A Guide to the Water Obstruction and Encroachment Permit Requirements, Process, and Compliance

The Water Obstruction and Encroachment Permit in Pennsylvania plays a critical role in protecting the state's valuable water resources while facilitating responsible development. This comprehensive guide provides essential information for navigating the complex permitting process, from understanding regulatory requirements to implementing effective compliance strategies. Learn about the specific resources protected by this permit, the application requirements, and the steps involved in the review and decision process. Understand the importance of public participation and stakeholder engagement, and discover technology solutions that can streamline compliance. Stay informed about recent regulatory changes and access additional resources to support successful project planning and execution. With this guide, gain the knowledge and tools needed to manage water obstruction and encroachment permitting efficiently, minimize environmental impacts, and ensure long-term compliance in Pennsylvania.

GENERAL INFORMATION

Water Obstruction and Encroachment Permit Key Details

Issuing Agency: Pennsylvania Department of Environmental Protection (PADEP)¹

Year Established: 1937²

Legal References:

• Pennsylvania Dam Safety and Encroachments Act³
• Pennsylvania Clean Streams Law⁴

Date Last Amended: October 8, 2021⁵

Other Key Facts:

• The permit is required for any activity that changes, expands or diminishes the course, current or cross section of a watercourse, floodway or body of water.⁶
• This permit is often referred to as the "Chapter 105" permit, referencing its location in the Pennsylvania Code.⁷

Water Obstruction and Encroachment Permit Overview

The Water Obstruction and Encroachment Permit operates within Pennsylvania's comprehensive environmental regulatory framework, which seeks to protect the state's water resources and aquatic ecosystems. The permit primarily addresses concerns related to altering watercourses, floodways, and bodies of water, aiming to minimize adverse impacts on water quality, aquatic habitats, and flood control.

The Pennsylvania Department of Environmental Protection (PADEP) is the primary agency responsible for the permit's administration, with involvement from other state agencies such as the Pennsylvania Fish and Boat Commission and the Pennsylvania Game Commission in certain cases.⁸

The permit's origins can be traced back to the Pennsylvania Water Obstruction Act of 1913, which established the state's authority to regulate dams and other water obstructions.⁹ Over time, the permit has evolved to encompass a broader range of activities and environmental considerations, with significant amendments made in 1979 and 1991 to align with federal Clean Water Act requirements.¹⁰

Which Resources Are Regulated By Water Obstruction and Encroachment Permit?

The Water Obstruction and Encroachment Permit plays a crucial role in protecting Pennsylvania's diverse water resources and aquatic ecosystems. The permit regulates activities that impact:

• Watercourses: Rivers, streams, creeks, and other channels that convey flowing water.¹¹
• Floodways: The channel of a river or stream and portions of the adjoining floodplain reasonably required to carry and discharge flood waters.¹²
• Bodies of water: Lakes, ponds, wetlands, and other areas where water collects on the surface.¹³

These resources are protected from unregulated alteration, such as dredging, filling, construction, or any other activity that changes the physical characteristics of the resource. By requiring a permit for such activities, the state ensures that potential impacts are thoroughly evaluated and minimized, preserving water quality, aquatic habitats, and the natural functions of these resources.¹⁴

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PROJECT APPLICABILITY & REQUIREMENTS

When Water Obstruction and Encroachment Permits Are Required

Understanding when a Water Obstruction and Encroachment Permit is required in Pennsylvania is crucial for developers, environmental consultants, and other stakeholders involved in projects that may impact the state's water resources. This permit is designed to protect Pennsylvania's wetlands, streams, and other water bodies from adverse effects caused by construction, development, or other activities.¹⁵

Water Obstruction and Encroachment Permit Exemptions

While the Water Obstruction and Encroachment Permit is required for many activities that affect Pennsylvania's water resources, certain activities are exempt from the permit requirements. It is essential to understand these exemptions and their conditions or limitations to determine if a project qualifies for an exemption. However, it is always recommended to consult with the Pennsylvania Department of Environmental Protection (DEP) to confirm the applicability of an exemption.¹⁶

Exemptions include:

1. Agricultural Activities: Normal agricultural activities, such as plowing, seeding, and harvesting, are exempt from the permit requirements, provided they are conducted in accordance with conservation practices approved by the county conservation district.

2. Maintenance Activities: Maintenance of existing water obstructions or encroachments, such as bridges, culverts, or stream bank stabilization structures, is exempt from the permit requirements, provided the maintenance does not change the original dimensions, location, or configuration of the structure.

3. Recreational Activities: Certain recreational activities, such as hiking, boating, and fishing, are exempt from the permit requirements, provided they do not involve the construction of permanent structures or the placement of fill in wetlands or streams.

4. Restoration Activities: Restoration activities, such as stream bank stabilization or wetland restoration, may be exempt from the permit requirements, provided they are conducted in accordance with a restoration plan approved by the DEP.¹⁷

Consultation Guidance

To verify the applicability of an exemption for a specific project, it is recommended to:

1. Review the exemption criteria and conditions in the Pennsylvania Code, Chapter 105 (Water Obstructions and Encroachments).¹⁸

2. Consult with the county conservation district or the DEP regional office to discuss the project details and confirm if an exemption applies.

3. If an exemption is determined to apply, maintain documentation of the consultation and the basis for the exemption determination in the project records.

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PERMIT APPLICATION & PROCESS

Water Obstruction and Encroachment Permit Pre-Application Considerations & Planning

The Water Obstruction and Encroachment Permit process is a critical component of any large-scale development project in Pennsylvania that may impact state waters. Early consideration of permitting requirements during the project planning phase is essential to avoid delays and ensure compliance.

A typical project lifecycle with permit touchpoints may follow this timeline:

1. Month 1-3: Project conception and feasibility studies
2. Month 4-6: Preliminary design and permit strategy development
3. Month 7-9: Pre-application consultation with state permitting agency
4. Month 10-12: Formal permit application submission
5. Month 13-18: Permit review and decision by state agency
6. Month 19-24: Final design and construction
7. Month 25-30: Project completion and closeout

Engaging with the state permitting agency early through pre-application consultations can help identify potential issues and guide project design to minimize environmental impacts and streamline the permit process.¹⁹

Water Obstruction and Encroachment Permit Application Requirements & Submission

A complete Water Obstruction and Encroachment Permit application requires several key components to demonstrate the project's compliance with state regulations and its efforts to avoid, minimize, and mitigate environmental impacts.

Required forms and documentation typically include:

1. General Information Form: Provides an overview of the project, its location, and the applicant's contact information.²⁰
2. Environmental Assessment Form: Assesses the project's potential impacts on water resources, aquatic life, and other environmental factors.²¹
3. Erosion and Sediment Control Plan: Details measures to minimize soil erosion and sedimentation during construction.²²
4. Hydrologic and Hydraulic Analysis: Evaluates the project's effects on water flow, flooding, and stormwater management.²³
5. Site Plans and Drawings: Illustrates the proposed structures, impacted waterbodies, and mitigation measures.²⁴
6. Mitigation Plan: Describes actions to compensate for unavoidable environmental impacts, such as wetland restoration or stream enhancement.²⁵

Additional documentation may be required depending on the project's specific characteristics and location, such as cultural resource surveys or threatened and endangered species assessments.

The Water Obstruction and Encroachment Permit Review & Decision Process

Ideally, the Water Obstruction and Encroachment Permit process should be initiated during the preliminary design phase of a project, after conducting feasibility studies and developing a permit strategy. Pre-application consultation with the state permitting agency is highly recommended to discuss the project, identify potential concerns, and determine the necessary application materials.

The permit review and decision process typically follows these steps:

1. Application Submission: The applicant submits a complete permit application package to the state agency.
2. Administrative Review: The agency reviews the application for completeness and may request additional information if needed.
3. Technical Review: The agency evaluates the project's technical merits, environmental impacts, and compliance with regulations.
4. Public Participation: The agency solicits public input through notices, comment periods, and hearings as required.
5. Permit Decision: The agency makes a decision to approve, conditionally approve, or deny the permit based on the application materials, technical review, and public input.²⁶

The permit review process can take several months to a year or more, depending on the project's complexity and the agency's workload. Close coordination with the permitting agency throughout the process can help ensure a timely decision.

Water Obstruction and Encroachment Permit Public Participation & Stakeholder Engagement

Public participation is an essential component of the Water Obstruction and Encroachment Permit process, providing an opportunity for stakeholders to voice concerns, offer input, and ensure that projects align with community interests and values.

The state permitting agency typically solicits public input at key points in the permit review process, such as:

1. Public Notice: The agency publishes a notice of the permit application in local newspapers and on its website, inviting public comment.²⁷
2. Comment Period: The public has a designated period, usually 30 days, to submit written comments on the proposed project.²⁸
3. Public Hearing: For projects with significant public interest or potential impacts, the agency may hold a public hearing to gather additional input.²⁹

The permitting agency is required to consider all substantive comments received during the public participation process and to respond to them in its permit decision. Public input can influence the agency's assessment of a project's environmental impacts, the need for additional mitigation measures, or the inclusion of specific permit conditions.

Engaging proactively with stakeholders, such as local communities, environmental organizations, and other interested parties, can help project proponents build support, identify potential issues early, and develop collaborative solutions.

Common Challenges and Pitfalls in the Water Obstruction and Encroachment Permit Process

Navigating the Water Obstruction and Encroachment Permit process can present several challenges for project proponents, including:

1. Incomplete or inadequate application materials: Submitting an incomplete application or lacking required documentation can delay the review process and result in requests for additional information.
2. Underestimating environmental impacts: Failing to fully assess and mitigate a project's potential impacts on water resources and aquatic life can lead to permit denials or the need for costly design changes.
3. Insufficient public outreach: Neglecting to engage with stakeholders and address public concerns proactively can generate opposition and complicate the permit process.³⁰
4. Changing project scope: Significant changes to a project's design or scope during the permit process can require re-evaluation and additional review, causing delays.³¹

To avoid these pitfalls, project proponents should:

• Conduct thorough due diligence and feasibility studies to identify potential environmental constraints early.
• Engage experienced professionals, such as environmental consultants and permitting specialists, to guide the process.
• Develop a comprehensive permit strategy and timeline, allowing for contingencies and potential delays.
• Coordinate closely with the permitting agency and maintain open communication throughout the process.
• Proactively engage with stakeholders and the public to build trust and address concerns collaboratively.

By following these best practices and learning from the experiences of successful projects within the state, project proponents can navigate the Water Obstruction and Encroachment Permit process more effectively and efficiently.

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TECHNOLOGY SOLUTIONS FOR PERMIT COMPLIANCE

Leveraging Technology for Water Obstruction and Encroachment Permit Compliance

The integration of technology has revolutionized the Water Obstruction and Encroachment Permit compliance process in Pennsylvania, offering numerous benefits to developers, environmental consultants, and regulatory agencies. By leveraging data management, site assessment, and monitoring tools, stakeholders can streamline the permitting process, enhance efficiency, and ensure ongoing compliance with state regulations.³²

Technology solutions for permit compliance offer the following advantages:

1. Improved Data Management: Centralized digital platforms allow for efficient storage, organization, and retrieval of critical environmental data, ensuring accessibility and transparency throughout the permitting process.³³

2. Enhanced Site Assessment: Advanced geospatial tools, such as geographic information systems (GIS) and remote sensing, enable accurate site analysis, identification of sensitive resources, and potential impacts, facilitating informed decision-making.³⁴

3. Streamlined Monitoring and Reporting: Automated monitoring systems and digital reporting tools simplify the process of tracking permit conditions, generating compliance reports, and submitting required documentation to regulatory agencies.³⁵

Some common tools and platforms used in Pennsylvania for Water Obstruction and Encroachment Permit compliance include:

By embracing technology solutions, developers and environmental consultants can navigate the Water Obstruction and Encroachment Permit process more efficiently, reduce costs, and ensure ongoing compliance with Pennsylvania's environmental regulations.

Transect: An Innovative Solution for Site Selection & Environmental Due Diligence

Transect is a groundbreaking all-in-one environmental due diligence solution that combines cutting-edge software with extensive field experience to revolutionize site selection and permitting processes for various industries, including solar, wind, and renewable energy projects in Pennsylvania. By leveraging Transect's powerful features and capabilities, developers and permit applicants can streamline their workflows, reduce costs and delays, and ensure compliance with the state's Water Obstruction and Encroachment Permit requirements.

Key features and benefits of Transect include:

1. Swift Site Pinpointing and Suitability Analysis: Transect enables users to quickly identify the most suitable sites for project development within Pennsylvania, considering factors such as environmental constraints, land use restrictions, and proximity to sensitive resources.

2. Real-time Data Updates and Critical Issues Identification: The platform provides access to the latest Pennsylvania-specific environmental data, allowing users to identify potential issues early in the development process and proactively address them.

3. Versatility across Multiple Industries and Project Types: Transect is designed to support a wide range of industries, including solar, wind, and other renewable energy projects, making it a valuable tool for developers operating in Pennsylvania.

4. User-Friendly Interface and Intuitive Workflow: The platform offers an intuitive user interface and streamlined workflow, ensuring ease of use and efficiency in project planning while accounting for Pennsylvania's specific requirements.

5. Efficiency Gains and Cost Savings: By automating various aspects of the environmental due diligence process, Transect helps users reduce the costs and delays typically associated with traditional methods in Pennsylvania.

6. Proactive Risk Mitigation and Compliance Assurance: Transect's advanced features enable developers to proactively identify and address potential compliance issues related to Pennsylvania's Water Obstruction and Encroachment Permit, minimizing risks and ensuring smooth project execution.

By harnessing the power of Transect, developers and permit applicants in Pennsylvania can significantly enhance their site selection and permitting processes, reduce costs and delays, and maintain ongoing compliance with the state's environmental regulations, ultimately facilitating the successful development of renewable energy projects and other ventures requiring Water Obstruction and Encroachment Permits.

POST-PERMIT COMPLIANCE & MANAGEMENT

Water Obstruction and Encroachment Permit Conditions & Compliance Obligations

Water Obstruction and Encroachment Permits issued by the Pennsylvania Department of Environmental Protection (DEP) typically include a range of conditions and requirements to minimize environmental impacts and ensure compliance with state regulations.³⁶ These conditions may include:

• Impact minimization measures: Requirements to implement best management practices (BMPs) during construction to reduce erosion, sedimentation, and other adverse effects on water resources.³⁷
• Mitigation commitments: Obligations to restore, enhance, or create wetlands or other aquatic resources to compensate for unavoidable impacts caused by the permitted activity.³⁸
• Reporting obligations: Requirements to submit periodic reports to DEP documenting compliance with permit conditions and providing updates on the status of the permitted activity.³⁹

Understanding and adhering to these conditions is crucial for maintaining compliance with state regulations and avoiding potential enforcement actions. As stated in the Pennsylvania Code:

"A person may not construct, operate, maintain, modify, enlarge or abandon a dam, water obstruction or encroachment without first obtaining a written permit from the Department."⁴⁰

Complying with permit conditions not only ensures legal compliance but also demonstrates a commitment to sustainability and responsible development practices. By minimizing environmental impacts and fulfilling mitigation obligations, permit holders contribute to the preservation of Pennsylvania's valuable water resources for future generations.

Water Obstruction and Encroachment Permit Monitoring, Reporting & Recordkeeping Requirements

Holders of Water Obstruction and Encroachment Permits in Pennsylvania are subject to ongoing monitoring, reporting, and recordkeeping requirements to demonstrate compliance with permit conditions and state regulations.⁴¹ These requirements may include:

• Monitoring: Conducting regular inspections and assessments of the permitted activity to ensure it is operating as intended and not causing unanticipated impacts to water resources.⁴²
• Reporting: Submitting annual or semi-annual reports to DEP summarizing the status of the permitted activity, documenting compliance with permit conditions, and identifying any issues or corrective actions taken.⁴³
• Recordkeeping: Maintaining accurate records of monitoring data, correspondence with DEP, and other relevant information for a specified period, typically at least five years from the completion of the permitted activity.⁴⁴

Effective data management practices, such as using standardized forms and electronic recordkeeping systems, can help permit holders efficiently meet these requirements. As noted in DEP's guidance document:

"Permittees should maintain complete and accurate records of all monitoring data, reports submitted to the Department, and other information required by the permit. These records must be retained for a minimum of five years after completion of the permitted activity."⁴⁵

Accurate and timely reporting is essential for demonstrating compliance with state permit conditions and maintaining good standing with DEP. Failure to meet these obligations can result in enforcement actions and jeopardize the validity of the permit.

Enforcement and Penalties for Non-Compliance with Water Obstruction and Encroachment Permit

Non-compliance with Water Obstruction and Encroachment Permit conditions can result in various enforcement actions and penalties under Pennsylvania law.⁴⁶ These may include:

• Administrative penalties: DEP may issue written notices of violation, require corrective actions, or impose fines for minor or first-time violations.⁴⁷
• Civil penalties: More serious or repeated violations may result in civil penalties of up to $10,000 per day of violation, as well as the costs of any environmental damage and DEP's enforcement expenses.⁴⁸
• Criminal charges: Intentional or reckless violations, or those that cause significant environmental harm, may lead to criminal charges, including fines and imprisonment.⁴⁹
• Permit revocation: In severe cases, DEP may revoke the Water Obstruction and Encroachment Permit, requiring the permit holder to cease all activities and restore the site to its original condition.⁵⁰

Common violations that can trigger enforcement actions include:

• Failing to implement required BMPs or mitigation measures
• Exceeding authorized impact limits on wetlands or other water resources
• Neglecting to submit required reports or maintain accurate records
• Conducting activities outside the scope of the permit⁵¹

To mitigate enforcement risks and ensure ongoing compliance, permit holders should take prompt action to address any identified violations and maintain open communication with DEP. As stated in the Pennsylvania Code:

"Upon written notification from the Department, the permittee shall take such corrective action as is necessary to bring the permitted activity into compliance with the terms and conditions of the permit, within a reasonable time as specified by the Department."⁵²

By working proactively to prevent and correct violations, permit holders can demonstrate their commitment to responsible development and protect their ability to operate in Pennsylvania.

ADDITIONAL RESOURCES & UPDATES

Recent Changes & Updates to Water Obstruction and Encroachment Permit

Several significant regulatory changes and legal decisions have impacted the scope and requirements of the Pennsylvania Water Obstruction and Encroachment Permit in recent years:

1. Act 162 of 2014 (Effective October 22, 2014): This act amended the Dam Safety and Encroachments Act⁵³, streamlining the permitting process for smaller projects and establishing new permit fee schedules. The changes aimed to reduce the regulatory burden on small businesses and individuals while maintaining environmental protection standards.

2. Pennsylvania Environmental Defense Foundation v. Commonwealth (June 20, 2017): In this landmark decision⁵⁴, the Pennsylvania Supreme Court ruled that the state's constitutional Environmental Rights Amendment imposes a duty on the Commonwealth to act as a trustee of public natural resources. This decision has implications for the permitting process, requiring stricter scrutiny of projects that may impact protected resources.

3. Chapter 105 Regulatory Updates (Effective August 28, 2021): The Pennsylvania Department of Environmental Protection (DEP) updated Chapter 105 regulations⁵⁵, which govern water obstructions and encroachments. The updates clarified permit requirements, streamlined the application process, and introduced new general permits for certain activities. These changes aimed to improve the efficiency and consistency of the permitting process while ensuring continued protection of water resources.

Additional Resources & Information

The following official state resources provide further guidance and assistance for stakeholders navigating the Pennsylvania Water Obstruction and Encroachment Permit process:

1. DEP Chapter 105 Water Obstruction and Encroachment Permit Application Forms: Access the latest permit application forms, including the Joint Permit Application (3150-PM-BWEW0036) and General Permit Registration Form (3150-PM-BWEW0500), on the DEP's website⁵⁶.

2. Pennsylvania Erosion and Sediment Pollution Control Program Manual: This comprehensive manual⁵⁷ provides guidance on best management practices for erosion and sediment control during construction activities. It is an essential resource for projects requiring a Water Obstruction and Encroachment Permit.

3. DEP Water Obstruction and Encroachment Permit Frequently Asked Questions: The DEP maintains a list of frequently asked questions⁵⁸ addressing common concerns and issues related to the Water Obstruction and Encroachment Permit. This resource helps stakeholders understand the permitting process and requirements.