The Department of Environmental Protection (DEP) is in the process of updating its Chapter 105 (Dam Safety and Waterway Management) permit regulations and are seeking input until February 3, 2021.  Chapter 105 pertains to stream encroachments, like bridges and culverts.  These regulations and permit requirements significantly impact trail design and construction.  Committee members who are engineers or landscape architects are very familiar with these impacts.

As part of DEP’s update, there are two brand new permit waivers proposed that directly impact trails and a few revisions to the Submerged Lands section.  See below for more info about these specific changes.  There may or may not be other changes in the proposed regulations that may impact trail construction.

If you wish to review all the proposed changes and provide comments, you can find more info at this link, https://www.pacodeandbulletin.gov/Display/pabull?file=/secure/pabulletin/data/vol50/50-49/1693a.html&continued=https://www.pacodeandbulletin.gov/Display/pabull?file=/secure/pabulletin/data/vol50/50-49/1693.html&d=:

Summary of Changes

Subsection (a)(18) is proposed as a new subsection that would waive authorized water obstruction or encroachment permit requirements for low impact and non-motorized recreational activities such as walking or biking trails with certain specific length and design restrictions. This waiver would require the development and submittal of a plan to the Department for approval and would specify the information that must be provided in the plan submittal.

Subsection (a)(19) is proposed as a new subsection that would waive authorized elevated boardwalks in wetlands when utilized for educational and interpretive purposes. This waiver would require the development and submittal of a plan to the Department for approval and would specify the information that must be provided in the plan submittal.

The proposed addition of structures or activities eligible for a permit waiver under § 105.12(a) and structures and activities eligible for exemptions from annual submerged lands license charges in § 105.35(c) would provide incentive for trail associations, conservation and environmental groups to undertake low-risk, minimal environmental impact or environmentally beneficial projects, such as trails and educational boardwalks, which would otherwise entail application fees, annual submerged lands charges or both. The addition of a proposed waiver for the temporary emergency placement, operation and maintenance of water withdrawal intakes for crop production or fire protection would eliminate application fee costs for farmers and volunteer fire companies.

Proposed Language (Changes in Bold)

105.12. Waiver of permit requirements.

(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, unless the project does not meet the eligibility criteria in subsections (c) and (d). If the Department [upon] on complaint or investigation finds that a structure or activity which is eligible for a waiver, has a significant effect [upon] on 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.

(18) The construction, operation and maintenance of a water obstruction or encroachment associated with low-impact and non-motorized recreational activities that include walking, hiking or biking trails under a plan which has been approved, in writing, by the Department. The single span bridge, culvert or other structure must be 75 feet or less in length and must not result in the inundation of adjacent property not in possession of the owner of the water obstruction or encroachment or impede the passage of aquatic life through aquatic resources. This waiver does not apply to stream enclosures. The plan must include:

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

(ii) The specific purpose, goals and objectives of the proposed structure or activity.

(iii) Resource identification information.

(iv) A location map.

(v) A determination or delineation of wetlands and accompanying data sheets.

(vi) Photographs.

(vii) The identification of the preparer and their qualifications.

(19) The construction, operation and maintenance of a walking path with an elevated boardwalk in a wetland for educational and interpretive purposes under a plan which has been approved, in writing, by the Department. The plan must include:

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

(ii) The specific purpose, goals and objectives of the proposed structure or activity.

(iii) Resource identification information.

(iv) A location map.

(v) A determination or delineation of wetlands and accompanying data sheets.

(vi) Photographs.

(vii) The identification of the preparer and their qualifications.

105.35. Charges for use and occupation of submerged lands of this Commonwealth.

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

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

(i) For areas occupied by facilities, $150 per tenth of an acre.

(ii) For barge fleeting and barge mooring areas, $30 per tenth of an acre.

(iii) Minimum annual charge, $750.

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

(3) For a groin structure in or along the shoreline of Lake Erie, an annual charge of $250.

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

Length of Crossings Charges
(in feet) (in dollars)
Less than 500 750
500 to 999 1,500
1000 to 1499 3,000
1500 to 1999 4,500
2000 to 2499 6,000
2500 to 2999 7,500
3000 to 3499 9,000
3500 to 3999 10,500
4000 to 4499 12,000
4500 to 4999 13,500
5000 and over 15,000

 

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

*  *  *  *  *

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

(7) A private recreational dock constructed, operated or maintained under a general permit registration issued under section 7 of the act (32 P.S. § 693.7).

(8) A project or activity constructed and operated for the significant benefit of the environment, including the following:

(A) Restoration of aquatic resources.

(B) An agricultural conservation practice.

(C) Environmental reclamation or remediation

(D) Environmental treatment or clean-up.

(E) Other similar activities performed under a Department authorized permit or registration under this chapter.

(9) A project or activity of a temporary nature of 1 year or less, unless the Department authorizes a longer period in writing, for which the site of the project or activity will be fully restored to its previous condition consistent with one or more Department authorized permits or registrations under this chapter.

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

Instructions for Submitting Comments

Interested persons are invited to submit to the Environmental Quality Board (EQB) written comments, suggestions, support or objections regarding this proposed rulemaking. Comments, suggestions, support or objections must be received by the Board by February 3, 2021. In addition to the submission of comments, interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by the Board by February 3, 2021. The one-page summary will be distributed to the Board and available publicly prior to the meeting when the final-form rulemaking will be considered.

Comments, including the submission of a one-page summary of comments, may be submitted to the Board online, by e-mail, by mail or express mail as follows. Comments submitted by facsimile will not be accepted.

Comments may be submitted to the Board by accessing eComment at http://www.ahs.dep.pa.gov/eComment.

Comments may be submitted to the Board by e-mail at [email protected]. A subject heading of this proposed rulemaking and a return name and address must be included in each transmission.

If an acknowledgement of comments submitted online or by e-mail is not received by the sender within 2 working days, the comments should be retransmitted to the Board to ensure receipt.

Written comments should be mailed to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477. Express mail should be sent to the Environmental Quality Board, Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301.