Republicans On House Committee OK Letter Disapproving Of Proposed EQB Changes To Chapter 105 Regulations

On February 24, Republicans on the House Environmental Resources and Energy Committee voted to send a letter to the Independent Regulatory Review Commission expressing their disapproval of proposed changes by the Environmental Quality Board to the Chapter 105 Waterways Management regulations.

The IRRC is due to send comments to the EQB on the proposed changes by March 5.  Read more here.

Chapter 105 establishes requirements for one of the most basic permits all kinds of development projects must get to make sure they do not pollute or negatively impact streams and rivers or increase flooding.

The proposed revisions are designed to provide additional waivers, focus on the most important activities and threats to the environment and health and provide flexibility in meeting those requirements.

DEP reviews in the neighborhood of 3,600 Chapter 105 permit applications annually, although that changes based on economic activity.  The Chapter 105 regulations have not been substantially revised since 1991.

Among the changes proposed are--

-- Additional Permit Waivers for streambank fencing, passive non-motorized recreation, elevated boardwalks in wetlands for educational purpose and trails, emergency water withdrawal, temporary mats and pads in wetlands and temporary environmental testing;

-- Updates Provisions Related to stormwater and floodplain management;

-- Adds alternatives analysis description;

-- Updates mitigation plan terms;

-- Adds antidegradation demonstration;

-- Clarifies impacts and cumulative impacts analysis;

-- Adds provisions for enrollment to the Private Dam Financial Assurance Program;

-- Provides new criteria for aquatic resource restoration activities;

-- Revises provisions related to compensation for impacts to aquatic resources and no net loss of wetlands;

-- Revises siting criteria for consistence with mitigation banking, in lieu fee and permittee compensation;

-- Changes provisions related to the removal of dams and abandonment of water obstructions; and

-- Clarifies flood design criteria.

Click Here for a summary of the changes.   Click Here for Regulatory Analysis Form.  Click Here for PPT presentation.

Committee Letter

The letter approved by Republicans on the Committee said, in part, “The proposed Amendments to Chapter 105, in short, would incur significant revisions to functioning waiver processes, add new poorly defined and undefined language throughout the regulations, and lead to inconsistent and largely subjective oversight of the Commonwealth's waterways.”

“To begin, the proposed regulation contains numerous incorrect citations and references. Most notably regarding the Oil and Gas Act throughout the proposal, and also references to a draft DEP guidance document that has yet to be finalized.”

“There are many new words that lack definition within the proposal, along with phrases that are open to broad interpretation. Small drainage structures, long waived from permit requirements under 5105.12(aX2), would now require a permit if it were to "impede flow or aquatic life passage". A newly imposed "cumulative impact analysis" would need to contain ostensibly limitless examples of indirect and secondary impact predictions of "changes associated with but not the direct result of the construction or substantial modification of a dam or reservoir, water obstruction or encroachment."

“Of particular concern is the uncertainty faced by the agricultural community in clearly identifying and defining which conditions, types, structures, and activities would be subject to regulation and permitting under the proposed regulation.”

“A new definition proposed within the regulation for "groin structures" is welcome and long overdue, but an insistence on a Submerged Lands Licensing Agreement {SLLA) fee serves no legitimate purpose. ln the 2020 session, after discovering the staggering increase to 5750 in SLLA fee assessments on groin structures, the ERE Committee passed HB 1779 with the intent to define groin structures and exempt them from the fee entirely.”

Click Here for a copy of the letter.

Rep. Daryl Metcalfe (R-Butler) serves as Majority Chair of the House Environmental Committee and can be contacted by calling 717-783-1707 or sending email to: dmetcalf@pahousegop.com. Rep. Greg Vitali (D-Delaware) serves as Minority Chair and can be contacted by calling 717-787-7647 or sending email to: gvitali@pahouse.net. 

[Posted: February 24, 2021]  PA Environment Digest