The overall framework for environmental protection in Pennsylvania is embodied in Article 1, Section 27, of the State Constitution (the so-called Environmental Rights Amendment), adopted in 1971, which states that:

          The people have a right to clean air, pure water, and to the preservation of the natural, scenic,
          historic, and aesthetic values of the environment. Pennsylvania's public natural resources are 
          the common property of all the people, including generations yet to come. As trustee of these
          resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

During the 1970s, major environmental protection laws and regulations were adopted at both the Federal and State levels. One year after the 1969 passage of the National Environmental Policy Act (NEPA), Congress adopted the Clean Air Act (with major amendments in 1977). In 1972, the Federal Water Pollution Control Act (now the Clean Water Act) was adopted, also with major amendments in 1977.

These Federal laws provide several checks and balances aimed at assuring at least a modicum of environmental protection. Sections of the Clean Water Act (CWA) delegate to the States the authority to administer water quality protection programs. Federal oversight of the State programs, however, typically is retained by the US Environmental Protection Agency (EPA). Point -source discharges are regulated under the CWA Section 402 NPDES (National Pollutant Discharge Elimination System) permit programs administered by Pennsylvania and most other States. Section 404 of the CWA, administered by the US Army Corps of Engineers, regulates dredge and fill activities in wetlands and other waters of the United States. Many states, including Pennsylvania, have complementary programs that regulate activities in wetlands and other waters.
 

Pennsylvania enacted water pollution control legislation long before the environmental movement swept the nation in the 1970s. In 1905, the Purity of Waters Act (replaced in 1984 by the Safe Drinking Water Act) was passed to protect public health and assure supplies of clean drinking water by setting standards for domestic sewage disposal. Act 375, passed in 1913, made it illegal to discharge coal, culm, or refuse into streams. Act 355, also passed in 1913, regulated dams and encroachments in navigable streams (replaced by Act 325, the current Dam Safety and Encroachments Act of 1978).

The Pennsylvania Constitution guarantees every citizen the right to clean air and pure water and entrusts the Commonwealth to conserve and maintain its natural resources for the public benefit.

On 22 June 1937, the original Clean Streams Law was enacted in Pennsylvania (Act 394, P.L. 1987). This law established the basic State regulatory authority for protecting streams from pollution. The law has been amended a number of times since. The Clean Streams Law defines "pollution" broadly to include "contamination of any waters of the Commonwealth" by "physical, chemical, or biological" means.

Section 315 of the Clean Streams Law specifically addresses the operation of mines. It requires (among other things) that mine operations comply with other relevant environmental laws of the Commonwealth, notably including the Dam Safety and Encroachments Act, as well as the provisions of the Clean Streams Law itself. The Law authorizes the PADEP to regulate coal mining activities which may adversely affect Commonwealth waters (see Plumstead Township Civic Association v. Department of Environmental Resources, 597 A.2d 734, 738; PA Commw. 1991).

The Clean Streams Law regulations appear at 25 Pa. Code Chapter 93. Chapter 93 defines wetlands as one of the classes of surface waters of the Commonwealth. The existing uses of such waters are to be maintained and protected [25 Pa. Code 93.4a(b)]. When wetlands are dewatered or drowned by surface subsidence, or polluted by contaminated wastewaters, their existing uses are not maintained or protected.

As scientists and policymakers have learned more about the functions and values of wetlands, particularly during the past 30 years, wetland protection has become recognized as a critical component in the overall goal of water quality protection. Having lost half the wetlands extant in the eighteenth century, Pennsylvania must guard its remaining wetland resources if it is to fulfill the promise of its Constitution to current and future generations.

Pennsylvania Wetland Regulation

In Pennsylvania, wetlands are specifically protected by the Dam Safety and Encroachments Act (DSEA), which became law in 1978 (P. L. 1375, No. 325, as amended). Two of the stated purposes of the Act (Section 2) are to:

Provide for the regulation of dams and reservoirs, water obstructions and encroachments in the Commonwealth, in order to protect the health, safety and welfare of the people and property.[emphasis added]

and

Protect the natural resources, environmental rights and values secured by the Pennsylvania Constitution and conserve the water quality, natural regime and carrying capacity of watercourses. [emphasis added] 

Several key definitions in the Dam Safety and Encroachments Act are as follows:

An encroachment is broadly defined in the Act as:

Any structure or activity which in any manner changes, expands or diminishes the course, current or cross section of any watercourse, floodway or body of water.[emphasis added]

Any channel of conveyance of surface water having a defined bed and banks, whether natural or artificial, with perennial or intermittent flow.

Any natural or artificial lake, pond, reservoir, swamp, marsh or [other] wetland. [emphasis added]

The Division of Waterways, Wetlands, and Erosion Control (DWWEC) [formerly the Bureau of Dams and Waterways Management - BDWM] in the Pennsylvania Department of Environmental Protection (PADEP) is responsible in general for the administration and enforcement of the Act and the Chapter 105 regulations. To implement the DSEA and the regulations, the PADEP established a permit review process. Impacts on wetlands and other regulated waters of the Commonwealth are not allowed until a written permit is obtained from or is registered with the DWWEC or its designee, except for certain classes of minor waivered activities in the non-wetland open waters of small watersheds. Permits for most activities regulated under Chapter 105 are issued by the six regional DWWEC offices. The Southwestern Regional DWWEC office is located in Pittsburgh (Figure 6).

The two types of permits issued under the Chapter 105 Program are for: 1) Dams and 2) Water Obstructions and Encroachments. A project that will have minimal impact may conform with the specific requirements of one or more of the eleven "general permits" for activities in relatively non-sensitive areas, or it may qualify for the abbreviated paperwork associated with a "small projects" permit. Regulated activities that may qualify for such minor approvals typically include temporary or minor road crossings, stormwater outfalls, and bridge deck replacements.

The authority to register "general permits" (GPs) under the Chapter 105 program has been delegated to 43 County Conservation Districts statewide. The Conservation Districts in Greene and Washington Counties have the delegated authority to register only two of the general permits (GP-6 for Agricultural Crossings and Ramps, and GP-9 for other Agricultural Activities). Since 1990, the registration of general permits for mining activities within mine permit areas has been delegated to the Bureau of Mining and Reclamation (BMR) in PADEP.

Activities in more sensitive regulated areas, or those that do not meet the strict limitations set for "general" permits, must obtain an "individual" permit which involves public notice and a comprehensive environmental review. Individual permit applications for most kinds of proposed construction are reviewed by one of the six regional offices of DWWEC.

An individual permit can authorize impacts on wetlands or other water bodies only after a specific, written determination has been made by PADEP that, among other things, the impacts have been minimized, there is no practicable, non-aquatic, alternative location for the activity, the project will not violate a State water quality standard, the project will not pollute groundwater or surface water resources or interfere with their uses, and the affected wetlands will be restored or replaced in acreage and function.

If a landowner wants to construct a factory or a residential subdivision in Pennsylvania, he must first identify any wetlands on his property and then design his development to avoid or minimize encroachments into them. If there are unavoidable wetland impacts associated with the development, the plans will be subject to the Chapter 105 regulatory review process. If even a fraction of an acre of wetlands must be disturbed, the builder will be involved in a permit review that can take up to a year or longer to complete. State and municipal public works projects (e.g., highways and local roads) similarly must endure lengthy permit review if the projects affect wetlands. Unavoidable wetland losses greater than 0.05 acre (2,178 square feet) must be compensated.

According to statistics compiled by the Bureau of Water Quality Protection (PADEP 1999c), impacts to a total of 93,218 linear feet (17.65 miles) of streams were authorized by the six DWWEC offices (Figure 6) statewide in 1998. During that same year, a total of 70.9 acres of permanent wetland impacts (and 4.9 acres of temporary wetland impacts) were authorized by DWWEC. A total of 98.9 acres of wetland replacement (including open water) was required by DWWEC permit conditions. The PADEP does not keep track of wetland replacement actually accomplished (as opposed to that required on paper by permit condition), and their data do not include wetland impacts that are unacknowledged or unreported. Hence the available numbers must be viewed with some skepticism.

Within the DWWEC Southwestern Regional office, 103 waterway permits were issued authorizing 23,958 linear feet of stream disturbances during 1998. In addition, 36 permits covering all types of new construction other than mining were issued for impacting a total of 13.8 acres of wetlands, for which 15.0 acres of wetland replacement were required.

The DWWEC regulatory process generally is working to protect wetlands throughout the Commonwealth. The same cannot be said of mining permits processed by the BMR, which silently authorize wetlands to be destroyed with virtually no restrictions.
 

Stream diversions, impoundments, and water withdrawals all are subject to regulatory review and approval because of the impacts such activities can cause beyond the boundaries of the properties where they take place. Proposed alterations of the quantity and flow of surface water and groundwater are subject to PADEP permit requirements statewide. When private or public water providerspropose to withdraw significant amounts of groundwater, they are subject to regulatory oversight because of the detrimental effects such withdrawal can cause on wetlands and on existing water users (see Oley Twp. v. DEP and Wissahickon Water Co. 1996 EHB 1098). At least the same level of regulatory review should be afforded to the enormous longwall mines that disrupt surface and groundwater patterns in a section of the Commonwealth that has exceptionally scarce wetlands.

A Chapter 105 individual permit can authorize impacts on wetlands or other water bodies only after a written determination by PADEP that the project will not pollute groundwater or surface water resources or interfere with their uses.

The criteria for approving structures and activities in wetlands are listed at 25 Pa. Code 105.18a; Subsection (a) deals with "exceptional value wetlands" and Subsection (b) addresses "other wetlands". Among the listed criteria, two of particular relevance to longwall mining activities are that:

The project will not cause or contribute to pollution of groundwater or surface water resources or diminution of the resources sufficient to interfere with their uses.

§105.18a(a)5 and §105.18a(b)5.

The cumulative effect of this project and other projects will not result in a major impairment of this Commonwealth's wetland resources.

§105.18a(b)6.

According to the most recent statistics available from PADEP, the six regional offices of the DWWEC issued a total of 676 individual Chapter 105 permits in 1998. Of these, 191 were for activities in floodways, 519 were for activities in streams, 203 were for activities to impact (fill or excavate) wetlands permanently or temporarily, and 31 were for activities in lakes, ponds, or reservoirs. In addition, a total of 3,790 Chapter 105 general permits were registered either by the PADEP regional offices or by County Conservation Districts in 1998.

Delegation of Chapter 105 Responsibilities to BMR

The Chapter 105 wetland regulatory process can be cumbersome, but it functions effectively for most industries and most types of construction activities throughout the Commonwealth. Mining is not exempt from any of the requirements of Chapter 105. A special arrangement has been established, however, for reviewing the wetland encroachments and obstructions associated with mining activities.

On 5 October 1981, an agreement was formalized between two offices of PADER (now the PADEP): the Bureau of Mining and Reclamation (BMR) and the Bureau of Dams and Waterways Management (BDWM; now the Division of Waterways, Wetlands and Erosion Control). According to the terms of this agreement (see Appendix A), responsibility for the administration and enforcement of the DSEA of 1978 was delegated to the Bureau of Mining and Reclamation for all mine-related operations, with the exception of certain mine-related dams which remain the responsibility of the BDWM.

The 1981 agreement applies to all underground as well as surface mining activities. The BMR District Mining Office in McMurray is responsible for reviewing permit applications for all undergroundbituminous coal mines in Pennsylvania, and for issuing PADEP approval pursuant to the DSEA and the Chapter 105 regulations.
 

The "one-stop" PADEP permitting arrangement was made "...in the interest of cost saving, public relations and prompt permit processing...", but these goals were not stated to preclude environmental protection in general or wetland protection specifically. The environmentally protective mandates of PADEP in administering the environmental laws of the Commonwealth were imposed upon BMR through the delegation agreement. Twenty years later they still lack implementation.

A 1981 agreement transferred responsibility for the administration and enforcement of the Dam Safety and Encroachments Act of 1978 for all mine-related operations from the Bureau of Dams and Waterways Management to the Bureau of Mining and Reclamation.

Any activity which results in the filling, excavation, or hydrological change of a wetland is an encroachment per Chapter 105. Wetland encroachments are to be regulated by BMR in accordance with the delegation agreement when it reviews proposed coal mining activities. Such activities may be associated with the excavation of coal, its preparation, and/or its transport. Numerous references to Chapter 105 and its requirements have been incorporated directly into the BMR's mining regulations (25 Pa. Code Chapters 86, 89, and 90), making it clear that the wetland protection provisions are to be applied, where relevant, to any type of mining activity.

Most construction activities throughout the Commonwealth that are authorized by a Chapter 105 general permit, and even some minor activities that may require an individual permit, can receive automatic Federal authorization in accordance with the Corps' State Programmatic General Permit (SPGP-1). However, Chapter 105 activities that are authorized by BMR are not eligible for the SPGP and require Corps approval.

The delegation of Chapter 105 authority to BMR has not brought with it a concomitant increase in wetland expertise or staff. Among the technical professionals in each regional office of DWWEC it is common to find biologists, aquatic ecologists, or persons similarly qualified to evaluate the potential impacts of proposed construction on wetlands and other aquatic resources. In the Mine Permit Section at the McMurray District Office there are 5 mining engineers, 3 mining specialists, 4 hydrogeologists, 1 senior civil engineer - hydraulic [permits unit supervisor], and 1 mining engineer supervisor [section chief], but no biologists or ecologists. The lack of professionals having biological training is one factor likely contributing to the extraordinary discrepancy between BMR and DWWEC when reviewing applications for wetland encroachments in Pennsylvania.
 

BMR appears in general to ignore most Chapter 105 requirements for wetland protection. When approving longwall mining applications, BMR even ignores its own mining regulations which mandate compliance with Chapter 105. DWWEC requires landowner consent before wetland destruction can be permitted in Pennsylvania. BMR affords surface landowners no role in wetland permitting.

Longwall mining expanded significantly when Pennsylvania mining law was amended in 1994 to allow subsidence where previously it was prohibited.

BMR records for 1998 indicate that statewide it authorized 7.41 acres of wetland impacts for surface mining activities and 12.69 acres of wetland impacts for underground mining activities. Of the latter, 0.72 acre of impacts were for three, separate underground mines (all three made contributions to the PA Wetland Replacement Fund in lieu of actual wetland replacement). In addition, a coal preparation plant was authorized to impact 7.37 acres of wetlands, for which 15.73 acres of wetland replacement were proposed. Finally, a refuse disposal facility was authorized to impact 4.6 acres of wetlands, for which 5.46 acres of replacement wetlands were required. The actual extent of wetland impact due to underground mining is far greater than the reported numbers indicate, as discussed at length below.

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