Subchapter A. GENERAL PROVISIONS

§ 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); 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 (2000).

   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).

 (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 Depa