PRINTER'S NO. 730
No. 200 Session of 1995
INTRODUCED BY FARGO, HANNA, S. H. SMITH, DEMPSEY, PESCI, LYNCH, HUTCHINSON, TRELLO, MERRY, LEH, CORNELL, HERSHEY, JAROLIN, McCALL, STERN, MARSICO, DALEY, SAYLOR, PHILLIPS, SCHULER, TRUE, BIRMELIN, CLARK, E. Z. TAYLOR, WAUGH, COLAFELLA, PETRONE, CHADWICK, JADLOWIEC, SEMMEL, TULLI, STABACK, BUNT, D. R. WRIGHT, CIVERA, PETTIT, CLYMER, MILLER, RAYMOND, HENNESSEY, YOUNGBLOOD, GODSHALL, BELFANTI, ARMSTRONG, GAMBLE, HALUSKA, KING, ROHRER, WOZNIAK, PRESTON, FICHTER AND MIHALICH, FEBRUARY 13, 1995
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, FEBRUARY 13, 1995
AN ACT 1 Providing for wetlands conservation and management; further 2 providing for eminent domain; providing for penalties and 3 remedies; establishing the Wetlands Conservation Fund; 4 conferring powers and duties upon the Department of 5 Environmental Resources; and making an appropriation. 6 TABLE OF CONTENTS 7 Chapter 1. Preliminary Provisions 8 Section 101. Short title. 9 Section 102. Declaration of policy. 10 Section 103. Definitions. 11 Chapter 3. Conservation and Management 12 Section 301. Prohibition. 13 Section 302. Permits. 14 Section 303. Notice and hearing relating to certain permit 15 applications.
1 Section 304. Wetlands identification and classification. 2 Section 305. Inverse condemnation. 3 Chapter 5. Enforcement 4 Section 501. Administrative penalty. 5 Section 502. Injunction. 6 Chapter 7. Administration 7 Section 701. Fund. 8 Section 702. Administrative provisions. 9 Chapter 21. Miscellaneous Provisions 10 Section 2101. Preemption. 11 Section 2102. Appropriation. 12 Section 2103. Effective date. 13 The General Assembly of the Commonwealth of Pennsylvania 14 hereby enacts as follows: 15 CHAPTER 1 16 PRELIMINARY PROVISIONS 17 Section 101. Short title. 18 This act shall be known and may be cited as the Wetlands 19 Conservation and Management Act. 20 Section 102. Declaration of policy. 21 The General Assembly finds and declares as follows: 22 (1) Wetlands play an integral role in maintaining the 23 quality of life through material contributions to economy, 24 food supply, water supply and quality, wood supply, flood 25 control, fish, wildlife and plant resources. Wetlands are 26 critical to the health, safety, recreation and economic well- 27 being of citizens of this Commonwealth. 28 (2) Wetlands serve important ecological and natural 29 resource functions, such as providing essential nesting and 30 feeding habitat for waterfowl, other wildlife and many rare 19950H0200B0730 - 2 -
1 and endangered species; providing fisheries habitat; 2 enhancement of water quality; and natural flood control. 3 (3) Much of the Commonwealth's resource has sustained 4 significant degradation, resulting in the need for effective 5 programs to limit the loss of ecologically significant 6 wetlands and for long-term restoration and enhancement of the 7 wetlands resource base. 8 (4) An effective wetlands conservation and management 9 program must reflect a balanced approach that conserves and 10 enhances important wetlands values and functions while 11 observing private property rights; recognizes the need for 12 essential public infrastructure, such as highways, ports, 13 airports, sewer systems and public water supply systems; and 14 provides the opportunity for sustained economic growth. 15 (5) While wetlands provide many varied economic and 16 environmental benefits, they also present health risks in 17 some instances where they act as breeder grounds for insects 18 that are carriers of human and animal diseases. 19 (6) Variations in wetlands values or functions should be 20 considered in determining the character and extent of 21 regulation of activities occurring in wetlands areas. 22 (7) Sufficient regulatory incentives are required for 23 conservation, restoration or enhancement activities. 24 (8) Conservation of resources on an ecosystem basis 25 should be encouraged to the fullest extent practicable. 26 (9) Public and private interests should be balanced in 27 determining the conditions under which activity in wetlands 28 areas may occur. 29 Section 103. Definitions. 30 The following words and phrases when used in this act shall 19950H0200B0730 - 3 -
1 have the meanings given to them in this section unless the 2 context clearly indicates otherwise: 3 "Activity in wetlands." Any of the following: 4 (1) Discharge of dredged or fill material into wetlands. 5 (2) Draining, channelization or excavation of wetlands. 6 "Creation of wetlands." Bringing a wetland into existence at 7 a site where it did not formerly occur for the purpose of 8 compensation. 9 "Department." The Department of Environmental Resources of 10 the Commonwealth. 11 "Enhancement of wetlands." Increasing the value of wetlands' 12 functions. 13 "Fastlands." Lands located behind permitted human-made 14 structures. 15 "Fund." The Wetlands Conservation Fund established in 16 section 701. 17 "Growing seasons." For each plant hardiness zone, the period 18 between the average date of last frost in spring and the average 19 date of first frost in autumn. 20 "Incidentally created wetlands." Lands that exhibit wetlands 21 characteristics where any characteristic is the unintended 22 result of human-induced alterations of hydrology. 23 "Maintenance." Activities undertaken to assure continuation 24 of a wetland or the accomplishment of project goals after a 25 restoration or creation of wetlands has been technically 26 completed. The term includes water level manipulations and 27 control of nonnative plant species. 28 "Mitigation banking." Restoration of wetlands, enhancement 29 of wetlands, preservation of wetlands or creation of wetlands 30 for the purpose of providing compensation for wetland 19950H0200B0730 - 4 -
1 degradation or loss. 2 "Normal farming, silviculture, aquaculture and ranching 3 activities." Normal ongoing practices identified by the 4 Department of Agriculture, taking into account existing 5 practices and other practices identified in consultation with 6 the affected industry or community. 7 "Prior converted cropland." Land that: 8 (1) does not serve wetlands functions; 9 (2) has been drained or physically altered to remove 10 excess water; and 11 (3) has been cropped before December 23, 1985. 12 "Restoration." An activity undertaken to return a wetland 13 from a disturbed or altered condition with lesser acreage or 14 fewer wetlands functions to a previous condition with greater 15 acreage or wetlands functions. 16 "Temporary impact." The disturbance or alteration of 17 wetlands caused by activities under circumstances where, within 18 three years following commencement of the activities, the 19 wetlands: 20 (1) are returned to the conditions in existence prior to 21 the commencement of the activity; or 22 (2) display conditions sufficient to ensure that, 23 without human action, they will return to the conditions in 24 existence prior to the commencement of the activity. 25 "Type A wetlands." Wetlands that are of critical 26 significance to the long-term conservation of the ecosystem of 27 which they are a part and which meet the following requirements: 28 (1) The wetlands serve critical wetlands functions, 29 including the provision of critical habitat for a 30 concentration of avian, aquatic or wetland dependent 19950H0200B0730 - 5 -
1 wildlife. 2 (2) The wetlands consist of or may be a portion of ten 3 or more contiguous acres and have an inlet or outlet for 4 relief of water flow. 5 (3) There exists a scarcity within the watershed or 6 aquatic ecosystem of identified ecological functions served 7 by the wetlands such that the use of the wetlands would 8 seriously jeopardize the availability of these identified 9 wetlands functions. 10 (4) There is no overriding public interest in the use of 11 the wetlands for purposes other than conservation. 12 (5) The nature and scope of wetlands functions are such 13 that minimization and compensation are not feasible means for 14 conserving wetlands values and functions. 15 "Type B wetlands." Wetlands that provide habitat for a 16 significant population of avian, aquatic or wetland dependent 17 wildlife or provide other significant wetlands functions, 18 including significant enhancement or protection of water quality 19 and significant natural flood control. 20 "Type C wetlands." Wetlands that: 21 (1) serve limited wetlands functions; 22 (2) serve marginal wetlands functions but which exist in 23 such abundance that regulation of activities is not necessary 24 for conserving important wetlands values and functions; 25 (3) are prior converted cropland; 26 (4) are fastlands; 27 (5) are wetlands within industrial complexes or other 28 intensely developed areas that do not serve significant 29 wetlands functions as a result of such location; or 30 (6) are incidentally created wetlands. 19950H0200B0730 - 6 -
1 "Wetlands." Lands which have a predominance of hydric soils 2 and which are inundated by surface water at a frequency and 3 duration sufficient to support, and which under normal 4 circumstances do support, a prevalence of vegetation typically 5 adapted for life in saturated soil conditions. The term includes 6 swamps, marshes and bogs. 7 "Wetlands functions." The roles wetlands serve which are of 8 value. The term includes flood water storage, flood water 9 conveyance, ground water discharge, erosion control, wave 10 attenuation, water quality protection, scenic and aesthetic use, 11 food chain support, fishery, wetlands plant habitat, aquatic 12 habitat and habitat for wetland dependent wildlife. 13 CHAPTER 3 14 CONSERVATION AND MANAGEMENT 15 Section 301. Prohibition. 16 (a) General rule.--Except as provided in subsection (b), a 17 person may not undertake an activity in wetlands without a 18 permit from the department. 19 (b) Exception.--The following activities in wetlands do not 20 require a permit: 21 (1) Normal farming, silviculture, aquaculture and 22 ranching activities. 23 (2) Maintenance, including emergency reconstruction of 24 recently damaged parts of currently serviceable structures 25 such as dams, levees, water control structures, causeways, 26 bridge abutments or approaches and transportation structures. 27 (3) Construction or maintenance of farm, stock or 28 aquaculture ponds or irrigation canals and ditches or 29 maintenance of drainage ditches and tile fields. 30 (4) Construction, maintenance or removal of temporary 19950H0200B0730 - 7 -
1 sedimentation basins on a construction site or mining site 2 which does not include placement of fill material into 3 wetlands. 4 (5) Construction or maintenance of farm roads, forest 5 roads or temporary roads for moving mining equipment, if the 6 roads are constructed and maintained in accordance with best 7 management practices to assure that flow and circulation 8 patterns and chemical and biological characteristics of the 9 waters are not impaired, that the reach of the waters is not 10 reduced and that any adverse effect on the aquatic 11 environment will be otherwise minimized. 12 (6) Activities undertaken on farmed wetlands. If there 13 is a change in the use of farmed wetlands for the purpose of 14 undertaking an activity that is not exempt under this 15 subsection, the exception granted by this paragraph is 16 inapplicable to the extent that the farmed wetlands are 17 classified under section 303. 18 (7) Activities undertaken in incidentally created 19 wetlands. This paragraph does not apply to incidentally 20 created wetlands which have exhibited wetlands functions for 21 more than five years. 22 (c) Previous permits.--Permits previously issued by the 23 department for activities and structures affecting wetlands 24 pursuant to the act of November 26, 1978 (P.L.1375, No.325), 25 known as the Dam Safety and Encroachments Act, shall be deemed 26 to be permits under this act. 27 Section 302. Permits. 28 (a) Application.--A person seeking to undertake an activity 29 in wetlands for which a permit is required under section 301(a) 30 shall make application to the department identifying the site of 19950H0200B0730 - 8 -
1 activity and describing the proposed activity. The applicant may 2 also provide such additional information regarding such proposed 3 activity as necessary or appropriate for determining the 4 classification of the wetlands or whether and under what 5 conditions the proposed activity may be permitted to occur. The 6 department may prescribe, by regulation, permit fees. 7 (b) Determination.-- 8 (1) Upon application under subsection (a), the 9 department shall classify the wetlands under application as 10 Type A, Type B or Type C. 11 (i) The department is authorized and directed to 12 establish regulations that govern the delineation of 13 lands as wetlands for purposes of this paragraph and 14 section 303. The regulations shall be established after 15 consultation with other State agencies, including the 16 Pennsylvania Fish and Boat Commission, and the 17 Pennsylvania Game Commission and Federal agencies, 18 including the United States Fish and Wildlife Service, 19 the Environmental Protection Agency and the United States 20 Soil Conservation Service. The delineation regulations 21 shall be no more restrictive than the Federal delineation 22 standards or guidelines. 23 (ii) The regulations shall ensure that lands are 24 delineated as wetlands only if the lands are found to be 25 wetlands as defined in this act. The regulations may not 26 cause any of the following results: 27 (A) The delineation of lands as wetlands unless 28 clear evidence of wetland hydrology, hydrophytic 29 vegetation and hydric soil is found to be present 30 during the period in which delineation is made. 19950H0200B0730 - 9 -
1 Delineation shall be conducted during the growing 2 season unless otherwise requested by the applicant. 3 (B) The classification of vegetation as 4 hydrophytic if the vegetation is equally adapted to 5 dry or wet soil conditions or is more typically 6 adapted to dry conditions than wet soil conditions. 7 (C) The classification of lands as wetlands 8 unless some obligate wetlands vegetation is found to 9 be present during the period of delineation except if 10 such vegetation has been removed for the purpose of 11 evading jurisdiction under this section, this clause 12 shall not apply. 13 (D) The conclusion that wetlands hydrology is 14 present unless water is found to be present at the 15 surface of the lands for at least 21 consecutive days 16 during the growing season in which delineation is 17 made and for 21 consecutive days in the growing 18 seasons in a majority of the years for which records 19 are available. 20 (E) The classification of lands as wetlands that 21 are temporarily or incidentally created as a result 22 of an adjacent development activity. 23 (iii) Regulations shall provide that normal 24 circumstances shall be determined on the basis of the 25 factual circumstances in existence at the time of 26 application under subsection (a) or at the time of 27 classification under section 303, whichever is 28 applicable, if those circumstances have not been altered 29 by an activity prohibited under section 301. 30 (2) If the wetlands under application are classified as 19950H0200B0730 - 10 -
1 Type A, the permit shall be denied. 2 (3) If the wetlands under application are classified as 3 Type C, the classification constitutes the permit. 4 (4) If the wetlands under application are classified as 5 Type B, the department shall make a determination on the 6 permit on the basis of the following criteria, to ensure the 7 watershed or aquatic ecosystem of which the wetlands are a 8 part does not suffer significant loss or degradation of 9 wetlands functions: 10 (i) Quality and quantity of ecologically significant 11 functions served by the areas to be affected. 12 (ii) Opportunities to reduce impacts through cost- 13 effective design to avoid or minimize use of wetlands 14 areas. 15 (iii) Costs of mitigation requirements and social, 16 recreational and economic benefits associated with the 17 proposed activity. 18 (iv) Ability of the permittee to mitigate wetlands 19 loss or degradation as measured by wetlands functions. 20 (v) Environmental benefit that may occur through 21 mitigation efforts, including restoring, preserving, 22 enhancing or creating wetlands functions. 23 (vi) Marginal impact of the proposed activity on the 24 watershed of which the wetlands are a part. 25 (5) If the department does not complete the 26 determination under this subsection within 90 days of receipt 27 of the application, the permit shall be deemed granted. 28 (c) Procedure.--The provisions of 2 Pa.C.S. Ch. 5 Subch. A 29 (relating to practice and procedure of Commonwealth agencies) 30 and Ch. 7 Subch. A (relating to judicial review of Commonwealth 19950H0200B0730 - 11 -
1 agency action) shall apply to this section. 2 Section 303. Notice and hearing relating to certain permit 3 applications. 4 (a) Duties of department.--If the department is conducting a 5 wetlands environmental assessment study, the department shall do 6 all of the following: 7 (1) If the department, upon review of a permit 8 application, determines that wetlands replacement or 9 mitigation should be a condition of permit approval, the 10 department, after consultation with other administrative 11 agencies, including the Pennsylvania Fish and Boat Commission 12 and the Pennsylvania Game Commission, may locate land which 13 is under the control of such an agency and which is suitable 14 for wetlands replacement or mitigation. This paragraph shall 15 not apply if the applicant requests that wetlands replacement 16 or mitigation activity not occur on public land. 17 (2) If there is wetlands replacement or mitigation on 18 public or nonpublic land or if the department is conducting a 19 wetlands environmental assessment study, the department shall 20 do all of the following: 21 (i) Notify all affected parties, including 22 municipalities which encompass in whole or in part the 23 permit or study area. This notice shall be given by 24 certified mail. Affected parties shall include residents 25 and property owners as well as businesses impacted by the 26 permit or study. 27 (ii) At the request of any party or municipality, 28 conduct at least one public hearing on the permit or 29 study. 30 (iii) Allow for a 30-day public comment period to 19950H0200B0730 - 12 -
1 receive written statements relating to the permit or 2 study. 3 (b) Notice.--At least 30 days prior to conducting a hearing 4 under this section, the department shall publish notice of same 5 in a newspaper of general circulation in the proposed permit 6 area. 7 (c) Testimony.--If a public hearing is held, a person may 8 testify within the time provided or submit written comments, or 9 both. The department shall consider testimony relevant to the 10 requirements of this act. 11 (d) Summary of comments.--After a hearing, the department 12 shall prepare a summary of the written and oral comments 13 submitted at the hearing, a summary of any comments received 14 during a public comment period, the department's responses to 15 the comments and the reasons therefor. The department shall 16 provide copies of this summary to persons who submitted comments 17 and to other persons who request a copy. 18 (e) Meetings.--Whether or not the department holds a public 19 hearing, the department may conduct an informal meeting, public 20 meeting or series of meetings. 21 Section 304. Wetlands identification and classification. 22 (a) Identification.--The department, in consultation with 23 other Federal and State agencies, shall undertake a project to 24 identify and classify wetlands in this Commonwealth. The 25 department shall complete the project within five years of the 26 effective date of this act under section 2103(2). 27 (b) Classification.--In conducting the project under this 28 section, the department shall identify and classify wetlands in 29 accordance with standards for delineation of wetlands 30 established under section 302(b)(1). 19950H0200B0730 - 13 -
1 (c) Notice and hearing.--In conducting the project under 2 this section, the department shall provide notice and an 3 opportunity for a public hearing in each county before the 4 completion of the identification and classification of wetlands 5 in that particular county. 6 (d) Publication.--After completion of the identification and 7 classification of wetlands, the department shall promptly 8 publish the information on identification and classification in 9 the Pennsylvania Bulletin and in a newspaper of general 10 circulation in each county and take other steps reasonably 11 necessary to ensure that the information is available to the 12 public. 13 (e) Report.--The department shall report to the General 14 Assembly on implementation of the project to be conducted under 15 this section within two years after the effective date of this 16 act under section 2103(2) and annually thereafter. 17 (f) Update.--The department shall periodically update the 18 wetlands inventory maps and make them available to the public. 19 Notice of updates to the wetlands inventory maps shall be made 20 in the same manner as described in subsection (d). 21 (g) Recording.--Any classification of lands as wetlands 22 under this act shall be recorded on the proper records and deeds 23 in the county in which wetlands are located. 24 Section 305. Inverse condemnation. 25 (a) Eligibility.--The denial of a permit under section 26 302(b)(4) constitutes a compensable injury without a declaration 27 of taking within the meaning of section 502(e) of the act of 28 June 22, 1964 (Sp.Sess., P.L.84, No.6), known as the Eminent 29 Domain Code. 30 (b) Limitation of action.--An action under subsection (a) 19950H0200B0730 - 14 -
1 must be brought within two years of receipt of notice of the 2 classification. The provisions of 42 Pa.C.S. § 5527 (relating to 3 six year limitation) and § 5530 (relating to twenty-one year 4 limitation) do not apply to actions under subsection (a). 5 CHAPTER 5 6 ENFORCEMENT 7 Section 501. Administrative penalty. 8 (a) General rule.--If the department determines that a 9 person has intentionally or negligently violated this act, the 10 department may assess an administrative penalty of not more than 11 $1,000 against the person. Each day of violation constitutes a 12 separate violation under this section. 13 (b) Procedure.--The provisions of 2 Pa.C.S. Ch. 5 Subch. A 14 (relating to practice and procedure of Commonwealth agencies) 15 and Ch. 7 Subch. A (relating to judicial review of Commonwealth 16 agency action) shall apply to this section. 17 Section 502. Injunction. 18 A person aggrieved by a violation of this act may seek an 19 injunction against the violation in a court of competent 20 jurisdiction. 21 CHAPTER 7 22 ADMINISTRATION 23 Section 701. Fund. 24 (a) Establishment.--The Wetlands Conservation Fund is 25 established as a separate fund in the State Treasury. 26 (b) Source.--The source of the fund shall be all of the 27 following: 28 (1) Permit fees under section 302(a). 29 (2) Penalties under section 501. 30 (3) One percent of the Commonwealth's share of the tax 19950H0200B0730 - 15 -
1 under Article XI-C of the act of March 4, 1971 (P.L.6, No.2), 2 known as the Tax Reform Code of 1971. 3 (4) Annual appropriations. 4 (c) Purpose.--The purposes of the fund are: 5 (1) To pay for condemnation under section 305. 6 (2) To administer this act. 7 Section 702. Administrative provisions. 8 (a) General rule.--The department shall administer this act 9 and the fund. 10 (b) Final regulations.--Within one year of the effective 11 date of this act under section 2103(2), the department shall 12 promulgate regulations for the issuance of permits under section 13 302. The regulations shall, in accordance with this act, provide 14 for all of the following: 15 (1) Standards and procedures for the classification and 16 delineation of wetlands and procedures for administrative 17 review of any classification or delineation. 18 (2) Standards and procedures for the individual permit 19 applications under section 302(a). 20 (3) General enforcement of this act. 21 (4) Other matters that the department deems necessary or 22 appropriate to implement requirements of this act. 23 (5) Requirements governing the establishment of 24 mitigation banks. 25 (c) Temporary regulations.--The department shall, within 90 26 days of the effective date of this act under section 2103(2), 27 issue interim regulations consistent with this act to take 28 effect immediately. The interim regulations shall be binding 29 until the issuance of final regulations under subsection (a). 30 The department shall provide adequate procedures for waiver of 19950H0200B0730 - 16 -
1 any provisions of interim regulations to avoid special hardship, 2 inequity or unfair distribution of burdens or to advance the 3 purpose of this section. 4 (d) Fund.--The department shall administer this act and the 5 fund. 6 CHAPTER 21 7 MISCELLANEOUS PROVISIONS 8 Section 2101. Preemption. 9 This act preempts ordinances of political subdivisions which 10 are in conflict with this act. 11 Section 2102. Appropriation. 12 The sum of $ , or as much thereof as may be necessary, is 13 hereby appropriated to the Wetlands Conservation Fund for the 14 fiscal year July 1, 1995, to June 30, 1996. This shall be a 15 continuing appropriation and shall not lapse at the end of the 16 fiscal year. 17 Section 2103. Effective date. 18 This act shall take effect as follows: 19 (1) Section 301 of this act shall take effect in 240 20 days. 21 (2) The remainder of this act shall take effect in 60 22 days. B7L27VDL/19950H0200B0730 - 17 -