Amendments to Pennsylvania Stream and Wetlands Permitting Program and Changes to Mitigation Protocol on Hold; Future Uncertain
At this time last year, the Pennsylvania Environmental Quality Board (EQB) was expected to finalize a proposed rulemaking in 2022 to amend the Pennsylvania Department of Environmental Protection’s (PADEP) Chapter 105 regulations, which are the Commonwealth’s wetland and aquatic resource permitting regulations. The proposed amendments would have amounted to the first substantive revisions to the Chapter 105 regulations in nearly 30 years. In the fall, however, PADEP indicated that the proposed revisions have been tabled indefinitely. Additionally, the corresponding technical guidance documents concerning Chapter 105 alternative analyses and trenchless technology for pipeline projects have been put on hold despite being published in draft for public comment in 2021 and 2022, with no indication as to when they may be finalized. It should be noted that while these documents are an outgrowth of a 2018 PADEP settlement with environmental groups over the Mariner East 2 pipeline project, under the terms of the stipulation, the decision to publish final guidance documents rests solely with PADEP and that decision is not subject to appeal.
Likewise, at the outset of 2022, PADEP announced that its draft Function-Based Aquatic Resource Compensation Protocol would become final guidance effective as of March 1, 2022. The new protocol was a significant departure from PADEP’s previous method for determining the necessary compensation for losses of aquatic resources, which was based primarily upon acreage and linear feet. Implementation of the new protocol, however, was hampered by the absence of updated application forms and met with push back from affected entities, including mitigation banks and permittees such as PennDOT and the Turnpike Commission. As a result, PADEP quietly delayed full implementation of the protocol in 2022 and instead formed a stakeholder workgroup to reevaluate the protocol. And on January 7, 2023, PADEP announced that they were officially rescinding the final guidance “to reevaluate its effectiveness and review potential revisions through stakeholder outreach.”
In short, the status of the significant updates to the Chapter 105 program expected in 2022 appear to be on indefinite hold, with the new schedule subject to the policy priorities of the incoming Shapiro administration.