Amendments to Pennsylvania Stream and Wetlands Permitting Program Expected in 2022

January 14, 2022
Todd D. Kantorczyk, Esq. and Diana A. Silva, Esq.
MGKF Special Alert - Pennsylvania Forecast 2022

The Pennsylvania Environmental Quality Board (EQB) is 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 amount to the first substantive revisions to the Chapter 105 regulations in nearly 30 years.

In the preamble of the notice for the Chapter 105 rulemaking, the EQB positioned the proposed amendments as simply an update to improve the clarity, consistency, and efficiency of the implementation of Chapter 105 by reflecting guidance and practices already adopted by PADEP in administering the Chapter 105 program.  Nevertheless, many of the proposed changes have the potential to place additional requirements on obtaining necessary approvals or create uncertainty as to what projects are permittable.  Notable changes include:

  • A new definition for the term “project,” which includes not just the area of the proposed activity, but also reasonably foreseeable areas planned to contain future development that would require 105 permits. While the Chapter 105 program has always required PADEP to consider reasonably foreseeable development within the affected watershed in evaluating an application, changing the scope of an applicant’s project to include this future development could have unintended consequences.
  • A new definition of the term “water dependent,” a key concept that PADEP is required to evaluate for every 105 permit application.
  • Additional details on what is required to be submitted as part of a 105 application to better reflect the details that PADEP has been requesting to date through published instructions associated with permit application forms, with a focus on alternatives analysis, which requires the applicant to examine whether other locations or designs could avoid or minimize environmental impacts without affecting the basic purpose of the project.
  • An update to provisions concerning compensatory mitigation for aquatic resource impacts that cannot be avoided to be consistent with PADEP guidance and 2008 federal regulations, focuses on aquatic resource functions, and now references direct, indirect and secondary impacts. The new regulation explicitly provides for the in-lieu fee program and the use of approved mitigation banking sites as options for compensatory mitigation and replaces the 1:1 wetland area replacement ratio with a “no net loss” standard that was previously articulated as a PADEP strategy and as a goal in the 2008 federal rule.                            
  • New types of projects that are eligible for permit waivers including geotechnical or environmental site investigations, recreational trails, and temporary pads at wetland crossings. The new waiver provision also includes some additional restrictions, however, that exclude waivers for projects in certain areas, including threatened and endangered species habitats and identified historic, cultural or archaeological sites.