REGULATORY BASICS INITIATIVE REPORT

The evaluation and recommendations in this report are intended to stimulate constructive discussion of how Pennsylvania's environmental requirements can be made more effective. It does not represent a final recommendation of the Department of Environmental Protection.

The Regulatory Basics Initiative is a multi-step process for evaluating regulations and policies using several factors: are requirements more stringent than federal rules without good reason, do they impose economic costs disproportionate to the environmental benefit, are they prescriptive rather than performance-based, do they inhibit green technology and pollution prevention strategies, are they obsolete or redundant or written in a way that causes significant noncompliance.

Recommendations for changing DEP regulations and policies will be made only after the evaluation process is complete and with the active participation of the public.

DAM SAFETY AND WATERWAY MANAGEMENT AND FLOOD PLAIN MANAGEMENT

Bureau of Dams, Waterways and Wetlands

The Bureau of Dams Waterways and Wetlands administers Chapter 105 Dam Safety and Waterway Management and Chapter 106 Flood Plain Management. These regulations have been compared with the Corps of Engineers administration of Section 404 of the federal Clean Water Act.

REGULATIONS WHICH CONTAIN STANDARDS OR REQUIREMENTS MORE STRINGENT THAN FEDERAL LAW

State Program

Chapter 105 establishes specific requirements for construction, operation, maintenance and inspection of dams, water obstructions and encroachments. Chapter 105 also specifies procedures for issuing general permits and waivers of permit requirements. Chapter 106, Flood Plain Management is administered as an integral part of the Chapter 105 program where 106 applies. Chapter 106 has jurisdiction for only public or public utility projects sited in upland areas of FEMA-delineated floodplains. Since there is no 404 jurisdiction in upland areas, there is no comparable federal jurisdiction. Therefore, no explicit discussion of Chapter 106 is provided in this analysis.

The Chapter 105 regulation of dams, water obstructions and encroachments, including wetland encroachments, is based exclusively on state statutes, namely the Dam Safety and Encroachments Act, Flood Plain Management Act and the Clean Streams Law. Although there are nominally similar areas of jurisdiction, there are several subtle but significant differences between the state and federal programs. The Chapter 105 program historically traces its lineage to the Water Obstructions Act of 1913 and its fundamental concern for protection of public safety by prevention of the obstruction of flood waters. Protection of life and property from flooding remains a major purpose of the program. In 1978, the Dam Safety and Encroachments Act expanded the purposes and scope of dams, water obstruction and encroachment regulations.

The "purpose" section of the Dam Safety and Encroachments Act (DSEA) establishes the goal of protecting the natural resources and environmental rights of the Commonwealth secured by Article I Section 27 of the Constitution in addition to the historic public safety purposes. "Body of water" is defined to include any natural or artificial lake, pond, reservoir, swamp, marsh or wetland. Streams are defined as "any channel of conveyance of surface water having defined bed and banks whether natural or artificial with perennial or intermittent flow. The DSEA regulates all but the smallest dams (with the exception of dams licensed pursuant to the Federal Power Act which are exempt from state regulations). The DSEA also regulates all water obstructions and encroachments other than dams located in, along, across or projecting into any stream, floodway or body of water.

Federal Program

The federal regulatory program governing this subject is founded upon two statutory frameworks: Sections 8 and 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. Sections 402-403, and Section 404 of the Federal Clean Water Act, 33 U.S.C. Section 1344. Under the Rivers and Harbors Act, the Corps of Engineers regulates structures in navigable waters of the United States. Under the Clean Water Act, the Corps regulates the discharge of dredge and fill material into waters of the United States. The Corps implements these authorities through regulations at 33 CFR parts 320-330 and 40 CFR parts 230-233 (404 (b)(1) guidelines). The Corps of Engineers 404 program is almost exclusively concerned with environmental impacts of the discharge of dredge and fill material. The obstruction of water is rarely mentioned except in a few extremely general statements (i.e., NWP 14, Road Crossings, requires only that culverts or bridges may not obstruct low flows and be able to withstand high flows).

Due to the state's dual focus of public safety and protection from flooding and environmental impacts, there is frequently no comparable federal criteria. Nevertheless, the Bureau has identified many provisions of Chapter 105 which should be reviewed for revision to meet the goals of the Regulatory Basics Initiative, whether or not there is a comparable federal requirement. A comparison of functional areas is shown in the attached Regulatory Basics Initiative.

Bureau Initiative

The Bureau initiated an internal effort in early 1994 to revise Chapter 105. This comprehensive review has not only identified provisions that are more stringent than comparable federal criteria, but also provisions to streamline and reduce paperwork, clarify confusing language, increase the number of waivers and general permits, increase the latitude for the Department to make professional decisions appropriate to the significance of the issue. An internal working draft of proposed revisions to Chapter 105 is enclosed for your reference. With your concurrence, we propose to continue the development of 105 revisions, including review and input by stakeholders and others. We are confident that these revisions will address the 8 major areas of concern identified in the Regulatory Basics Initiative. We propose that the revision to Chapter 105 proceed independently of the Regulatory Basics Initiative, except that status reports for each area of concern will be submitted according to the Regulatory Basics Initiative schedule.

REGULATORY BASICS INITIATIVE

BUREAU OF DAMS, WATERWAYS AND WETLANDS

COMPARISON: Are DEP (Chapters 105 and 106) regulations more stringent than comparable federal laws/regulations?

NARRATIVE: The Department's Chapters 105 and 106 regulations were compared to the Federal Clean Water Act, Rivers and Harbors Act and applicable regulations contained at 33 CFR, Parts 320-330 and 40 CFR, Parts 230-233 (404(b)(1) guidelines.

Initially, a strict "line­by­line comparison of state and federal regulations proved difficult because of primary differences in the respective regulatory purposes and language. Federal regulations are primarily geared to "environmental" regulation of discharge of dredged or fill materials in waters of the United States. In comparison, the state regulations consider, in addition to the environmental impacts, those additional impacts which affect the protection of life, health and property. Ultimately, it was necessary to focus on a comparison of broader functional areas rather than line-by-line. The attached comparison worksheets illustrate those areas of program coverage where state concerns are more comprehensive (stringent) or have additional criteria when compared to federal requirements. In most cases, the differences are the result of specific requirements contained in the Dam Safety and Encroachments Act.

Since the Bureau had received prior authorization to begin work on revising the Chapter 105 regulations, most of the analysis required by the Secretary's August 4, 1995 memorandum has already been completed. This is reflected in the specific statements contained in the "Regulatory Changes to 105" column of the comparison worksheets. It is important to note that the proposed revisions will result in state regulations (in those specific areas where state regulations have been identified as more stringent than federal regulations) that are equal to and possibly less stringent than the comparable federal regulation. Areas where changes are not being recommended are typically those areas where technical requirements are directed toward protection of life, health and property from increased flood damages. State regulations have traditionally taken the lead in these areas and our regulatory revisions have focused on removing obsolete requirements and improving program administration.

As an example of the federal deference to the state's focus in the public safety area, all technical requirements for dams and encroachments have been exempted [CFR, Parts 325.1(d)(1) & (6)]. However, under 33 CFR 320.4 (k) (Safety of Impoundment Structures) it is stated that "Federal applicants may be required to demonstrate that the structures comply with established state dam safety criteria or have been designed by qualified persons". The latter part of this requirement obviously refers to a person who is a Professional Engineer. One of the areas of state regulation that we have identified as being more stringent is under 105.13 where a Professional Engineer's seal and certification is required for projects that pose a threat to human life or substantial potential risk to property. As shown, if and when the federal regulators choose to invoke compliance with state dam safety requirements, our requirement would no longer be considered more stringent. In similar fashion, the Act and regulations cover several areas of safety and safety evaluation. Although these requirements may be considered as more stringent or listed as no comparable requirements because this type of requirement is not addressed in the federal regulations, neither the federal government nor anyone else is suggesting that such requirements should be eliminated.

Both the state and federal laws and regulations call for coordination of programs with like federal/state agencies to reduce or eliminate duplication of requirements and reviews. With execution of the State Programmatic General Permit (SPGP) this goal has recently become a reality in Pennsylvania in all but a few areas of joint regulation. It is expected that future refinements to the SPGP will ultimately eliminate most, if not all of these differences.

PUBLIC COMMENTS: Notice of the Regulatory Basics Initiative was published in the August 19, 1995 Pennsylvania Bulletin. Three comments concerning the dams and water obstructions program were received. A marina owner objected to the annual fee required by his submerged lands license. He characterized this as an unfair tax that he thought he should not have to pay. A second writer stressed that existing programs were fundamentally sound and that the problem is overzealous administration by staff who have no sense of business and economic impacts. He recommended that the Department underwrite MBA educations for selected staff, hire more staff from industry, and the new college graduates who haven't yet developed the counter-productive attitudes. A third writer complained that the Corps of Engineers was redundant and unresponsive, and didn't think there was a need to send applications to the Corps of Engineers. These comments were not directly applicable, but will be considered during the revisions of Chapter 105.

SUMMARY: Despite somewhat differing goals, approaches and regulatory language, we have found very few differences between the previously specified federal and state laws/regulations. Where differences do occur, it is usually in areas where the "more stringent" state requirement is contained in the Dam Safety and Encroachments Act for public safety protection. In practice, under operation of the SPGP, and with use of the cooperatively developed Joint Permit Application, there are very few differences between state and federal requirements. Nevertheless, in those areas where noticeable differences remain, we have developed proposed revisions to eliminate or minimize such differences.

ADDENDUM #1 - COMPARISON OF FEDERAL NATIONWIDE PERMIT REQUIREMENTS TO STATE GENERAL PERMITS/WAIVER REQUIREMENTS:

Because of the various options and possibilities concerning filing procedures, limits, exceptions, reporting requirements and so forth, it is virtually impossible to compare exact coverage or administrative requirements between Corps nationwide permits and state General Permits/waivers. Accordingly, the attached comparison sheets provide an illustration of under what conditions the provisions of the nationwide permits are approximated or equaled by state General Permits/waivers. As shown, there are only a relatively few instances where the coverage of a nationwide permit is not matched by a state General Permit or waiver. In most of those cases, revisions to the Chapter 105 regulations are proposed to provide equal or better coverage.

ADDENDUM #2 - REMAINING REGULATORY REVIEW ITEMS CONTAINED IN SECRETARY'S AUGUST 4, 1995 MEMORANDUM:

Because of this Bureau's advance status of regulatory analysis and revision, the following is provided in response to the remaining regulatory review issues.

1. Regulations Imposing Disproportionate Economic Costs: There are only two areas of disproportionate costs associated with state regulatory requirements. The first deals with the application fee schedule for activities such as breaching or modifying small dams or obtaining permits to operate and maintain existing dams. Proposed revisions to the Chapter 105 regulations will eliminate this disproportionate cost in most cases. In the few remaining cases, the additional costs are as the result of specific requirements contained in the DS & E Act and necessary to ensure protection to public safety. The second area of cost which results in no environmental protection is the annual license fee to occupy Commonwealth-owned submerged lands. This fee schedule will be reviewed as part of the Chapter 105 revision process, and adjusted to reflect the value of state-owned land.

2. Regulations With Significant Noncompliance: We are aware of minor to moderate noncompliance with this program, primarily in the area of small project types. The issuance of additional general permits and waivers has and will continue to reduce this problem by decreasing the effort required to secure a permit. With the proposed increase in waived activities and the advent of Field Permits contained in the proposed Chapter 105 revisions, we expect future compliance to reach the highest levels ever achieved by this program. In the area of dam permitting, there are approximately 200 high hazard dams which never obtained permits for their continued operation and maintenance and are in technical violation of the Act/regulations. However, since these dams have been reviewed and are in compliance with safety requirements, the requirement to secure a formal permit under existing regulatory provisions would not make these dams any safer. Therefore, we are evaluating a simplified procedure which would waive the standard application procedure and provide an expedient method of "grandfathering" a permit for this limited category of dams.

3. Regulations Which Are Prescriptive or Technology Specific: By the very nature, and importance of the regulatory goal, i.e. protection of life and property from flood damage, prescriptive technical requirements must be part of this regulatory program. Except to remove obsolete requirements and make other changes to improve overall program administration, we do not propose to change the prescriptive technical portions of these regulations. However, each individual technical requirement is being reviewed to assure that each is appropriate to the intended regulatory goal.

4. Regulations Which Inhibit Application of New Green Technologies: We foresee little application of green technologies in this program because of the specific technical requirements to ensure public safety. However, it is intended to provide sufficient latitude that specific requirements can be waived or modified for any application in recognition of special site conditions or requirements. Therefore, consideration of use of a green technology can be facilitated on a case by case basis.

5. Regulations Which Do Not Support Pollution Prevention: Although not inherently considered to be pollution prevention regulations, the Chapters 105 and 106 regulations reference and incorporate conformance with other state and federal pollution prevention regulations that apply to this type of work.

6. Regulations Which Are Obsolete or Are Redundant: Chapter 105 revisions will eliminate obsolete and/or redundant requirements.

7. Regulations Which Lack Clarity: Chapter 105 revisions will improve clarity and overall program administration.

Comparison CFR, Parts 320-330 & 404/Chapter 105
Regulatory Process

Comparison 404/105 Regulatory Process
- Wetlands -

Comparison: 105 Regulations (General Permits) vs. Nationwide Permits
Regulatory Process

* All nationwide permits are subject to (19) conditions.

REGULATIONS WHICH DO NOT SUPPORT A POLLUTION PREVENTION APPROACH

The Bureau of Dams, Waterways and Wetlands has reviewed Chapter 105 Dam Safety and Waterway Management and Chapter 106 Flood Plain Management to determine whether these regulations present barriers or disincentives to source reduction and pollution prevention.

The primary purpose of these regulations is to protect public safety and the physical loss of natural resources by requiring permits for the construction of dams, water obstructions and encroachments. Although not the primary purpose, pollution prevention is supported by several integral considerations. Implementation of an erosion and sediment pollution control plan is required for all earth moving activities, waste materials may not be used for construction, and the water quality impacts of wetlands are considered in permit application reviews. For dams, low flow releases are required to maintain downstream water quality and instream uses, thermal effects may be considered in permit application reviews, and maintenance requirements prevent downstream pollution due to dam failures and the downstream transport of impounded sediments.

The Bureau concludes that Chapters 105 and 106 do not present barriers or disincentives to source reduction and pollution prevention and does not recommend specific changes to Chapters 105 and 106 for this purpose. Nevertheless, as Chapter 105 is revised to meet the RBI goals of program enhancement, the pollution prevention aspects will be coordinated with other Department programs to assure the proper regulatory treatment of this issue.

REGULATIONS WHICH ARE PRESCRIPTIVE OR TECHNOLOGY SPECIFIC
AND
REGULATIONS WHICH INHIBIT THE APPLICATION OF NEW GREEN TECHNOLOGIES

The Bureau of Dams, Waterways and Wetlands has reviewed Chapter 105 Dam Safety and Waterway Management and Chapter 106 Flood Plain Management to determine whether these regulations are prescriptive or technology specific, or inhibit the application of new green technologies. These regulations are implemented solely under state law.

I. REGULATIONS WHICH ARE PRESCRIPTIVE OR TECHNOLOGY SPECIFIC

Chapters 105 and 106 are technology-based regulations, the purpose of which is to protect health, safety, and welfare of people and property from flood damages and to protect the environment by regulating the construction of dams, water obstructions and encroachments.

A. Protection From Flood Damage

1. Dams. Applications for dam safety permits require that dams be designed by registered professional engineers with suitable experience in dam design, and that calculations, analyses and designs be developed using currently-accepted standards of the engineering profession, including such areas as slope stability, soil compaction, spillway hydraulics and maximum probable flood hydrology. This is necessary to prevent dam failures and the catastrophic damage and loss of life which would result. Although the process is technology-based, designers have wide latitude to apply currently accepted engineering procedures and innovative technology, provided the performance goal of a safe structure is demonstrated.

2. Water Obstructions and Encroachments. Applications for water obstructions and encroachments require calculations, analyses and designs using currently acceptable engineering standards, which are developed to a sufficient detail to demonstrate that floodwaters will not be obstructed in a manner which increases the probability of flood damage. Structures which are open to the public, such as highway bridges, must be designed by a registered professional engineer. Calculations and analyses of flood hydrology and stream flow hydraulics are required in detail proportionate to the scope of the regulated activity, resulting in great latitude for applicants to demonstrate that the performance goal of no increased flood damage will occur from their projects.

B. Protection From Adverse Environmental Impacts.

The environmental impact of projects to be permitted is assessed by review of maps, plans, specifications, design analyses, and other data submitted by the applicant in consideration of the affects on 14 specified areas of concern. These include the potential of the permitted project to affect life or property, riparian rights, ecology, aquatic habitat, water quality, instream uses, natural areas and historic sites and public water supplies. The regulatory provisions are general in scope with few prescriptive technology requirements. The applicant has great latitude to provide data which is appropriate to the scope of the project. The exception is the requirement to delineate wetlands using the 1987 Federal Manual. Use of the 1987 Manual is consistent with Federal 404 requirements.

II. REGULATIONS WHICH INHIBIT THE APPLICATION OF NEW GREEN TECHNOLOGIES

Chapters 105 and 106 have sufficient latitude to allow use of innovative solutions or green technology. Innovative projects can be approved provided the performance-based goal of protection of public safety and the environment is met. At this time, no specific provisions of Chapters 105 or 106 are identified for revision for this purpose. As Chapter 105 is revised for other RBI purposes, all provisions will be specifically reviewed to eliminate excessively rigid procedures which limit the Department's latitude to approve innovative approaches.

III. CONCLUSION

It is necessary to maintain the prescriptive technology-based approach due to the engineering design considerations of the structures which are regulated and the potential for loss of life and property damage which could result from direct flood damage. Nevertheless, Chapter 105 should be revised to enhance program efficiency and effectiveness. In 1994, the Bureau initiated a comprehensive review of Chapter 105 to streamline the process and reduce paperwork, eliminate confusing or redundant language, increase the latitude for the Department to make professional decisions on a case-by-case basis without going through excessive administrative processes, eliminate excessively burdensome requirements which do not result in protection of public safety or the environment, and provide regulatory relief by increasing the number of waiverable categories and general permits. At the present time, no revisions to Chapter 106 are believed to be necessary.

IV. RECOMMENDATION

It is recommended that the Bureau continue the development of revisions to Chapter 105 by following established procedures. The next steps are to obtain input from Department programs outside of the Bureau, the Agricultural Advisory Committee, Air and Water Quality Technical Advisory Committee, and to be placed on the Environmental Quality Board's schedule for consideration for proposed rulemaking. This process can proceed concurrently with the Regulatory Basics Initiative.

With your approval, the Bureau will proceed with the development of Chapter 105 revisions.

REGULATIONS IMPOSING DISPROPORTIONATE ECONOMIC COSTS AND REGULATIONS WITH SIGNIFICANT NONCOMPLIANCE

The Bureau of Dams, Waterways and Wetlands has reviewed Chapter 105 Dam Safety and Waterway Management and Chapter 106 Flood Plain Management to determine whether these regulations contain provisions which impose disproportionate cost or exhibit significant noncompliance.

I. Regulations Imposing Disproportionate Economic Costs

A. Chapter 105 and 106 require that persons wishing to build dams or water obstructions in rivers and bodies of water must first obtain a permit from the department. These structures, for the most part, have to be designed and constructed by professional engineers or others with appropriate technical design and construction skills in a sound manner which protects life, property and the environment from damage due to dam failures or the obstruction of flood waters. The costs imposed are primarily for design and construction. The regulation does not prescribe specific structural configurations and alternatives for more economical design and construction are only limited by the ingenuity of the applicant.

Permit application fees are set by regulation and have been identified as counter-productive for selected categories of dams. In some specific cases, the fees are excessive and may exceed the actual construction cost of the project itself. Some of these include breaching unsafe dams, making required improvements to existing dams, or obtaining permits to operate and maintain existing dams. If the high application fees for these and similar categories of dams were to be reduced or eliminated, voluntary compliance would be more economically attractive.

B. The regulation requires wetland delineations for many categories of projects proposed for wetland encroachments. Wetland delineations must be done by persons trained in wetland biology, soils, and hydrology; these are normally consultants who reportedly charge high fees for their services. The wetlands component of the water obstructions program is currently under change as a result of the department's recent wetlands initiative, which involves, among other actions, a general permit for small wetland fills to facilitate private residential construction. Other general permits are under revision and will be modified where possible to reduce unnecessary application costs and other economic burdens. These general permits eliminate the requirement for costly wetland delineations.

C. Submerged Lands Licenses must be obtained by applicants prior to receiving a permit to build projects over the beds of Commonwealth-owned navigable streams. The annual fee is $500 per acre, prorated on tenths of an acre, but with a minimum annual payment of $250. Many of these licenses are paid by private homeowners and small businesses for which the fee represents a burden. The fee does not contribute to any environmental goal, but merely generates revenue from the use of state-owned land.

Three efforts are currently underway which could address this concern. First, SB 639 would change the annual payment to a one-time payment, and redefine the streams to which the licensing requirement applies. The department supports SB 639 and has provided suggested text to augment the original purposes of the bill's sponsors. Secondly, should SB 639 not be passed, the department has prepared a policy initiative to redefine the applicable streams. Thirdly, the fee schedule itself can be reviewed as part of the comprehensive revision of Chapter 105.

II. Regulations With Significant Noncompliance

A. The owners of approximately 190 high hazard dams have not obtained permits for the continued operation and maintenance of hundreds of existing dams built prior to 1979, environmental assessments for the hundreds of existing non-jurisdictional dams located in EV watersheds have not been submitted or approved, and increasing numbers of permittees (both dams and water obstructions) fail to notify the department prior to starting construction. Proposed revisions to Chapter 105 would waive the operations and maintenance permit requirement for existing dams that are otherwise in full compliance with Chapter 105 technical requirements, waive the environmental assessments for existing non-jurisdictional dams unless potential for environmental harm is established case-by-case, and revise and simplify the permit acknowledgment and notification requirements.

III. Conclusions and Recommendation

Chapter 105 contains several provisions which contribute to higher costs for applicants and represent areas of noncompliance. Although Chapter 105 has great latitude to allow applicants to pursue economical design, the regulation can be revised to minimize the costs of the application process. Similarly, the costs of the application process and unnecessary paperwork related to notifications and reports could be revised or eliminated. This would decrease rates of noncompliance. Unnecessary paperwork will also be targeted in order to enhance compliance.

Chapter 105 is now under active revision with proposed rulemaking targeted for September 1996.  It is recommended that this effort continue.  (As of June 1998, the target date for proposed rulemaking is December 1998.)

SB 639 has passed the Senate and is now under consideration by the House Environmental Resources and Energy Committee. It is recommended that the department take specific action to encourage the passage of this bill.

REGULATIONS WHICH ARE OBSOLETE OR REDUNDANT
AND
REGULATIONS WHICH LACK CLARITY

The Bureau of Dams, Waterways and Wetlands has reviewed Chapter 105 Dam Safety and Waterways Management and Chapter 106 Flood Plain Management to determine whether these regulations are obsolete or redundant or lack clarity.

I. Regulations Which are Obsolete or Redundant

Chapters 105 and 106 implement the permit requirements of the Dam Safety and Encroachments Act of 1978 and the Flood Plain Management Act of 1978. Chapter 105 applies to all persons who wish to build in floodways and Chapter 106 applies to public agencies and public utilities who want to build in the floodway fringe. Since both statutes expressly prohibit construction without first receiving the written permit from the Department, the regulations may not be considered either obsolete or redundant. Nevertheless, the Bureau has initiated a comprehensive review of Chapter 105 to identify and revise individual provisions which meet these tests.

II. Regulations Which Lack Clarity

Chapter 105 and, to a somewhat lesser extent, Chapter 106 is a technology-based regulation. As such the technical terminology frequently is unclear to the public and also to staff. Additionally, the text of the administrative processes which link and activate the technical provisions are frequently confusing and administratively burdensome. Further, the relationship between Chapters 105 and 106 is sometimes unclear. This confusion could be eliminated by language in Chapter 105 that would explain the linkage with Chapter 106, or consider incorporating the 106 provisions into Chapter 105 and eliminating Chapter 106. This would at least eliminate the perception that there are two entirely separate permitting programs.

III. Summary of Conceptual Revision of Chapter 105

A. Purpose of Regulation

The purpose of Chapter 105 is to protect the safety and property of the people and from flood damage, protect navigation, protect natural resources and environmental rights, and protect quality, natural regime and carrying capacity of water courses, and assure construction of safe dams. This purpose is implemented by reviews of permit applications. The content of applications and the review and permitting criteria is specified in Chapter 105.

B. Concepts and sections to be revised. Although all provisions will be subject to detailed scrutiny to meet the general purposes of the Regulatory Basics Initiative, the following is a list of some of the more prominent sections which have been identified as having a great potential for improvement. Possible new approaches are also identified for consideration.

1. Increase the number of minor projects eligible to have permit requirements waived. Some possibilities to consider include small recreational boat docks and small boat launching ramps, floating or pile-supported docks (regardless of size) on private lakes, foot bridges and similar light duty bridges, maintenance of state and federal local flood protection projects, public service line crossings attached to existing highway bridges, clean sand and gravel for beach restoration, removal of buildings and filling of foundations in the floodplain, all water obstructions and encroachments in private lakes drawn down under a Pennsylvania Fish and Boat Commission permit. This is only a partial list which can be expanded to identify as many categories of work which can be determined to have an insignificant effect upon the safety and protection of life, property and the environment.

2. Revise the existing definition of "small project" to include minor wetland encroachments and expand the small projects concept by establishing discretion to waive permits, specific sections of the regulation, or specific documentation on a case-by-case basis. This discretion is necessary to provide a rational response to many insignificant actions which are technically jurisdictional but which have no adverse impacts on safety or the environment; it is not possible to identify these in a regulation because of the comprehensive jurisdiction of the regulation and the sheer diversity of people's needs and their ingenuity to satisfy those needs.

3. Establish a "Field Permit" to facilitate issuing permit decisions during site visits. This is not currently possible because the existing regulation requires submission on a lengthy detailed application, publishing and coordination requirements. These additional administrative requirements are frequently unnecessary, result in delay, and do not contribute to protection of public safety or the environment.

4. Simplify the application fee schedule by combining many categories into one fee, revising individual fees to reflect the actual cost of application review, and revise the fees to encourage owners on unpermitted existing dams to apply for permits. There are too many categories of different fees in the existing regulations which is confusing and requires additional time to calculate. The high fees for dams discourage the owners of older existing dams from applying for permits even though in most cases these dams are safe and meet requirements, or discourage voluntary compliance such as in the cases of breaching unsafe dams.

5. Simplify the administration and understanding of the Chapter 105 and 106 programs by incorporating the public flood plain permitting of Chapter 106 into Chapter 105, and delete Chapter 106. This would consolidate the rules and procedures for stream channels, floodways and floodplains into one regulation.

6. Generally eliminate duplicate and obsolete sections, consolidate redundant sections, revise selected provisions for "plain English" clarity, and simplify administrative procedures.

IV. Schedule

January 3, 1996 Working draft complete

March 5, 1996 Discuss RBI with Wetlands Advisory Committee

START Secretary Seif approval to initiate proposed rule making

START + 6 mo. Complete final draft after meeting with Wetlands Advisory Committee, Ag Advisory Committee, AWQTAC, and DEP programs.

START + 7 mo. Deputy Secretary approval of final draft

START + 8 mo. Office of Policy approval

START + 9 mo. EQB submission for proposed rulemaking (The schedule as of June 1998 for proposed rulemaking is December 1998.)

TECHNICAL GUIDANCE DOCUMENT REVIEW

I have completed a review of the Technical Guidance Documents (Permitting and Plan Approval) identified in the Secretary's August 4, 1995 memorandum and recommend the following actions:

1. Guidance that should be substantially revised: None

2. Guidance that should be rescinded:

Title: Implementation Procedures for History Code

GDN#: 320-0700-001

Date to be Rescinded: ASAP under current procedures

Reason to rescind: This document was written by and is maintained by the office of Policy and Communication.

3. Guidance requiring formatting changes: The remaining five guidance documents, as with all other current documents, require modifications to meet revised publishing standards/formats. The cover pages for the five noted documents are attached.

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Bureau of Dams, Waterways and Wetlands

DOCUMENT NUMBER: 320-2316-001

TITLE: Certification for Corps Nationwide Permits

AUTHORITY: Section 401 (a) of the Federal Water Pollution Prevention and Control Act, 33 USC § 1341 (a).

POLICY: This document consists of the Department's "Notice of Pennsylvania's Final Certification and Coastal Zone Management Consistency Determination" which provides Section 401 water quality certification for the listed Corps of Engineers' Nationwide Permits.

PURPOSE: The Department provides this certification for all projects which require a federal permit under Section 404 of the Federal Water Pollution Prevention and Control Act. This document lists those Corps' nationwide permits where this certification has been approved.

DISCLAIMER: The policies and procedures outlined in this guidance document are intended to supplement existing requirements. Nothing in the policies or procedures shall affect different statutory or regulatory requirements.

The policies and procedures herein are not an adjudication or a regulation. There is not intent on the part of the Department to give these rules that weight or deference. This document establishes the framework for the exercise of DEP's administrative discretion in the future. DEP reserves the discretion to deviate from this policy statement if circumstances warrant.

PAGE LENGTH: 3 pages

LOCATION: Vol. 13, Tab 09

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Bureau of Dams, Waterways and Wetlands

DOCUMENT NUMBER: 320-2505-001

TITLE: Guidelines for Determining Bonds

AUTHORITY: Section 11 of the Dam Safety and Encroachments Act, Act of November 26, 1978, P.L. 1375, as amended, P.S. § 693.1
et seq.

POLICY: This document is used to determine if and when a bond will be required for a permitted project.

PURPOSE: This guidance was developed to implement provisions of the Act which require that the permittee demonstrates fiscal responsibility for the continued operation and maintenance of the permitted structure.

DISCLAIMER: The policies and procedures outlined in this guidance document are intended to supplement existing requirements. Nothing in the policies or procedures shall affect different statutory or regulatory requirements.

The policies and procedures herein are not an adjudication or a regulation. There is not intent on the part of the Department to give these rules that weight or deference. This document establishes the framework for the exercise of DEP's administrative discretion in the future. DEP reserves the discretion to deviate from this policy statement if circumstances warrant.

PAGE LENGTH: 3 pages

LOCATION: Vol. 13, Tab 10

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Bureau of Dams, Waterways and Wetlands

DOCUMENT NUMBER: 321-2139-002

TITLE: Land Acquisition Policies

AUTHORITY: Section 11 of the Dam Safety and Encroachments Act, Act of November 26, 1978, P.L. 1375, as amended, P.S. § 693.1 et seq., and Section 105.82(a) (10) of the Department's Chapter 105 Rules and Regulations.

POLICY: This policy provides guidance to the U.S. Soil Conservation Service (now the Natural Resources Conservation Service) on the aerial limits required and how to purchase title or flowage easements for dams.

PURPOSE: These policies were developed to minimize the amount of land actually required (below the top of dam) that had to be purchased outright, allow for continued agricultural and recreational land uses and to prevent subsequent construction of habitable structures in the flood pool.

DISCLAIMER: The policies and procedures outlined in this guidance document are intended to supplement existing requirements. Nothing in the policies or procedures shall affect different statutory or regulatory requirements.

The policies and procedures herein are not an adjudication or a regulation. There is not intent on the part of the Department to give these rules that weight or deference. This document establishes the framework for the exercise of DEP's administrative discretion in the future. DEP reserves the discretion to deviate from this policy statement if circumstances warrant.

PAGE LENGTH: 1 page

LOCATION: Vol. 13, Tab 12

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Bureau of Dams, Waterways and Wetlands

DOCUMENT NUMBER: 321-2140-001

TITLE: Criteria and fees for Dam Safety Limited Power Permits

AUTHORITY: Limited Power Act of June 14, 1923, P.L. 704 (as amended by the Act of July 19, 1935, P.L. 1363)

POLICY: Provides guidance to hydro-electric developers on how to apply for and obtain a Limited Power Permit and details annual charges to be paid to the Commonwealth.

PURPOSE: This policy serves in lieu of any specific regulations (none were ever developed under the original act).

DISCLAIMER: The policies and procedures outlined in this guidance document are intended to supplement existing requirements. Nothing in the policies or procedures shall affect different statutory or regulatory requirements.

The policies and procedures herein are not an adjudication or a regulation. There is not intent on the part of the Department to give these rules that weight or deference. This document establishes the framework for the exercise of DEP's administrative discretion in the future. DEP reserves the discretion to deviate from this policy statement if circumstances warrant.

PAGE LENGTH: 2 pages

LOCATION: Vol. 13, Tab 13

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Bureau of Dams, Waterways and Wetlands

DOCUMENT NUMBER: 322-2140-001

TITLE: Criteria for Fees for Waterways Management Limited Power Permits

AUTHORITY: Limited Power Act of June 14, 1923, P.L. 704, (as amended by the Act of July 19, 1935, P.L. 1363)

POLICY: Provides guidance to hydro-electric developers on how to apply for and obtain a Limited Power Permit and details annual charges to be paid to the Commonwealth.

PURPOSE: This policy serves in lieu of any specific regulations (none were ever developed under the original act).

DISCLAIMER: The policies and procedures outlined in this guidance document are intended to supplement existing requirements. Nothing in the policies or procedures shall affect different statutory or regulatory requirements.

The policies and procedures herein are not an adjudication or a regulation. There is not intent on the part of the Department to give these rules that weight or deference. This document establishes the framework for the exercise of DEP's administrative discretion in the future. DEP reserves the discretion to deviate from this policy statement if circumstances warrant.

PAGE LENGTH: 2 pages

LOCATION: Vol. 13, Tab 17