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Pennsylvania Water Obstruction and Encroachment Permit (19-PA-h)

Information current as of 2019
In Pennsylvania, any person (developer) may need a Water Obstruction and Encroachment Permit (Permit) from the Pennsylvania Department of Environmental Protection (PADEP) before constructing, operating, maintaining, modifying, or enlarging a dam. 25 Pa. Code. §105.11. Pennsylvania Water Obstruction and Encroachment Permits are needed for any structure or activity that will change the course, current, or cross section of a watercourse, floodway or body of water. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at 1.



Water Obstruction and Encroachment Permit Process

19-PA-h.1 — Hold Pre-Application Conference (Optional)

A developer may request a pre-application conference with the PADEP. This is not required, however, conferences are recommended for first time applicants to help understand the application process. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at i.

19-PA-h.2 — Determine if a Permit Waiver Exists for the Project

A developer should determine if a Permit waiver exists for the project. For details on Permit waivers see: 25 Pa. Code. §105.12 . Most waivers do not require PADEP approval, however the PADEP may request proof of a waiver at any point. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at 1.

19-PA-h.3 — Determine the Required Permit(s)

The Developer must determine the type of permit(s) required for project development.

  • General Permit – Information regarding what activities qualify under a general permit can be found in the Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at 1. Developers constructing projects that qualify under a general permit only need to register their intent to construct the project. Pennsylvania Department of Environmental Protection - Water obstruction and encroachment permit application instruction document, at 1.
  • Limited Power Permits – Limited Power Permits are required for all improvements or development of water power. While reviewing an application, the PADEP will contact the developer if a separate Limited Power Permit is required.
  • Small Projects Permit – These projects do not fall under a general permit classification and are located in streams and floodplains. Additionally, detailed studies have demonstrated these projects will not cause a significant impact on the safety and protection of life, health, property and the environment. Small Project Applications cannot be made for projects located in wetlands, Federal wilderness areas, National historic sites, or threatened and endangered species habitats. An example of a small project is the reconstruction, widening, extension and replacement of existing water obstructions.
  • Standard Permit – These projects do not fall under a general permit classification and may have significant impacts to wetlands, safety, or the environment.;

Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at 3-4.

19-PA-h.4 — Issue Submerged Lands License Agreement (If Applicable)

A submerged lands license agreement is required for a water obstruction or encroachment that will occupy Pennsylvania submerged lands located in navigable lakes, rivers, or streams designated as public highways. The PADEP must review the Application and determine if a Submerged Lands License is needed for the project. If a License is needed the PADEP will send the necessary documents to the developer for completion. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at ii.

19-PA-h.5 to 19-PA-h.6 — Water Obstruction and Encroachment Permit Application

The developer must submit three (3) copies of the Water Obstruction and Encroachment Permit Application (Application) to the PADEP Regional Office with jurisdiction over the land. The PADEP Regional Office will retain one copy of the Application, forward one copy to both the U S Army Corps of Engineers and the Pennsylvania Fish and Boat Commission. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at i.

19-PA-h.7 — Publish Notice

The PADEP must publish notice in the Pennsylvania Bulletin when they receive an Application. 25 Pa. Code. §105.21a.

19-PA-h.8 to 19-PA-h.9 — Review Application Materials for Completeness

The PADEP district office reviews the Application for administrative and technical completeness. The PADEP must take into consideration local land use plans when reviewing the Application. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at ii. If the Application is incomplete the district office will notify the developer in writing. The developer has 60 days to complete the Application after receiving notice from the PADEP or the Application will be considered withdrawn. The PADEP will notify the developer if the Application is considered withdrawn and the developer may reapply for a permit if desired 25 Pa. Code. §105.13(a).

19-PA-h.10 — Conduct Agency Environmental Assessment

The PADEP requires an environmental assessment for activities or structures impacting watercourses, floodways, bodies of water and wetlands. 25 Pa. Code. §105.3. An Environmental Assessment is necessary before the PADEP can issue a Water Obstruction and Encroachment Permit. Environmental Assessments are not needed for projects that qualify under a General Permit. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at 3.

19-PA-h.11 — Issue State Water Quality Certification

After receiving an Application, the PADEP will initiate the State Water Quality Certification as required by Section 401 of the Federal Water Pollution Control Act. The certification is included in the Application process and no further action is necessary from the developer. If the PADEP approves the Application the State Water Quality Certification will be included in the Water Obstruction and Encroachment Permit. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at ii. For more information on Pennsylvania 401 certification, see: Water Quality Certification:
14-PA-d

19-PA-h.12 to 19-PA-h.14 — Conduct Clean Water Act Section 404 Permit Review

PADEP will review the Application and determine if the project requires a Pennsylvania State Programmatic General Permit (PASPGP). A PASPGP authorizes the discharge of dredged, excavated, or fill material or structures into waters of the United States and is the Federal Clean Water Act Section 404 Permit issued for the State of Pennsylvania. The PADEP determines if the Application qualifies for a dual (state and federal) review. If the Application qualifies then it will be reviewed entirely by the PADEP. If the Application does not qualify then the PADEP will forward the application to the Army Corps of Engineers for a separate federal review. Pennsylvania Department of Environmental Protection - Water Obstruction and Encroachment Permit Application Instruction Document, at i. For more information on Section 404 permits, see: Clean Water Act Section 404 Permit Application Process:
14-FD-a


19-PA-h.15 — Review Application Materials for Approval

The PADEP must review the Application to determine the proposed project’s effect on health, safety and the environment. 25 Pa. Code. §105.14(a). The PADEP uses various factors in determining a new projects’ impact, including:

  • Potential treats to life or property;
  • Potential threats to safe navigation;
  • The effect on nearby property and riparian rights;
  • The effect on ecology, water quality, stream flow, fish and wildlife, and aquatic habitat of the waterbody;
  • The impacts on nearby natural areas, wildlife sanctuaries, public water supplies, cultural and historic landmarks, and National, state or local parks; and
  • Compliance with applicable state and federal laws.

25 Pa. Code. §105.14(b).

The PADEP uses three factors to evaluate Applications for the operation and maintenance of an existing dam:

  1. Potential threats to life, property or safe navigation created by the continued operation or maintenance of the project;
  2. Adverse impacts on stream flow, water quality or the environment; and
  3. Compliance with applicable state laws.

25 Pa. Code. §105.14(c).

The PADEP must consult with the developer if they find the project will impact the natural, scenic, historic or aesthetic values of the environment. The PADEP will not approve Applications that have an adverse impact on the environment, unless the developer can demonstrate the public benefit of the project outweighs the harm. The development of energy resources is considered a public benefit. 25 Pa. Code. §105.16.

19-PA-h.16 to 19-PA-h.17 — Water Obstruction and Encroachment Permit

The developer must comply with the conditions or restrictions on the Water Obstruction and Encroachment Permit (Permit). The PADEP must publish notice in the Pennsylvania Bulletin of the approved Permit.

19-PA-h.18 to 19-PA-h.19 — Appeal Decision (Optional)

If the Application is denied, the PADEP must publish notice of the denial in the Pennsylvania Bulletin and inform the developer of the appeal process and reasons for denial. 25 Pa. Code. §105.21(d). The developer has the burden of proving there was no reasonable basis for the PADEP’s denial. 25 Pa. Code. §105.21(e).


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