A dam, water obstruction or encroachment shall be designed, constructed and operated to assure adequacy and compliance with this chapter, taking into account reasonably foreseeable development within the watershed.

     (ii)   In assessing the impact of future development upon a dam, water obstruction or encroachment, the Department may require the applicant to submit data regarding estimated development potentials and municipal, county and regional planning related to the affected watershed.

   (9)  Consistency with State and local floodplain and stormwater management programs, the State Water Plan and the Coastal Zone Management Plan.

   (10)  Consistency with the designations of wild, scenic and recreational streams under the Wild and Scenic Rivers Act of 1968 (16 U.S.C.A. § §  1271—1287) or the Pennsylvania Scenic Rivers Act (32 P. S. § §  820.21—820.29), including identified 1-A candidates.

   (11)  Consistency with State antidegradation requirements contained in Chapters 93, 95 and 102 (relating to water quality standards; wastewater treatment requirements; and erosion and sediment control) and the Clean Water Act (33 U.S.C.A. § §  1251—1376).

   (12)  Secondary impacts associated with but not the direct result of the construction or substantial modification of the dam or reservoir, water obstruction or encroachment in the area of the project and in areas adjacent thereto and future impacts associated with dams, water obstructions or encroachments, the construction of which would result in the need for additional dams, water obstructions or encroachments to fulfill the project purpose.

   (13)  For dams, water obstructions or encroachments in, along, across or projecting into a wetland, as defined in §  105.1 (relating to definitions), the Department will also consider the impact on the wetlands values and functions in making a determination of adverse impact.

   (14)  The cumulative impact of this project and other potential or existing projects. In evaluating the cumulative impact, the Department will consider whether numerous piecemeal changes may result in a major impairment of the wetland resources. The Department will evaluate a particular wetland site for which an application is made with the recognition that it is part of a complete and interrelated wetland area.

 (c)  In reviewing a permit application under §  105.11(c) (relating to permit requirements) and section 6(c) of the act (32 P. S. §  693.6(c)) for the operation and maintenance of an existing dam, water obstruction or encroachment, the Department will use the following factors:

   (1)  Potential threats to life, property or safe navigation created by the continuing operation or maintenance of the project.

   (2)  Adverse impact on stream flow, water quality or the environment which might be reduced or mitigated by reasonable changes in the operation of the project.

   (3)  Compliance of the operation and maintenance of the project with applicable laws administered by the Department, the Fish Commission and river basin commissions created by interstate compact.

 (d)  The Department may review a permit application for the operation and maintenance of existing projects without regard to the design criteria and construction requirements in Subchapters B—J. If the Department finds that an existing dam, water obstruction or encroachment is unsafe or adversely affects property or the environment, it may consider application of criteria and requirements reasonably necessary to correct the conditions.

   The provisions of this §  105.14 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.14 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117649) to (117651).

   Reservoir was not an ‘‘available’’ alternative supplemental cooling water source within the meaning of 25 Pa. Code §  105.14(b)(7) where there was substantial evidence to support conclusion that such use of the reservoir was technically not feasible, there were legal impediments to such use and it would be unfair to give all unallocated water to one consumptive user. Del-Aware Unlimited, Inc. v. Department of Environmental Resources, 508 A.2d 348 (Pa. Cmwlth. 1986); appeal denied 523 A.2d 1132 (Pa. 1986).

 (a)  A person may not construct, operate, maintain, modify, enlarge or abandon the following categories of structures or activities until an environmental assessment has been approved in writing by the Department. The environmental assessment shall be on a form provided by the Department and shall include the following information:

   (1)  For dams, water obstructions or encroachments permitted under this chapter, the Department will base its evaluation on the information required by §  105.13 (relating to permit applications—information and fees) and the factors included in §  105.14(b) (relating to review of applications) and this section.

   (2)  For dams, water obstructions or encroachments located in, along or projecting into a wetland for which a permit is not otherwise required under this chapter, the Department will base its evaluation on the information required by §  105.13(d) and the factors included in §  105.14(b) and this section.

   (3)  For dams located in, along or projecting into an exceptional value water as defined in Chapter 93 (relating to water quality standards) for which a permit is not otherwise required under this chapter, the Department will base its evaluation on the information required by the factors included in §  95.1 (relating to general requirements) and § §  105.13(d) and 105.14(b) and the following information submitted by the applicant:

     (i)   The surface area of the impoundment.

     (ii)   The height of the dam.

     (iii)   The mean depth and maximum depth of the stream at the location of the dam.

     (iv)   A description of the release structure.

     (v)   The rate of a conservation release.

     (vi)   The design of bypass structures.

     (vii)   The use of the dam.

     (viii)   The material used for construction of the dam.

 (b)  For structures or activities where water quality certification is required under section 401 of The Clean Water Act (33 U.S.C.A. §  1341), an applicant requesting water quality certification under section 401 shall prepare and submit to the Department for review, an environmental assessment containing the information required by subsection (a) for every dam, water obstruction or encroachment located in, along, across or projecting into the regulated water of this Commonwealth.

 (c)  Based on the results of the environmental assessment required under subsection (a), the Department may require the applicant to undertake further studies and submit additional information, analyses and reports as found necessary by the Department.

 (d)  The environmental assessment has been conducted by the Department for all general permits, categories of structures and activities listed in §  105.12(a)(1)—(10) and (12)—(15) (relating to waiver of permit requirements). The environmental assessment has also been conducted for the structures or activities listed in §  105.12(b) or for which water quality certification has been granted for a Nationwide permit regulating the structure or activity and the environmental assessment requirements have been deemed satisfied.

   The provisions of this §  105.15 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.15 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117651) to (117652).

 (a)  If the Department determines that there may be an impact on natural, scenic, historic or aesthetic values of the environment, the Department will consult with the applicant to examine ways to reduce the adverse environmental impact. If, after consideration of mitigation measures, the Department finds that the adverse environmental impact will occur, the Department will evaluate the public benefits of the project to determine whether the public benefits outweigh the environmental harm.

 (b)  An application for a permit for a structure or activity which the Department determines will have an adverse impact on the environment or public natural resources will not be approved by the Department unless the applicant demonstrates and the Department finds that the public benefits of the proposed project outweigh the harm to the environment and public natural resources. Public benefits include, but are not limited to:

   (1)  Correction and prevention of pollution.

   (2)  Protection of public health and safety.

   (3)  Reduction of flood damages.

   (4)  Development of energy resources.

   (5)  Creation or preservation of significant employment.

   (6)  Provision of public utility services.

   (7)  Other essential social and economic development which benefits a substantial portion of the public.

 (c)  An application for a permit will not be approved by the Department in the following areas unless the applicant demonstrates and the Department finds that the project will not have an adverse impact upon the public natural resources:

   (1)  A project located in or within 100 feet of a watercourse or body of water that has been designated as a National or State wild or scenic river in accordance with the Wild and Scenic Rivers Act of 1968 (16 U.S.C.A. § §  1271—1287) or the Pennsylvania Scenic Rivers Act (32 P. S. § §  820.21—820.29).

   (2)  A project located in or within 100 feet of a Federal wilderness area designated in accordance with the Wilderness Act (16 U.S.C.A. § §  1131—1136) or the Federal Eastern Wilderness Act of 1975 (16 U.S.C.A. §  1132).

   (3)  A project located within an area which serves as a habitat of a threatened or endangered species protected by the Endangered Species Act of 1973 (7 U.S.C.A. §  136; 16 U.S.C.A. § §  4601-9, 460k-1, 668dd, 715i, 715a, 1362, 1371, 1372, 1402 and 1531—1543) or for a species which has been designated as a threatened or endangered species under the Wild Resource Conservation Act (32 P. S. § §  5301—5314), 30 Pa.C.S. (relating to the Fish and Boat Code) or 34 Pa.C.S. (relating to the Game and Wildlife Code).

   (4)  A project located in waters designated as exceptional value in Chapter 93 (relating to water quality standards).

 (d)  In reviewing permit applications, it will be the policy of the Department to encourage activities that protect the natural condition of the watercourses or other body of water.

 (e)  This section does not apply to dams, water obstructions or encroachments located in, along, across or projecting into wetlands. These structures or activities will be evaluated under § §  105.17 and 105.18a—105.20.

   The provisions of this §  105.16 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.16 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117652) to (117654).

   Because the petitioner failed to utilize available alternatives, the Department was not required to consider the petitioner’s proposed mitigation measures. Hatchard v. Department of Environmental Resources, 612 A.2d 621 (Pa. Cmwlth. 1992).

 Wetlands are a valuable public natural resource. This chapter will be construed broadly to protect this valuable resource.

   (1)  Exceptional value wetlands. This category of wetlands deserves special protection. Exceptional value wetlands are wetlands that exhibit one or more of the following characteristics:

     (i)   Wetlands which serve as habitat for fauna or flora listed as ‘‘threatened’’ or ‘‘endangered’’ under the Endangered Species Act of 1973 (7 U.S.C.A. §  136; 16 U.S.C.A. § §  4601-9, 460k-1, 668dd, 715i, 715a, 1362, 1371, 1372, 1402 and 1531—1543), the Wild Resource Conservation Act (32 P. S. § §  5301—5314), 30 Pa.C.S. (relating to the Fish and Boat Code) or 34 Pa.C.S. (relating to the Game and Wildlife Code).

     (ii)   Wetlands that are hydrologically connected to or located within 1/2-mile of wetlands identified under subparagraph (i) and that maintain the habitat of the threatened or endangered species within the wetland identified under subparagraph (i).

     (iii)   Wetlands that are located in or along the floodplain of the reach of a wild trout stream or waters listed as exceptional value under Chapter 93 (relating to water quality standards) and the floodplain of streams tributary thereto, or wetlands within the corridor of a watercourse or body of water that has been designated as a National wild or scenic river in accordance with the Wild and Scenic Rivers Act of 1968 (16 U.S.C.A. § §  1271—1287) or designated as wild or scenic under the Pennsylvania Scenic Rivers Act (32 P. S. § §  820.21—820.29).

     (iv)   Wetlands located along an existing public or private drinking water supply, including both surface water and groundwater sources, that maintain the quality or quantity of the drinking water supply.

     (v)   Wetlands located in areas designated by the Department as ‘‘natural’’ or ‘‘wild’’ areas within State forest or park lands, wetlands located in areas designated as Federal wilderness areas under the Wilderness Act (16 U.S.C.A. § §  1131—1136) or the Federal Eastern Wilderness Act of 1975 (16 U.S.C.A. §  1132) or wetlands located in areas designated as National natural landmarks by the Secretary of the Interior under the Historic Sites Act of 1935 (16 U.S.C.A. § §  461—467).

   (2)  Other wetlands. This category includes wetlands not categorized as exceptional value wetlands.

   (3)  Permits. The Department will maintain a list of permit decisions involving wetlands. This list will be a matter of public record and will be available for inspection at the Department’s offices.

   The provisions of this §  105.17 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.17 adopted November 2, 1979, effective November 3, 1979, 9 Pa.B. 3640; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117654) and (126083).

 (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.

   The provisions of this §  105.18a adopted October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911.

 (a)  An application for a permit is not complete until the necessary information and requirements under the act and this chapter, including proof of financial responsibility, have been satisfied by the applicant.

 (b)  When the Department determines that an application is incomplete or contains insufficient information to determine compliance with this chapter, it will notify the applicant in writing. The applicant shall then have 60 days to complete the application or the Department will consider the application to be withdrawn by the applicant. Requests for a specific extension may be sought by the applicant in writing. The applicant will be notified in writing when an application is considered withdrawn. When an application is considered withdrawn, the Department will close the application file and take no further action to review the file, unless the applicant requests the file to be reopened after submitting the previously identified information to complete the application and a new fee. Fees will not be refunded after an application is withdrawn.

   The provisions of this §  105.19 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.19 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (126083) to (126084).

 (a)  Prior to the approval of a permit under this chapter for construction or modification of a dam, water obstruction or encroachment which may present a substantial potential risk to life or property, the Department will require proof of financial responsibility or security for continued operation and maintenance during the lifetime of the facility. Dams, water obstructions or encroachments which may be subject to the proof of financial responsibility include, but are not limited to, Category 1 dams, Hazard Potential Classification, as defined in §  105.91 (relating to classification of dams and reservoirs) stream enclosures, bridges, levees, fills and floodwalls.

 (b)  As proof of responsibility or security, the Department may require one or more of the following:

   (1)  A certificate of public convenience from the Pennsylvania Public Utility Commission if the owner of the proposed facility is subject to regulation under 66 Pa.C.S. (relating to the Public Utility Code).

   (2)  Ownership or management of the facility by an agency of the Federal, State, county or municipal government or of an interstate compact.

   (3)  A bond or other legal device of a form acceptable to the Department, payable to the Commonwealth, which guarantees proper construction, repair, operation and maintenance, inspection and monitoring, and removal if necessary of the facility. The amount of bond or legal device shall be sufficient to cover the costs of entry, repair, correction, operation, maintenance, inspection, monitoring or removal of the facility by the Commonwealth in the event of failure of the owner to comply with orders of the Department, terms and conditions of the permit, this chapter and the act and section 302 of the Flood Plain Management Act (32 P. S. §  679.302).

   The provisions of this §  105.20 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.20 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (126083) to (126084).

 (a)  Wetlands replacement shall meet the following general criteria:

   (1)  Area ratio. The wetland shall be replaced at a minimum area ratio of replacement acres to affected acres of 1:1. The Department may require the area ratio to exceed 1:1 based on a determination of the area affected and the functions and values which will be destroyed or adversely affected by the project. For structures or activities constructed without a permit, and for which mitigation, as defined in §  105.1 (relating to definitions), cannot be achieved, the wetland shall be replaced at a minimum area ratio of 2:1 (replacement acres: affected acres). The Department may require the area ratio to exceed 2:1 based on a determination of the area affected and the functions and values which were destroyed or adversely affected by the project.

   (2)  Function and value replacement. Functions and values that are physically and biologically the same as those that are lost shall be replaced at a minimum ratio of 1:1. The Department may require the functions and values ratio to exceed 1:1 based on the area affected and on the functions and values which will be destroyed as adversely affected by the project and the replacement ratio. For structures or activities constructed without a permit, and for which mitigation, as defined in §  105.1, cannot be achieved, the wetland shall be replaced at a minimum area ratio of 2:1. The Department may require the area ratio to exceed 2:1 based on a determination of the area affected and the functions and values which were destroyed or adversely affected by the project.

   (3)  Siting criteria. Replacement shall be located adjacent to the impacted wetland unless an alternative replacement site is approved by the Department. Alternative replacement sites will generally not be approved unless the replacement site is located within the same watershed as the wetland being replaced or within the designated boundaries of the coastal zone management area where the loss occurs.

 (b)  In addition to the general criteria in subsection (a), the Department will use its guidelines entitled ‘‘Design Criteria for Wetlands Replacement’’ in making decisions under this section. These guidelines provide for design, flexibility and utilization of best available technology in environmental engineering. These guidelines are available from the Division of Rivers and Wetlands Conservation, Post Office Box 8761, Harrisburg, Pennsylvania 17105-8761.

   The provisions of this §  105.20a issued under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.20a adopted October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911.

   This section cited in 25 Pa. Code §  96.3 (relating to water quality protection requirements); 25 Pa. Code §  105.18a (relating to permitting of structures and activities in wetlands); and 25 Pa. Code §  105.21 (relating to criteria for permit issuance and denial).

PERMIT ISSUANCE, TRANSFER AND REVOCATION

§ 105.21. Criteria for permit issuance and denial.

 (a)  In addition to the other requirements of this chapter, a permit application will not be approved unless the applicant demonstrates that the following conditions are met:

   (1)  The application is complete and accurate.

   (2)  The proposed project or action complies with the standards and criteria of this title and with other laws administered by the Department, the Fish Commission and river basin commissions created by interstate compact.

   (3)  The proposed project or action will adequately protect public health, safety and the environment.

   (4)  The proposed project or action is consistent with the environmental rights and values secured by Pa. Const. Art. I, §  27 and with the duties of the Commonwealth as trustee to conserve and maintain public natural resources of this Commonwealth.

   (5)  The applicant has not been found to be in continuing violation of this title or other laws administered by the Department, the Fish Commission or a river basin commission, including, but not limited to, a violation of an adjudication and order, agreement, consent order or decree, whether or not the applicant’s violation resulted in an order or civil penalty assessment.

   (6)  The applicant has submitted adequate proof of financial responsibility, if required under §  105.20 (relating to proof of financial responsibility).

 (b)  A permit issued under this chapter shall be subject to the general and special conditions regarding construction, operation, maintenance, inspection and monitoring of a project or action that the Department may deem necessary to assure compliance with the requirements and purposes of this chapter, the act, the Flood Plain Management Act (32 P. S. § §  679.101—679.601) and other laws administered by the Department, the Fish Commission and river basin commissions created by interstate compact.

 (c)  The Department may not issue a permit to operate and maintain a dam, water obstruction or encroachment constructed without a permit unless one of the following is met:

   (1)  The Department determines that the structure or activity complies with the standards and criteria of this title, including replacement in accordance with §  105.20a (relating to wetland replacement criteria), and with other laws administered by the Department, the Fish Commission and river basin commissions created by interstate compact.

   (2)  The Department determines that the structure or activity does not comply with the standards and criteria of this title and with other laws administered by the Department, the Fish Commission and river basin commissions created by interstate compact, that the effect on wetlands will be mitigated, and at least one of the following is met:

     (i)   Restoration would cause destruction of a dwelling occupied by a person who had no role in the planning or construction of the project.

     (ii)   Restoration may result in more long term damage than would be caused by allowing the project to remain in place.

     (iii)   Restoration would be unsuccessful due to material changes in the condition of the site and its surrounding area.

     (iv)   There are extraordinary circumstances which preclude restoration.

 (d)  The reason for denial of a permit application and appeal procedures shall be communicated in writing to the applicant.

 (e)  In an appeal from a Department action concerning a permit application to operate and maintain a dam, water obstruction or encroachment, the applicant has the burden of proving that there is no reasonable basis for the Department’s action.

   The provisions of this §  105.21 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.21 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended November 2, 1979, effective November 3, 1979, 9 Pa.B. 3640; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial page (117657).

   The terms and conditions attached to a dredging permit are terms and conditions of the permit, as authorized under this section rather than rules and regulations. Warren Sand and Gravel Co. v. Department of Environmental Resources, 341 A.2d 556 (Pa. Cmwlth. 1975).

 Except for dams, water obstructions and encroachments authorized under § §  105.12, 105.64 and Subchapter L (relating to waiver of permit requirements; emergency permit; and general permits), or as small projects, the Department will publish a notice in the Pennsylvania Bulletin upon receipt of an application and again upon the issuance or denial of a permit by the Department.

   The provisions of this §  105.21a issued under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

 Receipt of a permit under the provisions of this chapter shall not relieve the permittee of the obligation of complying with Federal, interstate compact and State laws, regulations and standards applicable to the construction, operation or maintenance of the dam or water obstruction.

 (a)  The Department will establish a system to coordinate the application for and issuance of permits under this chapter with permit processes conducted under other statutes and regulations administered by the Department and with permit processes administered by other Federal and State agencies.

 (b)  When possible, the Department will develop joint permit application forms to facilitate the submission of information on related activities of a project regulated under statutes and regulations administered by the Department and other Federal and State agencies, to reduce duplicate and repetitious application requirements. The joint application forms shall be used in lieu of individual applications for the required permits, except for small projects.

   The provisions of this §  105.24 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The EHB did err in determining that DER did not abuse its discretion by soliciting comments from the Fish and Boating Commission and other agencies when reviewing the petitioner’s permit. Hatchard v. Department of Environmental Resources, 612 A.2d 621 (Pa. Cmwlth. 1992).

 (a)  A permit may be transferred to a new owner if there is a change of ownership of the dam, water obstruction or encroachment.

 (b)  A permit may be transferred only upon application to and approval by the Department. An application for transfer shall be submitted upon forms provided by the Department.

 (c)  A permit may not be transferred if a violation of this chapter exists at the time of application for transfer unless the transfer will expedite correction of the violation.

 (d)  The new owner shall expressly agree to abide by the permit conditions and shall, if applicable:

   (1)  Provide the Department with proof of financial responsibility and security in accordance with §  105.20 (relating to proof of financial responsibility).

   (2)  Obtain a license, easement, right-of-way or other interest in the submerged lands of this Commonwealth in accordance with § §  105.31—105.35 (relating to submerged lands of the Commonwealth—licenses and annual charges).

 (e)  The original permittee will not be relieved of an obligation to comply with this chapter, the terms and conditions of the permit or an order issued by the Department until the transfer has been approved.

 (f)  Upon receipt of the approved application for transfer, the applicant shall affix the approved application for transfer to the original permit. The approved application for transfer shall become part of, and remain affixed to, the original permit, until the Department issues a new permit.

   The provisions of this §  105.25 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

 (a)  Failure to comply with a provision of this chapter, an order of the Department, or a term or condition of a permit issued under this chapter will be cause for the Department to revoke or suspend a permit.

 (b)  The Department will issue to the permittee a written notice of the suspension or revocation of a permit. The notice shall be subject to the procedure for appeal and hearing before the Environmental Hearing Board as provided by section 24 of the act (32 P. S. §  693.24); section 1921-A of The Administrative Code of 1929 (71 P. S. §  510-21), and 2 Pa.C.S. § §  501—508 and 701—704 (relating to the Administrative Agency Law).

 In a civil or administrative action taken by the Department under this chapter, the person against whom the action has been taken has the burden of proof to demonstrate that the project complies with the act and this chapter.

   The provisions of this §  105.29a issued under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.30 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38855).

SUBMERGED LANDS OF THE COMMONWEALTH—LICENSES
AND ANNUAL CHARGES

§ 105.31. Property rights.

 (a)  Except as provided in § §  105.32 and 105.33 (relating to projects—proper purpose; and licenses for public service corporations), no permit issued under this chapter may give real or personal property rights nor grant exclusive privileges; nor may it be construed to grant or confer a right, title, easement or interest in, to or over lands belonging to this Commonwealth.

 (b)  No permit for a dam, water obstruction or encroachment to occupy submerged lands of the Commonwealth will be issued by the Department until the applicant has first obtained one of the following:

   (1)  An easement, right-of-way, license or lease from the Department under section 15 of the act (32 P. S. §  693.15) and §  105.32.

   (2)  A license under section 514 of The Administrative Code of 1929 (71 P. S. §  194) and §  105.33.

   (3)  A license, easement, right-of-way or other interest in the submerged lands of this Commonwealth granted under specific statutory authority from the General Assembly.

 (c)  For purposes of this section, to occupy submerged lands of this Commonwealth includes:

   (1)  The placement of a physical structure on, under or over submerged lands of this Commonwealth.

   (2)  The use or control of the space overlying submerged lands of this Commonwealth, associated with use of a structure with the regularity and in a manner that substantially restrict or prevent navigation, fishing, recreation or other public trust uses by the general public on or over the lands.

   The provisions of this §  105.31 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38855).

 (a)  If the applicant does not have an estate or interest in the submerged lands of this Commonwealth under other specific authority from the General Assembly at the time of application for a permit under the act, the Department may, with the approval of the Governor, grant an easement, right-of-way, license or lease to occupy submerged lands of this Commonwealth in a navigable lake or river or stream declared a public highway for a dam, water obstruction or encroachment regulated under this chapter which is constructed for the purpose of:

   (1)  Improving navigation or public transportation.

   (2)  Recreation, fishing or other public trust purposes.

   (3)  Protecting public safety or the environment.

   (4)  Providing water supply, energy production or waste treatment.

   (5)  Providing a public utility service by a government agency or subdivision, public utility or electric cooperative.

   (6)  Other activities which require access to water.

 (b)  The total area of land which any such project may occupy under one or more easements, rights-of-way, licenses or leases granted by the Department under this section may not exceed 25 acres.

   The provisions of this §  105.32 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial pages (38855) to (38856).

 In accordance with section 514 of The Administrative Code of 1929 (71 P. S. §  194), a permit issued to a public service corporation to place a public service line upon, in or over submerged land of this Commonwealth will incorporate a license for the privilege of crossing Commonwealth lands.

   The provisions of this §  105.33 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial pages (4577) to (4578).

 No easement, right-of-way, lease or license will be granted by the Department if it may adversely affect navigation or significantly impair the right in lands of the public held in trust by this Commonwealth.

   The provisions of this §  105.34 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; reserved August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (4578).

 (a)  Except as provided in subsections (b) and (c), the following charges apply to the granting of an easement, right-of-way, license or lease to occupy submerged lands of this Commonwealth issued under section 15 of the act (32 P. S. §  693.15) and §  105.32 (relating to projects—proper purpose):

   (1)  For commercial utility and other dams, water obstructions and encroachments except as listed in subsection (c), annual license charges:

     (i)   For areas occupied by facilities, $50 per tenth of an acre.

     (ii)   For barge fleeting and mooring areas, $10 per tenth of an acre.

     (iii)   Minimum annual charge, $250.

   (2)  For private recreation docks, owned and used solely by the owners of adjacent riparian property, unless the project is otherwise authorized by a general permit issued under section 7 of the act (32 P. S. §  693.7), an annual charge of $250.

 (b)  Licenses for public service lines crossing or occupying submerged lands of this Commonwealth, issued under section 15 of the act or section 514 of The Administrative Code of 1929 (71 P. S. §  194) are subject to the following schedule of annual charges:

 (c)  Charges may not be imposed under section 15 of the act or section 514 of The Administrative Code of 1929 for the following categories of activities and structures:

   (1)  An activity or structure constructed, owned or operated by a department, commission or agency of the Commonwealth or the Federal government.

   (2)  A project or activity constructed, or operated primarily for the benefit of a State building or a State institution.

   (3)  A flood control project constructed, owned or operated by an agency of the Commonwealth, the Federal government or a municipality.

   (4)  A project or activity constructed, owned or operated by a political subdivision of the Commonwealth which provides potable water supply, sewage disposal or other similar services necessary for public health and welfare, or in connection with a service for which no fees or charges other than general taxes are imposed.

   (5)  A facility to provide access to the general public to water for recreational boating, fishing, hunting, swimming or other recreation where the access is provided without charge or on a nonprofit basis.

   (6)  A structure or facility constructed and operated exclusively to improve fish habitat, under a cooperative agreement with the Fish Commission.

   (7)  A private recreational dock constructed under a general permit.

 (d)  The annual charges imposed in subsections (a) and (b) may be revised by the EQB after approval by the Governor and reasonable notice to the holder of a license issued under this section.

 (e)  This section does not apply to a crossing contiguous to or in a State park or State forest lands. Easements for the crossings shall be administered in accordance with section 514 of The Administrative Code of 1929 and the park and forest land management practices of the Department.

 (f)  The removal of sand, gravel and other valuable minerals from submerged lands of this Commonwealth are subject to the royalty and agreement provisions established under section 1908-A of The Administrative Code of 1929 (71 P. S. §  510-8).

   The provisions of this §  105.35 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.35 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; reserved August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117662) to (117664).

   The provisions of this §  105.40 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; reserved August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229. Immediately preceding text appears at serial page (4580).

CONSTRUCTION REQUIREMENTS AND PROCEDURES

§ 105.41. Notices and reports.

 (a)  The permittee shall notify the Department, in writing, of the proposed time for commencement of work at least 15 days prior to the commencement of construction.

 (b)  The Department may require submission of the reports as it deems necessary on the status of construction.

   The provisions of this §  105.41 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.41 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial page (117665).

 (a)  Upon receipt of a permit, the permittee shall sign the permit thereby expressly certifying the permittee’s acceptance of, and agreement to comply with, the terms and conditions of the permit. The permittee shall return a signed copy of the permit to the Department. The permit will not be effective until the signed copy of the permit is received by the Department.

 (b)  The permittee shall fully inform the engineer or contractor responsible for the supervision and conduct of work covered by a permit issued under this chapter of the terms, conditions, restrictions and covenants of the permit.

 (c)  Prior to the commencement of construction, the permittee shall file with the Department in writing, on a form provided by the Department, a statement signed by the permittee and an individual responsible for the supervision or conduct of the construction work acknowledging and accepting the general and special conditions contained in the permit. Unless the acknowledgment and acceptance have been filed, the permit is void.

 (d)  A copy of the permit and the acknowledgment shall be available at the work site for inspection upon request by an officer or agent of the Department or another Federal, State, county or municipal agency.

   The provisions of this §  105.42 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.42 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; reserved August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117665) to (117666).

 (a)  The Department will set time limits for the commencement and completion of work under a permit issued under this chapter that it deems reasonable and appropriate to carry out the purposes of this chapter.

 (b)  If the work is not completed on or before the dates set by the Department, unless extended by the Department in writing, the permit shall become void without further notification being required.

 (a)  Work undertaken under a permit issued under this chapter shall be conducted in accordance with the maps, plans, profiles and specifications as approved by the Department.

 (b)  No changes in the maps, plans, profiles and specifications for work covered by a permit which would affect the waterway area or structural stability of the project may be made except with the written approval of the Department. Upon written approval by the Department, the changes shall become part of the permit.

 (c)  The Department will have the right during the progress of work to require changes or modifications in the maps, plans, profiles and specifications for work covered under a permit it may determine are necessary and proper to protect public health, public safety and the environment.

 Work, structures and land covered under a permit issued under this chapter shall at all times be subject to inspection by representatives of the Department, and the permittee shall allow representatives of the Department to enter a property, premises or place associated with the permit for the purposes of the inspection.

 (a)  During the construction of a dam, water obstruction or encroachment, the permittee shall follow the erosion and sedimentation control plan prepared in accordance with Chapter 102 (relating to erosion and sediment control) and submitted with and approved as part of his application.

 (b)  Construction shall be done in a manner so as to minimize erosion of banks and bed of the stream and disturbance of the regimen of the stream.

 Waste materials, scrap or excess construction materials shall be collected, stored and disposed of in accordance with the Solid Waste Management Act (35 P. S. § §  6018.101—6018.1003), the Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. § §  4000.101—4000.1904), The Clean Streams Law (35 P. S. § §  691.1—691.1001) and related rules and regulations.

   The provisions of this §  105.46a issued under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

 (a)  If construction work has not been completed within the time specified in the permit and the time limit specified in the permit has not been extended in writing by the Department or if a permit has been revoked for any reason, the permittee shall, at his own expense and in a manner that the Department may prescribe, remove all or any portion of the work as the Department requires and restore the water course and floodplain to their former condition.

 (b)  Prior to discontinuing use or abandonment, the owner of a structure covered by this chapter, regardless of whether or not it was constructed under a permit from this Department or its predecessors, shall remove all or part of the facility and take other actions as are necessary to protect safety and the environment in accordance with a permit issued by the Department.

   The provisions of this §  105.47 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

OPERATION, MAINTENANCE AND INSPECTION

§ 105.51. Operation and maintenance.

 The permittee or owner of a dam, water obstruction or encroachment shall operate and maintain the facility and appurtenant structures in a safe condition in accordance with permit terms and conditions and the provisions of this chapter so that the facility cannot imperil life, health, safety or property located above or below the facility.

   The provisions of this §  105.51 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38858).

 Regardless of the date of construction of a dam, water obstruction or encroachment or whether or not it was permitted by the Department or its predecessors, it shall be the duty of the permittee or owner of a dam, water obstruction or encroachment to evaluate the safety of the facility and appurtenant structures and to modify the facility in accordance with the permit requirements of §  105.11 (relating to permit requirements) to ensure protection of life and property in accordance with changed conditions and current safety criteria.

   The provisions of this §  105.52 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

 The permittee or owner of a dam, water obstruction or encroachment shall inspect the facility and appurtenant works according to the following schedule:

   (1)  Dams, reservoirs and their appurtenant works shall be inspected at least once every 3 months.

   (2)  For Category 1 dams and Category 2 dams as classified in §  105.91 (relating to classification of dams and reservoirs), which are defined as high hazard dams in §  105.1 (relating to definitions), annual reports regarding the condition of the dam, certified by a registered professional engineer, shall be submitted to the Department on or before December 31 of each year. More frequent reports of dam conditions may be required by the Department if in its discretion conditions indicate the reports are necessary to assure adequate protection of health, safety and property.

   (3)  For local flood protection projects, annual reports regarding the condition of the flood protection facility shall be submitted to the Department on or before December 31 of each year.

   (4)  The owner of a water obstruction or encroachment shall conduct periodic inspections to ensure the safe operation, monitoring and maintenance of the facility in accordance with this title, terms and conditions of the permit and approved operating or monitoring plans.

   (5)  The owner shall retain records of the inspections, including records of actions taken to correct conditions found in the inspections. Copies of the records shall be provided to the Department on request.

   (6)  The Department may, through terms and conditions of the permit or by request at any time, require the owner to submit certified reports regarding the condition of the facility to the Department.

   (7)  In lieu of inspections conducted by the owner and certified reports submitted by the owner, the Department may accept reports of equivalent inspections conducted and prepared by governmental agencies. In addition, the Department may accept equivalent inspection reports certified by the owner and submitted to other governmental agencies.

   The provisions of this §  105.53 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.53 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117668) to (117669).

 The permittee or owner of a dam, water obstruction or encroachment shall set up and implement monitoring systems that are required by the Department in the terms and conditions of the permit.

   The provisions of this §  105.54 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

   This section cited in 25 Pa. Code §  105.131 (relating to operation and monitoring plans).

INVESTIGATION AND CORRECTION OF UNSAFE
CONDITIONS—EMERGENCY PROCEDURES

§ 105.61. Procedures for investigations.

 The Department may, if it finds there is reasonable cause to suspect the existence of conditions adversely affecting the safety of a dam, water obstruction or encroachment, order the owner to conduct investigations, studies, tests and analyses that may be required to properly evaluate the safety of the structure. The investigations, studies, tests and analyses shall be accomplished under the supervision of a registered professional engineer, experienced in the design, construction, operation and maintenance of the facilities and approved by the Department, and shall be accomplished in accordance with methods the Department may prescribe. Failure to provide the investigation results to the Department on request will constitute adequate grounds for revocation or suspension of a permit.

 (a)  If the Department determines that a dam, water obstruction or encroachment is unsafe or adversely affects property or the environment or has not been properly constructed, operated, monitored or maintained in compliance with legal requirements, it may require the owner of the facility to repair, alter, maintain or remove the facility or take other actions necessary to carry out the purposes of this chapter within the time prescribed by the Department.

 (b)  The Department or its authorized agents may enter and conduct investigations, tests and analyses and take corrective action required to carry out the purposes of this chapter if one or more of the following conditions exist:

   (1)  The owner cannot be ascertained or found.

   (2)  The owner refuses or fails to comply with an order issued by the Department under section 14 of the act (32 P. S. §  693.14) or this section.

   (3)  The condition of the facility is so dangerous as to require immediate remedial action.

 (c)  The Department may recover from the owner, in the name of the Commonwealth, the expenses incurred in taking the action described in subsection (b) in the same manner as debts are recoverable by law.

 (a)  The permittee or owner of a dam, water obstruction or encroachment shall immediately notify the Department and responsible authorities in adjacent and downstream communities, including emergency management authorities, of a condition which may threaten the safety of the facility and take necessary actions to protect life and property, including action required under an emergency plan or Department order issued under the act.

 (b)  The permittee or owner of a dam or reservoir shall immediately notify the Department and responsible emergency management authorities in adjacent and downstream communities of conditions which may indicate a potential dam hazard emergency including, but not limited to, one or more of the following conditions:

   (1)  Sliding of upstream or downstream slopes or abutments contiguous to the dam.

   (2)  Sudden subsidence of the crest of the dam.

   (3)  Longitudinal or transverse cracking of the crest of the dam.

   (4)  Unusual release of water from the downstream face or toe of the dam.

   (5)  Other unusual conditions at the downstream slope of the dam.

   (6)  Significant landslides in the reservoir area.

 (c)  In case of emergency, telephone calls should be directed to the Pennsylvania Emergency Management Agency at (717) 783-8150 or the Department’s emergency number at (717) 787-4343.

   The provisions of this §  105.63 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.63 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; reserved August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117671) to (117672).

 The Department may issue emergency permits if it finds that immediate remedial action is necessary to alleviate an imminent threat to life, property or the environment.

   (1)  The emergency permit will be provided in writing, on a form developed for this purpose.

   (2)  The emergency permit will contain conditions as the Department determines appropriate.

   (3)  The Department may institute proceedings, legal or administrative, that it deems appropriate for violations of the emergency permit or conditions of the emergency permit.

   (4)  If the municipality in which the emergency occurs has waived notice, the emergency permit is effective immediately. If notice has not been waived by the municipality, the emergency permit is effective 30 days after notice is sent to the municipality in which the emergency occurred. The emergency permit will expire in 30 days unless extended in writing by the Department.

   (Editor’s Note: The act of August 14, 1991 (P. L.

   The provisions of this §  105.64 issued under the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.64 adopted October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911.

   This section cited in 25 Pa. Code §  105.21a (relating to public notice).

Subchapter B. DAMS AND RESERVOIRS

GENERAL PROVISIONS

Sec.

§ 105.71. Scope.

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter governs the construction, alteration, enlargement, repair, maintenance, operation and removal of a dam or reservoir regulated under the act.

   The provisions of this §  105.79 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (47994).

PERMITS

§ 105.81. Permit applications for construction and modification of dams and reservoirs.

 (a)  In addition to the information required by §  105.13 (relating to permit applications—information and fees), permit applications under this subchapter for the construction or modification of dams and reservoirs shall give the following information:

   (1)  The name and address of the applicant.

   (2)  The location, type, size, height and purpose of the proposed dam and reservoir and appurtenant works.

   (3)  For projects involving storage of fluids or semifluids other than water, information concerning the chemical content, viscosity and other pertinent physical characteristics of the fluid or semifluid impounded.

   (4)  The storage capacity and reservoir surface areas for normal pool and maximum high water.

   (5)  Plans for purposed permanent monitoring of performance by instrument installations in the dam, including the purposes of the instrumentation. If no instrumentation is considered necessary, reasons for this judgment may be stated.

   (6)  As accurately as may be readily obtained, the area of the drainage basin, pertinent rainfall and streamflow records, and flood flow records and estimates.

   (7)  The proposed time for commencement and anticipated completion of construction.

   (8)  The method and schedule of operation of the dam including an emergency warning system and operation plan if required under §  105.134 (relating to emergency action plan).

   (9)  Plans for control of erosion and water pollution during the anticipated construction operations including plans for adequate measures to limit the erosion of the soil from exposed slopes after completion of construction. The plans shall indicate that adequate control measures will be taken during construction to protect the quality of stream flow below the project site. The application shall include a copy of a letter from the conservation district in the county where the project is located indicating that the district reviewed the erosion and sediment control plan of the applicant and considers it to be satisfactory.

   (10)  Proof of title or adequate flowage easements for land area below the top of the dam elevation that is subject to inundation.

   (11)  Other information the Department may require.

 (b)  The application shall be accompanied by a design report, construction plans and specifications, in sufficient detail to evaluate the safety, adequacy and suitability of the proposed work.

 (c)  The applicant shall conduct and submit the results of the investigations and tests as the Department, in its judgment, believes are necessary to determine the safety, adequacy and suitability of design, including but not limited to:

   (1)  Data concerning subsoil and rock foundation conditions and the materials entering into the construction of the dam or reservoir.

   (2)  Data concerning exploratory pits, drilling, coring and tests to determine seepage rates.

   (3)  Data concerning the strength tests necessary to measure the physical properties and behavior of foundation and embankment materials at the dam or reservoir site.

   (4)  Data concerning the geology of the dam or reservoir area, indicating possible hazards such as faults, weak seams and joints.

   (5)  Data concerning availability and quality of construction materials.

   (6)  Other information as may be necessary, including the design calculations for the dam, which shall be made available to the Department on request.

 (d)  Plans and specifications and the results of tests or investigations shall be prepared under the supervision of and certified by a registered professional engineer experienced in dam design and construction and assisted by qualified engineers, geologists and other specialists, when necessary.

 (a)  In addition to information required by § §  105.13 and 105.14 (relating to permit applications—information and fees; and review of applications), a permit application for the operation and maintenance of existing dams and reservoirs shall give the following information:

   (1)  The name and address of the applicant.

   (2)  The location, type, size, height and purpose of the existing dam and reservoir and appurtenant works.

   (3)  For projects involving storage of fluids or semifluids other than water, information concerning the chemical and physical characteristics of the fluid or semifluid impounded.

   (4)  The storage capacity and reservoir surface areas for normal pool and maximum high water.

   (5)  A description of facilities and plans for monitoring the performance of the dam.

   (6)  Information on the area of the drainage basin, rainfall and stream flow records, and flood flow records and estimates, when available.

   (7)  Information readily available regarding the foundation, specifications and construction of the dam.

   (8)  The method and schedule of operation of the dam, if deemed necessary by the Department.

   (9)  The emergency warning plan for the dam or reservoir, if completed, or work plan to prepare and submit an emergency warning plan in accordance with § §  105.131 and 105.134 (relating to operation and monitoring plans; and emergency action plan).

   (10)  Proof of title or flowage easements for land areas below the top of the dam elevation that is subject to inundation.

   (11)  Reports of the most recent inspections of the dam conducted by the owner or by the State or Federal government agencies.

   (12)  Other information as the Department may require.

 (b)  The Department may waive or modify one or more of the application content requirements set forth in subsection (a) if the information required is not available and is not essential to determining the safety of the dam or reservoir or compliance by the dam or reservoir with the requirements of this chapter.

   The provisions of this §  105.87 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38865).

CLASSIFICATION AND DESIGN CRITERIA

§ 105.91. Classification of dams and reservoirs.

 (a)  A dam or reservoir shall be classified in accordance with size and the hazard potential which might occur in the event of an operational or structural failure. In approving a hazard potential classification, the Department will consider, without limitation:

   (1)  The height of the dam and storage capacity of the reservoir.

   (2)  The physical characteristics and extent of actual and projected development of the dam site and downstream areas.

   (3)  The relationship of the site to existing or projected industrial, commercial and residential areas and other land uses downstream which may be affected by a dam failure.

 (b)  The following shall be the classifications and descriptions as used in this subchapter:

SIZE CLASSIFICATION*

Class	Impoundment Storage (Acre Feet)	Dam Height (Feet)
A	Equal to or greater than 50,000	Equal to or greater than 100
B	Less than 50,000 but greater than 1000	Less than 100 but greater than 40
C	Equal to or less than 1000	Equal to or less than 40

   *Note: Size classification may be determined by either storage or height of structure, whichever gives the higher category.

HAZARD POTENTIAL CLASSIFICATION
Extent of Development

Category	Loss of Life	Economic Loss
1	Substantial	Excessive (extensive residential, commercial, agricultural and substantial public inconvenience)
2	Few (no rural communities or urban developments and no more than a small number of habitable structures)	Appreciable (damage to private or public property and short duration public inconvenience)
3	None expected (no permanent structure for human habitation)	Minimal (undeveloped or occasional structures with no significant effect on public inconvenience)

   The provisions of this §  105.91 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.91 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117680) and (149139).

 (a)  The foundation of a dam or reservoir shall be stable under all probable conditions.

 (b)  In analyzing the stability of the foundation of a proposed or existing dam or reservoir, the applicant shall consider all of the following factors:

   (1)  The seismic forces at the site.

   (2)  The shearing strength of the foundation.

   (3)  Settlement and subsidence.

   (4)  Leakage, permeability and solubility.

 In the construction of dams and reservoirs, allowable stresses shall conform to the current standards accepted by the engineering profession.

 (a)  Every dam shall be provided with a spillway system which is capable of safely conveying the design flood of the dam without endangering the safety or integrity of the dam.

 (b)  Each spillway shall include a satisfactory means of dissipating the energy flow at its outlet to assure conveyance of flow without endangering the safety and integrity of the dam or the natural environment of the stream.

 Sufficient freeboard may be required to prevent overtopping of the dam and to allow for wave and ice action.

   The provisions of this §  105.95 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

 (a)  Dams shall include a device to permit the draining of the reservoir within a reasonable period of time as determined by the Department unless the Department determines that an outlet works is not feasible for a specific dam.

 (b)  In determining the reasonable time period for drainage of the reservoir, the Department may consider, without limitation, the following factors:

   (1)  The damage potential posed by possible failure of the dam.

   (2)  The risk and nature of potential failure and the time likely to be available to avert the failure after notice of conditions threatening the safety or stability of the dam.

   (3)  The purpose of the dam and reservoir.

   (4)  The capacity and stability of available drainage courses to convey the waters released from the reservoir in the event of emergency drainage.

   (5)  The influence of rapid drawdown on the stability of the dam, its appurtenant works and the upstream natural slopes of the reservoir.

 (c)  Each outlet works shall include a means of dissipating the energy of flow at its outlet to assure conveyance of flow without endangering the safety and integrity of the dam or the natural environment of the stream.

 (a)  Dams shall be structurally sound and shall be constructed of sound and durable materials. The completed structure shall be stable under all probable conditions of operation.

 (b)  In reviewing the stability of a structure, the Department may consider, without limitation, the following:

   (1)  The physical properties of the materials available for construction.

   (2)  The seismic and hydraulic forces affecting the structure.

   (3)  The methods of construction.

   (4)  The conditions of operation of the dam and reservoir.

 (a)  The discharge capacity or storage capacity, or both, shall be capable of safely accommodating the recommended design flood for the size and hazard potential classification of the dam as determined by §  105.91 (relating to classification of dams and reservoirs). The design flood is intended to represent the largest flood that need be considered in the evaluation of a given project. When a range of design flood is indicated, the magnitude that most closely relates to the size and hazard potential shall be selected. Design flood criteria shall be as indicated in the following table:

 (b)  The Department may, in its discretion, require consideration of a minimum design flood for a class of dams or reservoirs in excess of that set forth in subsection (a) when it can be demonstrated that the design flood requirement is necessary and appropriate to provide for the integrity of the dam or reservoir and to protect life and property with an adequate margin of safety.

 (c)  The Department may, in its discretion, consider a reduced design flood for a class of dams or reservoirs when it can be demonstrated that the design flood provides for the integrity of the dam or reservoir and protects life and property with an adequate margin of safety.

 Whenever a dam or reservoir is proposed to be constructed in or as a part of an existing or proposed subdivision development, the Department will include in the permit the conditions as are necessary to prevent construction of structures on lands which may be subject to flooding caused by the maximum pool of the dam and to require the permittee to adequately inform potential buyers or lessees of the restrictions.

   The provisions of this §  105.99 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

CONSTRUCTION REQUIREMENTS AND PROCEDURES

§ 105.101. Notices and reports.

 At least 15 days prior to commencement of construction, the permittee shall notify the Department, in writing, of the proposed time for commencement of work. Thereafter, a detailed report on the status of construction shall be submitted monthly to the Department of Environmental Resources; Division of Dam Safety; Post Office Box 2357, Harrisburg, Pennsylvania 17120, until construction work has been completed.

   The provisions of this §  105.101 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (47996).

 (a)  Work shall be conducted under the oversight and supervision of a competent engineer approved by the Department, and the engineer or a competent representative shall be on the work site during significant construction activities until the completion of the dam.

 (b)  The permittee shall file with the Department at least 15 days prior to the commencement of construction a statement setting forth the name of the contractors conducting the work authorized by the permit and the names and employers of personnel responsible for the supervision of construction.

   The provisions of this §  105.102 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (47997).

 (a)  No earth or other embankment material which is in a frozen condition may be covered or placed in embankments.

 (b)  Masonry and concrete may not be placed in freezing weather except under conditions approved by the Department.

 (a)  Work shall be conducted in such a manner as to minimize the destruction of or damage to trees and other vegetation on and adjacent to the construction site.

 (b)  Vegetation cleared and removed from the site shall be disposed of in accordance with all applicable laws and regulations.

 Activities and facilities on the construction site shall be conducted and operated in such manner as to avoid pollution of the air and waters of this Commonwealth and in accordance with applicable laws and the provisions of this title.

 (a)  Within 30 days after the completion of work authorized by permit issued under this subchapter, the permittee shall file with the Department a certified statement signed by the supervising engineer and by the permittee that work has been performed in accordance with the terms and conditions of the permit; with the approved maps, plans, profiles and specifications; and with applicable laws and the provisions of this title.

 (b)  Within 90 days after the completion of work, the permittee shall file with the Department a set of final ‘‘as built’’ plans for the project, showing changes from the original plans and specifications.

   The provisions of this §  105.107 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

   This section cited in 25 Pa. Code §  105.445 (relating to waiver of certain requirements).

WATER STORAGE AND DISCHARGE

§ 105.111. Commencement of water storage.

 The permittee shall notify the Department, in writing, at least 1 week in advance of the date proposed for the commencement of water storage in the reservoir or pond created by the dam for which the permit is issued. The Department may, at its discretion, require that a representative of the Department be at the site before or during the filling of the pond or reservoir.

   The provisions of this §  105.111 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial pages (47997) to (47998).

 During the period of construction, alteration, enlargement or repair and during the period that the pond or reservoir is being filled, the permittee shall allow a sufficient flow of water, as determined by the Department, into the stream below the dam to support fish and other aquatic life and to preserve the water quality in the stream.

 (a)  The Department will impose general and special conditions regarding release rates in a permit for a dam or reservoir that it deems necessary to maintain stream flows for the purposes of protection of public health, water quality control, conservation of fisheries and aquatic habitat, improvement of recreation and protection of instream and downstream water uses. The appropriate release rates for the dams and reservoirs shall be established in accordance with subsections (b) and (c).

 (b)  For dams or reservoirs constructed after August 28, 1978:

   (1)  The minimum release rate unless modified in accordance with paragraph (2) shall be the average consecutive 7 day flow having a recurrence interval of once in 10 years (Q 7-10) plus an additional release rate determined by the following formula:

   (2)  The Department may modify the minimum release rate, or provide variable schedules or releases considering the following factors:

     (i)   The purposes stated in subsection (a).

     (ii)   Particular stream requirements, including the particular needs of instream and downstream water uses and riparian rights.

     (iii)   The particular uses and purposes of the dam or reservoir.

     (iv)   The particular engineering, hydrologic and economic factors affecting the ability of the dam or reservoir to provide the releases.

 (c)  For dams and reservoirs constructed prior to August 28, 1978, the Department will determine a reasonable schedule for release rates, considering all of the following:

   (1)  The purposes stated in subsection (a) and the particular needs of instream and downstream water uses on the affected stream.

   (2)  The capacity of existing release works at the dam and feasibility of potential modification of the release works.

   (3)  The yield of the reservoir, and its capability to meet release requirements and satisfy the purposes and uses of the reservoir.

 (d)  Every dam shall at all times be operated in such manner as to allow the required flow of water into the stream below the dam as established under this section, and as otherwise necessary to support fish and other aquatic life and to assure compliance with the water quality criteria set forth in Chapter 93 (relating to water quality standards) and to provide for other instream uses for the affected stream.

   The provisions of this §  105.114 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial pages (38870) to (38871).

PROTECTION AND RESTORATION OF AQUATIC LIFE

§ 105.121. Fishways.

 Upon the request of the Fish Commission, the permittee shall install and maintain chutes, slopes, fishways, gates or other devices that the Fish Commission may require under sections 185—187 of The Fish Law of 1959 (30 P. S. § §  185—187) (Repealed).

 Impounded waters which are inhabited by fish may not be drawn down except with the written approval of the Fish Commission issued under section 191 of The Fish Law of 1959 (30 P. S. §  191) (Repealed).

   The provisions of this §  105.122 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38872).

 If the Department finds that construction of a dam or reservoir has so substantially disrupted aquatic life as to preclude natural restoration of the stream ecology within a reasonable period of time, the permittee shall be required to submit and implement a plan to restore the aquatic life of the stream to its prior condition, to the maximum extent possible. The plan shall be subject to review and modification by the Department in consultation with the Fish Commission and shall include but not be limited to:

   (1)  Placement of bed gravel.

   (2)  Stabilization of banks and bed.

   (3)  Installation of stream improvement devices.

   (4)  Revegetation of stream and banks.

   (5)  Stocking of fish and other aquatic life.

   The provisions of this §  105.125 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; reserved August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229. Immediately preceding text appears at serial page (4594).

OPERATION, MAINTENANCE AND EMERGENCIES

§ 105.131. Operation and monitoring plans.

 (a)  In addition to the requirements of § §  105.51—105.54 (relating to operation, maintenance and inspection), the permittee or owner of a dam or reservoir shall follow the method and schedule of operation of the dam or reservoir, including the emergency action plan if required by §  105.134 (relating to emergency action plan), as approved by the Department and shall implement a plan approved by the Department for permanent monitoring of performance by instrument installation in the dam.

 (b)  A permittee or owner of a dam or reservoir may not modify or cease implementation of all or part of the approved plans and methods of operation or monitoring without the prior approval of the Department.

 (c)  The permittee or owner of a dam or reservoir shall operate and maintain the dam in accordance with the authorized plans and specifications. Normal repairs and maintenance of the dam and the reservoir’s design storage capacity will not require further authorization except as provided in §  105.122 (relating to drawdown of impounded waters).

   The provisions of this §  105.131 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.131 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial page (117690).

 The permittee or owner of a dam or reservoir shall follow the inspection schedule set forth in §  105.53 (relating to inspections by owners and inspection reports).

 The permittee shall immediately take steps that the Department may prescribe as necessary to preserve the structural stability and integrity of the dam and protect health, safety and property.

 (a)  The owner of a dam or reservoir that may cause loss of life or serious damage to property if a failure of the dam occurs, shall develop an emergency action plan to be followed in the event of a dam hazard emergency. The emergency action plan shall be submitted to and approved by the Department and local emergency management officials prior to commencement of water storage in the reservoir or pond created by the dam during any stage of construction of the dam. The emergency action plan shall, at a minimum, contain the following elements:

   (1)  An identification of the area below the dam which may be threatened with loss of life or serious damage to property if a failure of the dam occurs.

   (2)  A listing of key municipal and emergency management officials and their telephone numbers. The list shall be readily available at the dam site near a telephone or other means of communication, if available.

   (3)  An identification of handicapped or other persons who may have difficulty evacuating the area which may be threatened if a failure of the dam occurs. Procedures for identifying and evacuating these people in a dam hazard emergency shall be developed in cooperation with local and emergency management officials.

 (b)  For an existing dam or reservoir that may cause loss of life or serious damage to property if failure of the dam occurs, an emergency action plan shall be submitted to and approved by the Department and local emergency management officials.

 (c)  In addition to the requirements in subsections (a) and (b), the owner of a high hazard dam shall post notices in public places in areas that may be affected by the failure of the dam; for example, areas where public water or sewage service may be interrupted. The notice shall indicate that copies of the emergency action plan are available for review at the appropriate county and municipal emergency management offices. Also, the notice shall be posted by the owner in the following public places within each political subdivision situated within the inundation area downstream of the dam:

   (1)  The city, borough or township building.

   (2)  The police department offices.

   (3)  The fire company halls.

   (4)  The tax collector’s office.

   The provisions of this §  105.134 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.134 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117691) to (117692).

 (a)  For the purposes of this section, a dam hazard emergency means a condition which the Department, permittee or owner of the dam reasonably finds constitutes an imminent threat to life or property above or below a dam, whether arising from the condition of the dam and appurtenant works or extraordinary natural conditions, affecting the safety and stability of the dam, including, but not limited to, flood, earthquake, fire and ice jam.

 (b)  The emergency procedures and the emergency warning system and operation plan required by § §  105.63 and 105.134 (relating to emergency procedures; and emergency action plan) shall be followed by the permittee and owner of a dam or reservoir in the event of an actual or potential dam hazard emergency.

 (c)  If a dam hazard emergency exists, the Department and the permittee or owner of the dam shall immediately notify appropriate emergency management officials of the existence of the hazard and request the authorities to initiate appropriate action to assure protection of life and property; and the permittee or owner shall immediately take the steps as are necessary to prevent dam failure or loss of life or property, including, but not limited to, the following:

   (1)  Draw down of the reservoir.

   (2)  Reinforcement of the dam structure.

   (3)  Breach or removal of the dam.

   (4)  Removal of debris.

   (5)  Repair or installation of structures necessary to assure the stability and safety of the dam.

 (d)  The Department, upon determining that a dam hazard emergency exists, will notify the owner immediately to take steps the Department determines are necessary to prevent dam failure or loss of life or property.

   The provisions of this §  105.135 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

 (a)  For purposes of this section, an unsafe dam means a dam which meets one or more of the following criteria:

   (1)  A dam with deficiencies of such a nature that if not corrected could result in the failure of the dam with subsequent loss of lives or substantial property damage. This determination is based on good engineering judgment or the application of the guidelines established for the National Dam Inspection Program.

   (2)  A dam classified as unsafe under the National Dam Inspection Program.

   (3)  A dam declared as unsafe by the Department.

 (b)  The owner of an unsafe dam shall do the following:

   (1)  Immediately notify the Department upon receipt of any information indicating the dam is unsafe.

   (2)  Drain the dam as approved or required by the Department.

   (3)  Within time limits established by the Department, submit a plan for removal of the dam, a plan for repair of the dam or an application for a permit authorizing modification of the dam under subsection (c).

   (4)  Following approval of the plan or permit by the Department, undertake and complete actions to remove or repair the dam or implement the modifications to the dam within the time limits set by the Department.

 (c)  The Department may issue a permit for modification of an unsafe dam, under section 9 of the act (32 P. S. §  693.9), which authorizes the owner of an unsafe dam to modify the dam within the time prescribed in the permit to meet the requirements of the act and this chapter. The permit shall be conditioned upon:

   (1)  Compliance by the owner of the dam with a prescribed schedule for correction or modification of the unsafe condition within the shortest time period technically feasible and economically achievable.

   (2)  Implementation by the owner of the dam of measures deemed necessary by the Department to reduce risks to health and safety pending correction or modification of the unsafe condition, including but not limited to special provisions relating to operation, emergency planning, monitoring and warning systems, and development of an alternative source of water supply if the dam serves as a water supply dam.

 (d)  In determining whether to require removal of an unsafe dam or to permit the owner to modify the dam, the Department will consider whether there is a substantial adverse impact to the public health and safety which will result from the draining and removal of the dam, and whether that adverse impact outweighs the danger to public health and safety, which outweighing will result in allowing the unsafe dam to remain until it has been modified.

 (e)  At the discretion of the Department, a public hearing may be held in the affected area prior to the issuance of a permit authorizing modification of an unsafe dam over a period of more than 6 months, to inform affected communities of the risks which may result from allowing the unsafe dam to remain standing or to impound water during the time necessary to complete the modifications.

 (f)  If the Department finds that conditions upon which the permit authorizing modification was issued have substantially changed or that the owner does not meet the schedule for modification contained in the permit, the Department will review the status of the dam. An extension of the time period for completion of a modification may be issued by the Department if the owner has proceeded in good faith with the previous schedule of modification and the requirements of subsections (c) and (d) are met.

 (g)  Nothing in this section may be construed to limit the power of the Department to take immediate action, prior to public hearing, to do one or more of the following:

   (1)  Revoke or suspend a permit where deemed necessary by the Department to protect public health and safety.

   (2)  Order correction or abatement of a dam hazard emergency under §  105.135 (relating to dam hazard emergencies)

   (3)  Take another action authorized by law.

   The provisions of this §  105.136 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

Subchapter C. CULVERTS AND BRIDGES

GENERAL PROVISIONS

Sec.

§ 105.141. Scope.

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter governs the construction, alteration, enlargement, repair, maintenance and removal of a bridge or culvert located in, along or across, or projecting into the regulated waters of this Commonwealth.

 A culvert of greater than 100 feet in upstream to downstream length shall be considered to be a stream enclosure, subject to Subchapter D (relating to stream enclosures).

   The provisions of this §  105.146 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38874).

PERMITS

§ 105.151. Permit applications for construction or modification of culverts and bridges.

 In addition to the information required under §  105.13 (relating to permit applications—information and fees), applications for permits under this subchapter for the construction or modification of culverts and bridges shall contain the following:

   (1)  Plans showing the location, type, size and height of the proposed bridge or culvert and detailing the topographic features, elevations and structures so as to enable an appraisal of the hazard potential of the structure.

   (2)  A description of the character of the stream bed and banks and a profile of the stream for a reasonable distance above and below the proposed site, showing slopes of bed, normal water surface and flood water surface.

   (3)  A hydrologic and hydraulic analysis which shall include: data on size, shape and characteristics of the watershed; the amount and frequency of the design flood; the hydraulic capacity of the structure; the hydraulic capacity of the channel upstream and downstream; and, where flooding is a problem, flood damage and backwater analysis.

   (4)  Other information as the Department may require.

 (a)  In addition to information required by §  105.13 (relating to permit applications—information and fees), a permit application for the operation and maintenance of existing culverts and bridges shall give the following information:

   (1)  Plans showing the location, type, size and height of the existing bridge or culvert and detailing the topographic features, elevations and structures so as to enable an appraisal of the hazard potential of the structure.

   (2)  A description of the character of the stream bed and banks and a profile of the stream for a reasonable distance above and below the existing site showing slopes of bed, normal water surface and flood water surface.

   (3)  Other information as the Department may require.

   The provisions of this §  105.158 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; reserved August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229. Immediately preceding text appears at serial page (4598).

DESIGN CRITERIA FOR CONSTRUCTION OR MODIFICATION

§ 105.161. Hydraulic capacity.

 (a)  Bridges and culverts shall be designed and constructed in accordance with the following criteria:

   (1)  The structure shall pass flood flows without loss of stability.

   (2)  The structure may not create or constitute a hazard to life or property, or both.

   (3)  The structure may not materially alter the natural regimen of the stream.

   (4)  The structure may not so increase velocity or direct flow in a manner which results in erosion of stream beds and banks.

   (5)  The structure may not significantly increase water surface elevations.

   (6)  The structure shall be consistent with local flood plain management programs.

 (b)  In determining flood flows and frequencies for purposes of this subchapter, hydrologic analysis shall be by methods generally accepted in the engineering profession.

 (c)  The general criteria for design flows are as follows:

   (1)  Rural area—25-year frequency flood flow.

   (2)  Suburban area—50-year frequency flood flow.

   (3)  Urban area—100-year frequency flood flow.

 (d)  The determination of flood flows for design shall be made with reasonable consideration of development which may alter the runoff characteristics of the watershed during the anticipated life of the structure. Specific design requirements in subsection (c) may be varied to fit the conditions at the site and the requirements of flood plain management regulations and ordinances.

 (e)  The structures shall pass the 100-year frequency flood with less than a 1.0-foot increase in the natural unobstructed 100-year water surface elevation, except where the structure would be located in a floodway which is delineated on a FEMA map, in which case no increase in the 100-year water surface elevation will be permitted. Exceptions to this criteria may be approved by the Department if the applicant prepares a risk assessment which demonstrates, and the Department finds, that the structure will not significantly increase the flooding threat to life and property or the environment, and if applicable, is consistent with municipal floodplain management programs adopted under the National Flood Insurance Program and a FEMA Flood Insurance Study. This information may be obtained from the Department of Community Affairs, Floodplain Management Division, Forum Building, Harrisburg, Pennsylvania 17120.

   The provisions of this §  105.161 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

 Multiple pipes and multiple span bridges and culverts which may tend to collect debris, contribute to the formation of ice jams and increase head losses shall be avoided to the maximum practicable extent. Crossings of less than 15 feet shall be by one span, except where conditions make it impractical to effect the crossing without multiple spans.

 (a)  Bridge piers shall be kept to a minimum in number and cross-sectional area and shall be designed to offer the least obstruction to the passage of water and ice, consistent with safety.

 (b)  Bridge piers in channels subject to unstable or super critical flow shall require special investigation and shall be so designed as to prevent the creation of excessive backwater and waves downstream of the pier.

 (a)  Bridge abutments shall be set well into the banks in such manner as to assure minimal increase in flood elevations.

 (b)  Bridge abutments shall be aligned with the flow of the stream. The Department may require, in its discretion, the construction of wing walls at the upstream side of the bridge to assist in directing flood flows through the bridge opening.

 Bridges and culverts shall be of sufficient height and clearance to allow the use of the stream or other body of water in its customary manner.

 (a)  Culverts shall be aligned with the stream flow.

 (b)  Culverts shall be of sufficient width to minimize narrowing of the stream channel.

 (c)  The upstream side of culverts shall be protected by wing walls or other structures sufficient to assist in directing flood flows to and through the culvert opening.

   The provisions of this §  105.166 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

OPERATION AND MAINTENANCE

§ 105.171. Maintenance.

 (a)  The owner or permittee of a culvert or bridge is responsible for maintaining the structure opening thereof in good repair and assuring that flood carrying capacity of the structure is maintained. The owner or permittee shall inspect the opening and approach of the culvert or bridge at regular intervals of not less than once each year and shall, after obtaining the verbal or written approval of the Department, remove silt and debris which might obstruct the flow of water through the structure. It shall be assumed that the flow of water is obstructed when there has been a reduction of the effective area of the structure opening of greater than 10%. Debris shall be disposed of in accordance with the Solid Waste Management Act (35 P. S. § §  6018.101—6018.1003), the Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. § §  4000.101—4000.1904) and The Clean Streams Law (35 P. S. § §  691.1—691.1001).

 (b)  Cleaning and maintenance operations shall be conducted to minimize erosion and sedimentation resulting therefrom.

 (c)  Removal of silt and debris from the stream channel for the purposes of culvert or bridge maintenance shall be accomplished in accordance with the Standards for Channel Cleaning at Bridges and Culverts. A copy of this document can be obtained from the Bureau of Dams and Waterway Management, Division of Waterways and Stormwater Management, Post Office Box 8554, Harrisburg, Pennsylvania 17105-8554.

   The provisions of this §  105.171 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.171 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial page (117701).

 (a)  The owner or permittee of a bridge or culvert shall immediately inform the Department of the collapse of the structure or a portion thereof or of the existence of unusual conditions threatening the structural integrity of the bridge or culvert, including, but not limited to, the following:

   (1)  Undercutting of piers or abutments.

   (2)  Excessive cracking of bridge or culvert surfacing.

   (3)  Severe deterioration of piers and supports.

   (4)  Diversion of all or part of the stream flow through a channel not within the normal span of the structure.

 (b)  Whenever a bridge or culvert or a portion thereof has collapsed or is in imminent danger thereof, the owner or permittee thereof shall immediately remove the collapsed portions to an area outside the floodplain of the stream and do one of the following:

   (1)  Completely remove the structure.

   (2)  Repair the structure in accordance with plans submitted to and approved by the Department.

 (c)  If the Department finds that the inadequate size, improper placement, collapse or imminent collapse of a bridge or culvert creates an immediate danger of stream obstruction and a hazard to life or property which not to permit the issuance of an order or notice to the owner or permittee or if the owner or permittee cannot be readily contacted in sufficient time to assure adequate protection of life or property, the Department may exercise its powers under section 14 of the act (32 P. S. §  693.14) to remove or repair the conditions and take the actions it deems necessary to protect life and property and recover the cost and expense thereof from the owner or permittee.

   The provisions of this §  105.172 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

   This section cited in 25 Pa. Code §  105.211 (relating to maintenance).

Subchapter D. STREAM ENCLOSURES

GENERAL PROVISIONS

Sec.

§ 105.181. Scope.

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter applies to the construction, alteration, enlargement, repair and removal of a stream enclosure or a culvert in regulated waters of this Commonwealth of upstream to downstream length in excess of 100 feet.

   The provisions of this §  105.182 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38878).

PERMITS

§ 105.191. Permit applications for construction or modification of stream enclosures.

 In addition to the information required by §  105.13 (relating to permit applications—information and fees), applications for permits under this subchapter for the construction and modification of stream enclosures shall contain the following information:

   (1)  The location, type, size and height of the proposed stream enclosure.

   (2)  A profile of the stream for a reasonable distance above and below the proposed site showing slopes of bed, normal water surface and flood water surface.

   (3)  Estimates of flood frequencies and flood flows at the site of the proposed structure, including such information as can be reasonably obtained regarding actual rainfall and flood flow records on the stream.

   (4)  An analysis of the hydraulic capacity of the proposed structure.

   (5)  A description of the purposes of the proposed structure.

   (6)  A complete listing and description of other enclosures and culverts, bridges, dams and other water obstructions located a reasonable distance upstream and downstream of the proposed enclosure.

   (7)  Proof of title or adequate flowage and other easements for lands included in the site of the proposed structure, including lands which may be subject to flooding by backwater from the structure during a 100-year flood.

   (8)  Other information as the Department may require.

 (a)  In addition to information required by §  105.13 (relating to permit applications—information and fees), a permit application for the operation and maintenance of existing stream enclosures shall give the following information:

   (1)  The location, type, size and height of the proposed stream enclosure.

   (2)  A profile of the stream for a reasonable distance above and below the existing site.

   (3)  An analysis of the hydraulic capacity of the existing structure.

   (4)  A description of the purposes of the existing structure.

   (5)  Other information the Department may require.

   The provisions of this §  105.192 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

CRITERIA FOR APPROVAL OF CONSTRUCTION OR
MODIFICATION

§ 105.201. Hydraulic capacity.

 (a)  A stream enclosure shall be designed and constructed to pass the flows from a flood of 100-year frequency, with no more than a 1.0-foot increase in the 100-year water surface elevation over the water surface elevation of the natural unimpeded 100-year flow, except where the stream enclosure would be located in a floodway which is delineated on a FEMA map in which case no increase in the 100-year water surface elevation will be permitted. The 100-year discharge shall be based upon the degree of development of the contributing watershed projected throughout the lifetime of the structure. The Department may require capacity in excess of that necessary to carry the flows from a 100-year flood if it determines the capacity is necessary to protect the structure or to assure the safety of life and property upstream or downstream of the enclosure.

 (b)  An exception to the criteria of subsection (a) may be approved by the Department if the applicant prepares a risk assessment which demonstrates, and the Department finds, that the structure will not significantly increase the flooding threat to life, property or the environment, and if applicable, is consistent with municipal floodplain management programs adopted pursuant to the National Flood Insurance Program and a FEMA Flood Insurance Study. This information can be obtained from the Department of Community Affairs, Floodplain Management Division, Forum Building, Harrisburg, Pennsylvania 17120.

   The provisions of this §  105.201 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

 No political subdivision may issue a building or other permit which allows for the construction of a stream enclosure unless and until the Department has approved the enclosure.

   The provisions of this §  105.202 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

MAINTENANCE

§ 105.211. Maintenance.

 (a)  Stream enclosures shall be maintained in accordance with § §  105.171 and 105.172 (relating to maintenance; and inadequate or collapsed structures).

 (b)  Stream enclosures shall include provisions for adequate access to allow maintenance of the entire length of the enclosure. The access points shall be protected, to the maximum extent possible, in a manner which will prevent the entrance of unauthorized persons.

   The provisions of this §  105.211 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial pages (38879) to (38880).

Subchapter E. CHANNEL CHANGES AND DREDGING FOR FACILITY CONSTRUCTION AND MAINTENANCE

Sec.

§ 105.221. Scope.

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter applies to channel changes in the regulated waters of this Commonwealth, and to dredging in the regulated waters of this Commonwealth conducted for purposes of construction, operation or maintenance of a dam, water obstruction or encroachment.

   The provisions of this §  105.224 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38881).

PERMITS

§ 105.231. Permit applications for construction or modification of
channel changes and dredging for facility construction and
maintenance.

 (a)  Construction or modification of channel changes. Construction or modification of channel changes includes the following:

   (1)  In addition to the information required by §  105.13 (relating to permit applications—information and fees), permit applications under this subchapter for the construction or modification of channel changes shall contain the following information:

     (i)   The location and length of the proposed channel change.

     (ii)   A stream profile for a reasonable distance upstream and downstream of the proposed change, showing bed slopes, normal water surface and depths, flood water surfaces, existing obstructions and the location of public and industrial water supply intake.

     (iii)   Cross-channel sections necessary to indicate the scope of the proposed work.

     (iv)   Estimates of flood frequencies and flood flows at the site of the proposed channel change, including information reasonably available regarding actual rainfall and flood flow records on the stream.

     (v)   A description of the purposes of the proposed channel change.

     (vi)   A plan for the disposal of excavated material.

     (vii)   Proof of title or adequate flowage and other easements for lands included in the site of the proposed channel change.

   (2)  The Department may require additional information or waive one or more of the requirements of paragraph (1) in specific cases.

 (b)  Dredging. Dredging includes the following:

   (1)  In addition to the information required by §  105.13, permit applications for dredging for facility construction and maintenance under this subchapter shall contain the following information:

     (i)   The location and area of the proposed dredging.

     (ii)   A stream profile for a reasonable distance upstream and downstream of the proposed dredging showing normal water surface and depths.

     (iii)   A description of the equipment to be employed in the dredging operation and a plan for the disposal of the dredge soil.

     (iv)   Proof of title or easements for lands included in the site of the proposed dredging.

   (2)  The Department may require additional information or waive one or more of the requirements of paragraph (1) in specific cases.

   The provisions of this §  105.231 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38882).

   Dredging

   The terms and conditions attached to a dredging permit are terms and conditions of the permit, rather than rules and regulations. Warren Sand and Gravel Co. v. Department of Environmental Resources, 341 A.2d 556 (Pa. Cmwlth. 1975).

 Permits issued for the construction, operation and maintenance of water obstruction or encroachment shall include specific authorization for maintenance dredging.

 The removal of sand, gravel or other valuable minerals from submerged lands of this Commonwealth in quantities which are commercially usable or marketable, in conjunction with a channel change or dredging permitted under this chapter, shall be subject to the royalty and agreement provisions of the act of July 31, 1970 (P. L. 699, No. 225) and the act of December 3, 1970 (P. L. 834, No. 275) (71 P. S. §  468) (repealed).

   The provisions of this §  105.233 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

   This section cited in 25 Pa. Code Chapter 105, Appendix C (relating to bank rehabilitation and protection; general permit BDWW-GP-3).

CRITERIA FOR APPROVAL FOR CONSTRUCTION OR
MODIFICATION

§ 105.241. Flood effect.

 No channel change which creates a flooding potential greater than that created by the natural conditions of the existing channel will be approved.

 (a)  Abrupt bends in channel changes are prohibited, unless necessitated by the alignment of existing bridges or encroachments.

 (b)  The relocated channel shall rejoin the natural channel of the stream at a point on the permittee’s property to insure that alignment of stream flow at the downstream property line is identical to the flow alignment prior to the channel change.

 (c)  A grade of the changed channel shall not be significantly greater than or significantly less than the grade of the original channel, unless the length of the relocated channel requires.

 (d)  Where the width of a channel change is greater than the width of the preexisting channel, provision shall be made to assure proper depth and velocity of normal flows, subchannels and installation of stream habitat improvement devices.

 (e)  In streams having substantial fisheries value, provision shall be made in channel changes to maintain existing pool-riffle ratios.

 Channel changes shall be so designed and implemented to assure that the water temperature does not substantially increase over that in the preexisting channel. Where necessary, provisions shall be made to provide adequate shading of the relocated channel to duplicate, to the maximum extent possible, the preexisting conditions.

 A low flow channel and habitat improvement device will be required when, in the opinion of the Fish Commission, it is necessary to provide a satisfactory channel for maintenance of fish life.

 (a)  Discharge of dredged material into the regulated waters of this Commonwealth shall be subject to Subchapter J (relating to discharges of dredged and fill material).

 (b)  Dredged spoil and sludge deposits collected during the operation shall be deposited in a location and a manner approved by the Department.

 (c)  Bilge, ballast or wastewater from dredging operations shall not be discharged to the stream without removal of oils, petroleum products or toxic or hazardous compounds as defined by the Conservation and Recovery Act of 1976 (42 U.S.C.A. § §  6901—6986) in a manner approved by the Department.

   The provisions of this §  105.245 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

Subchapter F. FILLS, LEVEES, FLOODWALLS AND
STREAMBANK RETAINING DEVICES

GENERAL PROVISIONS

Sec.

§ 105.251. Scope

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter applies to the construction, alteration, enlargement, repair or removal of fills, levees, floodwalls and streambank retaining walls located in or along the regulated waters of this Commonwealth.

   The provisions of this §  105.256 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38884).

PERMITS

§ 105.261. Permit applications for construction or modification of fills, levees, floodwalls and streambank retaining devices.

 In addition to the information required by §  105.13 (relating to permit applications—information and fees), applications for permits for construction or modification of structures under this subchapter shall contain the following information:

   (1)  A plan detailing the location of the structures and properties 1000 feet upstream and downstream of the proposed fill, levee or similar structure and within the flood plain of the flood of record on both sides of the stream or body of water.

   (2)  Basement and first floor elevations of structures indicated on the plan required by paragraph (1).

   (3)  A complete hydraulic and hydrologic report on the proposed project, including, if the Department so requires, a backwater analysis of the project.

   (4)  Complete cross sections of the stream and floodway of the flood or record.

   (5)  Stream profiles showing the bed slope and the normal and flood water elevations for points sufficiently upstream and downstream in effect on the project.

   (6)  The type of materials to be used on the fill, levee or similar structure.

   (7)  Plans for the protection of the fill, levee or similar structure from erosion, both during and after construction.

   (8)  The design flood for the fill, levee or similar structure.

   (9)  A copy of the local flood plain management regulations or ordinances.

   (10)  Plans for interior drainage.

   (11)  Other information as the Department may require.

 In addition to the information required by §  105.13 (relating to permit applications—information and fees), applications for permits for existing structures under this subchapter shall contain the following information:

   (1)  A plan detailing the location of the existing fill, levee, floodwall or streambank retaining device.

   (2)  Cross sections of the stream and floodway.

   (3)  The type of all materials used in the fill, levee, floodwall or streambank retaining device.

   (4)  Plans of interior drainage, if available.

   (5)  Other information as the Department may require.

   The provisions of this §  105.262 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial pages (38884) to (38885).

DESIGN CRITERIA FOR APPROVAL FOR CONSTRUCTION OR
MODIFICATION

§ 105.271. General criteria.

 (a)  An application for a proposed levee, fill or similar structure in or along the regulated waters of this Commonwealth will not be approved by the Department where one or more of the following will occur:

   (1)  It will increase flood heights, either on the opposite bank or upstream and flood easements or flood protection has not been provided.

   (2)  It will create erosive velocities in the stream and appropriate protection has not been provided.

   (3)  It will increase flood damages downstream through a loss of flood plain storage.

 (b)  An application for a proposed levee, fill or similar structure within the floodway of a regulated water of this Commonwealth will not be approved by the Department unless the applicant demonstrates that the project is consistent with local floodplain management programs.

 Waste materials of any type may not be used in the construction of fills, levees or similar structures, except under the Solid Waste Management Act (35 P. S. § §  6018.101—6018.1003), the Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. § §  4000.101—4000.1904) and related rules and regulations.

   The provisions of this §  105.272 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

 The slope of a fill, levee or similar structure shall not be steeper than two horizontal to one vertical, unless special circumstances are demonstrated and adequate steps are taken to assure permanent stabilization of the slope.

 The top width of a levee shall not be less than 10 feet.

 Adequate facilities shall be provided to drain the interior area behind the levee or floodwall.

 The height of a levee or floodwall shall provide an allowance for freeboard above the design flood of the structure.

   The provisions of this §  105.276 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

MAINTENANCE AND REPAIR

§ 105.281. Maintenance and repair of levees or floodwalls.

 (a)  The owner of a levee or floodwall shall inspect the levee or floodwall and appurtenant structures, including drainage facilities, at least annually and shall comply with §  105.53 (relating to inspections by owners and inspection reports).

 (b)  Trees and other vegetation with deep roots shall not be allowed on a levee used for flood control purposes, and vegetation shall at all times be controlled.

 Fills shall at all times be maintained in a manner to prevent erosion and to assure the stability of the slopes.

   The provisions of this §  105.282 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

Subchapter G. STREAM CROSSINGS, OUTFALLS AND HEADWALLS

GENERAL PROVISIONS

Sec.

§ 105.291. Scope.

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter applies to stream crossings, outfalls, headwalls, pipelines, aerial crossings and other analogous structures which are placed in, along, across, over or under the regulated waters of this Commonwealth.

   The provisions of this §  105.294 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38887).

PERMITS

§ 105.301. Permit applications for construction or modification.

 In addition to the information required under §  105.13 (relating to permit applications—information and fees), applications for stream crossings shall contain the following, where applicable:

   (1)  The shore lines of the affected body of water, including both high and low water marks.

   (2)  Existing structures and stream crossings in the vicinity of the proposed crossings.

   (3)  The alignment of the proposed pipe or cable.

   (4)  The depth of the proposed pipe or cable and the clear depth below the data plane to be afforded by the pipe or cable in navigable channels.

   (5)  A cross section of the stream from bank to bank with the location of the stream crossing to be affixed thereon.

   (6)  In the case of outfalls, the discharge capacity of the structures.

   (7)  A statement indicating the purpose of the proposed stream crossing.

   (8)  The amount and type of cover material.

   (9)  Adequate provisions for shut-off in the event of break or rupture.

   (10)  Other information as the Department may require.

 In addition to the information required under §  105.13 (relating to permit applications—information and fees), applications for existing stream crossings by pipelines for conveyance of petroleum products and gas shall contain the following:

   (1)  The shore lines of the affected body of water, including both high and low water marks.

   (2)  The alignment and depth of the pipe or cable, and the clear depth below the data plane afforded by the pipe in navigable channels.

   (3)  A cross section of the stream from bank to bank with the location of the pipeline affixed thereon.

   (4)  The amount and type of cover material.

   (5)  Provisions for shut-off in the event of break or rupture.

   (6)  Other information as the Department may require.

   The provisions of this §  105.302 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

CRITERIA FOR APPROVAL OF CONSTRUCTION OR
MODIFICATION

§ 105.311. General criteria.

 In evaluating applications for stream crossings, outfalls, headwalls, pipelines, aerial crossings and other analogous structures, the Department will not approve an application if one or more of the following is true:

   (1)  The stream crossings are placed in such a manner as to be displaced by flood waters.

   (2)  The stream crossing alters the cross section of the stream and its banks.

   (3)  There is unnecessary paralleling or crossing of streams by pipelines or cables.

   (4)  Pipelines or cables are placed on the bed of streams.

 No waste material of any type may be used as cover material for stream crossings.

 (a)  Pipelines under stream beds shall be located such that there will be a minimum of 3 feet of cover between the top of the pipe or encasement and the lowest point in the stream bed; provided, that if the pipeline is in rock, it shall have the depth of granular soil plus 6 inches for cover, but never less than 1 foot of total cover.

 (b)  Pipelines under the stream bed shall be as near to horizontal as possible.

 (c)  The Department may require additional information or waive the requirements of subsection (a) in specific cases.

 Pipelines along streams shall be located a sufficient distance away from the bank to prevent damage to the bank as a result of erosion; pipelines shall be located a minimum of 25 feet away from the streambank unless other erosion protection measures are approved by the Department.

 Aerial crossings shall comply with the criteria of Subchapter C (pertaining to culverts and bridges) with regard to hydraulic capacity, height and clearance.

   The provisions of this §  105.315 issued under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.315 adopted October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911.

Subchapter H. DOCKS, WHARVES AND BULKHEADS

GENERAL PROVISIONS

Sec.

§ 105.321. Scope.

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter applies to the construction, operation and maintenance of docks, wharves and bulkheads in the regulated waters of this Commonwealth.

   The provisions of this §  105.321 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38889).

PERMITS

§ 105.331. Permit applications.

 In addition to the information required under §  105.13 (relating to permit applications—information and fees), applications for new and existing docks, wharves and bulkheads shall contain the following information:

   (1)  The exact location of the structure.

   (2)  A plan showing the dimensions of the structure, and if applicable, the dimensions of the mooring area.

   (3)  A plan indicating the relation of the structure and mooring area to the banks and channel, neighboring structures and mooring areas, the navigation channel and the normal pool elevation or ordinary low water mark.

   (4)  Cross sections indicating elevations of structures, location of pilings and water depth.

   (5)  The purposes for which the structure will be used.

   (6)  Other information the Department may require.

   The provisions of this §  105.331 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

 When an applicant proposes location of a structure on or in front of riparian property not owned by the applicant, the applicant shall obtain and furnish to the Department notarized and signed releases from the owners of the affected riparian property.

   The provisions of this §  105.332 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

CRITERIA FOR APPROVAL

§ 105.341. Passage of ice and flood waters.

 Structures shall be able to pass flood waters and ice without property damage and without increasing the upstream flood hazard.

   The provisions of this §  105.341 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38890).

OPERATION AND MAINTENANCE

§ 105.351. Removal of structure.

 Upon termination of the useful life of the structure, the owner shall remove it completely and restore the banks.

   The provisions of this §  105.352 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38891).

Subchapter I. COMMERCIAL DREDGING

GENERAL PROVISIONS

Sec.

§ 105.361. Scope.

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter applies to dredging in the regulated waters of this Commonwealth for sand, gravel and other minerals for the purposes of commercial exploitation. This subchapter shall not be construed to restrict the Department in managing the Commonwealth’s proprietary interests under the act of July 31, 1970 (P. L. 699, No. 225) (71 P. S. §  468) (repealed), repealed by the act of December 3, 1970 (P. L. 834, No. 275); section 15 of the act (32 P. S. §  693.15); and section 1908-A(3) of The Administrative Code of 1929 (71 P. S. §  510-8(3)), from exercising its discretion to issue or not to issue permit agreements or to impose terms and conditions in permit agreements that it deems to be in the best interests of the Commonwealth; in the event, however, that the Department issues a permit agreement conveying the Commonwealth’s proprietary interests in a deposit of sand, gravel or other minerals, this subchapter constitutes the minimum requirements for dredging under the Commonwealth’s regulatory authority under the act.

   The provisions of this §  105.365 adopted August 11, 1978, effective August 28, 1978, 8 Pa.B. 2229; reserved September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843. Immediately preceding text appears at serial page (38893).

PERMITS

§ 105.371. Permits: content of application.

 In addition to the requirements of §  105.13 (relating to permit applications—information and fees), applications for commercial dredging permits shall contain the following information:

   (1)  The delineation of areas to be dredged, with reference to river miles of distances from fixed reference points or sufficient courses and distances referenced to permanent shore points to allow a fix to be made on the boundary points of a dredging area in a lake.

   (2)  Stream depths in the proposed dredging area if known or approximate estimated depths, if accurate measures are not available.

   (3)  The equipment to be employed in the dredging operation and its capabilities.

   (4)  The proposed rate of production.

   (5)  The location of public and industrial water supply intakes.

   (6)  A plan for the disposal of solid waste, dredge spoil and sewage from the dredging vessel.

   (7)  Other information as the Department may require.

 Provided the other requirements of this subchapter are met, approval by the Department of dredging permit applications is conditioned upon the applicant’s obtaining a permit/agreement under the act of July 31, 1970 (P. L. 699, No. 225) (71 P. S. §  468) (repealed), repealed by the act of December 3, 1970 (P. L. 834, No. 275) or an interest in land under section 15 of the act (32 P. S. §  693.15), where the bed of the regulated waters is owned by the Commonwealth.

   The provisions of this §  105.372 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

OPERATIONAL CRITERIA

§ 105.381. Location of dredging.

 (a)  Dredging may not occur within 500 feet of a bridge pier or abutment.

 (b)  Dredging may not occur within 5000 feet above a public water supply intake unless the applicant can satisfactorily demonstrate to the Department that drinking water standards for turbidity will not be exceeded and no other adverse effects on the operations of a water user will occur. Water supplies within 5 miles downstream of the dredging operation shall be notified of proposed dredging or start up, or both, of operations. The applicant/permittee shall provide proof of the notification.

 (c)  Dredging may not occur within a distance of the channel or island shore line at normal pool less than the depth of the dredging, but in no event, less than 125 feet.

 (d)  Dredging may not occur in reaches of streams where water levels are controlled by dams if the water depth is less than 6 feet at normal pool.

 (e)  Dredging may not occur in, encroach upon or cause siltation in areas of riffles or shallow pools whenever the areas are contributing to the sustenance of game fish or endangered species in a free-flowing reach of a stream. Game fish includes species and varieties defined as such by 30 Pa.C.S. §  102 (relating to definitions). Endangered species include those species so defined by the Fish Commission, under 30 Pa.C.S. §  102 or defined by 50 CFR 17.12 (relating to endangered and threatened plants). A free-flowing reach of a stream includes a reach, segment or area of a stream except where a pool has been created by a dam.

   The provisions of this §  105.381 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.381 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117724) to (117725).

 Wash water from the classification process may not be returned to the stream, unless a permit in accordance with The Clean Streams Law (35 P. S. § §  691.1—691.1001) has been obtained.

 (a)  The permittee shall not throw, discharge or deposit or cause or permit to be thrown, discharged or deposited from or out of a ship, barge or other floating craft employed in the dredging operation any refuse matter, including oil and petroleum products.

 (b)  Bilge, ballast or wastewater pumped from barges shall not be discharged to the stream without acceptable removal of oils or toxic compounds in a manner approved by the Department.

 (c)  Discharge of dredged material into the regulated waters of this Commonwealth is subject to Subchapter J (relating to discharges of dredged or fill material).

 (d)  Dredge spoil and sludge deposits collected during the operation shall be deposited in a location and a manner approved by the Department.

 (e)  Litter, refuse and sanitary waste from dredging vessels shall be disposed of in a manner approved by the Department.

 (a)  A dock or portage shall be constructed around the upstream face of the operation in order to facilitate navigation of small craft where the dredging operation will substantially obstruct the waterway.

 (b)  The permittee shall post signs 1000 feet upstream of where the dredge is operating and 500 feet from the downstream end of the dredging area warning users of the stream that dredging operations are in progress; the warnings shall be in large block printing, readable at a distance of 300 feet, and contain the warning, ‘‘DANGER, DREDGING 1000 FEET AHEAD’’ or ‘‘DANGER, DREDGING 500 FEET AHEAD.’’

 The permittee shall submit to the Department an annual report indicating the amount of sand, gravel or other minerals dredged from the stream bed during the preceding calendar year.

   The provisions of this §  105.385 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

Subchapter J. DISCHARGES OF DREDGED OR FILL MATERIAL

GENERAL PROVISIONS

Sec.

§ 105.391. Scope.

 Except as provided in § §  105.3 and 105.12 (relating to scope; and waiver of permit requirements), this subchapter applies to the discharge of dredged or fill material into the regulated waters of this Commonwealth.

   The provisions of this §  105.391 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

PERMITS

§ 105.401. Permit applications.

 In addition to the requirements of §  105.13 (relating to permit applications—information and fees) and other applicable requirements of this chapter, applications for discharges of dredged or fill material into the regulated waters of this Commonwealth shall contain the following information:

   (1)  The location of a public water supply intake located within 1 mile upstream and 10 miles downstream.

   (2)  The location of areas of shell-fish production.

   (3)  The impact of the activity upon a threatened or endangered species as identified under the Endangered Species Act of 1973 (7 U.S.C.A. §  136; 16 U.S.C.A. § §  460l-9, 460k-1, 668dd, 715i, 715a, 1362, 1371, 1372, 1402 and 1531—1543), and the critical habitat of the species.

   (4)  The impact of the activity upon those species of aquatic life indigenous to the waterbody.

   (5)  The amount of percentage of the discharge that will consist of toxic material regulated under section 6 of the Toxic Substances Control Act (15 U.S.C.A. §  2605) or hazardous materials as defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C.A. § §  6901—6986) in other than trace quantities.

   (6)  Other information as the Department may require.

   The provisions of this §  105.401 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

CRITERIA FOR APPROVAL

§ 105.411. General criteria.

 The Department will not approve an application to discharge dredged or fill material into regulated waters of this Commonwealth, unless the applicant demonstrates to the Department a public benefit which outweighs the damage to the public natural resources, if one or more of the following is true:

   (1)  The discharge is to a spawning area during spawning season.

   (2)  The discharge would restrict or impede the movement of aquatic species indigenous to the waters or the passage of normal or expected high flows or cause the relocation of the waters unless the primary purpose of the fill is to impound waters.

   (3)  The discharge is into regulated waters of this Commonwealth, except wetlands, which are breeding, feeding or nesting areas for migratory water birds.

   The provisions of this §  105.411 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.411 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial page (117728).

OPERATION AND MAINTENANCE

§ 105.421. General.

 Discharges of dredged or fill material shall be properly maintained to prevent erosion and other types of pollution.

 Heavy equipment used in wetlands shall be placed on mats where practicable.

 Temporary fill shall be completely removed.

   The provisions of this §  105.423 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

Subchapter K. DISBURSEMENTS OF MONIES FROM THE DAMS AND ENCROACHMENTS FUND

Sec.

§ 105.431. General provisions.

 (a)  Fines collected under the penal provisions of the act and civil penalties collected under the act shall be paid into the treasury of the Commonwealth in a special fund known as the Dams and Encroachments Fund.

 (b)  Moneys paid into the Dams and Encroachments Fund may be disbursed at the discretion of the Department for use in the elimination of hazards to life, property and the environment resulting from unsafe dams, water obstructions and encroachments. The moneys shall be available for use by the Bureau of Dams and Waterway Management in addition to funds otherwise available to it.

 (c)  For purposes of this chapter, the full and normal range of activities of the Bureau will be considered to contribute to the elimination of hazards from unsafe dams, water obstructions and encroachments under subsection (b). Disbursement of moneys from the Dams and Encroachments Fund moneys may therefore be made for, but will not be limited to, the following purposes:

   (1)  Conducting investigations, tests and analyses as required to carry out the purposes of the act, including costs of entry; testing and sampling; and examining books, papers and records.

   (2)  Undertaking corrective action, repair work or removal to eliminate an actual or potentially dangerous or hazardous condition of a dam, water obstruction or encroachment as provided under section 14(c) of the act (32 P. S. §  693.14(c)).

   (3)  Purchasing contractual services and consultation from firms and individuals with relevant expertise in the field of safety of dams, water obstructions and encroachments.

   (4)  Purchasing materials, equipment, services and travel necessary for personnel training and provision of information and educational materials on the safety of dams, water obstructions and encroachments to schools, colleges, institutions and citizens.

   (5)  Covering extraordinary costs of litigation arising out of the enforcement of dam safety and encroachments laws of the Commonwealth, such as the printing of briefs and records, taking of depositions and expert witness fees.

   The provisions of this §  105.431 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.431 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (117729) to (117730).

 The Director of the Bureau of Dams and Waterway Management will authorize the use of monies disbursed from the Dams and Encroachments Fund consistent with the established policies and procedures of the Department. For disbursements from the fund not falling within the explicit categories established in §  105.431 (relating to general provisions), the Director of the Bureau of Dams and Waterway Management will submit a request to the Secretary of the Department requesting an authorization to disburse the funds for the project in question.

   The provisions of this §  105.432 adopted September 26, 1980, effective September 27, 1980, 10 Pa.B. 3843.

Subchapter L. GENERAL PERMITS

Sec.

 This subchapter applies to the issuance of general permits by the Department under section 7(b)—(d) of the act (32 P. S. §  693.7(b)—(d)).

   The provisions of this §  105.441 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9.

 (a)  In accordance with this subchapter, the Department may issue general permits on a regional or Statewide basis for a category of dam, water obstruction or encroachment if the Department determines the following:

   (1)  The projects in the category are similar in nature.

   (2)  The projects in the category can be adequately regulated utilizing standardized specifications and conditions, including reference to specific criteria and requirements adopted by another Federal or State agency which adequately regulate the particular category of dam, water obstruction or encroachment.

   (3)  The projects which are in the category and meet the specifications and conditions will comply with the requirements for permit issuance in § §  105.14—105.17 and 105.21 and the standards and requirements for design, construction, operation, maintenance and monitoring in this chapter.

 (b)  General permits issued under this subchapter may be issued on a Statewide basis or limited to specific watersheds, particular categories of streams or designated geographic regions.

 (c)  The Department will not issue a general permit for the following:

   (1)  A dam in size classifications A or B or hazard potential classifications 1 or 2, as defined in §  105.91 (relating to classification of dams or reservoirs).

   (2)  A dam used for storage of fluids or semifluids other than water the escape of which may result in air, water or land pollution or in danger to persons or property unless the impoundment created by the dam is otherwise adequately regulated by another program requiring individual permits issued by the Department or another Federal or State agency.

   (3)  A dam, water obstruction or encroachment which may present a substantial risk to life and property, requiring proof of financial responsibility under §  105.20 (relating to proof of financial responsibility).

   The provisions of this §  105.442 amended under the Dam Safety and Encroachments Act (32 P. S. § §  693.1–693.27); The Clean Streams Law (35 P. S. § §  691.1—691.1001); section 7 of the act of June 14, 1923 (P. L. 704, No. 294) (32 P. S. §  597); sections 514, 1901-A, 1908-A, 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. § §  194, 510-1, 510-8, 510-17 and 510-20); and the Flood Plain Management Act (32 P. S. § §  679.101—679.601).

   The provisions of this §  105.442 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4911. Immediately preceding text appears at serial pages (156661) to (156662).

 (a)  When the Department issues a general permit for a specified category of dam, water obstruction or encroachment on either a regional or Statewide basis, persons who intend to construct, operate, maintain, modify, enlarge or abandon a dam, water obstruction or encroachment in accordance with the specifications and conditions of the general permit may do so without filing an individual application for, and first obtaining, an individual permit.

 (b)  Use of an applicable general permit shall satisfy the permit requirements set forth in §  105.11 (relating to permit requirements), so long as:

   (1)  Activities are conducted in accordance with the specifications and conditions of the applicable general permit.

   (2)  The owner of the dam, water obstruction or encroachment complies with the registration requirements set forth in the general permits, as authorized by §  105.448 (relating to determination of applicability of a general permit).

   The provisions of this §  105.443 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9.

 Each general permit issued by the Department will include, but not be limited to, the following contents:

   (1)  A concise description of the category of dam, water obstruction or encroachment covered by the general permit, including exceptions to that category.

   (2)  A specification of the watersheds, streams or geographic areas where the general permit is effective.

   (3)  A set of standardized specifications or plans for the particular category of dam, water obstruction or encroachment or a reference to specific criteria and requirements adopted by another Federal or State agency which adequately regulates the particular category of dam, water obstruction or encroachment.

   (4)  A set of conditions governing the construction, operation, maintenance, inspection and monitoring of the projects covered by the general permit as are necessary to assure compliance with the act and this chapter and with other laws administered by the Department, the Fish Commission and a river basin commission created by interstate compact.

   (5)  A specification of registration requirements, if any, established under §  105.447 (relating to registration requirements).

   The provisions of this §  105.444 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9.

 In issuing a general permit, the Department may waive the procedural requirements of any or all of the following sections of this chapter as applied to a particular category of dams, water obstructions or encroachments covered by the general permit:

   (1)  Section 105.41 (relating to notices and reports).

   (2)  Section 105.42 (relating to acknowledgment of conditions).

   (3)  Section 105.53 (relating to inspections by owners and inspection reports).

   (4)  Section 105.101 (relating to notices and reports).

   (5)  Section 105.102(b) (relating to personnel and supervision).

   (6)  Section 105.107 (relating to completion certificate and final plans).

   (7)  Section 105.111 (relating to commencement of water storage).

   The provisions of this §  105.445 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9.

 (a)  At least 60 days prior to issuance of a general permit, the Department will:

   (1)  Publish notice in the Pennsylvania Bulletin of intent to issue a general permit, including the text of the proposed general permit and locations for obtaining standardized plans.

   (2)  Provide written notice of the proposed general permit to the United States Army Corps of Engineers; the United States Coast Guard; the United States Fish and Wildlife Service; the United States Environmental Protection Agency; the Fish Commission; the Game Commission; applicable river basin commissions created by interstate compact; county agencies holding delegations under §  105.4 (relating to delegations to local agencies) and other interested Federal, State or interstate agencies.

 (b)  An opportunity shall be provided for interested members of the public, Federal and State agencies to provide written comments on a proposed general permit.

 (c)  The Department may, at its discretion, hold a public hearing on a proposed general permit for the purposes of gathering information and comments.

 (d)  General permits issued by the Department will be published in the Pennsylvania Bulletin at least 30 days prior to the effective date of the permits, as required by section 7(d) of the Dam Safety and Encroachments Act (32 P. S. §  693.7(d)).

   The provisions of this §  105.446 amended under section 5 of the Dam Safety and Encroachments Act (32 P. S. §  693.5).

   The provisions of this §  105.446 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9; amended February 18, 1983, effective February 19, 1983, 13 Pa.B. 781. Immediately preceding text appears at serial pages (59051) and (59052).

 (a)  The Department will require the registration of a project constructed, operated, maintained, modified or enlarged under a general permit, within a specified time limit.

 (b)  Registration requirements and time limits, if any, shall be set forth in the general permit governing each category of dam, water obstruction or encroachment.

 (c)  Registration statements shall set forth:

   (1)  The name and address of the person responsible for the project.

   (2)  The location of the project.

   (3)  The name or number of the general permit being utilized for the project.

 (d)  For a project requiring registration under this section, an amended registration shall be filed if there is a change of ownership of the dam, water obstruction or encroachment.

   The provisions of this §  105.447 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9.

 (a)  A person who desires to utilize a general permit issued under this subchapter, but is uncertain as to the potential application of the general permit to a particular proposed dam, water obstruction or encroachment, should consult with the Department. The Department may issue a determination as to whether the general permit applies to the proposed dam, water obstruction or encroachment.

 (b)  A request for a determination of the applicability of a general permit may not be considered a permit application for purposes of this chapter, and no application fee will be charged.

   The provisions of this §  105.448 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9.

 A person who constructs, operates, maintains, modifies, enlarges or abandons a dam, water obstruction or encroachment under a general permit shall comply with the terms and conditions of the general permit, with this chapter, except as expressly waived under §  105.445 (relating to waiver of certain requirements), and with the Flood Plain Management Act (32 P. S. § §  679.101—679.601), and other applicable laws, to the same extent as if the dam, water obstruction or encroachment were covered by an individual permit.

   The provisions of this §  105.449 adopted January 2, 1981, effective January 3, 1981, 11 Pa.B. 9.

   This section cited in 25 Pa. Code Chapter 105 Appendix A (relating to fish enhancement structure; general permit BDWW-GP-1); 25 Pa. Code Chapter 105 Appendix B (relating to private recreational docks; general permit BDWW-GP-2); 25 Pa. Code Chapter 105 Appendix C (relating to bank rehabilitation and protection; general permit BDWW-GP-3); 25 Pa. Code Chapter 105 Appendix D (relating to Bureau of Dams and Waterway Management; general permit BDWM-GP-4); 25 Pa. Code Chapter 105 Appendix E (relating to utility line stream crossings; general permit BDWM-GP-5); 25 Pa. Code Chapter 105 Appendix F (relating to agricultural crossings and ramps; general permit BDWM-GP-6); 25 Pa. Code Chapter 105 Appendix G (relating to minor road crossings; general permit BDWM-GP-7); 25 Pa. Code Chapter 105 Appendix H (relating to temporary road crossings; general permit BDWM-GP-8); 25 Pa. Code Chapter 105 Appendix I (relating to agricultural activities; general permit BDWM-GP-9); 25 Pa. Code Chapter 105 Appendix J (relating to abandoned mine reclamation; general permit BDWW-GP-10); and 25 Pa. Code Chapter 105 Appendix O (relating to private residential construction in wetlands; general permit BDWW-GP-15).

Subchapter M. STATEMENTS OF POLICY

WETLANDS

Sec.

§ 105.451. Identification and delineation of wetlands—statement of policy.

 (a)  This section sets forth the policy of the Department as to the methodology to be used for the identification and delineation of wetlands.

 (b)  The use of some delineation method is necessary in order to administer, implement, enforce and determine compliance with the act, The Clean Streams Law (35 P. S. § §  691.1—691.1001), the Solid Waste Management Act (35 P. S. § §  6018.101—6018.1003), the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.31), the Pennsylvania Sewage Facilities Act (35 P. S. § §  750.1—750.20), the Oil and Gas Act (58 P. S. § §  601.101—601.605) and other applicable statutes administered by the Department and regulations promulgated under these statutes.

 (c)  The Department adopts and incorporates by reference the 1987 Corps of Engineers Wetland Delineation Manual (Technical Report Y-87-1) along with the guidance provided by the United States Army Corps of Engineers, Major General Arthur E. Williams’ memorandum dated 6 March 1992, Clarification and Interpretation of the 1987 Manual and any subsequent changes as the methodology to be used for identifying and delineating wetlands in this Commonwealth. The 1987 Corps Wetland Delineation Manual, Publication No. ADA 176734 is available from the National Technical Information Service (NTIS), Springfield, VA 21161, or telephone: (703) 487-4650. Copies of the Supplemental Guidance issued by the Corps concerning use of the 1987 Manual, (that is, the October 7, 1991, Questions and Answers, and the March 6, 1992, Clarification and Interpretation Memorandum) as well as the Administration’s Wetlands Plan of August 24, 1993, may be obtained by contacting the regulatory branch of a local Corps District, or the EPA Wetlands Hotline at (800) 832-7828. For more information, contact Pennsylvania Department of Environmental Protection, Bureau of Dams, Waterways and Wetlands, Post Office Box 8554, Harrisburg, Pennsylvania 17105-8554, telephone (717) 787-6827.

   The provisions of this §  105.451 adopted October 27, 1989, effective December 27, 1989, 19 Pa.B. 4612; amended February 2, 1996, effective February 3, 1996, 26 Pa.B. 494. Immediately preceding text appears at serial pages (207778) to (207781).

 (a)  This section sets forth the policy of the Department as to the status of prior converted cropland in this Commonwealth.

 (b)  The use of some procedure for determining wetlands is necessary in order to administer, implement, enforce and determine compliance with the act, The Clean Streams Law (35 P. S. § §  691.1—691.1001), the Solid Waste Management Act (35 P. S. § §  6018.101—6018.1003), the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.31), the Pennsylvania Sewage Facilities Act (35 P. S. § §  750.1—750.20), the Oil and Gas Act (58 P. S. § §  601.101—601.605) and other applicable statutes administered by the Department and regulations promulgated under these statutes.

 (c)  Naturally occurring events may result in either creation or alteration of wetlands. It is necessary to determine whether alterations to an area have resulted in changes that are now ‘‘normal circumstances’’ of the particular area. The Department recognizes ‘‘prior converted cropland,’’ as defined in the National Food Security Act Manual (180-V-NFSAM, Third Edition, March 1994), as ‘‘normal circumstances’’ as the term is used in the definition of wetlands in §  105.1 (relating to definitions). These prior converted croplands are not regulated as wetlands under the Commonwealth’s Wetland Protection Program contained in this chapter. Prior converted cropland is defined in the National Food Security Act Manual, as wetlands that were drained, dredged, filled, leveled or otherwise manipulated, including the removal of woody vegetation, before December 23, 1985, and have not been abandoned, for the purpose of, or to have the effect of making the production of an agricultural commodity possible, and an agricultural commodity was planted or produced at least once prior to December 23, 1985.

   (1)  Abandonment is the cessation of cropping, forage production or management on prior converted cropland for 5 consecutive years, so that:

     (i)   Wetland criteria are met.

     (ii)   The area has not been enrolled in a conservation set-aside program.

     (iii)   The area was not enrolled in a State or Federal wetland restoration program other than the Wetland Reserve Program.

   (2)  Prior converted cropland may also be considered abandoned if the landowner provides written intent to abandon the area and wetland criteria are met.

 (d)  This policy change does not affect the exemption for plowing, cultivating, seeding and harvesting for the production of food, fiber and forest products or the waiver for maintenance of field drainage systems found at §  105.12(a)(7) and (8) (relating to waiver of permit requirements).

   The provisions of this §  105.452 adopted February 2, 1996, effective February 3, 1996, 26 Pa.B. 494.

APPENDIX A
FISH ENHANCEMENT STRUCTURES;
GENERAL PERMIT BDWW-GP-1

   Editor’s Note: The following permit was published in the Pennsylvania Bulletin as a Notice and is codified under 1 Pa. Code §  3.1(a)(9) (relating to contents of Code) as a document which the Legislative Reference Bureau finds to be general and permanent in nature. See § §  105.441—105.449 (relating to general permits) for the regulations governing this permit.

Table of Contents

   Instructions for Using the General Permit
Part One: Applies Specifically to BDWW-GP-1
A. General Description and Fees
B. Sites and Conditions Where this General Permit Does Not Apply
C. Definitions Applicable to this General Permit
D. Project Design and Construction Criteria
E. Cooperative Adopt-A-Stream Program—Special Procedures
F. Authority and Continuing Authorization
Part Two: Applies to BDWW-GP-1 and Other BDWW General Permits
A. Registration of Proposed Use of General Permits
B. Denial of Authorization
C. Standard Definitions for General Permits
D. Preconstruction Requirements for all Projects
E. Other Preconstruction Requirements Where Applicable
F. Standard Provisions of the General Permit
Attachments:
Drawing No. 1—Sample Location Map
Exhibit A—Offices of the Pennsylvania Fish and Boat Commission
Exhibit B—Offices of the Department of Environmental Resources
Exhibit C—County Conservation Districts
Exhibit D—Notification to Use (Registration Form)
Supplement No. 1—Request for Search of Pennsylvania Natural Diversity
Index

INSTRUCTIONS FOR USING THE GENERAL PERMIT
BDWW-GP-1
Fish Habitat Enhancement Structures

   Prior to Registration to Use:

 1. Carefully review the definitions and requirements of the General Permit (Part One and Part Two) to determine if your project can qualify for authorization under this General Permit. Refer to Part One, Section B regarding area restrictions and Part One, Section D regarding criteria. If your project cannot be authorized under the General Permit, you may request approval of an individual permit by submitting an application to the appropriate Soils and Waterways Section in the Regional Office as listed on Exhibit B.

 2. Contact the Pennsylvania Fish and Boat Commission, Division of Environmental Services or Division of Property Services at address and telephone number shown on Exhibit A to select a suitable structure and obtain Pennsylvania Fish and Boat Commission approval on Exhibit D. For the Cooperative Adopt-A-Stream Program, the Pennsylvania Fish and Boat Commission will also register the use of the General Permit on behalf of the project sponsor.

 3. Locate your project on a United States Geological Survey (U.S.G.S.) 7 1/2 Minute Quadrangle Map (Commonly called ‘‘topographic maps,’’ U.S.G.S. Qudarangle may be available from local merchants dealing in books, hunting supplies and camping equipment.) and prepare a project Location Map, utilizing a photocopy of the U.S.G.S. Quadrangle Map.

 4. Complete the top portion of the attached Supplement No. 1 (Pennsylvania Natural Diversity Inventory Form). You will not be authorized to use the General Permit until Supplement No. 1 has been processed to check for potential impacts to rare and endangered species. Therefore, to avoid possible project delays or unnecessary design costs, you are advised to submit Supplement No. 1 for processing prior to General Permit registration. To do so, follow the written instructions on the Supplement No. 1 form. The Department will complete the bottom portion of the form and return it to you, generally within a period of 2 weeks. You must have copies of Supplement No. 1 (whether processed or not) for submission as attachments when you register to use the General Permit.

 5. For any earthmoving activity (For the definition of earthmoving activity, see Part Two, Section C.) associated with your project, prepare an Erosion and Sedimentation Control Plan which must be reviewed and determined satisfactory by the County Conservation District in the county where your project is located. The required Erosion and Sedimentation Control Plan must be prepared and submitted to the Conservation District for review prior to or concurrent with your registration to use the General Permit.

   The Registration Procedure:

 6. Fill in all information on the Notification to Use form (Exhibit D) and make multiple copies. Send one copy each to the municipality and the county in which the project is located.

 7. To register use of the General Permit, prepare a complete registration ‘‘package’’ consisting of:

   —Two Copies of Notification to Use form (Exhibit D)

   —Two copies of the Location Map

   —Two copies of the Supplement No. 1 form

 Send these items to either:

   —The County Conservation District for projects located in all counties where there is a delegation agreement (see Exhibit C).

 —OR—

   —The Soils and Waterways Section having responsibility for the counties where there is no delegation agreement with the County Conservation District (see Exhibit B).

 8. If you are also applying for an individual Water Obstruction and Encroachment Permit to authorize related work, you may register to use the General Permit in conjunction with your individual permit application. See Part Two, Section A, Item 2.

   Before and During Construction:

 9. Do not begin work until:

   a. You have received an acknowledgement from the Soils and Waterways Section or County Conservation District that your Exhibit D notification has been received and registered.

   b. Your Erosion and Sedimentation Control Plan has been reviewed and determined to be satisfactory by the County Conservation District.

   c. You have notified the Pennsylvania Fish and Boat Commission and the County Conservation District 10 days prior to start of construction (see Part Two, Section D).

   d. You have obtained any other Federal, State or local permits which may be required.

   e. You have complied with any other applicable pre-construction requirements as listed in Part Two, Section E.

   f. You have provided written notifications to the municipalities and county where the projects are located prior to the start of construction.

 10. During construction of your project, you are responsible for adhering to all terms and conditions of the General Permit, including your approved Erosion and Sedimentation Control Plan and all applicable design and construction criteria in Part One, Section D.

PART ONE

 A. General Description and Fees—The Department of Environmental Resources hereby authorizes, by General Permit, subject to the terms and criteria set forth, the installation, operation and maintenance of fish habitat enhancement structures in the regulated waters of this Commonwealth. There is no registration fee required for a project authorized under this General Permit.

 B. Sites and Conditions Where this General Permit Does Not Apply—This General Permit does not apply and is not valid in the following sitautions. Where the General Permit is not applicable, you may request approval of an individual permit by submitting an application to the appropriate Soils and Waterways Section in the Regional Office (see Exhibit B).

   1. Historic, cultural or archaeological sites as identified in the latest published version of the Pennsylvania Inventory of Historical Places or the National Register of Historical Places. This information is available from the Pennsylvania Historical and Museum Commission, Box 1026, Harrisburg, PA 17108-1026, telephone (717) 787-3362.

   2. Sites identified in the latest published version of the National Registry of Natural Landmarks.

   3. Construction activities in stocked trout streams from March 1 through June 15, in wild trout streams from October 1 through December 31, and in Lake Erie tributaries from March 1 through June 15 and from September 1 through December 31, unless approval is obtained from the Pennsylvania Fish and Boat Commission’s Division of Environmental Services (see Exhibit A). Stocked and wild trout stream locations are compiled by the Commission’s Division of Fisheries Management (see Exhibit A).

   4. Wetlands.

   5. Projects located where there would be an impact on species of special concern listed under the Endangered Species Act of 1973, the Wild Resources Conservation Act, the Fish and Boat Code or the Game and Wildlife Code. Records regarding species of special concern are maintained in a computer database called the ‘‘Pennsylvania Natural Diversity Inventory’’ (PNDI). To verify that there will be no such impacts for a specific project, the Department requires submission of the attachment Supplement No. 1 form.

   6. Areas in or within 100 feet of a watercourse designated wild in the National or State Scenic Rivers system in accordance with the National Wild and Scenic Rivers Act of 1968 or the Pennsylvania Scenic Rivers Act. For details on scenic river classifications, contact the DER Pennsylvania Scenic Rivers Program, P. O. Box 8475, Harrisburg, PA 17105-8475, telephone (717) 787-2316.

 C. Definitions Applicable to this General Permit—The following words and terms, when used in this General Permit, have the following meanings:

   Fish Habitat Enhancement Structures—Structures consisting of deflectors, low flow channel structures, channel blocks, mud sills, boulders, felled shoreline trees, special tire structures, brush structures, rubble reefs, half-log structures, elevated boulder structures and spawning/nursery structures placed in streams, lakes, ponds or reservoirs as developed and approved by the Pennsylvania Fish and Boat Commission.

   Reservoir—A natural or artificial basin which contains or will contain the water or other fluid or semifluid impounded by a dam.

 D. Project Design and Construction Criteria

   1. Pennsylvania Fish and Boat Commission Approval—The owner must contact the Pennsylvania Fish and Boat Commission’s Division of Property Services or Division of Environmental Services (see Exhibit A) to select a Fish Habitat Enhancement Structure suitable for his individual situation and obtain the required approval of the Pennsylvania Fish and Boat Commission to install the structure as required on the Notification to Use form (Exhibit D).

   2. Fish Habitat Enhancement Structures shall be designed and constructed to preclude interference with normal fish migration.

   3. Stream flow will not be constructed to a degree greater than the most narrow natural point of the stream in the immediate vicinity of the work within 500 feet upstream or downstream of the project site.

   4. Fish Habitat Enhancement Structures located in stream channels shall not extend more than 3 feet above the normal stream bed. Tire structures are prohibited in stream channels.

   5. Any archaeological artifacts discovered during the performance of work authorized under this General Permit must be adequately protected and their discovery promptly reported to the Director, Bureau of Historic Preservation, Pennsylvania Historical and Museum Commission, P. O. Box 1026, Harrisburg, PA 17108-1026, telephone (717) 787-2891.

   6. Each Fish Habitat Enhancement Structure shall be constructed in such a way so that it does not hinder recreational navigation.

   7. Excess fill or excavated and dredged material from the construction of a Fish Habitat Enhancement Structure shall be deposited outside of the adjacent floodplain, wetlands and other regulated waters of this Commonwealth and stabilized immediately in accordance with the Erosion and Sedimentation Control Plan. Waste materials, scrap or excess construction materials shall be collected, stored and disposed of in accordance with the Solid Waste Management Act and related rules and regulations.

   8. Fish Habitat Enhancement Structures shall be maintained in a safe and functional condition. This includes the removal of debris. Where maintenance requires excavation or dredging, an Erosion and Sedimentation Control Plan must be reviewed and determined adequate by the County Conservation District in which the activity is located. Disposal of dredged material shall be in accordance with Item 7.

   9. Only a clean, nonpolluting, rock material shall be used as fill material in order to minimize excessive turbidity by leaching of fines as well as to preclude the entrance of potentially polluted materials to the watercourse by natural runoff.

   10. Slag is not authorized for use under this General Permit unless it qualifies as a co-product which is suitable for the specific use.

   11. Construction of a Fish Habitat Enhancement Structure shall take place during periods coinciding with low stream flows.

   12. Construction and other activities authorized by this General Permit shall be performed in a manner that minimizes use of equipment within the stream channel or body of water.

   13. To the greatest extent possible, the project shall be designed and constructed in a manner which will (a) prevent permanent or long-term adverse changes in water quality, (b) minimize alterations in natural aquatic habitat and (c) maintain natural stream flow velocities and mixing patterns.

 E. Cooperative Adopt-A-Stream Program—Special Procedures—The Pennsylvania Fish and Boat Commission is authorized to register the use of this General Permit on behalf of sponsors and landowners who participate in the Commission’s Cooperative Adopt-A-Stream Program. To register use of the General Permit for Adopt-A-Stream projects, the Commission shall utilize a modified version of Exhibit D which has been approved by the Department and the U. S. Army Corps of Engineers. The standard attachments to Exhibit D, as specified in Part Two, Section A, are not required to register the use of this General Permit for a Cooperative Adopt-A-Stream Project.

 F. Authority and Continuing Authorization—Authorization of this General Permit is under section 7 of the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27) and the rules and regulations promulgated thereunder at 25 Pa. Code § §  105.441—105.449 (relating to general permits). This General Permit shall authorize the continued operation and maintenance of fish habitat enhancement structures previously authorized by General Permit BDWW-GP-1 (Fish Enhancement Structures) issued on July 25, 1981, and reauthorized on August 29, 1987 and October 7, 1989.

PART TWO

 A. Registration of Proposed Use of General Permits

   1. Standard Procedure

 Prior to construction, the owner shall submit the following items to the DER Soils and Waterways Section in the appropriate Regional Office or the delegated County Conservation District where the project is located (see Exhibits B and C).

     (a)   Two copies of the Notification to Use form (Exhibit D), one copy with original signatures.

     (b)   Two copies of a location map (see Drawing No. 1).

     (c)   Two copies of the Supplement No. 1 form.

     (d)   Two copies of any other items required in the Instructions and Part One (if applicable).

 The owner is required to send additional copies of Exhibit D to the municipality and the County Board of Commissioners where the project is located. Also, as part of the registration, the owner shall certify that an Erosion and Sedimentation Control Plan has been submitted for review to the County Conservation District in which the work will be performed. The owner is not authorized to use the General Permit until he has notified the DER Soils and Waterways Section of the appropriate Regional Office or the appropriate delegated County Conservation District and received an acknowledgement of that notification. The Department’s acknowledgement serves as registration to use this General Permit. The owner may not begin work until all preconstruction requirements of this General Permit have been completed.

 Registration for the use of this General Permit must be sent to the County Conservation District in counties where the District has a delegation agreement with the Department of Environmental Resources. To determine whether this alternate registration procedure currently applies for your location, refer to Exhibit C and/or contact the appropriate DER Soils and Waterways Section or County Conservation District.

   2. In Conjunction with a Water Obstruction and Encroachment Permit Application.

 When an activity or structure authorized by the General Permit is an integral part of a larger project which requires an individual Water Obstruction and Encroachment permit, intent to use the General Permit may be registered by attaching copies of the Notification to Use form (Exhibit D) to the individual permit application, and clearly identifying, in the permit application narrative and/or on site plans, any structure or activity which will be constructed in accordance with the terms and conditions of the General Permit. The Department’s acknowledgement of the General Permit registration will be included in the individual permit, and upon issuance of the permit the owner may begin work on the structure or activity authorized by the General Permit. Where applicable, this registration procedure is preferred and recommended by the Department, because written authorization for a project can be combined into one action and the associated documentation can be maintained under a single file number.

   3. In Conjunction with an Enforcement Action:

 The General Permit may also be used, at the discretion of the Department, in conjunction with an enforcement action or settlement of violations, to register regulated activites conducted without prior permit or authorization.

 B. Denial of Authorization—The Department shall have the discretion, on a case-by-case basis, to deny, revoke or suspend the authorization to use a General Permit for any project which the Department determines to have a substantial risk to life, health, property or the environment, or otherwise could not be adequately regulated by the provisions of this General Permit.

 C. Standard Definitions for General Permits—The terms as used in this General Permit shall have the following meanings:

   Body of Water—Any natural or artificial lake, pond, reservoir, swamp, marsh or wetland.

   Department—The Department of Environmental Resources.

   Earthmoving Activity—Any construction or other activity which disturbs the surface of the land including, but not limited to, excavations, embankments, land development, subdivision development, mineral extraction and the moving, depositing or storing of soil, rock or earth. This includes any excavation or fill within a stream channel.

   Erosion and Sedimentation Control Plan—A plan which is designed to minimize accelerated erosion and sedimentation consistent with the requirements of 25 Pa. Code Chapter 102.

   Floodway—The channel of the watercourse and portions of the adjoining floodplains which are reasonably required to carry and discharge the 100-year frequency flood. Unless otherwise specified, the boundary of the floodway is as indicated on maps and flood insurance studies provided by the Federal Emergency Management Administration (FEMA). In an area where no FEMA maps or studies have defined the boundary of the 100-year frequency floodway, it is assumed, absent evidence to the contrary, that the floodway extends from the stream to 50 feet from the top of the bank of the stream.

   Install—To construct, deposit, place, lay or set in place.

   Owner—A person who owns, controls, operates, maintains, or manages a dam or reservoir, water obstruction or encroachment.

   Person—A natural person, partnership, association, corporation, public utility, municipality, municipal authority, political subdivision of the Commonwealth, receiver or trustee, and any department, board, commission or authority of the Commonwealth.

   Political Subdivision—A county, city, borough, incorporated town, township, school district, authority or other governmental unit or a combination thereof acting jointly.

   Regulated Waters of this Commonwealth—Watercourses, streams or bodies of water and their floodways wholly or partly within or forming part of the boundary of this Commonwealth.

   Scenic Rivers—Areas in or within 100 feet of a watercourse or body of water designated a component of the Pennsylvania Scenic Rivers System in accordance with the Pennsylvania Scenic Rivers Act (P. L. 1277, Act No. 283 as amended by Act 110, May 7, 1982), or which are 1-A candidate rivers listed in the Pennsylvania Scenic Rivers Inventory.

   Stocked Trout Stream—A stream classified as approved trout waters by the Pennsylvania Fish and Boat Commission. For current designations of stocked trout streams, contact the Division of Fisheries Management (see Exhibit A).

   Submerged Lands of this Commonwealth—Waters and permanently or periodically inundated lands owned by the Commonwealth, including lands in the beds of navigable lakes and rivers and beds of streams declared public highways which are owned and held in trust by the Commonwealth.

   Watercourse—A channel or conveyance of surface water having defined bed and banks, whether natural or artificial, with perennial or intermittent flow.

   Wetlands—Areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs and similar areas.

   Wild Trout Stream—A stream classified as supporting naturally reproducing trout populations by the Pennsylvania Fish and Boat Commission. For current designations of wild trout streams, contact the Division of Fisheries Management (see Exhibit A).

 D. Preconstruction Requirements for All Projects

   1. Other Permits—Nothing in this General Permit relieves the owner of the obligation of complying with all Federal, Interstate Compact, State and local laws, regulations and standards for the construction, operation or maintenance of the project or activity. The project owner is advised that written authorization from the U. S. Army Corps of Engineers may be required for compliance with Section 404 of the Clean Water Act.

   2. Erosion and Sedimentation Controls—Work must be done in compliance with Chapter 102 (relating to erosion and sediment control). Prior to construction, an Erosion and Sedimentation Control Plan must be reviewed and determined adequate by the County Conservation District in which the activities are proposed and implemented prior to, during and after construction. The County Conservation District shall be notified 10 days prior to the start of construction. The project site shall at all times be available for inspection by authorized employees of the County Conservation District. The Erosion and Sedimentation Control Plan shall be available at the site.

   3. Pennsylvania Fish and Boat Commission Notification—The owners shall notify the Pennsylvania Fish and Boat Commission’s Regional Field Office Supervisor (see Exhibit A) responsible for the County where the activities are proposed 10 days prior to start of construction. Written notification is suggested. The project site shall at all times be available for inspection by authorized officers and employes of the Pennsylvania Fish and Boat Commission.

   4. Notification to Operators of Public Water Facilities—Owners will investigate for drinking water intakes or reservoirs for public water supplies and permitted public bathing beaches within 5 miles downstream of the site of the project. Written notice shall be given at least 10 days prior to construction to the Department and to operators of any such intakes, beaches or reservoirs. This notification shall include expected starting and completion dates for the construction activities. Owners must notify the Department and operators immediately and no longer than 1 hour after the occurrence at the site which results in the release of suspended solids and turbidity to the stream. Public drinking water sources are listed by the DER Bureau of Water Supply and Community Health, and this information is available from each DER Regional Office.

 E. Other Preconstruction Requirements Where Applicable

   1. Submerged Lands of this Commonwealth—This General Permit shall not be effective to authorize any project over, across or occupying submerged lands of this Commonwealth until the owner has obtained a license from the Department authorizing the occupation of such submerged lands issued under section 15 of the Dam Safety and Encroachments Act (32 P. S. §  693.15), section 514 of the Administrative Code of 1929 (71 P. S. §  194), or other applicable laws. Upon receipt of notification from the owner, the Department will review the project to determine if its location is over, across or occupies submerged lands of the Commonwealth. If applicable, the Department will prepare a Submerged Lands License Agreement and forward same to the owner for execution prior to acknowledgement of registration to use the General Permit. No annual charge is required for facilities constructed, owned or operated by a Political Subdivision of the Commonwealth.

   2. Utilization of General Permit BDWW-GP-8, Temporary Road Crossings—Temporary road crossings of streams and causeways that are necessary for equipment to move back and forth across a stream during construction of a project are authorized by, and must be constructed in accordance with BDWW-GP-8. The owners shall indicate utilization of BDWW-GP-8 on Exhibit D in the space provided. Owners constructing temporary road crossings in those areas excluded from the application of GP-8 must apply for an individual Water Obstruction and Encroachment Permit for those road crossings.

   3. Use of Explosives—Prior to the use of explosives in a watercourse or body of water, the permittee shall secure a written permit from the Pennsylvania Fish and Boat Commission, under the Fish and Boat Code, Act 1980-175 Title 30 Pennsylvania Consolidated Statutes, Section 2906. Requests should be directed to the Pennsylvania Fish and Boat Commission, Division of Environmental Services (see Exhibit A).

 F. Standard Provisions of the General Permit

   1. Effective Time Period—This General Permit will remain in effect indefinitely unless specifically modified, suspended or revised by the Department.

   2. Suspension, Modification or Revocation—The Department may suspend, modify or revoke this General Permit at any time upon notice in the Pennsylvania Bulletin.

   3. Project Interference—This General Permit does not authorize any interference with any existing or proposed local, State, Federal or Federally licensed project, and permittee shall not be entitled to compensation for damage or injury to the work authorized herein which may be caused by or a result of existing or future operations undertaken by the United States or the Commonwealth of Pennsylvania or its Political Subdivisions in the public interest.

   4. Department Inspection—As a condition of use of this General Permit, and of the owner’s authority to conduct the activities authorized by this General Permit, the owner hereby authorizes and consents to allow authorized employes or agents of the Department, without advance notice or a search warrant, at any reasonable time and upon presentation of appropriate credentials, and without delay, to have access to and to inspect all areas where the project is being constructed, operated or maintained. The authorization and consent shall include consent to conduct tests or sampling, to take photographs, to perform measurements, surveys and other tests, to inspect the methods of construction, operation or maintenance, to examine and copy books, papers and records pertinent to any matter under investigation, and to take any other action necessary to assure that the project is constructed, operated or maintained in accordance with the terms and criteria of the General Permit. This General Permit condition is referenced in accordance with Section 16 of the Dam Safety and Encroachments Act, 32 P. S. §  693.16, and in no way limits any other powers granted under the Dam Safety and Encroachments Act.

   5. Activities Not in Accordance with the Terms or Conditions—If the Department determines, upon inspection, that the construction, operation or maintenance of a project has violated the terms or criteria of this General Permit or of the Chapter 105 Rules and Regulations, the Department may take such actions, legal or administrative, that it may deem to be appropriate.

   6. Structure Removal—The owners shall remove all or any portion of this project upon written notification to the owner by the Department in the event the project is causing an adverse impact on public health, safety or the environment, or in any other manner violates the conditions of this General Permit or Chapter 105 Rules and Regulations.

   7. Property Rights—This General Permit does not authorize trespassing on private property nor convey any property rights, either in real estate or material, or in any exclusive privileges; nor does it authorize any injury to property or invasion of rights or any infringement of Federal, State or local laws or regulations.

   8. Water Quality Certification—The issuance of this General Permit also constitutes approval of a Water Quality Certification under section 401 of the Federal Clean Water Act (33 U.S.C.A. §  1341).

   9. Other Approvals—The owners shall secure all other approvals that may be necessary under other Federal, State or local laws or regulations.

   10. Change of Ownership—If there is a change in ownership of a structure installed in accordance with this General Permit, the new owner is required to register the structure with the Department in accordance with Part Two, Section A, of this General Permit. The new owner shall submit one copy of Exhibit D indicating ‘‘change of ownership’’ and one copy of a location map. Additional items required under Part Two, Section A, are not applicable if there are no proposed construction activities.

   11. Signature—The Notification to Use form for registration to use the General Permit shall be signed by the property owner; the president, vice president or other responsible official of a Corporation; or the chief official for a Government Agency/Political Subdivision. An engineering consultant, contractor or similar agent is not authorized to sign the General Permit registration form on behalf of the owner.

EXHIBIT A
Offices of the Pennsylvania Fish and Boat Commission

Headquarters Address	County Responsibility
Northwest Region
Regional Supervisor P. O. Box 349 1281 Otter Street Franklin, PA 16323 (814) 437-5774	Butler, Clarion, Crawford, Erie, Forest, Lawrence, Mercer, Venango and Warren
Southwest Region
Regional Supervisor R. D. 2, Box 39 Somerset, PA 15501-9311 (814) 445-8974	Allegheny, Armstrong, Beaver, Cambria, Fayette, Greene, Indiana, Somerset, Washington and Westmoreland
Northcentral Region
Regional Supervisor Box 187 (Fishing Creek Road) Lamar, PA 16848 (717) 726-6056	Cameron, Centre, Clearfield, Clinton, Elk, Jefferson, Lycoming, McKean, Potter, Snyder, Tioga and Union
Southcentral Region
Regional Supervisor 1704 Pine Road Newville, PA 17241 (717) 486-7087	Adams, Bedford, Blair, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lebanon, Mifflin, Perry and York
Southeast Region
Regional Supervisor Box 8 Elm, PA 17521 (717) 626-0228	Berks, Bucks, Chester, Delaware, Lancaster, Lehigh, Montgomery, Northampton, Philadelphia and Schuylkill
Northeast Region
Regional Supervisor Box 88 Sweet Valley, PA 18656 (717) 477-5717	Bradford, Carbon, Columbia, Lackawanna, Luzerne, Monroe, Montour, Northumberland, Pike, Sullivan, Susquehanna, Wayne and Wyoming

   Division of Environmental Services
450 Robinson Lane, Bellefonte, PA 16823-9620
(814) 359-5145

   Division of Property Services
450 Robinson Lane, Bellefonte, PA 16823-9620
(814) 359-5149

   Division of Fisheries Management
450 Robinson Lane, Bellefonte, PA 16823-9620
(814) 359-5110

EXHIBIT B
Offices of the Department of Environmental Resources

Soils and Waterways Section	County Responsibility
Southcentral Regional Office Room 147, One Ararat Boulevard Harrisburg, PA 17110 (717) 541-7901	Adams, Bedford, Berks, Blair, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lancaster, Lebanon, Mifflin, Perry and York
Southeast Regional Office Suite 6010, Lee Park 555 North Lane Conshohocken, PA 19428 (610) 832-6130	Bucks, Chester, Delaware, Montgomery and Philadelphia
Southwest Regional Office 400 Waterfront Drive Pittsburgh, PA 15222-4745 (412) 442-4000	Allegheny, Armstrong, Beaver, Cambria, Fayette, Greene, Indiana, Somerset, Washington and Westmoreland
Northwest Regional Office 190 Adams Road Jamestown, PA 16134 (412) 932-3162	Butler, Clarion, Crawford, Elk, Erie, Forest, Jefferson, Lawrence, McKean, Mercer, Venango and Warren
Northeast Regional Office Cross Valley Centre, Suite 203 667 North River Street Plains, PA 18705-1099 (717) 826-5485	Carbon, Lackawanna, Lehigh, Luzerne, Monroe, Northampton, Pike, Schuylkill, Susquehanna, Wayne and Wyoming
Northcentral Regional Office 200 Pine Street Williamsport, PA 17701 (717) 327-3574	Bradford, Cameron, Centre, Clearfield, Clinton, Columbia, Lycoming, Montour, Northumberland, Potter, Snyder, Sullivan, Tioga and Union

 Note: Registration for the use of this General Permit must be sent to the County Conservation District in some counties where the district has a delegation agreement with the Department of Environmental Resources. To determine whether this alternate registration procedure applies for your location, refer to Exhibit C and/or contact the appropriate Soils and Waterways Section or County Conservation District.

EXHIBIT C
County Conservation Districts

Conservation District	Phone No.	Conservation District	Phone No.
*Adams County	717-334-0636	Juniata County	717-436-6919
Allegheny County	412-921-1999	Lackawanna County	717-587-2607
Armstrong County	412-548-3425/3428	Lancaster County	717-299-5361
Beaver County	412-774-7090	Lawrence County	412-652-4512
Bedford County	814-623-6706/8099	Lebanon County	717-272-3377
*Berks County	215-372-4657	Lehigh County	610-820-3398
Blair County	814-696-0877	Luzerne County	717-825-1844/5
*Bradford County	717-265-5539	Lycoming County	717-326-5858
*Bucks County	610-345-7577	McKean County	814-368-9960
*Butler County	412-284-5270/5271	*Mercer County	412-662-2242
*Cambria County	814-472-5440 Ext 588	*Mifflin County	717-248-4695
Cameron County	814-486-3350	*Monroe County	717-629-3060
Carbon County	610-377-4894	Montgomery County	610-489-4506
*Centre County	814-355-6817/6818	*Montour County	717-271-1140
Chester County	610-696-5126	Northampton County	610-746-1971
Clarion County	814-226-4070	Northumberland County	717-988-4224
Clearfield County	814-765-2629	Perry County	717-582-8988
*Clinton County	717-726-3798	*Pike County	717-226-8220
Columbia County	717-784-1310	Potter County	814-274-8411
*Crawford County	814-724-1793	Schuylkill County	717-429-1744
*Cumberland County	717-249-8632	*Snyder County	717-837-0085
*Dauphin County	717-921-8100	Somerset County	814-445-4652
Delaware County	610-892-9484	Sullivan County	717-924-3983
*Elk County	814-776-5373	Susquehanna County	717-278-4600 Ext 280
*Erie County	814-796-4203	*Tioga County	717-724-4812
Fayette County	412-438-4497	*Union County	717-523-8782
Forest County	814-755-3450	*Venango County	814-432-7456
*Franklin County	717-264-8074	Warren County	814-723-7700
Fulton County	717-485-3547	Washington County	412-228-6774
Greene County	412-852-1171 Ext 319	Wayne County	717-253-0930
Huntingdon County	814-627-1627	Westmoreland County	412-837-5271
Indiana County	412-463-7702	*Wyoming County	717-836-2589 or 2993
Jefferson County	814-849-7463	York County	717-771-9430

 *County Conservation Districts having delegation agreements with the Bureau of Dams, Waterways and Wetlands for general permit processing as of July 1, 1994.

   The provisions of this Appendix A adopted July 24, 1981, effective July 25, 1981, 11 Pa.B. 2636; amended August 28, 1987, effective August 29, 1987, 17 Pa.B. 3569; amended October 6, 1989, effective October 7, 1989, 19 Pa.B. 4328; amended August 5, 1994, effective August 6, 1994, 24 Pa.B. 3899. Immediately preceding text appears at serial pages (162380) to (162390).

APPENDIX B
PRIVATE RECREATIONAL DOCKS; GENERAL
PERMIT BDWW-GP-2

   Editor’s Note: The following permit was published in the Pennsylvania Bulletin as a Notice and is codified under 1 Pa. Code §  3.1(a)(9) (relating to contents of Code) as a document which the Legislative Reference Bureau finds to be general and permanent in nature. See § §  105.441—105.449 (relating to general permits) for regulations governing this permit.

Table of Contents

   Instructions for Using the General Permit
Part One: Applies Specifically to BDWW-GP-2

 A. General Description and Fees

 B. Sites and Conditions Where this General Permit Does Not Apply

 C. Definitions Applicable to this General Permit

 D. Project Design and Construction Criteria for Docks

 E. Project Design and Construction Criteria for Boat Launching Ramps

 F. Special Provisions Regarding Property Rights

 G. Authority and Continuing Authorization

   Part Two: Applies to BDWW-GP-2 and Other BDWW General Permits

 A. Registration of Proposed Use of General Permits

 B. Denial of Authorization

 C. Standard Definitions for General Permits

 D. Preconstruction Requirements for All Projects

 E. Other Preconstruction Requirements Where Applicable

 F. Standard Provisions of the General Permit

   Attachments:
Drawing No. 1—Sample Location Map
Drawings No. 2 to 5—Sample Projects with Criteria
Exhibit A—Offices of the Pennsylvania Fish and Boat Commission
Exhibit B—Offices of the Department of Environmental Resources
Exhibit C—County Conservation Districts
Exhibit D—Notification to Use (Registration Form)
Supplement No. 1—Request for Search of Pennsylvania Natural Diversity Inventory (Form)

INSTRUCTIONS FOR USING THE GENERAL PERMIT
BDWW-GP-2
Small Docks and Boat Launching Ramps

   Prior to Registration to Use:

 1. Carefully review the definitions and requirements of the General Permit (Part One and Part Two) to determine if your project can qualify for authorization under this General Permit. Refer to Part One, Section B regarding area restrictions and Part One, Sections D and E regarding criteria. If your project cannot be authorized under the General Permit, you may request approval of an individual permit by submitting an application to the appropriate Soils and Waterways Section in the Regional Office as listed on Exhibit B.

 2. Locate your project on a United States Geological Survey (U.S.G.S.) 7 1/2 Minute Quadrangle Map (Commonly called ‘‘topographic maps,’’ U.S.G.S. Quadrangles may be available from local merchants dealing in books, hunting supplies and camping equipment.) and prepare a project Location Map, utilizing a photocopy of the U.S.G.S. Quadrangle Map.

 3. Complete the top portion of the attached Supplement No. 1 (Pennsylvania Natural Diversity Inventory Form). You will not be authorized to use the General Permit until Supplement No. 1 has been processed to check for potential impacts to rare and endangered species. Therefore, to avoid possible project delays or unnecessary design costs, you are advised to submit Supplement No. 1 for processing prior to General Permit registration. To do so, follow the written instructions on the Supplement No. 1 form. The Department will complete the bottom portion of the form and return it to you, generally within a period of 2 weeks. You must have copies of Supplement No. 1 (whether processed or not) for submission as attachments when you register to use the General Permit.

 4. Your project may also require a permit from the U. S. Army Corps of Engineers under section 404 of the Federal Clean Water Act, sections 9 and 10 of the Rivers and Harbors Act and/or section 103 of the Marine Protection, Research and Sanctuaries Act. The registration to use this State General Permit does not relieve you of the obligation to comply with, and the State is not authorized to address, these Corps of Engineers’ requirements. Therefore, in order to avoid violation of Federal statutes, please contact the appropriate U. S. Corps of Engineers District Office listed below to determine whether a Federal permit is required for your project.

   Delaware River Basin

   Philadelphia Dist. Corps of Engineers
Wanamaker Bldg., 100 Penn Square East
Philadelphia, PA 19107
(215) 656-6725

   Lake Erie Basin

   Buffalo Dist. Corps of Engineers
1776 Niagara Street
Buffalo, NY 14207-3199
(716) 879-4104

   Ohio River Basin

   Pittsburgh Dist. Corps of Engineers
1834 Wm. S. Morehead Federal Bldg.
1000 Liberty Avenue
Pittsburgh, PA 15222
(412) 644-6874

   Susquehanna River Basin

   Baltimore Dist. Corps of Engineers
P. O. Box 1715
Baltimore, MD 21203-1715
(410) 962-1846 or (717) 726-7757

 5. For any earthmoving activity (For the definition of earthmoving activity, see Part Two, Section C.) associated with your project, prepare the Erosion and Sedimentation Control Plan which must be reviewed and determined satisfactory by the County Conservation District in the county where your project is located. The required Erosion and Sedimentation Control Plan must be prepared and submitted to the Conservation District for review prior to or concurrent with your registration to use the General Permit.

   The Registration Procedure:

 6. Fill in all information on the Notification to Use form (Exhibit D) and make multiple copies. Send one copy each to the municipality and the county in which the project is located.

 7. To register use of the General Permit, prepare a complete registration ‘‘package’’ consisting of:

   —Two Copies of Notification to Use form (Exhibit D)

   —Two copies of the Location Map

   —Two copies of the Supplement No. 1 form

 Send these items to either:

   —The County Conservation District for projects located in all counties where there is a delegation agreement (see Exhibit C).

 —OR—

   —The Soils and Waterways Section having responsibility for the counties where there is no delegation agreement with the County Conservation District (see Exhibit B).

 8. If you are also applying for an Individual Water Obstruction and Encroachment Permit to authorize related work, you may register to use the General Permit in conjunction with your individual permit application. See Part Two, Section A, Item 2.

   Before and During Construction:

 9. Do not begin work until:

   a. You have received an acknowledgement from the Soils and Waterways Section or County Conservation District that your Exhibit D notification has been received and registered.

   b. Your Erosion and Sedimentation Control Plan has been reviewed and determined to be satisfactory by the County Conservation District.

   c. You have notified the Pennsylvania Fish and Boat Commission and the County Conservation District 10 days prior to start of construction. (See Part Two, Section D.).

   d. You have obtained any other Federal, State or local permits which may be required.

   e. You have complied with any other applicable preconstruction requirements as listed in Part Two, Section E.

   f. You have provided written notifications to the municipalities and county where the projects are located prior to the start of construction.

 10. During construction of your project, you are responsible for adhering to all terms and conditions of the General Permit, including your approved Erosion and Sedimentation Control Plan and all applicable design and construction criteria in Part One, Sections D and E.

PART ONE

 A. General Description and Fees—The Department of Environmental Resources hereby authorizes, by General Permit, subject to the terms and criteria set forth below, the installation, operation, modification and maintenance of small docks and boat launching ramps in and along the regulated waters of this Commonwealth. There is no registration fee required for a project authorized under this General Permit.

 B. Sites and Conditions Where this General Permit Does Not Apply—This General Permit does not apply and is not valid in the following situations. Where the General Permit is not applicable, you may request approval of an individual permit by submitting an application to the appropriate Soils and Waterways Section in the Regional Office (see Exhibit B).

   1. Historical, cultural or archaeological sites as identified in the latest published version of the Pennsylvania Inventory of Historical Places or the National Register of Historical Places. This information is available from the Pennsylvania Historical and Museum Commission, Box 1026, Harrisburg, PA 17108-1026, telephone (717) 787-3362.

   2. Sites identified in the latest published version of the National Registry of Natural Landmarks.

   3. Areas in or within 100 feet of a watercourse designated wild in the National or State Scenic Rivers system in accordance with the National Wild and Scenic Rivers Act of 1968 or the Pennsylvania Scenic Rivers Act. For details on scenic river classification, contact the DER Pennsylvania Scenic Rivers Program, P. O. Box 8475, Harrisburg, PA 17105-8475, telephone (717) 787-2316.

   4. Construction activities in stocked trout streams from March 1 through June 15, in wild trout streams from October 1 through December 31, and in Lake Erie tributaries from March 1 through June 15 and from September 1 through December 31 unless written approval is obtained from the Pennsylvania Fish and Boat Commission’s Division of Environmental Services (see Exhibit A). Stocked and wild trout stream locations are compiled by the Commission’s Division of Fishery Management (see Exhibit A).

   5. Projects located where there would be an impact on species of special concern listed under the Endangered Species Act of 1973, the Wild Resources Conservation Act, the Fish and Boat Code or the Game and Wildlife Code. Records regarding species of special concern are maintained in a computer database called the ‘‘Pennsylvania Natural Diversity Inventory’’ (PNDI). To verify that there will be no such impacts for a specific project, the Department requires submission of the attached Supplement No. 1 form.

   6. Streams or waterbodies designated as Exceptional Value Waters as defined and listed in Chapter 93 (related to water quality standards).

   7. Projects requiring excavation of mudflats in the tidal waters of the Delaware River.

 C. Definitions Applicable to this General Permit—The following words and terms, when used in this General Permit, have the following meanings:

   Boat Launching Ramp—A sloping stabilized roadway constructed in and along a stream or lake for the purpose of launching boats from vehicular trailers, including associated walkways for boarding boats and on-grade improvements for access, turning and parking.

   Dredge—To remove sand, gravel, mud or other materials from the beds of regulated waters of this Commonwealth.

   Fill—Sand, gravel, earth or other material placed or deposited to form an embankment or raise the elevation of the land surface. The term includes material used to replace an area with aquatic life with dry land or to change the bottom elevation of any regulated water of this Commonwealth.

   Other Private and Commercial Facilities—Docks and boat launching ramps other than those defined as private recreational docks, public access facilities and public service facilities.

   Private Recreational Dock—A dock utilized for private recreational purposes by the riparian land owner.

   Public Access Facility—A dock or boat launching ramp for public recreational purposes when the facility is open to the general public and maintained on a nonprofit basis or for use without fee.

   Public Service Facility—A dock or boat launching ramp constructed, owned or operated by a political subdivision of the Commonwealth which provides services necessary for public health and welfare, or in connection with a service for which no fees or charges other than general taxes are imposed.

   Shoreline—The edge of water in a lake or other body of water at normal pool elevation; the edge of water along a waterway at the ordinary low water level.

   Small Dock—A single floating, cantilevered or pile structure constructed within a waterway or other body of water and located on lands or adjacent to riparian lands which are owned or leased by the dock owner. Small docks authorized under this General Permit are classified in four categories based on the proposed use and type of ownership. These categories are (1) private recreational dock, (2) public access facility, (3) public service facility and (4) other private and commercial facilities.

 D. Project Design and Construction Criteria for Docks

   1. Small Docks may be constructed to any configuration but shall not exceed 750 square feet in surface area, except where other limits apply on navigable rivers of the United States and on Scenic Rivers (see items 1a and 1b which follow).

     a. A Federal permit is required from the U. S. Army Corps of Engineers for small dock structures located on rivers and other waterways which are designated Navigable Waters of the United States and regulated under Section 10 of the Rivers and Harbors Act. The small dock surface area and configuration on these navigable waters must be in conformance with any applicable Section 10 permit criteria which may be more restrictive than this General Permit. Size and shape limitations may be subject to change and may vary between Corps District Offices.

     b. In waterways which are part of the National or Pennsylvania Scenic Rivers System the total surface area of a small dock shall not exceed 250 square feet.

   2. A small dock on a lake shall not extend more than 50 feet from the edge of normal pool elevation. In a river or other stream, a small dock shall not extend more than 20% of the width of the stream; however, it shall in no instance extend more than 100 feet from the ordinary low water mark of a stream.

   3. Only one small dock shall be constructed on a given riparian parcel under this General Permit, except where the parcel is common property or where multiple parties have deeded access rights or easements. See Section F, Items 2 and 3 for specific terms regarding multiple use of this General Permit on a given riparian parcel.

   4. No part of the small dock structure or associated boat mooring area may extend in front of adjacent riparian properties or otherwise interfere with access and use of the water by adjacent riparian land owners.

   5. Each small dock shall be constructed in such a way that it does not hinder commercial or recreational navigation and does not interfere with normal fish migration.

   6. Construction and other activities authorized by this General Permit shall be performed in a manner that minimizes use of equipment within the stream channel or body of water.

   7. Construction of a small dock on a waterway shall take place during periods coinciding with lower stream flows.

   8. Each small dock shall be constructed in such a way as not to obscure any navigation aids or lights for bridges in the area.

   9. Small docks shall be maintained in a functional condition which includes the periodic removal of debris.

   10. Maintenance dredging to restore original depths is permitted only in the mooring area for boats and is limited to 10 feet beyond the edge of the dock.

   11. Dredging for construction purposes is not authorized by this General Permit.

   12. This General Permit does not authorize the storage of fuel or the construction of fuel servicing facilities on the small dock.

   13. This General Permit does not authorize the construction or modification of a small dock for use as a habitable structure with living facilities such as beds, bathrooms or kitchens.

   14. The owner shall employ measures to prevent and control spills of fuels or lubricants into the waterway.

   15. Flotation devices, if used, shall be securely fastened to the structure to prevent separation from the small dock.

   16. Drums to be utilized as flotation devices that have been previously filled with another substance shall be thoroughly cleaned before use to preclude the possibility of pollution.

   17. The small dock structure shall be adequately secured to the shoreline to insure the structure’s stability to withstand the effects of wind, stream flows and wave action.

   18. Anchorages shall be placed so they do not accelerate erosion or cause degradation of the streambanks.

   19. The placement of fill or dredged material into a watercourse, floodway or body of water is not authorized under this General Permit.

   20. To the greatest extent possible, the project shall be designed and constructed in a manner which will (a) prevent permanent or long-term changes in water quality, (b) minimize alterations in natural aquatic habitat and (c) maintain natural streamflow velocities and mixing patterns.

   21. Archaeological artifacts discovered during the performance of work authorized under this General Permit must be adequately protected and their discovery promptly reported to the Director, Bureau of Historic Preservation, Pennsylvania Historical and Museum Commission, P. O. Box 1026, Harrisburg, PA 17108-1026, telephone (717) 787-2891.

 E. Project Design and Construction Criteria for Boat Launching Ramps

   1. Boat launching ramps authorized by this General Permit are limited to a maximum width of 20 feet.

   2. Boat launching ramps shall be located to minimize streambank excavation and wetland impacts. Boat launching ramps are limited to a maximum length of 100 feet measured from the top of the ramp to the shoreline.

   3. Only one boat launching ramp shall be constructed on a given riparian parcel under this General Permit, except where the parcel is common property or where multiple parties have deeded access rights or easements. See Section F, Items 2 and 3 for specific terms regarding multiple use of this General Permit on a given riparian parcel.

   4. Construction and other activities authorized by this General Permit shall be performed in a manner that minimizes use of equipment within the stream channel or body of water.

   5. Construction of a boat launching ramp along a waterway shall take place during periods when the stream is at low flow.

   6. To the greatest extent possible, the project shall be designed and constructed in a manner which will (a) prevent permanent or long-term changes in water quality, (b) minimize alterations in natural aquatic habitat and (c) maintain natural streamflow velocities and mixing patterns.

   7. Where required to support boat trailers, the portion of a boat launching ramp located in a streambed or lakebed may be stabilized by clean rock and/or gravel, timber, precast concrete planks or precast concrete slabs (formed onshore and pushed or lifted in place). This stabilization of the bed surface shall be limited to the minimum length necessary for boat launching.

   8. Exposed bank areas along the approach ramp shall be stabilized and protected from the erosive action of waves and stream currents.

   9. For launching ramps which require associated facilities such as parking lots and turn-around driveways in the floodway along a stream, necessary regrading shall be accomplished without the addition of fill within the regulated floodway. Parking facilities shall be built on existing grade or with minimal grade changes not exceeding 12 inches. Surfaces shall be stabilized with gravel, macadam or concrete. There shall be a volume of soil material removed from the floodway equal to or greater than the volume of construction materials to be used, and there shall be no net loss of conveyance area in the floodway cross-section. Along waterways designated Exceptional Value (EV) or High Quality Waters (HQ) under Chapter 93 Rules and Regulations (relating to water quality), a 50-foot wide vegetated buffer strip is required between parking facilities and the streambank. Access roads which cross wetlands and improved parking areas in wetlands are not authorized by this General Permit.

   10. Boat ramps constructed along Lake Erie shall be located near the western edge of a property to allow space to dispose future dredge material. Material from maintenance dredging of a boat ramp along the shoreline of Lake Erie shall be placed on the shoreline to the east of the removal site.

   11. Archaeological artifacts discovered during the performance of work authorized under this General Permit must be adequately protected and their discovery promptly reported to the Director, Bureau of Historic Preservation, Pennsylvania Historical and Museum Commission, P. O. Box 1026, Harrisburg, PA 17108-1026, telephone (717) 787-2891.

 F. Special Provisions Regarding Property Rights

   1. Submerged Lands License Agreements and Fees—As explained in Part Two, Section E, Item 1 of this General Permit, a license agreement is required for projects which are located in certain waters designated navigable or public highways and which are held in trust by the Commonwealth. In accordance with Chapter 105 Rules and Regulations, a minimum annual license fee of $250 is assessed except for the following types of facilities and uses:

     a. Private recreational docks constructed under a General Permit.

     b. Public Access Facilities provided without charge or on a nonprofit basis.

     c. Public Service Facilities provided without fees or charges.

     There is no annual fee assessed for the facilities listed above. However, other types of docks or boat launching ramps will require an annual fee when located in Submerged Lands of the Commonwealth. Therefore, the user of this General Permit is required to indicate the type of structure on the Notification to Use form (Exhibit D).

   2. Multiple Use of the General Permit on Common Property—An association of homeowners or similar group (association) holding title to common property with riparian rights may register to construct and maintain docks on behalf of individual members. The association shall assure that adequate spacing for mooring and access is maintained between docks. Each dock shall be registered by the association and constructed in accordance with the General Permit.

   3. Use of the General Permit where Multiple Parties Hold Access Rights on Riparian Land—In areas where common use of riparian land is reserved by easement or other deed restrictions, and where there is no homeowners association or similar organization with appropriate authority, each holder (owner) of such easement or deed restriction may register and construct one dock and boat launching ramp under the authority of this General Permit. Owners are mutually responsible to assure that adequate spacing for mooring and access is maintained between structures. Registering the use of this General Permit does not grant the right to interfere with other eligible users or with the riparian rights of others. Users of this General Permit are solely responsible to mutually resolve any problems of interference or other disagreements on riparian lands where access rights are shared.

 G. Authority and Continuing Authorization—Authorization of this General Permit is under section 7 of the Dam Safety and Encroachments Act (32 P. S. §  693.7) and the rules and regulations promulgated thereunder at 25 Pa. Code § §  105.441—105.449 (relating to general permits). This General Permit shall authorize the continued operation and maintenance of private recreational docks authorized by General Permit BDWM-GP-2 (Private Recreational Docks) issued on December 29, 1990.

   The provisions of this Appendix B adopted December 28, 1990, effective December 29, 1990, 20 Pa.B. 6419; amended August 19, 1994, effective August 20, 1994, 24 Pa.B. 3907. Immediately preceding text appears at serial pages (162391) to (162403).

APPENDIX C
BANK REHABILITATION AND PROTECTION;
GENERAL PERMIT BDWW-GP-3

   (Editor’s Note: The following permit was published in the Pennsylvania Bulletin as a Notice and is codified under 1 Pa. Code §  3.1(a)(9) (relating to contents of Code) as a document which the Legislative Reference Bureau finds to be general and permanent in nature. See § §  105.441—105.449 (relating to general permits) for regulations governing this permit.

Table of Contents

   Instructions for Using the General Permit

   Part One: Applies Specifically to BDWW-GP-3

   A. General Description and Fees
B. Sites and Conditions Where this General Permit Does Not Apply
C. Definitions Applicable to this General Permit
D. Project Design and Construction Criteria
E. Additional Criteria for Bank Rehabilitation and Protection
F. Additional Criteria for Removal of Gravel Bars
G. Authority and Continuing Authorization

   Part Two: Applies to BDWW-GP-3 and Other BDWW General Permits

   A. Registration of Proposed Use of General Permits
B. Denial of Authorization
C. Standard Definitions for General Permits
D. Preconstruction Requirements for All Projects
E. Other Preconstruction Requirements Where Applicable
F. Standard Provisions of the General Permit

   Attachments:

   Drawing No. 1—Sample Location Map
Drawings No. 2 to 14—Sample Projects with Criteria
Exhibit A—Offices of the Pennsylvania Fish and Boat Commission
Exhibit B—Offices of the Department of Environmental Resources
Exhibit C—County Conservation Districts
Exhibit D—Notification to Use (Registration Form)
Supplement No. 1—Request for Search of Pennsylvania Natural Diversity Inventory (Form)

INSTRUCTIONS FOR USING THE GENERAL PERMIT
BDWW-GP-3
Bank Rehabilitation, Bank Protection and Gravel Bar
Removal

   Prior to Registration to Use:

 1. Carefully review the definitions and requirements of the General Permit (Part One and Part Two) to determine if your project can qualify for authorization under this General Permit. Refer to Part One, Section B regarding area restrictions and Part One, Sections D, E and F regarding criteria. If your project cannot be authorized under the General Permit, you may request approval of an individual permit by submitting an application to the appropriate Soils and Waterways Section in the Regional Office as listed on Exhibit B.

 2. Locate your project on a United States Geological Survey (U.S.G.S.) 7 1/2 Minute Quadrangle Map (Commonly called ‘‘topographic maps,’’ U.S.G.S. Quadrangles may be available from local merchants dealing in books, hunting supplies and camping equipment.) and prepare a project Location Map, utilizing a photocopy of the U.S.G.S. Quadrangle Map.

 3. Complete the top portion of the attached Supplement No. 1 (Pennsylvania Natural Diversity Inventory Form). You will not be authorized to use the General Permit until Supplement No. 1 has been processed to check for potential impacts to rare and endangered species. Therefore, to avoid possible project delays or unnecessary design costs, you are advised to submit Supplement No. 1 for processing prior to General Permit registration. To do so, follow the written instructions on the Supplement No. 1 form. The Department will complete the bottom portion of the form and return it to you, generally within a period of 2 weeks. You must have copies of Supplement No. 1 (whether processed or not) for submission as attachments when you register to use the General Permit.

 4. Your project may also require a permit from the U. S. Army Corps of Engineers under section 404 of the Federal Clean Water Act, sections 9 and 10 of the Rivers and Harbors Act and/or section 103 of the Marine Protection, Research and Sanctuaries Act. The registration to use this State General Permit does not relieve you of the obligation to comply with, and the State is not authorized to address, these Corps of Engineers’ requirements. Therefore, in order to avoid violation of Federal statutes, please contact the appropriate U. S. Corps of Engineers District Office listed below to determine whether a Federal permit is required for your project.

   Delaware River Basin

   Philadelphia Dist. Corps of Engineers
Wanamaker Bldg., 100 Penn Square East
Philadelphia, PA 19107
(215) 656-6725

   Ohio River Basin

   Pittsburgh Dist. Corps of Engineers
1834 Wm. S. Morehead Federal Bldg.
1000 Liberty Avenue
Pittsburgh, PA 15222
(412) 644-6874

   Lake Erie Basin

   Buffalo Dist. Corps of Engineers
1776 Niagara Street
Buffalo, NY 14207-3199
(716) 879-4104

   Susquehanna River Basin

   Baltimore Dist. Corps of Engineers
P. O. Box 1715
Baltimore, MD 21203-1715
(410) 962-1846 or (717) 726-7757

 5. For any earthmoving activity (For the definition of earthmoving activity, see Part Two, Section C.) associated with your project, prepare the Erosion and Sedimentation Control Plan which must be reviewed and determined satisfactory by the County Conservation District in the county where your project is located. The required Erosion and Sedimentation Control Plan must be prepared and submitted to the Conservation District for review prior to or concurrent with your registration to use the General Permit.

 6. Take color photographs of the project area showing the scope of the project and existing condition of the bank and/or gravel bar. Prepare two sets of these photos, mount on 8 1/2"x11" pages and label each photo with a brief description of what is shown and the date photos were taken.

   The Registration Procedure:

 7. Fill in all information on the Notification to Use form (Exhibit D) and make multiple copies. Send one copy each to the municipality and the county in which the project is located.

 8. To register use of the General Permit, prepare a complete registration ‘‘package’’ consisting of:

   —Two copies of Notification to Use form (Exhibit D)

   —Two copies of the Location Map

   —Two copies of the Supplement No. 1 form

   —Two sets of Color Photographs (mounted with dates and descriptions)

 Send these items to either:

   —The County Conservation District for projects located in all counties where there is a delegation agreement (See Exhibit C).

 —OR—

   —The Soils and Waterways Section having responsibility for the counties where there is no delegation agreement with the County Conservation District (see Exhibit B).

 9. If you are also applying for an individual Water Obstruction and Encroachment Permit to authorize related work, you may register to use the General Permit in conjunction with your individual permit application (see Part Two, Section A, Item 2).

   Before and During Construction:

 10. Do not begin work until:

   a. You have received an acknowledgement from the Soils and Waterways Section or County Conservation District that your Exhibit D notification has been received and registered.

   b. Your Erosion and Sediment Control Plan has been reviewed and determined to be satisfactory by the County Conservation District.

   c. You have notified the Pennsylvania Fish and Boat Commission and the County Conservation District 10 days prior to start of construction (Part Two, Section D).

   d. You have obtained any other Federal, State or local permits which may be required, including written authorization from the U. S. Army Corps of Engineers for gravel bar removal.

   e. You have complied with any other applicable preconstruction requirements as listed in Part Two, Section E.

   f. You have provided written notifications to the municipalities and county where the projects are located prior to the start of construction.

 11. During construction of your project, you are responsible for adhering to all terms and conditions of the General Permit, including your approved Erosion and Sedimentation Control Plan and all applicable design and construction criteria in Part One, Sections D, E and F.

PART ONE

 A. General Description and Fees—The Department of Environmental Resources hereby authorizes, by general permit, subject to the terms and criteria set forth below, the installation, operation, modification and maintenance of bank rehabilitation and protection projects and the removal of gravel bars in and along the regulated waters of this Commonwealth. There is no registration fee required for a project authorized under this General Permit.

 B. Sites and Conditions Where this General Permit Does Not Apply—This General Permit does not apply and is not valid in the following situations. Where the General Permit is not applicable, you may request approval of an individual permit by submitting an application to the appropriate Soils and Waterways Section in the Regional Office (See Exhibit B).

   1. Historical, cultural or archaeological sites as identified in the latest published version of the Pennsylvania Inventory of Historical Places or the National Register of Historical Places. This information is available from the Pennsylvania Historical and Museum Commission, Box 1026, Harrisburg, PA 17108-1026, telephone (717) 787-3362.

   2. Sites identified in the latest published version of the National Registry of Natural Landmarks.

   3. Wetlands.

   4. Construction activities in stocked trout streams from March 1 through June 15, in wild trout streams from October 1 through December 31, and in Lake Erie tributaries from March 1 through June 15 and from September 1 through December 31, unless approval is obtained from the Pennsylvania Fish and Boat Commission’s Division of Environmental Services (See Exhibit A). Stocked and wild trout stream locations are compiled by the Commission’s Division of Fisheries Management (see Exhibit A).

   5. Projects involving channel relocation, channel realignment or placement of fill to construct berms of levees.

   6. Any project having a scope of work which is greater in length than 500 linear feet measured along a single continuous reach of stream channel.

   7. Projects involving the installation of tires for bank protection.

   8. The removal of vegetated gravel bars.

   9. Projects requiring excavation of mudflats in the tidal waters of the Delaware River.

   10. Projects located where there would be an impact on species of special concern listed under the Endangered Species Act of 1973, the Wild Resources Conservation Act, the Fish and Boat Code or the Game and Wildlife Code. Records regarding species of special concern are maintained in a computer database called the ‘‘Pennsylvania Natural Diversity Inventory’’ (PNDI). To verify that there will be no such impacts for a specific project, the Department requires submission of the attached Supplement No. 1 form.

   11. Areas in or within 100 feet of a watercourse designated wild in the National or State Scenic Rivers system in accordance with the National Wild and Scenic Rivers Act of 1968 or the Pennsylvania Scenic Rivers Act. For details on scenic river classifications, contact the DER Pennsylvania Scenic Rivers Program, P. O. Box 8475, Harrisburg, PA 17105-8475, telephone (717) 787-2316.

   12. Gravel bar removal in streams or water bodies designated Exceptional Value Waters as defined and listed in Chapter 93 (related to water quality standards).

 C. Definitions Applicable to this General Permit—The following words and terms, when used in this General Permit, have the following meanings:

   Bank Rehabilitation and Bank Protection—To restore and/or protect the bank of a stream, lake, pond or reservoir against erosion, scour or sloughing by utilizing any of the following: slope protection, dumped rock protection, cribbing, walls, channel deflectors, vegetative stabilization techniques.

   Channel Realignment—Any alteration of the stream channel alignment which involves excavation into an existing stream bank.

   Concrete Rubble—Broken concrete in pieces not to exceed 5 feet in length where neither the width or thickness is less than 1/3 its length and all reinforcing is removed flush with the face of the concrete.

   Dumped Rock Protection—Sound, durable stone or concrete rubble, insoluble in water and placed by dumping for the purpose of protecting against erosion, scour or sloughing of a bank. To resist transport by flowing water, National Stone Association R-7 is the minimum size rock which shall be used for dumped rock protection.

   Filter Layer—Well-graded, hard, durable, non-soluble particles (free from muck, topsoil, organic matter or rubbish) or geotextile fabric, placed under slope protection to prevent the natural soil of the bank from being washed away through the slope protection layer.

   Gravel Bars—Alluvial deposits in stream channels, including accumulations of gravel, glacial till, sediment, silt and flood debris, which obstruct and redirect flow, and which are thereby associated with stream bank erosion.

   Riprap—A layer, facing or protective mound of stone in random size pieces, selectively placed to prevent erosion, scour or sloughing of a bank.

   Slope Protection—A layer or facing of sound, durable rock or similar material (natural or manmade), insoluble in water, selectively placed by hand or machine and sized to resist transport by flowing water.

   Vegetated—An area having greater than 50 percent surface coverage of persistent vegetation during the growing season (undisturbed by acts of man). Persistent vegetation is defined as having a predominance of perennial plant species with the exclusion of first year class seedlings of woody vegetation (shrubs and trees). The vegetational groupings to be considered consist of grasslikes, grasses, forbs, vines, shrubs and trees.

 D. Project Design and Construction Criteria

   1. The use of this General Permit is limited to activities which constitute a single, complete project in and along a continuous reach of stream channel not exceeding 500 feet in length. Multiple registration and use of this General Permit for the purpose of extending a project activity beyond the maximum length is prohibited; however, the Department will consider authorizing more extensive projects upon receipt of an application for an individual Water Obstruction and Encroachment Permit. Because this General Permit authorizes only single, complete projects, repeated projects each require a separate registration of General Permit use.

   2. Construction of the bank rehabilitation, bank protection project or removal of a gravel bar should not constrict or increase the normal channel width. The configuration of the shoreline shall remain substantially the same and the work shall align smoothly with, and not project further into the channel than adjacent upstream and downstream banks. The upstream and downstream ends of a bank rehabilitation or bank protection project shall be keyed into the stream bank to ensure stability.

   3. Construction and other activities authorized by this General Permit shall be performed in a manner that minimizes use of equipment within the stream channel or body of water.

   4. Bank rehabilitation, bank protection and gravel bar removal shall take place during periods when the stream is at low flow.

   5. To the greatest extent possible, the project shall be designed and constructed in a manner which will (a) prevent permanent or long-term adverse changes in water quality, (b) minimize alterations in natural aquatic habitat and (c) maintain natural streamflow velocities and mixing patterns.

   6. The placement of fill higher than the elevation of the existing stream banks, the construction of levees, the realignment or relocation of the channel, dredging activities in water and excavation below existing water level are not authorized by this General Permit.

   7. Bank rehabilitation, bank protection and gravel bar removal projects shall not extend across adjacent property lines without the written permission of all affected property owners.

   8. During construction activities, all public and private property including existing vegetation, landscape features and monuments within, along and adjacent to the work area, shall be protected and preserved to the maximum degree possible. This shall include, but not be limited to, precautions taken to minimize damage, erosion, injury or destruction; prevent pollution; provide protection of all trees and other woody plants; special care being taken to protect the natural vegetation and surroundings to include all natural drainageways, ponds, lakes, wetlands, woods and fields; and storage of materials in such manner to prevent leaching which would be injurious to soils and to plants. Precautions should be taken to prevent damage to pipes, conduits and other underground structures.

   9. Archaeological artifacts discovered during the performance of work authorized under this General Permit must be adequately protected and their discovery promptly reported to the Director, Bureau of Historic Preservation, Pennsylvania Historical and Museum Commission, P. O. Box 1026, Harrisburg, PA 17108-1026, telephone (717) 787-2891.

   10. As part of the registration to use this General Permit, the owner shall submit duplicate sets of labeled color photographs which show the scope of the project and the existing condition of the bank to be protected and/or the gravel bar to be removed. The two sets of photographs shall be mounted on 8 1/2"x11" sheets. The date of photography and a written description of what is shown shall be provided for each photograph.

 E. Additional Criteria for Bank Rehabilitation and Protection

   1. Slope protection and dumped rock protection shall not exceed the placement of a maximum of 1 cubic yard per running foot below the plane of the ordinary high water mark or the high tide line (in order to be consistent with the requirements of the Corps of Engineers). Where slope protection or dumped rock protection is required to be placed in the floodway or floodplain above the plane of the ordinary high water mark or the high tide line, an additional 1 cubic yard per running foot of stream is authorized.

   2. Riprap and other types of slope protection, except for vegetative stabilization and dumped stone protection, should be constructed in two layers.

     (A) An outer layer of massive particles to resist the forces of moving water.

       (1) The outer layer or principal protection layer should consist of well-graded particles. It is recommended that riprap slope protection shall be sized in accordance with the following Table E(2) designated Design Parameters for Riprap.

       (2) The protecting layer should be placed to a minimum thickness approximately 6 inches greater than the maximum particle size, or in accordance with the following Table E(2) for riprap design.

     (B) An underlying filter layer of fine material or filter fabric.

       (1) Satisfactory filter materials are mixtures of gravel and clean sand with about 80% of the material ranging between 2 inches and 1/4 inch. An alternative is a commercially available geosynthetic filter fabric that will allow drainage without loss of bank material.

       (2) The gravel filter layer should be placed to a thickness in accordance with the following Table E(2) for riprap design.

       3. Grouting of slope protection or dumped rock protection is not authorized by this General Permit.

 Table E(2). Design Parameters for Riprap

   4. Only clean, nonpolluting materials shall be used for bank rehabilitation and protection projects in order to minimize excessive turbidity by leaching of fines as well as to preclude entrance of undesirable chemical constituents to the watercourse by natural runoff or leaching.

   5. Slag is not authorized for use under this General Permit unless it qualifies as a co-product which is suitable for the specific use.

   6. Along streams which are classified priority 1-A or designated Scenic Rivers, it is recommended that bank protection and rehabilitation projects shall maintain the natural character of the bank by incorporating vegetation (see Drawing Nos. 11, 12 and 13). However, woody vegetation shall not be incorporated in riprap protection. The use of concrete rubble for dumped rock protection is prohibited along Scenic Rivers.

   7. Dumped rock protection shall have a maximum exterior slope of 1.5 horizontal to 1.0 vertical and a minimum top width of 18 inches at the top of the zone to be protected, as shown on Drawing No. 3B. No filter layer is required for dumped rock protection using well-graded rock. National Stone Association R-7 rock is the minimum rock size to be used for dumped rock protection.

   8. Slope protection should not be placed with an exterior slope steeper than 1.5 horizontal to 1.0 vertical.

   9. For rock riprap installations, a trench must be excavated at the toe of the slope to provide a supporting base. This trench should be extended to an elevation of at least 2 feet below the streambed level and be filled with the same material as the outer protection layer.

   10. Immediately following completion of the project all disturbed slopes shall be stabilized to prevent accelerated erosion in accordance with the approved Erosion and Sedimentation Control Plan.

   11. Bank rehabilitation and bank protection projects shall be maintained in a functional condition at all times. Periodic removal of debris deposited on the bank project may be necessary.

   12. Each bank rehabilitation and bank protection project shall not hinder commercial or recreational navigation nor interfere with the normal migration of fish.

   13. Channel deflectors may not extend from the bank into the channel a distance greater than 25% of the total channel width, and may not extend above the normal water flow a distance greater than 6 inches at the streamward tip.

   14. The maximum height of a vertical wall authorized under this General Permit is 6 feet measured from the top of wall to the streambed or lakebed adjacent to the wall.

 F. Additional Criteria for Removal of Gravel Bars

   1. The gravel bar removal shall be completed as a single operation in as short a time period as possible. Such projects shall follow the procedures for channel restoration projects contained in Chapter 4 of the Department’s Erosion and Sediment Pollution Control Program Manual, which is available from the County Conservation District Offices.

   2. Removal of a gravel bar shall be limited to periods of low flow; a gravel bar shall be removed only to a depth 6 inches above the water level at time of the project. For streams where there are periods of no flow, depth of gravel bar removal is limited to 6 inches above the elevation of the streambed so as not to disturb the existing low flow channel.

   3. The equipment operator or contractor shall be informed of the conditions of this General Permit regarding gravel bar removal and shall be provided with working drawings that clearly show the limits of excavation in accordance with the criteria of this General Permit.

   4. Bulldozing of the gravel bar material in or across the stream channel is prohibited. Excavation into a streambed or into a streambank adjacent to a gravel bar is prohibited.

   5. Material removed from the stream channel shall be deposited outside regulated waters of the Commonwealth including the floodway and any wetlands adjacent to the project, except when the material is suitable and used for bank reconstruction. When the excavated material is to be used to rebuild opposite streambanks, the material shall be hauled (and not pushed) to the placement location.

   6. Clean gravel bar material may be used only as an underlying fill or filter material to reconstruct and stabilize an adjacent streambank where the work can be performed in accordance with Part One, Section E, Item 2 of this General Permit. Gravel bar material used in this manner shall be faced with an outer layer of adequately sized slope protection. Gravel bar material which is removed shall not be used for dumped rock protection as defined in this General Permit.

   7. In accordance with §  105.233 of Chapter 105 rules and regulations, the removal of sand, gravel or other minerals from submerged lands of this Commonwealth, in quantities which are commercially usable or marketable, shall require a written agreement from and royalty payments to the Commonwealth.

   8. Gravel bar removal on lands owned or administered by the Commonwealth as State Parks, State Game Lands or State Forests shall require prior written approval from the administering agency.

   9. Gravel bar removal may have limited long-term benefits where there is a streambank erosion problem. Therefore, the use of bank rehabilitation and bank protection measures in conjunction with gravel bar removal is recommended.

   10. The owner is advised that a permit from the U. S. Army Corps of Engineers may be required for gravel bar removal projects (see Instructions, Item 4).

 G. Authority and Continuing Authorization—Authorization of this General Permit is under section 7 of the Dam Safety and Encroachment Act (32 P. S. §  693.7) and the rules and regulations promulgated thereunder at 25 Pa. Code § §  105.441—105.449 (relating to general permits). This General Permit shall authorize the continued operation and maintenance of bank rehabilitation and protection authorized by General Permit BDWM-GP-3 (Bank Rehabilitation and Protection) issued on July 23, 1983, and reauthorized July 23, 1988 and August 20, 1988.

   The provisions of this Appendix C adopted July 22, 1983, effective July 23, 1983, 13 Pa.B. 2290; amended July 22, 1988, effective July 23, 1988, 18 Pa.B. 3257; amended August 19, 1988, effective August 20, 1988, 18 Pa.B. 3749; amended August 5, 1994, effective August 6, 1994, 24 Pa.B. 3913. Immediately preceding text appears at serial pages (162404) to (162427).

APPENDIX D
BUREAU OF DAMS AND WATERWAY
MANAGEMENT; GENERAL PERMIT
BDWM-GP-4 (INTAKE AND OUTFALL STRUCTURES)

   Editor’s Note: The following permit was published in the Pennsylvania Bulletin as a Notice and is codified under 1 Pa. Code §  3.1(a)(9) (relating to contents of Code) as a document which the Legislative Reference Bureau finds to be general and permanent in nature. See § §  105.441—105.449 (relating to general permits) for regulations governing this permit.

 1. General Description and Authority—The Department of Environmental Resources hereby authorizes, by General Permit, subject to the terms and criteria set forth below, the construction, operation and maintenance of intake and outfall structures in, along, across or projecting into the regulated waters of the Commonwealth. This authorization is under section 7 of the Dam Safety and Encroachments Act (32 P. S. §  693.7) and the rules and regulations promulgated thereunder at 25 Pa. Code § §  105.441—105.449 (relating to general permits).

 2. Denial of Authorization—The Department shall have the discretion, on a case-by-case basis, to deny, revoke or suspend the authorization to use this general permit for any project which the Department determines to have a substantial risk to life, property or the environment or otherwise could not be adequately regulated by the provisions of this general permit.

 3. Continuing Authorization—This general permit shall authorize the continued operation and maintenance of outfall structures authorized by general permit BDWM-GP-4 (Outfall Structures) issued on February 4, 1984.

 4. Definitions—The following terms as used in this General Permit shall have the following meanings:

   Body of Water—Any natural or artificial lake, pond, reservoir, swamp, marsh or wetland.

   Channel—The bed and banks of a natural stream and/or a man made ditch, canal or conduit which conveys storm water or waste water to a receiving stream or body of water.

   Floodway—The channel of the watercourse and those portions of the adjoining floodplains which are reasonably required to carry and discharge the 100-year frequency flood.

   Intake—The inlet of a pipe or channel conveying water from a stream or body of water.

   Install—To construct, place, lay or set in place.

   Outfall—The outlet of a pipe or channel discharging storm water or wastewater into a receiving stream or body of water.

   Intake and Outfall Structures—Any intake or outfall in or along a stream or body of water which includes such structures as endwalls, headwalls, splash pads, riprap, ditches, conduits, diffusers and diversions.

   Owner—Any person who owns, controls, operates, maintains or manages a dam or reservoir, water obstruction or encroachment.

   Person—Any natural person, partnership, association, corporation, public utility, municipality, municipal authority, political subdivision of the Commonwealth, receiver or trustee and any department, board, commission or authority of the Commonwealth.

   Regulated Waters of the Commonwealth—All watercourses, streams or bodies of water and their floodways wholly or partly within or forming part of the boundary of this Commonwealth.

   Stocked Trout Stream—Streams classified as approved trout waters by the Pennsylvania Fish Commission. Classification may be verified by contacting the Pennsylvania Fish Commission’s Regional Office or Division of Environmental Services.

   Storm Water—Flows consisting primarily of runoff resulting from a rainfall event and conveyed to a receiving stream or body of water through a pipe or channel.

   Submerged Lands of This Commonwealth—All waters and permanently or periodically inundated lands owned by the Commonwealth, including all lands in the beds of navigable lakes and rivers and beds of streams declared public highways which are owned and held in trust by the Commonwealth.

   Wastewater—Effluent from a sewage, industrial or water plant, conveyed through a pipe or channel for discharge into a receiving stream or body of water.

   Watercourse—Any channel of conveyance of surface water having defined bed and banks, whether natural or artificial, with perennial or intermittent flow.

   Wetlands—Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs and similar areas. The term includes but is not limited to wetland areas listed in the State Water Plan, the United States Forest Service Wetlands Inventory of Pennsylvania, the United States Fish and Wildlife Service Wetlands Inventory Maps, and the Pennsylvania Coastal Zone Management Plan and any wetland area designated by a river basin commission or as defined in this chapter.

   Wild Trout Streams—Streams classified as supporting reproducing trout populations by the Pennsylvania Fish Commission. Classification may be verified by contacting the Pennsylvania Fish Commission’s Regional Office or Division of Environmental Services.

 5. Submerged Lands of This Commonwealth—This General Permit shall not be effective to authorize any project occupying submerged lands of this Commonwealth until the owner has obtained an easement, right of way, license or lease from the Department authorizing the occupation of such submerged lands issued under section 15 of the Dam Safety and Encroachments Act (32 P. S. §  693.15), section 514 of The Administrative Code of 1929 (71 P. S. §  194), or other applicable laws. Upon receipt of notification of proposed use of this general permit from the owner, the Department will review the project for submerged lands and initiate a Submerged Lands License Agreement if applicable.

 6. Specific Areas Where General Permit Does Not Apply—This General Permit is not authorized in the following areas:

   a. Historical, cultural or archaeological sites as identified in the latest published version of the Pennsylvania Inventory of Historical Places or the National Register of Historical Places.

   b. Local historical sites officially approved or recognized by a municipality.

   c. Sites identified in the latest published version of the National Registry of Natural Landmarks.

   d. Areas in or within 100 feet of a watercourse or body of water designated as or nominated for a National or State Wild or Scenic River in accordance with the National Wild and Scenic Rivers Act of 1968 or the Pennsylvania Scenic Rivers Act (32 P. S. § §  820.21—820.29).

   e. Wetlands.

   f. These streams or water bodies specified as high-quality (HQ) or Exceptional Value (EV) in Chapter 93 (relating to water quality standards).

   g. Stocked trout streams from March 1 through June 15, wild trout streams from October 1 through December 31 and Lake Erie tributaries from September 1 through December 1 unless approval is obtained from the Fish Commission’s Division of Environmental Services.

   h. Areas within easement lands of any Corps of Engineers or Commonwealth of Pennsylvania constructed local flood protection projects.

 7. Other Permits—Nothing in this General Permit relieves the owner(s) of the obligation of complying with all Federal, Interstate Compact and State laws, regulations and standards for the construction, operation or maintenance of the intake and outfall structure(s).

 8. Notification of Proposed Use of General Permit—Prior to construction the owners shall submit Exhibit C along with the required location map to the Bureau of Dams and Waterway Management. A copy of Exhibit C shall also be sent to the municipality and county in which the work will be performed. The owner may not begin work until he has notified the Bureau of Dams and Waterway Management and received an acknowledgement of that notification.

 9. Fees—There is no fee required for a project authorized under this General Permit.

 10. Effective Time Period—This General Permit will remain in effect indefinitely unless specifically modified, suspended or revised by the Department.

 11. Suspension, Modification or Revocation—The Department may suspend, modify or revoke this General Permit at any time upon notice in the Pennsylvania Bulletin.

 12. Project Interference—This General Permit does not authorize any interference with any existing or proposed Local, State, Federal or Federally Licensed Project, and permittee shall not be entitled to compensation for damage or injury to the work authorized herein which may be caused by or a result of existing or future operations undertaken by the United States or the Commonwealth of Pennsylvania or its Political Subdivisions in the public interest.

 13. Criteria

   a. Each intake and outfall structure shall be constructed in such manner so that there is no interference with any navigation on the stream, migration of fish or the passage of flood flows.

   b. Intake and outfall structures authorized under this General Permit shall not interfere with stream uses as designated in Chapter 93 of the Department’s Rules and Regulations.

   c. Intake and outfall structures herein authorized shall be properly maintained which includes the removal of any accumulation of debris.

   d. This General Permit is not to be construed as approval of discharges into the receiving stream or body of water which may require certification under section 401(a) of the Federal Water Pollution Control Act (33 U.S.C.A. §  1341(a)) or other relevant State Statutes.

   e. This General Permit authorizes the construction only of those outfall structures having a pipe outfall 36 inches in diameter or less.

   f. Intake structures shall be properly sized and located so that the intake does not violate the riparian rights of downstream users and does not substantially affect the course, current or cross section of the stream located downstream from the intake structure.

   g. Intake structures shall be screened or otherwise properly designed to prevent impingement and entrainment of fish.

   h. Any archaeological artifacts discovered during the performance of work authorized under this Gener