PRINTER'S NO. 1169
No. 1049 Session of 1995
INTRODUCED BY GEORGE, MIHALICH, PESCI, BELARDI, CAPPABIANCA,
MELIO, OLASZ AND TRELLO, MARCH 7, 1995
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
MARCH 7, 1995
AN ACT
1 Providing for wetlands conservation and management; further
2 providing for eminent domain; providing for taxation and for
3 penalties and remedies; establishing the Wetlands
4 Conservation Fund; conferring powers and duties upon the
5 Department of Environmental Resources; and making an
6 appropriation.
7 TABLE OF CONTENTS
8 Chapter 1. Preliminary Provisions
9 Section 101. Short title.
10 Section 102. Declaration of policy.
11 Section 103. Definitions.
12 Chapter 3. Conservation and Management
13 Section 301. Prohibition.
14 Section 302. Permits.
15 Section 303. Notice and hearing relating to certain permit
16 applications.
17 Section 304. Wetlands identification and classification.
18 Section 305. Taxation.
19 Chapter 5. Enforcement
1 Section 501. Penalty.
2 Section 502. Injunction.
3 Chapter 7. Administration
4 Section 701. Fund.
5 Section 702. Administrative provisions.
6 Chapter 21. Miscellaneous Provisions
7 Section 2101. Preemption.
8 Section 2102. Appropriation.
9 Section 2103. Effective date.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 CHAPTER 1
13 PRELIMINARY PROVISIONS
14 Section 101. Short title.
15 This act shall be known and may be cited as the Wetlands
16 Conservation and Management Act.
17 Section 102. Declaration of policy.
18 The General Assembly finds and declares as follows:
19 (1) Wetlands play an integral role in maintaining the
20 quality of life through material contributions to economy,
21 food supply, water supply and quality, wood supply, flood
22 control, fish, wildlife and plant resources. Wetlands are
23 critical to the health, safety, recreation and economic well-
24 being of citizens of this Commonwealth.
25 (2) Wetlands can serve important ecological and natural
26 resource functions, such as providing essential nesting and
27 feeding habitat for waterfowl, other wildlife and rare and
28 endangered species; providing fisheries habitat; enhancement
29 of water quality; and natural flood control.
30 (3) There is a need to limit the loss of ecologically
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1 significant wetlands and for long-term maintenance of the
2 wetlands resource base.
3 (4) An effective wetlands conservation and management
4 program must reflect a balanced approach that conserves and
5 enhances important wetlands values and functions while
6 observing private property rights; recognizes the need for
7 essential public infrastructure, such as highways, ports,
8 airports, sewer systems and public water supply systems; and
9 provides the opportunity for sustained economic growth.
10 (5) While wetlands provide many varied economic and
11 environmental benefits, they also present health risks in
12 some instances where they act as breeder grounds for insects
13 that are carriers of human and animal diseases.
14 (6) Variations in wetlands values or functions should be
15 considered in determining the character and extent of
16 regulation of activities occurring in wetlands areas.
17 (7) Sufficient regulatory incentives are required for
18 conservation, restoration or enhancement activities.
19 (8) Conservation of resources on an ecosystem basis
20 should be encouraged to the fullest extent practicable.
21 (9) The majority of wetlands resources exist on private
22 lands and strict preservation measures can adversely affect
23 uplands property and normal agricultural activity.
24 (10) Public and private interests should be balanced in
25 determining the conditions under which activity in wetlands
26 areas may occur.
27 Section 103. Definitions.
28 The following words and phrases when used in this act shall
29 have the meanings given to them in this section unless the
30 context clearly indicates otherwise:
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1 "Activity in wetlands." Any of the following:
2 (1) Discharge of dredged or fill material into wetlands.
3 (2) Draining, channelization or excavation of wetlands.
4 "Creation of wetlands." Bringing a wetland into existence at
5 a site where it did not formerly occur for the purpose of
6 compensation.
7 "Department." The Department of Environmental Resources of
8 the Commonwealth.
9 "Enhancement of wetlands." Increasing the value of wetlands'
10 functions.
11 "Fastlands." Lands located behind permitted human-made
12 structures.
13 "Fund." The Wetlands Conservation Fund established in
14 section 701.
15 "Growing seasons." For each plant hardiness zone, the period
16 between the average date of last frost in spring and the average
17 date of first frost in autumn.
18 "Incidentally created wetlands." Lands that exhibit wetlands
19 characteristics where any characteristic is the unintended
20 result of human-induced alterations of hydrology.
21 "Maintenance." Activities undertaken to assure continuation
22 of a wetland or the accomplishment of project goals after a
23 restoration or creation of wetlands has been technically
24 completed. The term includes water level manipulations and
25 control of nonnative plant species.
26 "Mitigation banking." Restoration of wetlands, enhancement
27 of wetlands, preservation of wetlands or creation of wetlands
28 for the purpose of providing compensation for wetland
29 degradation or loss.
30 "Normal farming, silviculture, aquaculture and ranching
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1 activities." Normal ongoing practices identified by the
2 Department of Agriculture, taking into account existing
3 practices and other practices identified in consultation with
4 the affected industry or community.
5 "Prior converted cropland." Land that:
6 (1) does not serve wetlands functions;
7 (2) has been drained or physically altered to remove
8 excess water; and
9 (3) has been cropped before December 23, 1985.
10 "Restoration." An activity undertaken to return a wetland
11 from a disturbed or altered condition with lesser acreage or
12 fewer wetlands functions to a previous condition with greater
13 acreage or wetlands functions.
14 "Temporary impact." The disturbance or alteration of
15 wetlands caused by activities under circumstances where, within
16 three years following commencement of the activities, the
17 wetlands:
18 (1) are returned to the conditions in existence prior to
19 the commencement of the activity; or
20 (2) display conditions sufficient to ensure that,
21 without human action, they will return to the conditions in
22 existence prior to the commencement of the activity.
23 "Type A wetlands." Wetlands of 50 or more contiguous acres
24 or wetlands that are of critical significance to the long-term
25 conservation of the ecosystem of which they are a part and which
26 meet all of the following requirements:
27 (1) The wetlands serve critical wetlands functions,
28 including the provision of critical habitat for a
29 concentration of avian, aquatic or wetland dependent
30 wildlife.
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1 (2) The wetlands consist of or may be a portion of ten
2 or more contiguous acres and have an inlet or outlet for
3 relief of water flow.
4 (3) There exists a scarcity within the watershed or
5 aquatic ecosystem of identified ecological functions served
6 by the wetlands such that the use of the wetlands would
7 seriously jeopardize the availability of these identified
8 wetlands functions.
9 (4) There is no overriding public interest in the use of
10 the wetlands for purposes other than conservation.
11 (5) The nature and scope of wetlands functions are such
12 that minimization and compensation are not feasible means for
13 conserving wetlands values and functions.
14 "Type B wetlands." Wetlands that provide habitat for a
15 significant population of avian, aquatic or wetland dependent
16 wildlife or provide significant enhancement or protection of
17 water quality and significant natural flood control. The term
18 also includes mitigated wetlands and incidentally created
19 wetlands.
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;
30 (6) contain building foundations, other remains of
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1 previous structures or existing abandoned structures; or
2 (7) are less than two contiguous acres.
3 "Wetlands." Lands which have a predominance of hydric soils
4 and which are inundated by surface water at a frequency and
5 duration sufficient to support, and which under normal
6 circumstances do support, a prevalence of vegetation typically
7 adapted for life in saturated soil conditions. The term includes
8 swamps, marshes and bogs.
9 "Wetlands functions." The roles wetlands serve which are of
10 value. The term includes flood water storage, flood water
11 conveyance, groundwater discharge, erosion control, wave
12 attenuation, water quality protection, scenic and aesthetic use,
13 food chain support, fishery, wetlands plant habitat, aquatic
14 habitat and habitat for wetland dependent wildlife.
15 CHAPTER 3
16 CONSERVATION AND MANAGEMENT
17 Section 301. Prohibition.
18 (a) General rule.--Except as provided in subsection (b), a
19 person may not undertake an activity in wetlands without a
20 permit from the department.
21 (b) Exception.--The following activities in wetlands do not
22 require a permit:
23 (1) Normal farming, silviculture, aquaculture and
24 ranching activities.
25 (2) Maintenance, including emergency reconstruction of
26 recently damaged parts of currently serviceable structures
27 such as dams, levees, water control structures, causeways,
28 bridge abutments or approaches and transportation structures.
29 (3) Construction or maintenance of farm, stock or
30 aquaculture ponds or irrigation canals and ditches or
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1 maintenance of drainage ditches and tile fields.
2 (4) Construction, maintenance or removal of temporary
3 sedimentation basins on a construction or mining site which
4 does not include placement of fill material into wetlands.
5 (5) Construction or maintenance of farm roads, forest
6 roads or temporary roads for moving mining equipment, if the
7 roads are constructed and maintained in accordance with best
8 management practices to assure that flow and circulation
9 patterns and chemical and biological characteristics of the
10 waters are not impaired, that the reach of the waters is not
11 substantially reduced and that any adverse effect on the
12 aquatic environment will be otherwise minimized.
13 (6) Activities undertaken on farmed wetlands. If there
14 is a change in the use of farmed wetlands for the purpose of
15 undertaking an activity that is not exempt under this
16 subsection, the exception granted by this paragraph is
17 inapplicable to the extent that the farmed wetlands are
18 classified under section 303.
19 (c) General permits.--The department may, in accordance with
20 the rules adopted by the Environmental Quality Board, issue
21 general permits on a regional or Statewide basis for any
22 category of activity in a Class B wetland if the department
23 determines that the projects in the category are similar in
24 nature and can be adequately regulated utilizing standardized
25 specifications and conditions.
26 (d) Previous permits.--Permits previously issued by the
27 department for activities and structures affecting wetlands
28 pursuant to the act of November 26, 1978 (P.L.1375, No.325),
29 known as the Dam Safety and Encroachments Act, shall be deemed
30 to be permits under this act.
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1 Section 302. Permits.
2 (a) Application.--A person seeking to undertake an activity
3 in wetlands for which a permit is required under section 301(a)
4 shall make application to the department identifying the site of
5 activity and describing the proposed activity. The applicant may
6 also provide such additional information regarding such proposed
7 activity as necessary or appropriate for determining the
8 classification of the wetlands or whether and under what
9 conditions the proposed activity may be permitted to occur. The
10 department shall prescribe, by regulation, permit fees.
11 (b) Determination.--
12 (1) Upon application under subsection (a), the
13 department shall classify the wetlands under application as
14 Type A, Type B or Type C.
15 (i) The department is authorized and directed to
16 establish regulations that govern the delineation of
17 lands as wetlands for purposes of this paragraph and
18 section 303. The regulations shall be established in
19 accordance with generally recognized scientific
20 principals after consultation with other State agencies,
21 including the Pennsylvania Fish and Boat Commission and
22 the Pennsylvania Game Commission and Federal agencies,
23 including the United States Fish and Wildlife Service,
24 the Environmental Protection Agency and the United States
25 Soil Conservation Service. The delineation regulations
26 shall be no more restrictive than the Federal delineation
27 standards or guidelines.
28 (ii) The regulations shall ensure that lands are
29 delineated as wetlands only if the lands are found to be
30 wetlands as defined in this act. The regulations may not
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1 cause any of the following results:
2 (A) The delineation of lands as wetlands unless
3 clear evidence of wetland hydrology, hydrophytic
4 vegetation and hydric soil is found to be present
5 during the period in which delineation is made.
6 Delineation shall be conducted during the growing
7 season unless otherwise requested by the applicant.
8 (B) The classification of vegetation as
9 hydrophytic if the vegetation is equally adapted to
10 dry or wet soil conditions or is more typically
11 adapted to dry conditions than wet soil conditions.
12 (C) The classification of lands as wetlands
13 unless some obligate hydrophytic wetlands vegetation
14 is found to be present during the period of
15 delineation except if such vegetation has been
16 removed for the purpose of evading jurisdiction under
17 this section, this clause shall not apply.
18 (D) The conclusion that wetlands hydrology is
19 present unless water is found to be present at the
20 surface of the lands for at least 21 consecutive days
21 during the growing season in which delineation is
22 made and for 21 consecutive days in the growing
23 seasons in a majority of the years for which records
24 are available.
25 (iii) Regulations shall provide that normal
26 circumstances shall be determined on the basis of the
27 factual circumstances in existence at the time of
28 application under subsection (a) or at the time of
29 classification under section 303, whichever is
30 applicable, if those circumstances have not been altered
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1 by an activity prohibited under section 301.
2 (2) If the wetlands under application are classified as
3 Type A, the permit shall be denied.
4 (3) If the wetlands under application are classified as
5 Type C, the classification constitutes the permit.
6 (4) If the wetlands under application are classified as
7 Type B, the department shall make a determination on the
8 permit on the basis of the following criteria to ensure the
9 watershed or aquatic ecosystem of which the wetlands are a
10 part does not suffer significant loss or degradation of
11 wetlands functions:
12 (i) Quality and quantity of ecologically significant
13 functions served by the areas to be affected.
14 (ii) Opportunities to reduce impacts through cost-
15 effective design to avoid or minimize use of wetlands
16 areas.
17 (iii) Costs of mitigation requirements and social,
18 recreational and economic benefits associated with the
19 proposed activity.
20 (iv) Ability of the permittee to mitigate wetlands
21 loss, or degradation or destruction as measured by
22 wetlands functions.
23 (v) Environmental benefit that may occur through
24 mitigation efforts, including restoring, preserving,
25 enhancing or creating wetlands functions.
26 (vi) Marginal impact of the proposed activity on the
27 watershed of which the wetlands are a part.
28 (5) The department shall complete the determination
29 under this subsection within 90 days of receipt of the
30 application.
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1 (c) Procedure.--The provisions of 2 Pa.C.S. Ch. 5 Subch. A
2 (relating to practice and procedure of Commonwealth agencies)
3 and Ch. 7 Subch. A (relating to judicial review of Commonwealth
4 agency action) shall apply to this section.
5 Section 303. Notice and hearing relating to certain permit
6 applications.
7 (a) Duties of department.--
8 (1) If the department, upon review of a permit
9 application, determines that wetlands replacement or
10 mitigation should be a condition of permit approval, the
11 department, after consultation with other administrative
12 agencies, including the Pennsylvania Fish and Boat Commission
13 and the Pennsylvania Game Commission, shall locate land which
14 is under the control of such an agency and which is suitable
15 for wetlands replacement or mitigation. This paragraph shall
16 not apply if the applicant requests that wetlands replacement
17 or mitigation activity not occur on public land.
18 (2) If there is wetlands replacement or mitigation on
19 public or nonpublic land or if the department is conducting a
20 wetlands environmental assessment study, the department
21 shall:
22 (i) Notify all affected parties, including
23 municipalities which encompass in whole or in part the
24 permit or study area. This notice shall be given by
25 certified mail and by publication in a newspaper of
26 general circulation in the vicinity. Affected parties
27 shall include residents and property owners as well as
28 businesses impacted by the permit or study.
29 (ii) At the request of any party or municipality,
30 conduct at least one public hearing on the permit or
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1 study.
2 (iii) Allow for a 30-day public comment period to
3 receive written statements relating to the permit or
4 study.
5 (b) Notice.--At least 30 days prior to conducting a hearing
6 under this section, the department shall publish notice of same
7 in a newspaper of general circulation in the proposed permit
8 area.
9 (c) Testimony.--If a public hearing is held, a person may
10 testify within the time provided or submit written comments, or
11 both. The department shall consider testimony relevant to the
12 requirements of this act.
13 (d) Summary of comments.--After a hearing, the department
14 shall prepare a summary of the written and oral comments
15 submitted at the hearing, a summary of any comments received
16 during a public comment period, the department's responses to
17 the comments and the reasons therefor. The department shall
18 provide copies of this summary to persons who submitted comments
19 and to other persons who request a copy.
20 (e) Meetings.--Whether or not the department holds a public
21 hearing, the department may conduct an informal meeting, public
22 meeting or series of meetings.
23 Section 304. Wetlands identification and classification.
24 (a) Identification.--The department, in consultation with
25 other Federal and State agencies, shall undertake a project to
26 identify and classify wetlands in this Commonwealth. The
27 department shall complete the project within five years of the
28 effective date of this act under section 2103(2).
29 (b) Classification.--In conducting the project under this
30 section, the department shall identify and classify wetlands in
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1 accordance with standards for delineation of wetlands
2 established under section 302(b)(1).
3 (c) Notice and hearing.--In conducting the project under
4 this section, the department shall provide notice and an
5 opportunity for a public hearing in each county before the
6 completion of the identification and classification of wetlands
7 in that particular county.
8 (d) Publication.--After completion of the identification and
9 classification of wetlands, the department shall promptly
10 publish the information on identification and classification in
11 the Pennsylvania Bulletin and in a newspaper of general
12 circulation in each county and take other steps reasonably
13 necessary to ensure that the information is available to the
14 public.
15 (e) Report.--The department shall report to the General
16 Assembly on implementation of the project to be conducted under
17 this section within two years after the effective date of this
18 act under section 2103(2) and annually thereafter.
19 (f) Update.--The department shall periodically update the
20 wetlands inventory maps and make them available to the public.
21 Notice of updates to the wetlands inventory maps shall be made
22 in the same manner as described in subsection (d).
23 (g) Any person who is aggrieved by the classification of his
24 property as wetland shall have the right to appeal the
25 classification to the Environmental Hearing Board within 30 days
26 of publication of notice by the department of the classification
27 in the Pennsylvania Bulletin.
28 Section 305. Taxation.
29 Each county shall assess Type A and Type B wetlands as
30 follows:
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1 (i) The property or properties which contain Type A
2 wetlands shall be given the lowest assessed valuation for
3 each taxing authority.
4 (ii) The property or properties which contain Type B
5 wetlands for which the department issued a permit for
6 activity in that wetland shall be assessed at the fair
7 market value after the permitted activity is completed.
8 (iii) The property or properties which contain Type
9 B wetlands on which a permit for an activity in a wetland
10 was denied or for which no permit application was made to
11 the department shall be given the lowest assessed
12 valuation for each taxing authority.
13 CHAPTER 5
14 ENFORCEMENT
15 Section 501. Penalty.
16 A person who intentionally violates this act commits a
17 summary offense and shall, upon conviction, be sentenced to pay
18 a fine of $1,000. Each day that the violation continues
19 constitutes a separate violation under this section.
20 Section 502. Injunction.
21 A person aggrieved by a violation of this act may seek an
22 injunction against the violation in a court of competent
23 jurisdiction.
24 CHAPTER 7
25 ADMINISTRATION
26 Section 701. Fund.
27 (a) Establishment.--The Wetlands Conservation Fund is
28 established as a separate fund in the State Treasury.
29 (b) Source.--The source of the fund shall be all of the
30 following:
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1 (1) Permit fees under section 302(a).
2 (2) One percent of the Commonwealth's share of the tax
3 under Article XI-C of the act of March 4, 1971 (P.L.6, No.2),
4 known as the Tax Reform Code of 1971.
5 (3) Penalties under section 501.
6 (4) Annual appropriations.
7 (c) Purpose.--The purposes of the fund are:
8 (1) To administer this act. A maximum of 1% of the money
9 in the fund in a fiscal year may be utilized under this
10 paragraph for that fiscal year.
11 (2) To pay for the development of wetlands replacement
12 and mitigation sites.
13 Section 702. Administrative provisions.
14 (a) General rule.--The department shall administer this act
15 and the fund.
16 (b) Final regulations.--Within one year of the effective
17 date of this act under section 2103(2), the department shall
18 promulgate regulations for the issuance of permits under section
19 302. The regulations shall, in accordance with this act, provide
20 for all of the following:
21 (1) Standards and procedures for the classification and
22 delineation of wetlands and procedures for administrative
23 review of any classification or delineation.
24 (2) Standards and procedures for the individual permit
25 applications under section 302(a).
26 (3) General enforcement of this act.
27 (4) Other matters that the department deems necessary or
28 appropriate to implement requirements of this act.
29 (5) Requirements governing the establishment of
30 mitigation banks.
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1 (c) Temporary regulations.--The department shall, within 90
2 days of the effective date of this act under section 2103(2),
3 issue interim regulations consistent with this act to take
4 effect immediately, which regulations shall supercede the
5 regulations contained in 25 Pa. Code Ch. 105 (relating to dam
6 safety and waterway management). The interim regulations shall
7 be binding until the issuance of final regulations under
8 subsection (a). The department shall provide adequate procedures
9 for waiver of any provisions of interim regulations to avoid
10 special hardship, inequity or unfair distribution of burdens or
11 to advance the purpose of this section.
12 (d) Fund.--The department shall administer this act and the
13 fund.
14 CHAPTER 21
15 MISCELLANEOUS PROVISIONS
16 Section 2101. Preemption.
17 This act preempts ordinances of political subdivisions which
18 are in conflict with this act.
19 Section 2102. Appropriation.
20 The sum of $ , or as much thereof as may be necessary, is
21 hereby appropriated to the Wetlands Conservation Fund for the
22 fiscal year July 1, 1995, to June 30, 1996. This shall be a
23 continuing appropriation and shall not lapse at the end of the
24 fiscal year.
25 Section 2103. Effective date.
26 This act shall take effect as follows:
27 (1) Section 301 shall take effect in 240 days.
28 (2) The remainder of this act shall take effect in 60
29 days.
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