Pennsylvania Court and Environmental Hearing Board Decisions on Ponds and Dams

Sources checked September 28, 2026

Pennsylvania's Environmental Hearing Board (EHB) and courts have found that a DEP permit was required, and unpermitted work unlawful, where landowners dug a ditch through wetlands (High), rerouted an existing stream channel (Becker) or placed fill in a wetland (Baehler). In DEP v. Pecora (EHB 2008), landowners installed a rock dam about 6 to 8 feet high and an earth embankment dam about 10 feet high across a tributary, excavated a series of connected ponds, and excavated and graded more than five acres without erosion and sediment controls, damaging an Exceptional Value wild trout stream. Those facts were deemed admitted after the defendants did not answer the complaint, and the EHB assessed a $113,538.97 civil penalty for intentional Clean Streams Law and Dam Safety and Encroachments Act violations. [1][2][3][4]

In Pileggi v. DEP (Pa. Cmwlth., Jan. 7, 2026), a Chapter 102 earth disturbance case, the Commonwealth Court affirmed that a landowner who, per DEP testimony, disturbed about 1.48 acres as part of a larger common plan of development needed an NPDES permit and an E&S plan before beginning, and held that a landowner may not evade those requirements by claiming the work is complete and nothing further is "proposed." The Chapter 102 definition of earth disturbance that the court quoted includes excavations and embankments. [5]

The Commonwealth Court also vacated the EHB's adoption of DEP's remedies and remanded. After the Pennsylvania Supreme Court discontinued the landowner's request to appeal (March 9, 2026), the EHB held on March 18, 2026 that DEP's remedies, including an after-the-fact NPDES permit and E&S plan for the completed work, were appropriate and reasonable. [5][6][7]

The landowner appealed that decision to the Commonwealth Court on or about April 10, 2026, and the EHB denied reconsideration on April 30, 2026. No Commonwealth Court opinion in that second appeal was found in the court's opinion listings through Sept. 28, 2026. [6]

In Craig High v. DEP, the EHB (Jan. 5, 2024) held that a farmer's ditch dug through wetlands required a Dam Safety and Encroachments Act permit, but, because the wetland had stabilized, deleted DEP's requirements to restore the ditch and to develop and implement an E&S or conservation plan. The Commonwealth Court affirmed on Jan. 6, 2025 in an unreported opinion and denied reargument on March 24, 2025. [1][8][9]

On the federal side, the Third Circuit in United States v. Brace (1994), a case involving an Erie County farmer, read the Clean Water Act section 404(f) farming exemptions narrowly: the landowner must prove both that the activity satisfies section 404(f)(1) and that it avoids the section 404(f)(2) recapture provision, and the exemption is available only to activities that are part of an established farming operation at the site. The EHB cited Brace in Seligman (2014) for the rule that exemptions from regulation as wetlands are construed narrowly. [10][11][12]

Quotations from Brouse v. DEP (EHB, Sept. 22, 2026) and Rickert v. DEP (EHB, June 24, 2026) were taken from machine-read (OCR) text of scanned PDFs; the quoted numbers were checked against the page images. [13][14]

Several of these opinions are unreported or not precedential, including the Commonwealth Court's High (2025) and Virtus (2026) opinions and the Third Circuit's 2023 Brace and 2025 Corsnitz opinions. [1][15][16][17]

What the decisions treat as regulated streams, wetlands, lakes and floodways

The Dam Safety and Encroachments Act defines a watercourse or stream as any channel of conveyance of surface water having a defined bed and banks, natural or artificial, with perennial or intermittent flow. In Becker (Pa. Cmwlth. 2017) the court upheld the finding that a channel met that definition although the landowner testified it had flowing water on only six days in 2013 (the EHB was not convinced his calendar was accurate). In Seligman (EHB 2014) the EHB rejected a landowner's defense that the stream he excavated through was just "a ditch," calling that defense "distressingly common"; it noted that it is not uncommon for unnamed tributaries to be missing from USGS maps, and found the unnamed tributary there met the statutory definition of a watercourse. [2][12]

In Corsnitz (EHB 2018) the EHB held DEP has jurisdiction over artificial (man-made) bodies of water, because Chapter 105 defines "body of water" as "a natural or artificial lake, pond, reservoir, swamp, marsh or wetland"; the wetlands in that case, in a man-made mill race, were regulated whether natural or artificial. In Glance (EHB 2018) it denied, without prejudice, an owner's motion for summary judgment that DEP lacks jurisdiction over a lake he contends is privately owned, noting he cited no legal authority that DEP's authority over a body of water depends on its navigability. [18]

In Corsnitz, where landowners had placed fill in an old mill race wetland complex to put the land into agricultural production, the EHB also dismissed their appeal of DEP's order requiring them to cease unauthorized fill, submit an Agricultural Erosion and Sedimentation Plan meeting 25 Pa. Code § 102.4(a), and develop a restoration plan. In Pearson (EHB 2009), DEP's compliance order alleged a landowner built a pond in a wetland area without first obtaining a permit; the EHB dismissed his appeal as a sanction for not following Board rules and orders, without deciding the merits. [18][19]

In Flatley (EHB, May 8, 2026) the EHB held that structures in a FEMA-mapped floodway are water obstructions requiring a DEP permit, and that any structure located in a floodway is an encroachment as a matter of law, with no minimum-size requirement, so a stormwater catch basin and outfall pipe qualified. It found no provision of the Dam Safety and Encroachments Act that "grandfathers" unpermitted structures in a floodway; the Act requires owners of existing unpermitted structures to apply for and receive a permit. [20]

As quoted in Flatley, 25 Pa. Code § 105.1 says that, unless otherwise specified, the floodway boundary is as shown on FEMA maps and flood insurance studies. Where no FEMA maps or studies have defined the floodway, the same definition assumes, absent evidence to the contrary, that it extends from the stream to 50 feet from the top of the bank; the EHB relied on that presumption in Seligman. [12][20]

The EHB has explained that DEP generally does not directly designate the uses of wetlands; it classifies wetlands as Exceptional Value (EV), as opposed to "other wetlands," generally as part of a final permit or approval action, though wetlands associated with a stream designated EV may in effect be designated EV (Clean Air Council, 2018). In a 2024 NPDES permit appeal it stated that DEP must determine existing use protection for a surface water as part of its final permit action (Liberty Township). [8][18]

Farm work: Pennsylvania's agricultural waivers and the federal section 404(f) exemption

As the Commonwealth Court described it in High (Jan. 6, 2025), DEP does not require a Dam Safety and Encroachments Act permit for "maintenance of field drainage systems that were constructed and continue to be used for crop production" (25 Pa. Code § 105.12(a)(7)). The court upheld the EHB's reading that this waiver covers maintenance and does not extend to expanding existing or building new drainage systems; a newly cut ditch through undisturbed wetland, with the excavated material placed in adjacent wetlands, did not qualify. [1]

The EHB's main ground was that the landowner had not shown a pre-existing channel in the area that was part of his field drainage system. It added that the waiver arguably would allow working within the boundaries of an existing ditch to clear vegetation and remove built-up sediment, but would not necessarily cover activities extending meaningfully beyond the channel. [8]

The EHB stressed that its field-drainage ruling was fact-specific and not intended to create an onerous permit requirement for the thousands of Pennsylvania farmers who are routinely required to maintain their field drainage systems. It also quoted the § 105.12 provision under which DEP may require a permit if, upon complaint or investigation, it finds that a waiver-eligible structure or activity has a significant effect upon safety or the protection of life, health, property or the environment, though the EHB was satisfied DEP did not rely on that provision in High. [8]

In High (EHB 2024), the EHB put the burden of proving prior converted cropland, as an affirmative defense, on the landowner and required that status to be shown for the specific area disturbed; the status of an adjoining field does not transfer. Under 25 Pa. Code § 105.452(c), prior converted cropland is wetlands drained, dredged, filled, leveled or otherwise manipulated before December 23, 1985, not abandoned, for the purpose of, or with the effect of, making production of an agricultural commodity possible, with a commodity planted or produced at least once before that date, and DEP does not treat such areas as wetlands. [1][8]

In Seligman (EHB 2014) the EHB held the § 105.12(a)(7) and (8) waivers apply strictly to field drainage maintenance and crop production and in no way excused the permit requirement for excavating a wetland to install a geothermal heating and cooling system; it also found the field was not prior converted cropland. [12]

Under federal law, the Third Circuit in Brace (1994) held that the farmer, by converting a thirty-acre site not suitable for farming into farmland, had "brought an area into farming use," which is not exempt; that the relevant question is not whether farmers in a particular county install extensive drainage systems; and that a USDA "commenced conversion" determination serves solely to prevent the loss of USDA benefits. [10]

The same Erie County farmer later bought a neighboring parcel that includes about fourteen acres of wetlands, did not get the wetland delineation that federal officials advised him to get, and cleared and drained the wetlands without a permit; the district court granted the United States summary judgment on liability, and in 2021 the Third Circuit affirmed on an appeal that challenged only the district court's order striking his summary-judgment brief as a sanction. In 2023 the Third Circuit (not precedential) affirmed the finding that he violated a 1996 consent decree covering an approximately 30-acre wetland site by installing tile drains, excavating at least one ditch, and discharging dredged or fill material into about 18 acres through clearing, plowing and corn planting, and upheld the rejection of his equitable-estoppel defense. [11][16]

Earth disturbance: Chapter 102 permits, E&S plans and buffers

As quoted in Pileggi, 25 Pa. Code § 102.5(a) requires an individual NPDES permit or coverage under a general NPDES permit for stormwater discharges associated with construction activities before starting earth disturbance of 1 acre or more, or earth disturbance on any portion, part or stage of a larger common plan of development or sale involving 1 acre or more. The requirement does not apply to agricultural plowing or tilling, animal heavy use areas, timber harvesting activities or road maintenance activities. [5]

Under § 102.4(b) as quoted in the same opinion, for earth disturbance other than agricultural plowing or tilling or animal heavy use areas, E&S best management practices must be implemented and maintained even below 5,000 square feet, and a written E&S plan is required if the disturbance totals 5,000 square feet or more, if another regulation requires one, or if the activity has the potential to discharge to a High Quality or Exceptional Value water because of its proximity to drainage features. The Chapter 102 definition of earth disturbance activity includes land clearing and grubbing, grading, excavations, embankments, and the moving, depositing, stockpiling or storing of soil, rock or earth materials. [5]

In Pileggi, the Commonwealth Court held these NPDES requirements are not contingent on a point-source discharge, and noted that DEP's regulations provide enforcement tools other than an after-the-fact permit, such as orders to remediate or restore (25 Pa. Code § 102.32(a)(3)). It distinguished Baehler v. DEP (2004), where DEP let a landowner who filled wetlands without a permit either obtain an after-the-fact permit or forgo a permit application by removing the fill. [5]

On remand (Mar. 18, 2026) the EHB read the phrase "during any stage of" in § 102.5(a) to mean an NPDES permit is still necessary and appropriate after work has started, even if the work is unfinished or abandoned, and it also upheld the requirement of a permit and E&S plan should the landowner pursue future subdivision activity; the landowner appealed that decision to the Commonwealth Court on or about April 10, 2026. Pileggi involved subdivision road and cul-de-sac work, not a pond. [5][6][7]

In impaired special protection watersheds (Exceptional Value or High Quality watersheds with waters failing to attain one or more designated uses), 25 Pa. Code § 102.14(a)(2), subject to the exceptions in § 102.14(d), applies the riparian forest buffer requirements to permitted earth disturbance where the project site contains, is along or is within 150 feet of a perennial or intermittent river, stream or creek, lake, pond or reservoir. In Williams (EHB 2021) the EHB held a subdivision's "project site" was the entire 13.8-acre property and remanded its individual NPDES permit because DEP had not required a riparian forest buffer for a nearby stream or analyzed whether the proposed best management practices were substantially equivalent. [21]

Dams, drawdowns and unsafe dams

Friends of High Point Lake (EHB, Oct. 6, 2025) describes the approvals for drawing down an impoundment: 30 Pa.C.S. § 3506(a) provides that no person shall draw off dam waters inhabited by fish without first applying for written permission from the Fish and Boat Commission, and 25 Pa. Code § 105.122 states that impounded waters inhabited by fish may not be drawn down except with the Commission's written approval. DEP took the position that its own approval is needed only where a drawdown will exceed one foot per day (citing 25 Pa. Code § 105.96(c)); the Board said it was not clear that a long-term, full drainage of an impoundment used as a lake is routine maintenance, which DEP's regulations say does not require DEP approval, and that without further information it was unclear what approval may or may not be necessary. [22]

The permit in that case, a "Permit to Draw Off Water from Impoundments" for a full drawdown, was reviewed and signed by both the Fish and Boat Commission and DEP's Division of Dam Safety and required the permittee to follow DEP's best management practices for "Minimizing Sediment Pollution to Downstream Channels During Impoundment Dewatering"; the opinion does not describe what those practices contain. Testimony in the case, not a published DEP standard, described keeping a base flow in Glade Run, seeding exposed soil, and a settling basin that intercepts sediment coming out of the dam. [22]

The EHB denied a supersedeas that would have halted that drawdown (order Oct. 10, 2025; opinion Oct. 30, 2025) because there was a credible risk of injury to the public if the supersedeas were granted, even though the appellant made a reasonable showing of irreparable harm. High Point Lake Dam is a high hazard dam built in 1965 with features no longer deemed acceptable in high hazard dams, and it did not comply with current dam safety regulations because it had no device allowing a two-foot drawdown of the reservoir within 24 hours; the opinion recites the dam owner's account that a known wet area beside the auxiliary spillway grew about 10 times in size between September 2024 and July 2025. [22]

In Brouse v. DEP (EHB, Sept. 22, 2026), DEP had declared Lake Wynonah Dam (Schuylkill County) an "unsafe dam" in an Aug. 14, 2026 letter under 25 Pa. Code § 105.136, citing observed seepage on the embankment, a deteriorating concrete spillway, an analysis indicating the spillway could pass only about 60% of a probable maximum flood, and possible internal erosion, and found a high risk of failure with 32 structures housing about 70 people downstream. The letter did not order any specific action; it requested a voluntary and immediate complete drawdown at a rate not exceeding one foot of reservoir depth per day and said DEP planned to pursue heightened enforcement action if the owner did not immediately begin a drawdown. [13]

The EHB denied, without a hearing, a petition for supersedeas that sought to halt the drawdown, because the letter neither authorized nor required a drawdown, and it read § 105.136 as creating no self-executing duty to drain (in the Board's paraphrase, after an unsafe designation the owner must drain the lake only "as required and approved by the Department"). The drawdown was authorized by a separate permit issued Oct. 16, 2025 for up to 90 feet below normal pool, which no one appealed and which had become administratively final; the ruling addressed only the supersedeas petition, and the appeal of the letter itself was still pending when the opinion issued. [13]

In Lake v. Hankin Group (Pa. Cmwlth. 2013), DEP issued a notice of violation to a homeowners association stating that the dam of a stormwater pond had been breached and had allowed uncontrolled large volumes of sediment-laden water to be discharged. The court noted that the Clean Streams Law permits private actions to compel compliance and held that the developer that built the system could be found in violation even though it no longer had an interest in the property. [23]

Permit process and appeal deadlines

In Angela Cres Trust (EHB, Apr. 16, 2026), the Board explained that the Erie County Conservation District, under a delegation agreement with DEP, reviews and approves applications for coverage under Chapter 105 General Permit-4, which the Board described as authorizing the operation and maintenance of intake and outfall structures. It also explained that a general-permit registration is not subject to the individual permitting requirements of 25 Pa. Code §§ 105.14 and 105.21, because those were considered when DEP issued the general permit, while an individual permit application must meet Chapter 105, Subchapter A plus project-specific requirements such as § 105.81 for constructing and modifying dams and reservoirs. [24]

For Chapter 105 general permit registrations other than GP-9 (agricultural activities), GP-11 and oil and gas activities, the registration instructions the Board quoted say an E&S plan is not required for registration but must be approved by a conservation district or DEP before construction. The Board also said a change in a project's design may require a new or revised registration, depending on the scope and size of the change. [24]

In Angela Cres Trust the Board also quoted 32 P.S. § 693.17(c): a person aggrieved by a conservation district's action under a delegation agreement may appeal it to DEP within 30 days after notice. Earlier in the same case, DEP and the district argued an appeal must first go to DEP; in a July 1, 2025 ruling the EHB declined to dismiss the appeal at that stage because issues were in dispute and the matter was not free of doubt. [22][24]

In Virtus Capital Advisors (Pa. Cmwlth., June 5, 2026, unreported), a Chapter 105 permit for a bridge replacement said that if the work was not completed on or before Dec. 31, 2024, the permit, unless previously revoked or specifically extended by DEP in writing, "shall become void without further notification." DEP said it received no application to renew or extend the permit, and the court dismissed a neighbor's challenge as moot. [15]

In Rickert (EHB, June 24, 2026), an appeal filed Nov. 4, 2025 from an Apr. 2, 2024 DEP order alleging Clean Streams Law and Dam Safety and Encroachments Act violations was dismissed for lack of jurisdiction; the Board noted both statutes have a 30-day appeal period and found no fraud, breakdown in the Board's operations or other unique and compelling circumstances to allow a late (nunc pro tunc) appeal. It said a DEP letter or order need not state that it is final or include a notice of appeal rights to be appealable, and that notice mailed to a party's last known address suffices regardless of personal receipt. By the landowner's own account, DEP had told him "to remove the material from the ditch of [sic] get a permit." [14][25]

In Pruden (EHB 2025), neighbors appealed PAG-02 general NPDES permit coverage approved through the conservation district for earth disturbance at a clean fill site; the EHB said a person aggrieved by a DEP action must appeal within 30 days after notice, counted from publication in the Pennsylvania Bulletin or, if there is no publication, from actual notice. A limited liability company must be represented by counsel before the EHB. The Board dismissed an LLC's appeal of a DEP e-mail saying it needed an individual NPDES permit before any earth disturbance because the LLC never obtained counsel (WTA Properties, Jan. 7, 2026), and it dismissed another LLC's appeal for failing to obtain counsel and to follow Board rules and orders, while letting its individual member's appeal continue (354 Broadway, 2025). [22][26]

Penalties, personal liability and enforcement

Under 32 P.S. § 693.21(a), a Dam Safety and Encroachments Act civil penalty may not exceed $10,000 plus $500 for each day of continued violation, and the EHB weighs willfulness, damage or injury to the stream regime and downstream areas, restoration costs, the Commonwealth's enforcement costs and other relevant factors (DEP v. Spencer, 2024). The EHB assessed $65,766.68 in Spencer for failing to comply with a DEP administrative order, $3,400 in Seligman (2014) for unpermitted earth disturbance in a stream, in the floodways of two streams and in a wetland, and $113,538.97 in Pecora (2008). [4][8][12]

In Corsnitz the EHB rejected the argument that DEP's delay from May 2014 until its first inspection in July 2015 estopped its order. As summarized by the Third Circuit in 2025, the Commonwealth Court later quashed the landowners' petition for review as untimely and, after DEP filed a petition in 2021, in March 2022 ordered them to perform essentially the same remediation described in DEP's order, with a fine of $100 per day of noncompliance; their federal claims against DEP and its employees in their official capacities were held barred by sovereign immunity. [17][18]

In Becker (Pa. Cmwlth. 2017) the court held that a later transfer of the property does not eliminate the liability of the person who created the nuisance, but that an agency or court cannot effectively force that person to trespass on land whose current owner has not consented. On remand the EHB revised DEP's order, which had required, among other things, a joint Chapter 105 / Section 404 permit application with a stream restoration plan within 10 days, to require the former owner to negotiate an agreement for access to the site to do the work. [2][18]

In Flatley the EHB held an LLC's sole member personally liable under the "participation theory," which requires DEP to show he knew of the violations, failed to make reasonable efforts to address them and/or actively avoided doing so, and had the authority and duty to act, and it found reasonable DEP's order requiring him to either obtain a permit or remove the structures from the floodway. It also held that a Clean Streams Law violation does not require proof of actual pollution, because the danger of pollution is itself a violation. [20]

On inspections, the EHB held in Glance (2018) that where property is not subject to a permit and the owner refuses entry, DEP must first obtain a search warrant or other suitable order from a neutral judicial officer under section 16(b) of the Dam Safety and Encroachments Act (DEP's own administrative order is not one), noting that where property is subject to a permit, its conditions generally give DEP reasonable access. In Becker the court held inspection photographs could not be excluded, because the Pennsylvania Supreme Court has refused to apply the exclusionary rule in the civil context. [2][18]

In Osevala v. Gaudette (Pa. Cmwlth. 2020), neighbors who alleged that adjoining owners brought large amounts of rock, fill and soil onto properties in a township floodplain district without permits could sue directly in the court of common pleas under the Flood Plain Management Act and the Storm Water Management Act, without first exhausting remedies before the zoning hearing board. In DiPaolo (Pa. Cmwlth. 2018, unreported), township enforcement against a deck, sheds, paved and stoned areas and a gazebo placed in the floodway and floodplain without permits or variances was not barred by laches, estoppel, vested rights or justifiable reliance, even though the township did not act on the deck for nearly ten years. [27][28]

Decisions

Department of Environmental Protection v. John P. Pecora, et al.

Pennsylvania Environmental Hearing Board · May 1, 2008 · 2008 EHB 146 (EHB Docket No. 2007-125-CP-L) [4]

Holding: Assessed a $113,538.97 civil penalty for intentional violations of the Clean Streams Law and the Dam Safety and Encroachments Act, including an unpermitted rock dam and earth embankment dam across a tributary, a series of excavated ponds and more than five acres of grading without E&S controls on the property of an Exceptional Value wild trout stream.

Why it matters for a pond: A pond-and-dam case: building dams across a stream and digging ponds without Chapter 105 permits or E&S controls led to an administrative order, a Commonwealth Court injunction and two civil penalty actions.

Later history: An earlier penalty for the same site (DEP v. Pecora, 2007 EHB 545) was affirmed, Pecora v. EHB, No. 2036 C.D. 2007 (Pa. Cmwlth. Mar. 18, 2008) (unreported), as recited in this adjudication; later history of 2008 EHB 146 not verified.

Show the source text
The Board assesses a civil penalty of $113,538.97 for the Defendants' intentional violations of the Clean Streams Law and Dam Safety and Encroachments Act, which resulted in severe damage to an Exceptional Value wild trout streams ... A rock dam approximately 6 to 8 feet high had been installed across the Western ... An earth embankment dam approximately 10 feet high with a corrugated metal pipe culvert ... A series of connected ponds had been excavated ... The total area of excavating and grading at the Site without erosion and sediment controls in place was more than five acres.

Craig High v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 6, 2025 · No. 98 C.D. 2024 (Pa. Cmwlth. Jan. 6, 2025) (unreported memorandum opinion by Dumas, J.), aff'g the EHB adjudication issued Jan. 5, 2024 (cited as High v. DEP, 2024 EHB 1 in Flatley v. DEP, EHB May 8, 2026) [1]

Holding: Affirmed the EHB: a 20-inch-deep ditch newly excavated through wetlands on a farm required a Dam Safety and Encroachments Act permit; the field-drainage maintenance waiver in 25 Pa. Code § 105.12(a)(7) covers maintenance of existing systems, not building new or expanding them, and the farmer did not prove the area was prior converted cropland under 25 Pa. Code § 105.452(c).

Why it matters for a pond: Excavating through wetlands on a farm without a DEP permit was upheld as a Dam Safety and Encroachments Act violation; here DEP's biologist identified the wetlands by hydric soil, hydrology and hydrophytic plants. Chapter 105 waivers other than the field-drainage and prior-converted-cropland claims were not at issue.

Later history: Application for reargument denied Mar. 24, 2025. Unreported (non-precedential) memorandum opinion.

Show the source text
20-inch-deep ditch through a section of his farm ... restore the ditch to within 10 inches of the land’s preexisting elevation and implement an erosion and sediment control plan. ... wetlands were present in Area 2, such that Petitioner was required to obtain a permit from the Department before conducting excavations thereon. ... Petitioner did not need to restore the ditch’s elevation, because the health of the wetlands in Area 2 had largely ... stabilized

Craig High v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 6, 2025 · No. 98 C.D. 2024 (Pa. Cmwlth. Jan. 6, 2025) (unreported memorandum opinion by Dumas, J.), aff'g the EHB adjudication issued Jan. 5, 2024 (cited as High v. DEP, 2024 EHB 1 in Flatley v. DEP, EHB May 8, 2026) [1]

Holding: Affirmed the EHB: a 20-inch-deep ditch newly excavated through wetlands on a farm required a Dam Safety and Encroachments Act permit; the field-drainage maintenance waiver in 25 Pa. Code § 105.12(a)(7) covers maintenance of existing systems, not building new or expanding them, and the farmer did not prove the area was prior converted cropland under 25 Pa. Code § 105.452(c).

Why it matters for a pond: The court read the 25 Pa. Code § 105.12(a)(7) waiver to reach only maintenance of field drainage systems constructed and still used for crop production, not new or expanded systems, so it is unlikely to cover new excavation such as a new ditch or pond.

Later history: Application for reargument denied Mar. 24, 2025. Unreported (non-precedential) memorandum opinion.

Show the source text
The Department does not require a DSE Act permit when the activity in question constitutes the “[m]aintenance of field drainage systems that were constructed and continue to be used for crop production.” ... Crop production includes: (i) Plowing, cultivating, seeding, grazing or harvesting. (ii) Crop rotation. (iii) Government set aside programs. ... the at-issue regulation specifically exempts field drainage system “maintenance,” but makes no reference to expanding existing or building new systems of that nature.

Craig High v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 6, 2025 · No. 98 C.D. 2024 (Pa. Cmwlth. Jan. 6, 2025) (unreported memorandum opinion by Dumas, J.), aff'g the EHB adjudication issued Jan. 5, 2024 (cited as High v. DEP, 2024 EHB 1 in Flatley v. DEP, EHB May 8, 2026) [1]

Holding: Affirmed the EHB: a 20-inch-deep ditch newly excavated through wetlands on a farm required a Dam Safety and Encroachments Act permit; the field-drainage maintenance waiver in 25 Pa. Code § 105.12(a)(7) covers maintenance of existing systems, not building new or expanding them, and the farmer did not prove the area was prior converted cropland under 25 Pa. Code § 105.452(c).

Why it matters for a pond: A landowner who claims a pond site is prior converted cropland (not wetland) bears the burden of proving it; an NRCS prior-converted-cropland determination is the kind of evidence that was missing here.

Later history: Application for reargument denied Mar. 24, 2025. Unreported (non-precedential) memorandum opinion.

Show the source text
wetlands that were drained, dredged, filled, leveled[,] or otherwise manipulated, including the removal of woody vegetation, before December 23, 1985, and have not been abandoned, for the purpose of, or to have the effect of making the production of an agricultural commodity possible, and an agricultural commodity was planted or produced at least once prior to December 23, 1985. ... The Department does not treat areas that qualify as prior converted cropland as wetlands. ... Petitioner had failed to show that he was entitled to a prior converted cropland-based permit waiver

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 7, 2026 · No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026) (opinion by Wallace, J.), aff'g in part, vacating in part and remanding Pileggi v. DEP, 2024 EHB 634 [5]

Holding: Affirmed that a landowner who conducted more than one acre of earth disturbance as part of a larger common plan of development or sale needed an NPDES permit and E&S plan before beginning; Chapter 102 NPDES requirements are not contingent on a point-source discharge and cannot be evaded by claiming the work is complete. Vacated the EHB's adoption of DEP's remedies (an after-the-fact permit) and remanded for a reasoned, de novo decision with DEP bearing the burden of proof.

Why it matters for a pond: The same Chapter 102 thresholds apply to pond construction: earth disturbance is defined to include excavations and embankments, so digging a pond and building its embankment count toward the 1-acre NPDES and 5,000-square-foot E&S plan triggers. The case itself involved subdivision road and cul-de-sac work, not a pond.

Later history: Pa. Supreme Court discontinued the landowner's request to appeal (Mar. 9, 2026); on remand the EHB upheld DEP's remedies including an after-the-fact permit (Mar. 18, 2026) and denied reconsideration (Apr. 30, 2026); the landowner appealed the remand decision to the Commonwealth Court on or about Apr. 10, 2026. No Commonwealth Court opinion in that second appeal appears in the court's opinion listings through Sept. 28, 2026.

Show the source text
Pileggi conducted approximately 1.48 acres of earth disturbance. ... they are not contingent on the existence of a point source discharge. ... a landowner may not perform earth disturbance activities requiring an NPDES permit on his or her property and simply evade DEP’s regulations by claiming the activities are complete and no further work is being “proposed.” ... we vacate the Board’s Order insofar as it adopted the remedies specified in DEP’s August 11, 2022 Administrative Order, and we remand

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 7, 2026 · No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026) (opinion by Wallace, J.), aff'g in part, vacating in part and remanding Pileggi v. DEP, 2024 EHB 634 [5]

Holding: Affirmed that a landowner who conducted more than one acre of earth disturbance as part of a larger common plan of development or sale needed an NPDES permit and E&S plan before beginning; Chapter 102 NPDES requirements are not contingent on a point-source discharge and cannot be evaded by claiming the work is complete. Vacated the EHB's adoption of DEP's remedies (an after-the-fact permit) and remanded for a reasoned, de novo decision with DEP bearing the burden of proof.

Why it matters for a pond: The same Chapter 102 thresholds apply to pond construction: earth disturbance is defined to include excavations and embankments, so digging a pond and building its embankment count toward the 1-acre NPDES and 5,000-square-foot E&S plan triggers. The case itself involved subdivision road and cul-de-sac work, not a pond.

Later history: Pa. Supreme Court discontinued the landowner's request to appeal (Mar. 9, 2026); on remand the EHB upheld DEP's remedies including an after-the-fact permit (Mar. 18, 2026) and denied reconsideration (Apr. 30, 2026); the landowner appealed the remand decision to the Commonwealth Court on or about Apr. 10, 2026. No Commonwealth Court opinion in that second appeal appears in the court's opinion listings through Sept. 28, 2026.

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A construction or other human activity which disturbs the surface of the land, including land clearing and grubbing, grading, excavations, embankments, land development, agricultural plowing or tilling, operation of animal heavy use areas, timber harvesting activities, road maintenance activities, oil and gas activities, well drilling, mineral extraction, and the moving, depositing, stockpiling, or storing of soil, rock or earth materials.

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 7, 2026 · No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026) (opinion by Wallace, J.), aff'g in part, vacating in part and remanding Pileggi v. DEP, 2024 EHB 634 [5]

Holding: Affirmed that a landowner who conducted more than one acre of earth disturbance as part of a larger common plan of development or sale needed an NPDES permit and E&S plan before beginning; Chapter 102 NPDES requirements are not contingent on a point-source discharge and cannot be evaded by claiming the work is complete. Vacated the EHB's adoption of DEP's remedies (an after-the-fact permit) and remanded for a reasoned, de novo decision with DEP bearing the burden of proof.

Why it matters for a pond: The same Chapter 102 thresholds apply to pond construction: earth disturbance is defined to include excavations and embankments, so digging a pond and building its embankment count toward the 1-acre NPDES and 5,000-square-foot E&S plan triggers. The case itself involved subdivision road and cul-de-sac work, not a pond.

Later history: Pa. Supreme Court discontinued the landowner's request to appeal (Mar. 9, 2026); on remand the EHB upheld DEP's remedies including an after-the-fact permit (Mar. 18, 2026) and denied reconsideration (Apr. 30, 2026); the landowner appealed the remand decision to the Commonwealth Court on or about Apr. 10, 2026. No Commonwealth Court opinion in that second appeal appears in the court's opinion listings through Sept. 28, 2026.

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Other than agricultural plowing or tilling activities, animal heavy use areas, timber harvesting activities or road maintenance activities, a person proposing an earth disturbance activity ... that involves equal to or greater than 1 acre ... or an earth disturbance on any portion, part, or during any stage of, a larger common plan of development or sale that involves equal to or greater than 1 acre ... shall obtain an individual NPDES Permit or coverage under a general NPDES permit for Stormwater Discharges Associated With Construction Activities prior to commencing

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 7, 2026 · No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026) (opinion by Wallace, J.), aff'g in part, vacating in part and remanding Pileggi v. DEP, 2024 EHB 634 [5]

Holding: Affirmed that a landowner who conducted more than one acre of earth disturbance as part of a larger common plan of development or sale needed an NPDES permit and E&S plan before beginning; Chapter 102 NPDES requirements are not contingent on a point-source discharge and cannot be evaded by claiming the work is complete. Vacated the EHB's adoption of DEP's remedies (an after-the-fact permit) and remanded for a reasoned, de novo decision with DEP bearing the burden of proof.

Why it matters for a pond: The same Chapter 102 thresholds apply to pond construction: earth disturbance is defined to include excavations and embankments, so digging a pond and building its embankment count toward the 1-acre NPDES and 5,000-square-foot E&S plan triggers. The case itself involved subdivision road and cul-de-sac work, not a pond.

Later history: Pa. Supreme Court discontinued the landowner's request to appeal (Mar. 9, 2026); on remand the EHB upheld DEP's remedies including an after-the-fact permit (Mar. 18, 2026) and denied reconsideration (Apr. 30, 2026); the landowner appealed the remand decision to the Commonwealth Court on or about Apr. 10, 2026. No Commonwealth Court opinion in that second appeal appears in the court's opinion listings through Sept. 28, 2026.

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The implementation and maintenance of E&S BMPs are required to minimize the potential for accelerated erosion and sedimentation, including those activities which disturb less than 5,000 square feet (464.5 square meters). ... (i) The earth disturbance activity will result in a total earth disturbance of 5,000 square feet (464.5 square meters) or more. ... has the potential to discharge to a water classified as a High Quality or Exceptional Value water under Chapter 93

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 7, 2026 · No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026) (opinion by Wallace, J.), aff'g in part, vacating in part and remanding Pileggi v. DEP, 2024 EHB 634 [5]

Holding: Affirmed that a landowner who conducted more than one acre of earth disturbance as part of a larger common plan of development or sale needed an NPDES permit and E&S plan before beginning; Chapter 102 NPDES requirements are not contingent on a point-source discharge and cannot be evaded by claiming the work is complete. Vacated the EHB's adoption of DEP's remedies (an after-the-fact permit) and remanded for a reasoned, de novo decision with DEP bearing the burden of proof.

Why it matters for a pond: The court held that DEP's chosen remedy for completed unpermitted earth disturbance (here an after-the-fact NPDES permit) must be justified on the record, and noted that the regulations also allow orders to remediate or restore.

Later history: Pa. Supreme Court discontinued the landowner's request to appeal (Mar. 9, 2026); on remand the EHB upheld DEP's remedies including an after-the-fact permit (Mar. 18, 2026) and denied reconsideration (Apr. 30, 2026); the landowner appealed the remand decision to the Commonwealth Court on or about Apr. 10, 2026. No Commonwealth Court opinion in that second appeal appears in the court's opinion listings through Sept. 28, 2026.

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DEP’s regulations provide methods of enforcing NPDES permit requirements other than an after-the-fact permit, such as issuing “orders to remediate or restore.” 25 Pa. Code § 102.32(a)(3). ... Baehler is distinguishable because DEP allowed the petitioner in that matter to either obtain an after-the-fact permit or forego a permit application by removing the fill he deposited.

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 7, 2026 · No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026), aff'g in part and vacating in part Pileggi v. DEP, 2024 EHB 634 [5]

Holding: Affirmed that the landowner needed an NPDES permit and E&S plan before beginning more than one acre of earth disturbance that was part of a larger common plan; Chapter 102 NPDES requirements do not depend on a point-source discharge, and finishing the work first does not avoid them. Vacated the remedy portion and remanded.

Why it matters for a pond: Chapter 102 NPDES and E&S-plan requirements for earth disturbance of 1 acre or more (or part of a larger common plan of development or sale) are enforced even after the work is done, and DEP may require an after-the-fact permit. The case involved subdivision road and cul-de-sac work, not a pond.

Later history: Pa. Supreme Court discontinued the landowner's request to appeal (Mar. 9, 2026); on remand the EHB upheld DEP's remedies including an after-the-fact permit (Mar. 18, 2026); the landowner appealed that remand decision to the Commonwealth Court (about Apr. 10, 2026) and the EHB denied reconsideration (Apr. 30, 2026). Outcome of the second appeal not verified.

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require NPDES permits for certain earth disturbance activities that create pollution or the potential for pollution ... and they are not contingent on the existence of a point source discharge. ... a landowner may not perform earth disturbance activities requiring an NPDES permit ... and simply evade DEP’s regulations by claiming the activities are complete and no further work is being “proposed.” ... we affirm the Board’s October 2, 2024 Order insofar as it concluded Pileggi needed to obtain an NPDES permit and submit an E&S plan before beginning earth disturbance activity

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · January 7, 2026 · No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026), aff'g in part and vacating in part Pileggi v. DEP, 2024 EHB 634 [5]

Holding: Affirmed that the landowner needed an NPDES permit and E&S plan before beginning more than one acre of earth disturbance that was part of a larger common plan; Chapter 102 NPDES requirements do not depend on a point-source discharge, and finishing the work first does not avoid them. Vacated the remedy portion and remanded.

Why it matters for a pond: Chapter 102 NPDES and E&S-plan requirements for earth disturbance of 1 acre or more (or part of a larger common plan of development or sale) are enforced even after the work is done, and DEP may require an after-the-fact permit. The case involved subdivision road and cul-de-sac work, not a pond.

Later history: Pa. Supreme Court discontinued the landowner's request to appeal (Mar. 9, 2026); on remand the EHB upheld DEP's remedies including an after-the-fact permit (Mar. 18, 2026); the landowner appealed that remand decision to the Commonwealth Court (about Apr. 10, 2026) and the EHB denied reconsideration (Apr. 30, 2026). Outcome of the second appeal not verified.

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DEP’s regulations provide methods of enforcing NPDES permit requirements other than an after-the-fact permit, such as issuing “orders to remediate or restore.” 25 Pa. Code § 102.32(a)(3). ... Baehler is distinguishable because DEP allowed the petitioner in that matter to either obtain an after-the-fact permit or forego a permit application by removing the fill he deposited.

Pileggi v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · March 18, 2026 · EHB Docket No. 2022-068-BP (Opinion and Order on Remand, Mar. 18, 2026) (slip opinion) [7]

Holding: On remand from the Commonwealth Court, upheld DEP's administrative-order remedies, including an after-the-fact NPDES permit and E&S plan for completed earth disturbance.

Why it matters for a pond: On remand the EHB held that DEP may require an after-the-fact NPDES permit and E&S plan where earth disturbance began without required coverage. This remand decision was appealed to the Commonwealth Court (about Apr. 10, 2026) and the outcome is not verified.

Later history: Reconsideration denied Apr. 30, 2026; appealed to the Commonwealth Court about Apr. 10, 2026; outcome not verified.

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Administrative Order’s remedies are appropriate and reasonable based on the evidence and ... supports the requirement of an after-the-fact permit and E&S plan for completed work, as well as a permit and E&S plan should Mr. Pileggi pursue future subdivision activity. ... We find that this phrasing of “during any stage of” indicates that an NPDES permit is still necessary and appropriate after the work has been started and even if the work is not finished or abandoned.

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Pennsylvania Environmental Hearing Board · March 18, 2026 · EHB Docket No. 2022-068-BP (Opinion and Order on Remand, Mar. 18, 2026) [7]

Holding: On remand, upheld DEP's administrative-order remedies, including an after-the-fact NPDES permit and E&S plan for completed earth disturbance.

Why it matters for a pond: Chapter 102 NPDES and E&S-plan requirements for earth disturbance of 1 acre or more (or part of a larger common plan of development or sale) are enforced even after the work is done, and DEP may require an after-the-fact permit. The case involved subdivision road and cul-de-sac work, not a pond.

Later history: Reconsideration denied Apr. 30, 2026; appealed to the Commonwealth Court about Apr. 10, 2026; outcome not verified.

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Administrative Order’s remedies are appropriate and reasonable based on the evidence and testimony ... supports the requirement of an after-the-fact permit and E&S plan for completed work, as well as a permit and E&S plan should Mr. Pileggi pursue future subdivision activity.

Pileggi v. Department of Environmental Protection (Environmental Hearing Board)

Pennsylvania Environmental Hearing Board · April 30, 2026 · EHB Docket No. 2022-068-BP (Opinion and Order on Petition for Reconsideration, Apr. 30, 2026) [6]

Holding: Denied reconsideration of the EHB's March 18, 2026 remand decision upholding DEP's remedies, including an after-the-fact NPDES permit and E&S plan.

Why it matters for a pond: Chapter 102 NPDES and E&S-plan requirements for earth disturbance of 1 acre or more (or part of a larger common plan of development or sale) are enforced even after the work is done, and DEP may require an after-the-fact permit. The case involved subdivision road and cul-de-sac work, not a pond.

Later history: Second Commonwealth Court appeal pending as of the opinion; outcome not verified.

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On March 9, 2026, the Supreme Court of Pennsylvania discontinued Mr. Pileggi’s appeal request. Thereafter, the Board completed its remand opinion. On March 18, 2026, the Board issued its remand opinion and order concluding that the Department’s administrative remedies were appropriate and reasonable and that there was ample evidence in the record to support the need for an after-the-fact permit. ... On or about April 10, 2026, Mr. Pileggi appealed the March 18, 2026 remand decision to the Commonwealth Court.

Scott and Gwendolyn Corsnitz v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · February 23, 2018 · 2018 EHB 174 (EHB Docket No. 2016-030-M) [18]

Holding: Dismissed the landowners' appeal of a DEP administrative order that required them to stop unauthorized fill, submit an Agricultural E&S plan and restore wetlands they had filled in an old mill race to put the land into agricultural production; DEP proved the area was wetland, has jurisdiction over artificial wetlands, and was not estopped by its delay in inspecting.

Why it matters for a pond: Filling or grading a wet area to farm it, or to build around a pond, requires a Chapter 105 permit when the area is a wetland, even if the wetland is man-made; DEP delay in responding to a complaint is not a defense.

Later history: Commonwealth Court quashed the petition for review as untimely and the Pennsylvania Supreme Court denied review; in March 2022 the Commonwealth Court ordered compliance with a $100/day fine for noncompliance; federal civil-rights suit dismissed on sovereign-immunity grounds, aff'd as modified, Corsnitz v. DEP, No. 24-1783 (3d Cir. Apr. 3, 2025) (not precedential).

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Body of water – A natural or artificial lake, pond, reservoir, swamp, marsh or wetland. ... This definition, which clearly includes, artificial or man-made bodies of water, is consistent with the statutory definitions in the Dam Safety and Encroachments Act ... The Department has clear authority over all bodies of water including artificial wetlands

Scott and Gwendolyn Corsnitz v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · February 23, 2018 · 2018 EHB 174 (EHB Docket No. 2016-030-M) [18]

Holding: Dismissed the landowners' appeal of a DEP administrative order that required them to stop unauthorized fill, submit an Agricultural E&S plan and restore wetlands they had filled in an old mill race to put the land into agricultural production; DEP proved the area was wetland, has jurisdiction over artificial wetlands, and was not estopped by its delay in inspecting.

Why it matters for a pond: Filling or grading a wet area to farm it, or to build around a pond, requires a Chapter 105 permit when the area is a wetland, even if the wetland is man-made; DEP delay in responding to a complaint is not a defense.

Later history: Commonwealth Court quashed the petition for review as untimely and the Pennsylvania Supreme Court denied review; in March 2022 the Commonwealth Court ordered compliance with a $100/day fine for noncompliance; federal civil-rights suit dismissed on sovereign-immunity grounds, aff'd as modified, Corsnitz v. DEP, No. 24-1783 (3d Cir. Apr. 3, 2025) (not precedential).

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The order directed the Appellants to cease all unauthorized fill activity, to submit an Erosion and Sedimentation Control Plan and to develop a Restoration Plan. ... that additional fill had been placed in the old mill race wetland complex on both the north and south side of Camp Hebron Road in order to place the land into agricultural production. ... submit an Agricultural Erosion and Sedimentation Plan meeting the requirements of 25 Pa. Code § 102.4(a).

Scott and Gwendolyn Corsnitz v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · February 23, 2018 · 2018 EHB 174 (EHB Docket No. 2016-030-M) [18]

Holding: Dismissed the landowners' appeal of a DEP administrative order that required them to stop unauthorized fill, submit an Agricultural E&S plan and restore wetlands they had filled in an old mill race to put the land into agricultural production; DEP proved the area was wetland, has jurisdiction over artificial wetlands, and was not estopped by its delay in inspecting.

Why it matters for a pond: Filling or grading a wet area to farm it, or to build around a pond, requires a Chapter 105 permit when the area is a wetland, even if the wetland is man-made; DEP delay in responding to a complaint is not a defense.

Later history: Commonwealth Court quashed the petition for review as untimely and the Pennsylvania Supreme Court denied review; in March 2022 the Commonwealth Court ordered compliance with a $100/day fine for noncompliance; federal civil-rights suit dismissed on sovereign-immunity grounds, aff'd as modified, Corsnitz v. DEP, No. 24-1783 (3d Cir. Apr. 3, 2025) (not precedential).

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The Board rejects the Appellants’ argument that the Department is estopped from issuing the Order as a result of the delay from May 2014 until July 2015 when the Department inspected the site for the first time.

Corsnitz v. Commonwealth of Pennsylvania, Department of Environmental Protection

U.S. Court of Appeals for the Third Circuit · April 3, 2025 · No. 24-1783 (3d Cir. Apr. 3, 2025) (not precedential) [17]

Holding: Affirmed (with modification to a dismissal without prejudice) dismissal on Eleventh Amendment sovereign-immunity grounds of landowners' section 1983 trespass and takings claims against DEP and its employees in their official capacities arising from DEP's wetland enforcement on their farm.

Why it matters for a pond: Federal section 1983 claims (trespass, taking) against DEP and its employees in their official capacities over past wetland enforcement were barred by Eleventh Amendment sovereign immunity; the Ex parte Young exception did not apply because the alleged violations were past and the relief sought was not prospective.

Later history: Not verified.

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Court quashed the Corsnitzes’ petition for review as untimely, and the Pennsylvania Supreme Court denied review ... In 2021, DEP filed a petition in the Commonwealth Court ... In March 2022, the Commonwealth Court entered an order which directed the Corsnitzes to comply with essentially the same remediation efforts described in the AO, and which provided for a fine of $100 per day for each day they failed to comply with the court’s order. ... acting in their official capacities only, are barred by sovereign immunity. ... with a modification that the entire dismissal be without prejudice.

Heywood Becker v. Department of Environmental Protection

Commonwealth Court of Pennsylvania · December 1, 2017 · No. 560 C.D. 2017 (Pa. Cmwlth. Dec. 1, 2017) (memorandum opinion marked 'Opinion Not Reported'), aff'g and remanding Becker v. DEP, 2017 EHB 227 [2]

Holding: Affirmed the EHB's determination that Becker unlawfully rerouted an intermittent stream channel without a permit and caused sediment pollution; rejected the argument that the channel was not a regulated stream because it rarely carried flow; held the exclusionary rule does not apply in this civil context; remanded only to fashion a remedy because Becker had lost title to the property.

Why it matters for a pond: Relocating or re-channeling a small intermittent stream (for example, to route it around a new pond) without a permit is a Chapter 105 violation even if the channel is dry most of the year; a person who creates the violation stays responsible after selling or losing the land.

Later history: On remand the EHB revised DEP's order to require Becker to negotiate access to the site to do the work, Becker v. DEP, 2018 EHB 283 (Mar. 19, 2018); reconsideration denied, 2018 EHB 316 (Apr. 11, 2018). Later history not verified.

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we affirm the Board’s determination that Becker unlawfully rerouted an existing stream channel without a permit and caused sediment pollution to waters of the Commonwealth ... The DSEA defines a “Watercourse” or “stream” as “[a]ny channel of conveyance of surface water having a defined bed and banks ... He testified that the channel had water flowing in it only six days in 2013. ... we are not convinced of the calendar’s accuracy. ... The stream on Becker’s property is a channel of conveyance of surface water with defined bed and banks and intermittent flow.

Heywood Becker v. Department of Environmental Protection

Commonwealth Court of Pennsylvania · December 1, 2017 · No. 560 C.D. 2017 (Pa. Cmwlth. Dec. 1, 2017) (memorandum opinion marked 'Opinion Not Reported'), aff'g and remanding Becker v. DEP, 2017 EHB 227 [2]

Holding: Affirmed the EHB's determination that Becker unlawfully rerouted an intermittent stream channel without a permit and caused sediment pollution; rejected the argument that the channel was not a regulated stream because it rarely carried flow; held the exclusionary rule does not apply in this civil context; remanded only to fashion a remedy because Becker had lost title to the property.

Why it matters for a pond: Relocating or re-channeling a small intermittent stream (for example, to route it around a new pond) without a permit is a Chapter 105 violation even if the channel is dry most of the year; a person who creates the violation stays responsible after selling or losing the land.

Later history: On remand the EHB revised DEP's order to require Becker to negotiate access to the site to do the work, Becker v. DEP, 2018 EHB 283 (Mar. 19, 2018); reconsideration denied, 2018 EHB 316 (Apr. 11, 2018). Later history not verified.

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that contention must fail because our Supreme Court has refused to apply the exclusionary rule in the civil context. ... a subsequent transfer of property does not eliminate the liability of the person who creates a nuisance on the property. ... that does not mean that an agency – or court for that matter – can effectively force a party to trespass when that property’s owner has not given consent

Heywood Becker v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · March 19, 2018 · 2018 EHB 283 (EHB Docket No. 2013-038-C) (Opinion and Order on Remand) [18]

Holding: On remand from the Commonwealth Court, revised DEP's restoration order to require the former owner to negotiate access with the current owner and adjusted the order's timeframes.

Why it matters for a pond: Relocating or re-channeling a small intermittent stream (for example, to route it around a new pond) without a permit is a Chapter 105 violation even if the channel is dry most of the year; a person who creates the violation stays responsible after selling or losing the land.

Later history: Reconsideration denied, Becker v. DEP, 2018 EHB 316 (Apr. 11, 2018) (same EHB volume); later history not verified.

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Submit a Joint Permit Application Within 10 days of this Order ... (Department’s 105 Permit and the U.S. ... we will revise the Department’s order to require that Mr. Becker negotiate an agreement for access to the site to perform the work required by the order

Department of Environmental Protection v. Gerard J. Seligman

Pennsylvania Environmental Hearing Board · October 22, 2014 · 2014 EHB 755 (EHB Docket No. 2013-060-CP-L) [12]

Holding: Assessed a $3,400 civil penalty against a landowner who, without permits or E&S controls, excavated through an unnamed tributary to install a pipe, dug geothermal loop trenches in a wetland and placed sidecast fill in the wetland and in the floodways of two streams; rejected his defenses that the stream was only a ditch, that the § 105.12(a)(7)-(8) waivers applied, and that the field was prior converted cropland.

Why it matters for a pond: Shows the most common landowner defenses (it is only a ditch; it is not on the USGS map; farm waivers; prior converted cropland) and why the EHB rejected them.

Later history: Not verified.

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The Board assesses a civil penalty of $3,400 against an individual defendant who conducted unpermitted earth disturbance activities in a stream, in the floodways of two streams, and in a wetland. ... insistence that the stream that he excavated through is nothing more than "a ditch." (T. 40, 79.) This is a distressingly common, but in this case unavailing, defense. ... it is not uncommon for streams such as unnamed tributaries to not be documented on USGS maps. ... the unnamed tributary to Pigeon Creek meets the statutory definition of a watercourse

Department of Environmental Protection v. Gerard J. Seligman

Pennsylvania Environmental Hearing Board · October 22, 2014 · 2014 EHB 755 (EHB Docket No. 2013-060-CP-L) [12]

Holding: Assessed a $3,400 civil penalty against a landowner who, without permits or E&S controls, excavated through an unnamed tributary to install a pipe, dug geothermal loop trenches in a wetland and placed sidecast fill in the wetland and in the floodways of two streams; rejected his defenses that the stream was only a ditch, that the § 105.12(a)(7)-(8) waivers applied, and that the field was prior converted cropland.

Why it matters for a pond: Shows the most common landowner defenses (it is only a ditch; it is not on the USGS map; farm waivers; prior converted cropland) and why the EHB rejected them.

Later history: Not verified.

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The field does not constitute prior converted cropland. ... these waivers apply strictly to drainage field maintenance and crop production. They in no way excuse the permit requirement for excavating a wetland to install a geothermal heating and cooling system. ... the 100-year frequency flood .... [I]t is assumed, absent evidence to the contrary, that the floodway extends from the stream to 50 feet from the top of the bank of the stream. ... exemptions to regulation as wetlands are to be construed narrowly. See US. v. Brace

Darian Flatley v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 8, 2026 · EHB Docket No. 2024-139-B (Opinion and Order on the Department's Motion for Summary Judgment, May 8, 2026) (slip opinion) [20]

Holding: Granted DEP summary judgment upholding a 2024 administrative order: mobile homes and other items in the FEMA-mapped floodway of Big Run are unpermitted water obstructions, a catch basin and outfall pipe in the floodway are encroachments as a matter of law, the items create a danger of pollution under the Clean Streams Law, there is no grandfathering of existing unpermitted structures, and the LLC's sole member is personally liable under the participation theory.

Why it matters for a pond: Under the Board's reading, a structure placed within a stream's floodway (FEMA-mapped unless otherwise specified) is a water obstruction or encroachment subject to the Dam Safety and Encroachments Act permit requirement. The opinion does not address Chapter 105 waivers or general permits.

Later history: Earlier rulings in the same appeal: 354 Broadway, LLC v. DEP, 2025 EHB 154 (Mar. 18, 2025) (LLC dismissed for failure to obtain counsel); Flatley v. DEP, 2025 EHB 641 (Sept. 8, 2025) (discovery sanctions). The opinion notes a petition for review Mr. Flatley filed in the Commonwealth Court was quashed. Any appeal of the May 8, 2026 decision was not verified (no Commonwealth Court opinion found in pacourts.us listings through Sept. 28, 2026).

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“[t]he channel of the watercourse and portions of the adjoining floodplains which are reasonably required to carry and discharge the 100-year frequency flood. Unless otherwise specified, the boundary of ... the floodway is as indicated on maps and flood insurance studies provided by FEMA.” ... We see no need for a professional survey to confirm the boundaries of the Big Run Floodway ... we find that the Mobile Homes and Items are water obstructions since they are structures within a floodway and require a Department permit to construct, operate, maintain, modify, enlarge or abandon.

Darian Flatley v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 8, 2026 · EHB Docket No. 2024-139-B (Opinion and Order on the Department's Motion for Summary Judgment, May 8, 2026) (slip opinion) [20]

Holding: Granted DEP summary judgment upholding a 2024 administrative order: mobile homes and other items in the FEMA-mapped floodway of Big Run are unpermitted water obstructions, a catch basin and outfall pipe in the floodway are encroachments as a matter of law, the items create a danger of pollution under the Clean Streams Law, there is no grandfathering of existing unpermitted structures, and the LLC's sole member is personally liable under the participation theory.

Why it matters for a pond: The Board read the statutory encroachment definition as having no minimum-size threshold, so even a small pipe or catch basin located in a floodway was an encroachment as a matter of law. Whether a Chapter 105 waiver or general permit covers a particular structure was not addressed.

Later history: Earlier rulings in the same appeal: 354 Broadway, LLC v. DEP, 2025 EHB 154 (Mar. 18, 2025) (LLC dismissed for failure to obtain counsel); Flatley v. DEP, 2025 EHB 641 (Sept. 8, 2025) (discovery sanctions). The opinion notes a petition for review Mr. Flatley filed in the Commonwealth Court was quashed. Any appeal of the May 8, 2026 decision was not verified (no Commonwealth Court opinion found in pacourts.us listings through Sept. 28, 2026).

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Any structure located in a floodway necessarily changes the course, current and cross-section of that floodway, hence the Catch Basin and Outfall Pipe in the Big Run Floodway are de facto encroachments. The definition does not require that the change in these attributes meet a minimum size requirement for a structure to qualify as an encroachment.

Darian Flatley v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 8, 2026 · EHB Docket No. 2024-139-B (Opinion and Order on the Department's Motion for Summary Judgment, May 8, 2026) (slip opinion) [20]

Holding: Granted DEP summary judgment upholding a 2024 administrative order: mobile homes and other items in the FEMA-mapped floodway of Big Run are unpermitted water obstructions, a catch basin and outfall pipe in the floodway are encroachments as a matter of law, the items create a danger of pollution under the Clean Streams Law, there is no grandfathering of existing unpermitted structures, and the LLC's sole member is personally liable under the participation theory.

Why it matters for a pond: An owner cannot rely on the age of an unpermitted structure in a floodway: the Board found no grandfathering provision in the Dam Safety and Encroachments Act and upheld an order requiring the new owner's controlling member to permit or remove structures that predated his purchase.

Later history: Earlier rulings in the same appeal: 354 Broadway, LLC v. DEP, 2025 EHB 154 (Mar. 18, 2025) (LLC dismissed for failure to obtain counsel); Flatley v. DEP, 2025 EHB 641 (Sept. 8, 2025) (discovery sanctions). The opinion notes a petition for review Mr. Flatley filed in the Commonwealth Court was quashed. Any appeal of the May 8, 2026 decision was not verified (no Commonwealth Court opinion found in pacourts.us listings through Sept. 28, 2026).

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First, these statutes regulate floodplains, not floodways. The Dam Safety Act, not the Floodplain Management Act, governs water obstructions within floodways. 32 P.S. § 693.4(4). Second, the Dam Safety Act explicitly requires owners of existing unpermitted structures to apply for and receive a permit. 32 P.S. § 693.6(c); 25 Pa. Code § 105.11(c). A provision allowing for the “grandfathering” of structures that would excuse the failure to obtain a permit for structures within the floodway does not exist under the Dam Safety Act.

Darian Flatley v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 8, 2026 · EHB Docket No. 2024-139-B (Opinion and Order on the Department's Motion for Summary Judgment, May 8, 2026) (slip opinion) [20]

Holding: Granted DEP summary judgment upholding a 2024 administrative order: mobile homes and other items in the FEMA-mapped floodway of Big Run are unpermitted water obstructions, a catch basin and outfall pipe in the floodway are encroachments as a matter of law, the items create a danger of pollution under the Clean Streams Law, there is no grandfathering of existing unpermitted structures, and the LLC's sole member is personally liable under the participation theory.

Why it matters for a pond: Under the Board's reading of the Clean Streams Law, a danger of pollution (here, items in the floodway near the stream that a flood could carry into it) supports a DEP order without proof that pollution has actually occurred.

Later history: Earlier rulings in the same appeal: 354 Broadway, LLC v. DEP, 2025 EHB 154 (Mar. 18, 2025) (LLC dismissed for failure to obtain counsel); Flatley v. DEP, 2025 EHB 641 (Sept. 8, 2025) (discovery sanctions). The opinion notes a petition for review Mr. Flatley filed in the Commonwealth Court was quashed. Any appeal of the May 8, 2026 decision was not verified (no Commonwealth Court opinion found in pacourts.us listings through Sept. 28, 2026).

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A violation of the Clean Streams Law does not require a showing of actual pollution since the danger of pollution constitutes a violation. The facts which show that the Mobile Homes and Items are in close proximity to Big Run and they are located in the floodway are adequate to support the finding that they pose a danger of pollution.

Darian Flatley v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 8, 2026 · EHB Docket No. 2024-139-B (Opinion and Order on the Department's Motion for Summary Judgment, May 8, 2026) (slip opinion) [20]

Holding: Granted DEP summary judgment upholding a 2024 administrative order: mobile homes and other items in the FEMA-mapped floodway of Big Run are unpermitted water obstructions, a catch basin and outfall pipe in the floodway are encroachments as a matter of law, the items create a danger of pollution under the Clean Streams Law, there is no grandfathering of existing unpermitted structures, and the LLC's sole member is personally liable under the participation theory.

Why it matters for a pond: Holding a property in an LLC did not shield the sole member from personal liability under the participation theory where he knew of the violations, failed to make reasonable efforts to address them, and had the authority and duty to act.

Later history: Earlier rulings in the same appeal: 354 Broadway, LLC v. DEP, 2025 EHB 154 (Mar. 18, 2025) (LLC dismissed for failure to obtain counsel); Flatley v. DEP, 2025 EHB 641 (Sept. 8, 2025) (discovery sanctions). The opinion notes a petition for review Mr. Flatley filed in the Commonwealth Court was quashed. Any appeal of the May 8, 2026 decision was not verified (no Commonwealth Court opinion found in pacourts.us listings through Sept. 28, 2026).

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“[t]he participation theory applies to officers of limited liability companies.” ... the Department must show that he: 1) had knowledge of Broadway’s violations; 2) failed to make reasonable efforts to address the violations and/or actively avoided addressing the violations; and 3) had the necessary authority and duty to act to address the violations. ... we find that the 2024 Order that required Mr. Flatley as an individual to either obtain a permit or remove structures from the Big Run Floodway to resolve the violations was a reasonable approach by the Department.

Darian Flatley v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 8, 2026 · EHB Docket No. 2024-139-B (Opinion and Order on the Department's Motion for Summary Judgment, May 8, 2026) (slip opinion) [20]

Holding: Granted DEP summary judgment on Dam Safety and Encroachments Act violations: mobile homes and other items located in a FEMA-mapped floodway are water obstructions, and a catch basin and outfall pipe in the floodway are encroachments as a matter of law, with no minimum-size threshold.

Why it matters for a pond: Structures in a FEMA-mapped floodway were held to be water obstructions and encroachments as a matter of law with no minimum-size threshold, which suggests that small structures or fill placed in a stream's floodway during pond work are likewise regulated; the floodway boundary is taken from FEMA maps unless otherwise specified.

Later history: Not verified.

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Unless otherwise specified, the boundary of ... the floodway is as indicated on maps and flood insurance studies provided by FEMA. ... we find that the Mobile Homes and Items are water obstructions since they are structures within a floodway and require a Department permit ... Any structure located in a floodway necessarily changes the course, current and cross-section of that floodway ... The definition does not require that the change in these attributes meet a minimum size requirement for a structure to qualify as an encroachment.

354 Broadway, LLC and Darian Flatley v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · March 18, 2025 · 2025 EHB 154 (EHB Docket No. 2024-139-B) (Opinion and Order on the Department's Motion for Sanctions in the Form of a Dismissal) [22]

Holding: Dismissed the LLC appellant's appeal of a Clean Streams Law / Dam Safety and Encroachments Act order for failure to obtain counsel and follow Board orders; denied dismissal of the individual member's appeal.

Why it matters for a pond: A company (LLC or corporation) that owns a pond site must appear before the EHB through a lawyer; an individual may appear on his own behalf.

Later history: Discovery sanctions followed (2025 EHB 641, Sept. 8, 2025); DEP won summary judgment against the individual appellant on May 8, 2026.

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The Board dismisses the appeal of appellant limited liability company for its failure to obtain counsel and to abide by Board rules and orders. The Board denies the dismissal of individual appellant’s appeal where the individual appellant has filed a list of objections, demonstrated an intent to participate in proceedings, and the Department has not suffered prejudice.

Justin C. Glance v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 11, 2018 · 2018 EHB 427 (EHB Docket No. 2017-061-R) [18]

Holding: On summary judgment: denied the owner's claim that DEP lacks jurisdiction over encroachments in a privately owned, non-navigable lake; granted his claim that, absent consent or a permit, DEP must obtain a search warrant or other suitable order from a neutral judicial officer under 32 P.S. § 693.16(b) before inspecting his property.

Why it matters for a pond: A private or man-made lake or pond is a regulated body of water regardless of navigability; also explains when DEP inspectors may enter private land without consent.

Later history: Final disposition of the appeal not verified.

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which he contends is “a privately-owned lake, controlled by the property owners surrounding the lake.” ... earthen pier and wooden boat dock projecting into Lake Pleasant. ... including the submission of an application for a Water Obstruction and Encroachment Permit or a restoration plan for removal of the pier and boat dock. ... The Appellant has provided no legal authority in support of his argument that the Department’s authority over a body of water is determined by its navigability.

Justin C. Glance v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 11, 2018 · 2018 EHB 427 (EHB Docket No. 2017-061-R) [18]

Holding: On summary judgment: denied the owner's claim that DEP lacks jurisdiction over encroachments in a privately owned, non-navigable lake; granted his claim that, absent consent or a permit, DEP must obtain a search warrant or other suitable order from a neutral judicial officer under 32 P.S. § 693.16(b) before inspecting his property.

Why it matters for a pond: A private or man-made lake or pond is a regulated body of water regardless of navigability; also explains when DEP inspectors may enter private land without consent.

Later history: Final disposition of the appeal not verified.

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An order issued by the very agency that is seeking to conduct the search defeats the purpose of Section 16(b). ... Where the property in question is subject to a permit, generally one of the conditions of the permit is that the Department has reasonable access to the property. ... If the Department of Environmental Protection wishes to inspect the Appellant’s property without permission from the Appellant, it must comply with the requirements of Section 16(b) ... by first obtaining a search warrant or other suitable order from a neutral judicial officer.

Barry Pearson v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · December 3, 2009 · 2009 EHB 628 (EHB Docket No. 2009-055-C) [19]

Holding: Dismissed, as a sanction for failing to follow Board rules and orders, a landowner's appeal of a DEP compliance order alleging he constructed a pond in a wetland without a permit.

Why it matters for a pond: Example of DEP using a Chapter 105 compliance order against pond construction in a wetland; the allegations were never adjudicated because the appeal was dismissed as a sanction.

Later history: Not verified.

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The Board dismisses the Appellant's appeal as a sanction for failure to follow Board rules and orders. ... The compliance order alleges that the Appellant constructed a pond in a wetland area without first obtaining a permit in violation of 25 Pa. Code § 105.11(a) and 32 P.S. §§ 693.6 and 693.18.

Baehler v. Department of Environmental Protection

Commonwealth Court of Pennsylvania · December 6, 2004 · 863 A.2d 57 (Pa. Cmwlth. 2004) [3]

Holding: Affirmed the EHB's dismissal of a landowner's appeal from a DEP compliance order: fill placed in wetlands without a Chapter 105 permit was an unlawful encroachment; the takings claim was premature because the landowner never applied for a permit.

Why it matters for a pond: Older but still-cited authority: unpermitted wetland fill is typically resolved by removing the fill or seeking an after-the-fact permit, and permit costs alone do not create a ripe takings claim.

Later history: Cited and distinguished in Pileggi v. DEP (Pa. Cmwlth. Jan. 7, 2026). Otherwise not verified.

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had fill deposited on approximately two-tenths of an acre of his land ... charging Baehler with having placed fill in a wetlands area without a permit and providing the option of removing the fill or applying for an after-the-fact permit to allow some or all of the fill to remain in place. ... concluded that the fill placed on Baehler’s land without a permit constituted an unlawful encroachment on wetlands ... Because Baehler has not availed himself of the administrative process through which he may obtain some relief, the Court agrees that his claim of an unconstitutional taking is premature.

Baehler v. Department of Environmental Protection

Commonwealth Court of Pennsylvania · December 6, 2004 · 863 A.2d 57 (Pa. Cmwlth. 2004) [3]

Holding: Affirmed the EHB's dismissal of the landowner's appeal from a DEP compliance order: fill placed in wetlands without a Chapter 105 permit was an unlawful encroachment (Act §§ 3, 6(a), 18, 20; 25 Pa. Code § 105.11); the takings claim was premature because the landowner never applied for a permit.

Why it matters for a pond: Shows how DEP enforces unpermitted wetland fill (remove the fill or seek an after-the-fact permit, with wetland replacement) and that permit costs alone do not make a takings claim ripe.

Later history: No appellate history found in the repository copy (not verified in an official docket). Cited and distinguished by the Commonwealth Court in Pileggi v. DEP (EHB), No. 1477 C.D. 2024 (Pa. Cmwlth. filed Jan. 7, 2026), official slip opinion at pacourts.us: Baehler was distinguished because DEP there allowed the landowner to either obtain an after-the-fact permit or remove the fill.

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had fill deposited on approximately two-tenths of an acre of his land ... charging Baehler with having placed fill in a wetlands area without a permit and providing the option of removing the fill or applying for an after-the-fact permit to allow some or all of the fill to remain in place. ... concluded that the fill placed on Baehler’s land without a permit constituted an unlawful encroachment on wetlands ... Because Baehler has not availed himself of the administrative process through which he may obtain some relief, the Court agrees that his claim of an unconstitutional taking is premature.

United States v. Brace

U.S. Court of Appeals for the Third Circuit · November 22, 1994 · 41 F.3d 117 (3d Cir. 1994) [10]

Holding: Reversed a judgment for an Erie County farmer: clearing, leveling and draining a 30-acre wetland with about four miles of drainage tubing to grow crops was not exempt "normal farming" or drainage-ditch maintenance under CWA section 404(f)(1), because it brought the site into farming use and required modifying its hydrology; although it said it need not reach recapture, it stated the activity fell squarely within the section 404(f)(2) recapture provision; the landowner bears the burden of proving both the exemption and non-recapture.

Why it matters for a pond: Leading Third Circuit authority on how narrowly the Clean Water Act section 404(f) agricultural exemptions are read, and on who bears the burden of proving them; the case arose from an Erie County, Pennsylvania farm.

Later history: Sur petition for rehearing Jan. 9, 1995 (per CourtListener text). Before the 1990 enforcement action was fully resolved the parties entered a 1996 consent decree; enforcement of that decree affirmed, United States v. Brace, No. 21-2966 (3d Cir. Jan. 6, 2023) (not precedential).

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Thus, to be exempt from the CWA permit requirement, a defendant has the burden of demonstrating that proposed activities both satisfy the requirements of Section 404(f)(1) and avoid the recapture provision of Section 404(f)(2). ... Read together, the two parts of Section 404(f) provide a narrow exemption for agricultural activities that have little or no adverse effect on the waters of the United States. ... Thus, we read the regulations to provide that an exemption is available only to activities that are part of an “established farming operation” at the site.

United States v. Brace

U.S. Court of Appeals for the Third Circuit · November 22, 1994 · 41 F.3d 117 (3d Cir. 1994) [10]

Holding: Reversed a judgment for an Erie County farmer: clearing, leveling and draining a 30-acre wetland with about four miles of drainage tubing to grow crops was not exempt "normal farming" or drainage-ditch maintenance under CWA section 404(f)(1), because it brought the site into farming use and required modifying its hydrology; although it said it need not reach recapture, it stated the activity fell squarely within the section 404(f)(2) recapture provision; the landowner bears the burden of proving both the exemption and non-recapture.

Why it matters for a pond: Leading Third Circuit authority on how narrowly the Clean Water Act section 404(f) agricultural exemptions are read, and on who bears the burden of proving them; the case arose from an Erie County, Pennsylvania farm.

Later history: Sur petition for rehearing Jan. 9, 1995 (per CourtListener text). Before the 1990 enforcement action was fully resolved the parties entered a 1996 consent decree; enforcement of that decree affirmed, United States v. Brace, No. 21-2966 (3d Cir. Jan. 6, 2023) (not precedential).

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Brace converted a thirty-acre site that was not suitable for farming into a site that is suitable for farming, and thus “brought an area into farming use.” ... The question is not whether farmers in a particular county install extensive drainage systems. ... The purpose of the “commenced conversion” determination is solely to prevent the loss of USDA benefits. ... Thus, Brace’s activities fall squarely within the statutory definition of “recapture.”

United States v. Brace

U.S. Court of Appeals for the Third Circuit · June 11, 2021 · No. 20-1892 (3d Cir. June 11, 2021) (precedential opinion) [11]

Holding: Affirmed the district court's sanction of striking the farmer's summary-judgment brief, leaving intact summary judgment that he violated the Clean Water Act by clearing and draining about 14 acres of wetlands on a newly purchased parcel (the Marsh Site) without a permit, and an order to propose a deed restriction and restoration plan.

Why it matters for a pond: Recent Pennsylvania example: buying land next to an existing farm and clearing, ditching and tiling its wetlands without a section 404 permit led to federal liability, restoration and penalties.

Later history: Remedies (penalty, restoration) were still pending in the district court when this appeal was decided; later history not verified. The 1:17-cv-00006 district-court record was not retrieved.

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He owns hundreds of acres in Erie County, Pennsylvania. ... In 2012, Brace expanded his farm, buying a neighboring parcel from the Marsh family. The Marsh Site adjoins Elk Creek, a tributary of Lake Erie, and in-cludes about fourteen acres of wetlands. ... advised him to get a wet-lands delineation on the Marsh Site. He did not. Instead, Brace and his sons cleared and drained the wetlands. ... Brace did not have a permit for any of that. ... The court granted summary judgment for the Government on lia-bility ... proposed deed restriction and restoration plan. ... We will affirm.

United States v. Brace

U.S. Court of Appeals for the Third Circuit · January 6, 2023 · No. 21-2966 (3d Cir. Jan. 6, 2023) (not precedential) [16]

Holding: Affirmed enforcement of the 1996 consent decree: the farmer violated it by installing tile drains, excavating a ditch, discharging fill into about 18 acres of the protected wetland through clearing, plowing and corn planting, and not keeping the required check dam in place; equitable estoppel based on alleged on-site approvals by government officials was rejected.

Why it matters for a pond: Reliance on alleged verbal authorizations by government officials during site visits did not support estoppel where the consent decree unambiguously prohibited the conduct and required written, court-approved modifications.

Later history: Not verified.

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into an approximately 30-acre wetlands site on a ... that Appellants violated the consent decree by installing tile drains, excavating at least ... one ditch, and discharging dredged or fill material into approximately 18 acres of the ... wetlands site as a result of their clearing, plowing, and corn-planting activities. ... the check dam was not positioned in the location mandated by the consent decree. ... Because the court did not ... abuse its discretion in rejecting Appellants’ estoppel defense, we will affirm.

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 6, 2025 · 2025 EHB 672 (EHB Docket No. 2025-102-W) (Opinion and Order on Motion to Dismiss) [22]

Holding: Denied DEP's motion to dismiss an appeal of a permit to fully draw down a Fish and Boat Commission lake; because the drawdown permit bore DEP's signature and mandatory DEP conditions, it was not free from doubt that DEP took no appealable action, and it was unclear whether a long-term full drainage is "routine maintenance."

Why it matters for a pond: Describes the drawdown approvals that apply when a pond or lake with fish is drained (for example, for dam or liner repair): Fish and Boat Commission approval, and DEP approval for faster drawdowns or non-routine work.

Later history: Supersedeas denied, 2025 EHB 687 (Oct. 30, 2025); later history not verified.

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shall draw off dam waters inhabited by fish without first applying for written permission from the ... Section 51.81 of the Fishing and Boating regulations contains similar language ... The Department asserts that the only time its permission is needed for the drawdown of an impoundment is where the drawdown will exceed one foot per day, citing 25 Pa. Code § 105.96(c). ... “Impounded waters which are inhabited by fish may not be drawn down except with the written approval of the Fish and Boat Commission under 30 Pa. C.S. § 3506.”

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 6, 2025 · 2025 EHB 672 (EHB Docket No. 2025-102-W) (Opinion and Order on Motion to Dismiss) [22]

Holding: Denied DEP's motion to dismiss for lack of jurisdiction an appeal of a "Permit to Draw Off Water from Impoundments" for a full drawdown of a Fish and Boat Commission lake, because the permit was reviewed and signed by both agencies and carried mandatory DEP conditions, so it was not free from doubt that DEP took no appealable action.

Why it matters for a pond: As quoted by the Board, 30 Pa.C.S. § 3506(a) requires first applying for Fish and Boat Commission written permission before drawing off dam waters inhabited by fish, and 25 Pa. Code § 105.122 bars drawing down fish-inhabited impounded waters without Commission written approval. DEP acknowledged (n.4) that it must approve drawdowns faster than one foot per day. The opinion does not decide how these provisions apply to small private ponds.

Later history: Supersedeas denied Oct. 10, 2025 (opinion Oct. 30, 2025, 2025 EHB 687). Cited in Brouse v. DEP (Sept. 22, 2026). No 2026 opinion in Docket No. 2025-102-W appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026; final disposition not verified.

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“[n]o person shall draw off dam waters inhabited by fish without first applying for written permission from the ... Section 51.81 of the Fishing and Boating regulations contains similar language ... The Department asserts that the only time its permission is needed for the drawdown of an impoundment is where the drawdown will exceed one foot per day, citing 25 Pa. Code § 105.96(c). ... “Impounded waters which are inhabited by fish may not be drawn down except with the written approval of the Fish and Boat Commission under 30 Pa. C.S. § 3506.”

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 6, 2025 · 2025 EHB 672 (EHB Docket No. 2025-102-W) (Opinion and Order on Motion to Dismiss) [22]

Holding: Denied DEP's motion to dismiss an appeal of a permit to fully draw down a Fish and Boat Commission lake; because the drawdown permit bore DEP's signature and mandatory DEP conditions, it was not free from doubt that DEP took no appealable action, and it was unclear whether a long-term full drainage is "routine maintenance."

Why it matters for a pond: Describes the drawdown approvals that apply when a pond or lake with fish is drained (for example, for dam or liner repair): Fish and Boat Commission approval, and DEP approval for faster drawdowns or non-routine work.

Later history: Supersedeas denied, 2025 EHB 687 (Oct. 30, 2025); later history not verified.

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which is signed by both agencies, the Department’s motion to dismiss on jurisdictional grounds is denied. ... “A permit application will be reviewed by the Commission’s Division of Environmental Services and by the Department of Environmental Protection ... while the Department’s regulations state that routine maintenance, including the drawdown of water in an impoundment, does not require Department approval, it is not clear that the long-term, 6 full drainage of an impoundment used as a lake constitutes routine maintenance.

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 6, 2025 · 2025 EHB 672 (EHB Docket No. 2025-102-W) (Opinion and Order on Motion to Dismiss) [22]

Holding: Denied DEP's motion to dismiss for lack of jurisdiction an appeal of a "Permit to Draw Off Water from Impoundments" for a full drawdown of a Fish and Boat Commission lake, because the permit was reviewed and signed by both agencies and carried mandatory DEP conditions, so it was not free from doubt that DEP took no appealable action.

Why it matters for a pond: The Board left open whether a complete, long-term draining of an impoundment used as a lake is "routine maintenance" that needs no DEP approval.

Later history: Supersedeas denied Oct. 10, 2025 (opinion Oct. 30, 2025, 2025 EHB 687). Cited in Brouse v. DEP (Sept. 22, 2026). No 2026 opinion in Docket No. 2025-102-W appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026; final disposition not verified.

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while the Department’s regulations state that routine maintenance, including the drawdown of water in an impoundment, does not require Department approval, it is not clear that the long-term, 6 full drainage of an impoundment used as a lake constitutes routine maintenance. Without further information, it is unclear what approval may or may not be necessary.

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 6, 2025 · 2025 EHB 672 (EHB Docket No. 2025-102-W) (Opinion and Order on Motion to Dismiss) [22]

Holding: Denied DEP's motion to dismiss for lack of jurisdiction an appeal of a "Permit to Draw Off Water from Impoundments" for a full drawdown of a Fish and Boat Commission lake, because the permit was reviewed and signed by both agencies and carried mandatory DEP conditions, so it was not free from doubt that DEP took no appealable action.

Why it matters for a pond: In this case the permit to draw down a fish-inhabited lake was issued on a joint Fish and Boat Commission / DEP form, reviewed by both agencies and signed by DEP's Chief of Dam Safety, and carried a mandatory DEP sediment-control condition for the downstream channel; the Board held it was not free from doubt that this was not an appealable DEP action.

Later history: Supersedeas denied Oct. 10, 2025 (opinion Oct. 30, 2025, 2025 EHB 687). Cited in Brouse v. DEP (Sept. 22, 2026). No 2026 opinion in Docket No. 2025-102-W appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026; final disposition not verified.

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In this appeal involving a permit to fully drawdown a reservoir/lake which was reviewed by both the Department of Environmental Protection and the Fish and Boat Commission, and which is signed by both agencies, the Department’s motion to dismiss on jurisdictional grounds is denied. ... “The permittee must follow DEP’s best management practices for ‘Minimizing Sediment Pollution to Downstream Channels During Impoundment Dewatering.’” ... Notably, the Department’s signature appears on the permit, indicating its approval of the action authorized by the permit.

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 6, 2025 · 2025 EHB 672 (EHB Docket No. 2025-102-W) (Opinion and Order on Motion to Dismiss) [22]

Holding: Denied DEP's motion to dismiss, for lack of jurisdiction, an appeal of a joint PFBC/DEP 'Permit to Draw Off Water from Impoundments' for a full drawdown of High Point Lake, because the permit was reviewed and signed by both agencies, so it was not free from doubt that DEP took no appealable action.

Why it matters for a pond: The opinion is the only primary source located that quotes the DEP drawdown-permit condition requiring 'DEP's best management practices for Minimizing Sediment Pollution to Downstream Channels During Impoundment Dewatering', and it shows where that condition sits in a joint drawdown permit.

Later history: Supersedeas denied by order of Oct. 10, 2025 (supporting opinion Oct. 30, 2025, 2025 EHB 687). Final disposition not verified as of Sept. 28, 2026.

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Failure of the permittee or agents acting on behalf of the permittee to follow approved specifications, conditions and requirements ... immediately renders this permit null and void.” (Id.) Below that statement, the permit is signed by the Department’s Chief of the Division of Dam Safety, Kirk Kreider, and dated August 13, 2025. Below Mr. Kreider’s signature are set forth conditions, including “The permittee must follow DEP’s best management practices for ‘Minimizing Sediment Pollution to Downstream Channels During Impoundment Dewatering.’”

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 30, 2025 · 2025 EHB 687 (EHB Docket No. 2025-102-W) (Opinion Supporting Order Denying Petition for Supersedeas) [22]

Holding: Denied a supersedeas that would have halted the drawdown of the reservoir behind a high hazard dam scheduled for rehabilitation, because there was a credible risk of injury to the public if the supersedeas were granted, even though the appellant made a reasonable showing of irreparable harm.

Why it matters for a pond: For this 1965 high hazard dam, the Board recounted features no longer deemed acceptable in high hazard dams (corrugated metal pipes, seepage collars) and the lack of a device to draw the reservoir down two feet within 24 hours, and refused to halt the drawdown because of a credible risk of injury to the public, even though the lake users showed irreparable harm.

Later history: Later history not verified; no 2026 opinion in Docket No. 2025-102-W appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026. Distinguished in Brouse v. DEP (Sept. 22, 2026).

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its Petition for Supersedeas must be denied where there is a credible risk of injury to the public if the supersedeas is granted. ... High Point Lake Dam is categorized as a high hazard dam. ... if there were a failure of the dam, it presents the highest risk for loss of human life and property. High Point Lake Dam was constructed in 1965. ... corrugated metal pipes in the spillway and drainage system, and seepage collars within the principal spillway outlet. ... it does not have a device that allows for a two-foot drawdown of the reservoir within 24 hours.

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 30, 2025 · 2025 EHB 687 (EHB Docket No. 2025-102-W) (Opinion Supporting Order Denying Petition for Supersedeas) [22]

Holding: Denied a supersedeas that would have halted the drawdown of the reservoir behind a high hazard dam scheduled for rehabilitation, because there was a credible risk of injury to the public if the supersedeas were granted, even though the appellant made a reasonable showing of irreparable harm.

Why it matters for a pond: In this case, per the Commission's account, a growing wet area beside the auxiliary spillway and a sand/aggregate deposit below the spillway drain led the owner to begin partial drawdowns and then seek a full drawdown.

Later history: Later history not verified; no 2026 opinion in Docket No. 2025-102-W appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026. Distinguished in Brouse v. DEP (Sept. 22, 2026).

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Dams are generally constructed with a service life of 50-100 years ... inspected by Commission personnel every three months. ... evaluated a known wet area in the grass to the right of the auxiliary spillway. ... between the months of September 2024 and July 2025, the wet area increased in size by approximately 10 times. ... a deposit of aggregate, sand and fine material was observed below the auxiliary spillway drain. ... a one-foot drawdown of the reservoir on July 7, 2025 ... A five-foot drawdown of the reservoir was initiated on July 16, 2025

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 30, 2025 · 2025 EHB 687 (EHB Docket No. 2025-102-W) (Opinion Supporting Order Denying Petition for Supersedeas) [22]

Holding: Denied a supersedeas that would have stopped the drawdown of a high hazard dam's reservoir for rehabilitation, because there was a credible risk of injury to the public if the drawdown were halted, even though the appellant showed irreparable harm.

Why it matters for a pond: Dam-safety deficiencies (features such as corrugated metal pipes and seepage collars no longer acceptable in high hazard dams, no device for a two-foot drawdown within 24 hours, and a growing wet area and material deposit near the auxiliary spillway) outweighed recreational objections to draining the reservoir.

Later history: Not verified.

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Although the Appellant has made a reasonable showing of irreparable harm, its Petition for Supersedeas must be denied where there is a credible risk of injury to the public if the supersedeas is granted. ... High Point Lake Dam is categorized as a high hazard dam. ... High Point Lake Dam was constructed in 1965. ... constructed with materials or features that are no longer deemed acceptable for use in high hazard dams, such as corrugated metal pipes in the spillway and drainage system, and seepage collars within the principal spillway outlet.

Friends of High Point Lake v. Department of Environmental Protection and Pennsylvania Fish and Boat Commission

Pennsylvania Environmental Hearing Board · October 30, 2025 · 2025 EHB 687 (EHB Docket No. 2025-102-W) (Opinion Supporting Order Denying Petition for Supersedeas) [22]

Holding: Although the appellant made a reasonable showing of irreparable harm, its petition for supersedeas of the drawdown was denied because there was a credible risk of injury to the public if the supersedeas were granted.

Why it matters for a pond: The opinion summarizes the sediment-control and downstream-flow measures that the Fish and Boat Commission (as dam owner) described for an actual full-lake drawdown, which illustrates the kinds of measures used in practice; it is testimony in one case, not a published DEP standard.

Later history: Final disposition of Docket No. 2025-102-W not verified as of Sept. 28, 2026.

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Specifically, the Commission is required to maintain a base flow, or the flow necessary to maintain biological and ecological integrity, in Glade Run. (Tr. 362.) ... as the lake is being drawn down, the Commission will be working to implement sediment and erosion control measures, such as seeding exposed soil, to help eliminate the threat of harmful sedimentation or erosion. (Tr. 552–53.) Finally, sedimentation concerns are also mitigated by the settling basin that intercepts sediment coming out of the dam prior to entering Glade Run.

Timothy M. Brouse, P.E. v. Department of Environmental Protection and Lake Wynonah Property Owners Association

Pennsylvania Environmental Hearing Board · September 22, 2026 · EHB Docket No. 2026-099-L (Opinion and Order on Petition for Supersedeas, Sept. 22, 2026) (Labuskes, J.) (slip opinion) [13]

Holding: Denied, without a hearing, a petition for supersedeas asking the Board to halt the drawdown of Lake Wynonah, because the DEP letter under appeal only declared the dam unsafe under 25 Pa. Code § 105.136 and requested a voluntary drawdown; it neither authorized nor required a drawdown, so superseding it would give no relief.

Why it matters for a pond: Shows the conditions DEP cited when it declared this existing dam unsafe under 25 Pa. Code § 105.136: embankment seepage, a deteriorating spillway, spillway capacity of about 60% of the probable maximum flood, and possible internal erosion, weighed against the homes and people downstream. Lake Wynonah Dam is a large impoundment; the opinion does not address which smaller pond dams fall under Chapter 105 dam-safety regulation.

Later history: Supersedeas petition only; the merits appeal of the unsafe-dam letter was still pending when the opinion issued (Sept. 22, 2026), and no later opinion in Docket No. 2026-099-L appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026. Per footnote 3, association counsel told the Board that a preliminary injunction Mr. Brouse sought in the Court of Common Pleas to stop the drawdown had been denied.

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declaring Lake Wynonah Dam in South Manheim Township, Schuylkill County to be an “unsafe dam” under 25 Pa. Code § 105.136. ... including observed seepage on the dam’s embankment, a deteriorating concrete spillway, an analysis indicating that the current spillway could only pass approximately 60% of a probable maximum ... flood event, which could then overtop the dam ... and possible internal erosion within the dam embankment and foundation. The Department has found that the dam has a high risk of failure, and there are 32 structures housing approximately 70 people downstream of the dam.

Timothy M. Brouse, P.E. v. Department of Environmental Protection and Lake Wynonah Property Owners Association

Pennsylvania Environmental Hearing Board · September 22, 2026 · EHB Docket No. 2026-099-L (Opinion and Order on Petition for Supersedeas, Sept. 22, 2026) (Labuskes, J.) (slip opinion) [13]

Holding: Denied, without a hearing, a petition for supersedeas asking the Board to halt the drawdown of Lake Wynonah, because the DEP letter under appeal only declared the dam unsafe under 25 Pa. Code § 105.136 and requested a voluntary drawdown; it neither authorized nor required a drawdown, so superseding it would give no relief.

Why it matters for a pond: Illustrates what follows an unsafe-dam designation in practice: a request to drain the impoundment, at a controlled rate, backed by the threat of enforcement.

Later history: Supersedeas petition only; the merits appeal of the unsafe-dam letter was still pending when the opinion issued (Sept. 22, 2026), and no later opinion in Docket No. 2026-099-L appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026. Per footnote 3, association counsel told the Board that a preliminary injunction Mr. Brouse sought in the Court of Common Pleas to stop the drawdown had been denied.

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the letter does not actually order or otherwise require the Property Owners Association to take any specific action ... the Department “requests a voluntary and immediate complete drawdown of the Dam’s reservoir at a rate not to exceed more than one foot of reservoir depth per day.” The letter goes on to state that, if the Property Owners Association does not immediately begin a drawdown, the Department plans to pursue heightened enforcement action. The Association has already been drawing down the lake. The Association is not contesting the Department’s letter.

Timothy M. Brouse, P.E. v. Department of Environmental Protection and Lake Wynonah Property Owners Association

Pennsylvania Environmental Hearing Board · September 22, 2026 · EHB Docket No. 2026-099-L (Opinion and Order on Petition for Supersedeas, Sept. 22, 2026) (Labuskes, J.) (slip opinion) [13]

Holding: Denied, without a hearing, a petition for supersedeas asking the Board to halt the drawdown of Lake Wynonah, because the DEP letter under appeal only declared the dam unsafe under 25 Pa. Code § 105.136 and requested a voluntary drawdown; it neither authorized nor required a drawdown, so superseding it would give no relief.

Why it matters for a pond: Neighbors and lake users who object to draining a pond or lake behind an unsafe dam must challenge the action that actually authorizes or orders the drawdown; an appeal of the unsafe designation alone will not stop a drawdown.

Later history: Supersedeas petition only; the merits appeal of the unsafe-dam letter was still pending when the opinion issued (Sept. 22, 2026), and no later opinion in Docket No. 2026-099-L appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026. Per footnote 3, association counsel told the Board that a preliminary injunction Mr. Brouse sought in the Court of Common Pleas to stop the drawdown had been denied.

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The Board denies a petition for supersedeas without a hearing in an appeal of a Departmental letter declaring a dam to be unsafe because the petitioner asks the Board for relief that is beyond the scope of what the letter authorizes or requires. ... The letter neither authorizes nor requires a drawdown. Therefore, superseding the letter would have no effect on the ongoing drawdown of the lake. ... it is hereby ordered that the Department’s motion to deny the Appellant’s petition for supersedeas without a hearing is granted.

Timothy M. Brouse, P.E. v. Department of Environmental Protection and Lake Wynonah Property Owners Association

Pennsylvania Environmental Hearing Board · September 22, 2026 · EHB Docket No. 2026-099-L (Opinion and Order on Petition for Supersedeas, Sept. 22, 2026) (Labuskes, J.) (slip opinion) [13]

Holding: Denied, without a hearing, a petition for supersedeas asking the Board to halt the drawdown of Lake Wynonah, because the DEP letter under appeal only declared the dam unsafe under 25 Pa. Code § 105.136 and requested a voluntary drawdown; it neither authorized nor required a drawdown, so superseding it would give no relief.

Why it matters for a pond: Tells a dam owner what an unsafe designation does and does not do by itself; the concrete obligations (drawdown, repairs) come through DEP requirements and approvals, often in a consent order and agreement.

Later history: Supersedeas petition only; the merits appeal of the unsafe-dam letter was still pending when the opinion issued (Sept. 22, 2026), and no later opinion in Docket No. 2026-099-L appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026. Per footnote 3, association counsel told the Board that a preliminary injunction Mr. Brouse sought in the Court of Common Pleas to stop the drawdown had been denied.

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The letter did not trigger any self-executing regulatory duty to draw down the lake. See 25 Pa. Code § 105.136 (following unsafe designation, owner must drain lake only “as required and approved by the Department”). The Department and the Association are negotiating a consent ... order and agreement, which will embody the Association’s legal responsibility, precisely because the letter itself does not serve that function.

Timothy M. Brouse, P.E. v. Department of Environmental Protection and Lake Wynonah Property Owners Association

Pennsylvania Environmental Hearing Board · September 22, 2026 · EHB Docket No. 2026-099-L (Opinion and Order on Petition for Supersedeas, Sept. 22, 2026) (Labuskes, J.) (slip opinion) [13]

Holding: Denied, without a hearing, a petition for supersedeas asking the Board to halt the drawdown of Lake Wynonah, because the DEP letter under appeal only declared the dam unsafe under 25 Pa. Code § 105.136 and requested a voluntary drawdown; it neither authorized nor required a drawdown, so superseding it would give no relief.

Why it matters for a pond: Drawing down an impoundment is itself a permitted activity; once the drawdown permit goes unappealed it is final, and objections to the drawdown cannot be raised later through an appeal of a different action.

Later history: Supersedeas petition only; the merits appeal of the unsafe-dam letter was still pending when the opinion issued (Sept. 22, 2026), and no later opinion in Docket No. 2026-099-L appears on the EHB 2026 slip-opinion page as of Sept. 28, 2026. Per footnote 3, association counsel told the Board that a preliminary injunction Mr. Brouse sought in the Court of Common Pleas to stop the drawdown had been denied.

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Indeed, the drawdown of Lake Wynonah was in fact authorized by a separate permit. The Property Owners Association was issued a permit (Permit No. 97-25) on October 16, 2025 to draw down the lake up to 90 feet below the normal pool level. ... No one, including Mr. Brouse, appealed the drawdown permit and it is now administratively final. ... he cannot lodge a collateral attack on that authorization through this appeal.

Lake v. The Hankin Group

Commonwealth Court of Pennsylvania · November 6, 2013 · No. 278 C.D. 2013 (Pa. Cmwlth. Nov. 6, 2013) [23]

Holding: Reversed summary judgment for a developer, homeowners association and engineer on downstream owners' claims over flooding and sediment from a subdivision stormwater pond whose dam had breached: the claims were more akin to a continuing trespass, so the trial court erred in treating them as a time-barred permanent trespass; the neighbors were not indispensable parties; and the developer could be found in violation of the Clean Streams Law even though it no longer had an interest in the property.

Why it matters for a pond: Shows that a pond whose dam breaches and passes sediment downstream can draw a DEP notice of violation and a private Clean Streams Law suit by neighbors under section 601(c), and that the builder can remain potentially liable after the land changes hands.

Later history: Remanded to the Chester County Court of Common Pleas; later history not verified.

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it issued a Notice of Violation to Claremont Association stating: ... the dam associated with the pond in question has been breached at some point in the past and has allowed uncontrolled large volumes of sediment laden water to be discharged from the pond ... The Clean Streams Law permits private actions to be commenced to compel compliance with its provisions. 35 P.S. § 691.601(c). ... we conclude that Hankin Group and Hankin Properties may be found to be in violation of the Clean Streams Law even ... though they no longer have an interest in the property from which the storm water flows.

Angela Cres Trust of June 25, 1998 v. Department of Environmental Protection, Erie County Conservation District and Millcreek Township School District

Pennsylvania Environmental Hearing Board · April 16, 2026 · EHB Docket No. 2025-005-W (cons. with 2025-022-W and 2025-118-W) (Opinion and Order on Motions for Summary Judgment, Apr. 16, 2026) (slip opinion) [24]

Holding: Granted DEP and the conservation district partial summary judgment on four issues listed in the order: failure to conduct a review under 25 Pa. Code §§ 105.14 and 105.21, failure to submit an E&S plan with the registration, an incomplete PNDI, and noncompliance with Section 507 of the Administrative Agency Law (the opinion also rejected the outdated-registration-form objection, though the order does not list it); denied the appellants' motion for summary judgment; summary judgment denied on remaining issues, including adequacy of the E&S plan, stormwater management, the post-registration design change and the ARIT.

Why it matters for a pond: Pond intake and outfall pipes may fit GP-4, and the county conservation district may be the office that registers general-permit coverage.

Later history: Motion to dismiss denied, 2025 EHB 567 (July 1, 2025). The EHB 2026 slip-opinion page lists later orders in the docket (permittee's motion for stay, June 25, 2026; motions to compel, July 1 and July 6, 2026); final adjudication not verified as of Sept. 28, 2026.

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Pursuant to a delegation agreement with the Department, the Conservation District reviews and approves applications for General Permit-4 coverage. ... It authorizes the operation and maintenance of intake and outfall structures and is available for use by anyone with an eligible ... project that satisfies the terms and conditions and registers the project with the Department.

Angela Cres Trust of June 25, 1998 v. Department of Environmental Protection, Erie County Conservation District and Millcreek Township School District

Pennsylvania Environmental Hearing Board · April 16, 2026 · EHB Docket No. 2025-005-W (cons. with 2025-022-W and 2025-118-W) (Opinion and Order on Motions for Summary Judgment, Apr. 16, 2026) (slip opinion) [24]

Holding: Granted DEP and the conservation district partial summary judgment on four issues listed in the order: failure to conduct a review under 25 Pa. Code §§ 105.14 and 105.21, failure to submit an E&S plan with the registration, an incomplete PNDI, and noncompliance with Section 507 of the Administrative Agency Law (the opinion also rejected the outdated-registration-form objection, though the order does not list it); denied the appellants' motion for summary judgment; summary judgment denied on remaining issues, including adequacy of the E&S plan, stormwater management, the post-registration design change and the ARIT.

Why it matters for a pond: Explains why a pond project that fits a general permit faces a lighter registration process than a dam needing an individual Chapter 105 permit under § 105.81.

Later history: Motion to dismiss denied, 2025 EHB 567 (July 1, 2025). The EHB 2026 slip-opinion page lists later orders in the docket (permittee's motion for stay, June 25, 2026; motions to compel, July 1 and July 6, 2026); final adjudication not verified as of Sept. 28, 2026.

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The former requires compliance with the individual permitting requirements of Chapter 105, Subchapter A, as well as any other specific permit application requirements set forth for various projects (for example, § 105.81 for the construction and modification of dams and reservoirs; ... Thus, an application for registration of coverage under a general permit is not subject to the individual permitting requirements set forth in 25 Pa. Code § 105.14 and § 105.21 because those requirements were already taken into consideration at the time of the original permit issuance by the Department.

Angela Cres Trust of June 25, 1998 v. Department of Environmental Protection, Erie County Conservation District and Millcreek Township School District

Pennsylvania Environmental Hearing Board · April 16, 2026 · EHB Docket No. 2025-005-W (cons. with 2025-022-W and 2025-118-W) (Opinion and Order on Motions for Summary Judgment, Apr. 16, 2026) (slip opinion) [24]

Holding: Granted DEP and the conservation district partial summary judgment on four issues listed in the order: failure to conduct a review under 25 Pa. Code §§ 105.14 and 105.21, failure to submit an E&S plan with the registration, an incomplete PNDI, and noncompliance with Section 507 of the Administrative Agency Law (the opinion also rejected the outdated-registration-form objection, though the order does not list it); denied the appellants' motion for summary judgment; summary judgment denied on remaining issues, including adequacy of the E&S plan, stormwater management, the post-registration design change and the ARIT.

Why it matters for a pond: Per the registration instructions quoted by the Board (for general permits other than GP-9, GP-11 and oil and gas activities) and GP-4's own terms, an E&S plan need not accompany the registration but must be approved before construction. The version date of the quoted instructions is not stated.

Later history: Motion to dismiss denied, 2025 EHB 567 (July 1, 2025). The EHB 2026 slip-opinion page lists later orders in the docket (permittee's motion for stay, June 25, 2026; motions to compel, July 1 and July 6, 2026); final adjudication not verified as of Sept. 28, 2026.

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For all other General Permit registrations [other than GP-9s (agricultural activities), GP-11s (maintenance, testing, repair, rehabilitation, or replacement of water obstructions and encroachments), and oil and gas activities]: The E&S Plan is not required for registration. However, prior to construction, an E&S Plan for the work authorized by the general permit must be approved by a District or DEP. ... approving the General Permit-4 registration prior to the submission of the E&S plan, we find in favor of the Department and Conservation District.

Angela Cres Trust of June 25, 1998 v. Department of Environmental Protection, Erie County Conservation District and Millcreek Township School District

Pennsylvania Environmental Hearing Board · April 16, 2026 · EHB Docket No. 2025-005-W (cons. with 2025-022-W and 2025-118-W) (Opinion and Order on Motions for Summary Judgment, Apr. 16, 2026) (slip opinion) [24]

Holding: Granted DEP and the conservation district partial summary judgment on four issues listed in the order: failure to conduct a review under 25 Pa. Code §§ 105.14 and 105.21, failure to submit an E&S plan with the registration, an incomplete PNDI, and noncompliance with Section 507 of the Administrative Agency Law (the opinion also rejected the outdated-registration-form objection, though the order does not list it); denied the appellants' motion for summary judgment; summary judgment denied on remaining issues, including adequacy of the E&S plan, stormwater management, the post-registration design change and the ARIT.

Why it matters for a pond: Redesigning a pond outlet or other registered structure after general-permit coverage is granted may require a new or revised registration.

Later history: Motion to dismiss denied, 2025 EHB 567 (July 1, 2025). The EHB 2026 slip-opinion page lists later orders in the docket (permittee's motion for stay, June 25, 2026; motions to compel, July 1 and July 6, 2026); final adjudication not verified as of Sept. 28, 2026.

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25 Pa. Code § 105.447(d), which states that “an amended registration shall be filed if there is a change in ownership of the dam, water obstruction, or encroachment.” ... It is logical to conclude that a change in the design of a project may trigger the need for a new or revised registration application, depending on the scope and size of the design change.

Angela Cres Trust of June 25, 1998 v. Department of Environmental Protection, Erie County Conservation District and Millcreek Township School District

Pennsylvania Environmental Hearing Board · April 16, 2026 · EHB Docket No. 2025-005-W (cons. with 2025-022-W and 2025-118-W) (Opinion and Order on Motions for Summary Judgment, Apr. 16, 2026) (slip opinion) [24]

Holding: Granted DEP and the conservation district partial summary judgment on four issues listed in the order: failure to conduct a review under 25 Pa. Code §§ 105.14 and 105.21, failure to submit an E&S plan with the registration, an incomplete PNDI, and noncompliance with Section 507 of the Administrative Agency Law (the opinion also rejected the outdated-registration-form objection, though the order does not list it); denied the appellants' motion for summary judgment; summary judgment denied on remaining issues, including adequacy of the E&S plan, stormwater management, the post-registration design change and the ARIT.

Why it matters for a pond: If a conservation district acting under DEP delegation approves or denies a pond project's Chapter 105 general-permit coverage, the statute provides a 30-day appeal to DEP; the appellants here also appealed directly to the EHB.

Later history: Motion to dismiss denied, 2025 EHB 567 (July 1, 2025). The EHB 2026 slip-opinion page lists later orders in the docket (permittee's motion for stay, June 25, 2026; motions to compel, July 1 and July 6, 2026); final adjudication not verified as of Sept. 28, 2026.

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Section 17(c) authorizes that “any person aggrieved by an action of a county conservation district or other agency pursuant to a delegation agreement may appeal such action to the department within 30 days following notice of such action.” ... we conclude that, pursuant to Section 4(c) of the Environmental Hearing Board Act, the Department may take an action without formal findings required by Section 507 of the Administrative Agency Law, as such action does not attain finality until the opportunity for appeal is provided.

Angela Cres Trust of June 25, 1998 v. Department of Environmental Protection, Erie County Conservation District and Millcreek Township School District

Pennsylvania Environmental Hearing Board · July 1, 2025 · 2025 EHB 567 (EHB Docket No. 2025-005-W) (Opinion and Order on Motion to Dismiss) [22]

Holding: Denied a motion to dismiss for lack of jurisdiction an EHB appeal of a conservation district's Chapter 105 general permit action, because the matter was not free of doubt.

Why it matters for a pond: Where a conservation district issues Chapter 105 general-permit coverage, whether an aggrieved party must first appeal to DEP (32 P.S. § 693.17(c)) or may go straight to the EHB was contested and not resolved on a motion to dismiss; parties have filed both.

Later history: Summary judgment rulings Apr. 16, 2026; final disposition not verified.

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motion to dismiss an appeal of a water obstruction and encroachment general permit issued by the Conservation District is denied. The Department and Conservation District assert that the Board lacks jurisdiction because an appeal must first go to the Department. Because there are a number of issues in dispute and this matter is not free of doubt, dismissal is not appropriate at this time.

Lynda Williams v. Department of Environmental Protection and Estate of Harry Simon

Pennsylvania Environmental Hearing Board · September 17, 2021 · 2021 EHB 232 (EHB Docket No. 2018-067-C) [21]

Holding: Remanded an individual NPDES construction stormwater permit because DEP and the permittee did not properly apply the 25 Pa. Code § 102.14 riparian forest buffer requirements; in an impaired High Quality watershed the 150-foot trigger is measured from the whole "project site," which was the entire 13.8-acre property, not just the 5.8 disturbed acres.

Why it matters for a pond: A "lake, pond or reservoir" is among the waters that trigger the Chapter 102 riparian forest buffer rule for permitted earth disturbance in EV/HQ watersheds; in impaired EV/HQ watersheds the 150 feet is measured from the whole project site.

Later history: Permit remanded to DEP; later history not verified.

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In impaired special protection watersheds, the riparian forest buffer requirements apply to earth disturbance activities where “the project site contains, is along or within 150 feet of a perennial or intermittent river, stream, or creek, lake, pond or reservoir….” ... The “project site” for the Estate’s subdivision project is the entire 13.8-acre property. ... The Department erred by not requiring a riparian forest buffer for the Grove Road stream or performing an analysis of whether the best management practices proposed by the ... PAD150046 is remanded to the Department

Department of Environmental Protection v. Randy J. Spencer

Pennsylvania Environmental Hearing Board · August 13, 2024 · 2024 EHB 524 (EHB Docket No. 2022-038-CP-B) [8]

Holding: Assessed a $65,766.68 civil penalty (DEP had requested $123,459.80) for failing to comply with a DEP order under the Dam Safety and Encroachments Act to remove campers, vehicles and other items from a stream floodway, applying the 32 P.S. § 693.21 penalty cap and factors.

Why it matters for a pond: Explains the Dam Safety and Encroachments Act civil penalty ceiling and the factors the EHB weighs when DEP seeks penalties for DSEA violations, such as an unpermitted dam, embankment or fill.

Later history: The underlying order was upheld in Spencer v. DEP, 2020 EHB 416, which was not appealed (as recited in the adjudication); appeal of the 2024 penalty not verified.

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The Board assesses a civil penalty of $65,766.68 against Randy J. Spencer for failing to comply with an Administrative Order that arose out of violations of the Dam Safety and Encroachments Act. ... civil penalty shall not exceed $10,000, plus $500 for each day of continued violation. 32 P.S. § 693.21(a). ... 1) the willfulness of the violation, 2) the damage or injury to the stream regime and downstream areas of the Commonwealth, 3) the costs of restoration, 4) the cost to the Commonwealth of enforcing the provisions of the act against such person and 5) other relevant factors.

Dave Rickert v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · June 24, 2026 · EHB Docket No. 2025-117-BP (Opinion and Order on Motion to Dismiss and Motion to Appeal Nunc Pro Tunc, June 24, 2026) (slip opinion) [14]

Holding: Dismissed as untimely an appeal, filed Nov. 4, 2025, of an April 2, 2024 DEP administrative order under the Clean Streams Law and the Dam Safety and Encroachments Act, and denied nunc pro tunc relief; receipt of the order itself was sufficient notice of a final, appealable action even without the page describing appeal rights.

Why it matters for a pond: A landowner who receives a DEP order about ditch, stream or pond work has 30 days to appeal to the EHB; missing the deadline generally ends the right to contest the order.

Later history: Leave to amend the notice of appeal had been granted Apr. 1, 2026. Any further appeal not verified.

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The Board does not have jurisdiction over an untimely appeal and there is no evidence of fraud, a breakdown in the Board’s administrative operations, or any other unique and compelling circumstances to warrant nunc pro tunc relief. ... This appeal centers around an April 2, 2024 Administrative Order issued by the Department to Appellant Dave Rickert alleging violations of The Clean Streams Law and the Dam Safety and Encroachments Act. ... The Dam Safety and Encroachments Act and The Clean Streams Law have a 30-day appeal period.

Dave Rickert v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · June 24, 2026 · EHB Docket No. 2025-117-BP (Opinion and Order on Motion to Dismiss and Motion to Appeal Nunc Pro Tunc, June 24, 2026) (slip opinion) [14]

Holding: Dismissed as untimely an appeal, filed Nov. 4, 2025, of an April 2, 2024 DEP administrative order under the Clean Streams Law and the Dam Safety and Encroachments Act, and denied nunc pro tunc relief; receipt of the order itself was sufficient notice of a final, appealable action even without the page describing appeal rights.

Why it matters for a pond: The Board treated receipt of the order itself as notice of a final, appealable action, starting the 30-day appeal period, even though (per the appellant) the appeal-rights page was missing.

Later history: Leave to amend the notice of appeal had been granted Apr. 1, 2026. Any further appeal not verified.

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A notice requirement is satisfied when notice of the action is mailed to the interested party’s last known address, regardless of whether there was personal receipt. ... We note that a Department letter need not state that it is a final decision or contain a notice of appeal rights in order to constitute a final, appealable action. ... Even accepting Mr. Rickert’s assertion that August 6, 2025 was the first date on which he became aware of the Administrative Order, he did not file his appeal until approximately ninety (90) days later.

Dave Rickert v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · April 1, 2026 · EHB Docket No. 2025-117-BP (Opinion and Order on Motion to Amend Notice of Appeal, Apr. 1, 2026) (slip opinion) [25]

Holding: Granted leave to amend the notice of appeal because the amendment would not unduly prejudice DEP.

Why it matters for a pond: By the appellant's own account, DEP told him to remove material from a ditch or get a permit; this is his description, not a Board finding.

Later history: Appeal dismissed as untimely June 24, 2026.

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The Environmental Hearing Board (“Board”) grants Appellant Dave Rickert’s ... Motion to Amend his Notice of Appeal ... selections from the Dam Safety and Encroachment Act. ... meeting with DEP where “[he] was told to remove the material from the ditch of ... [sic] get a permit ... Appellant clarified that the Department action he seeks to appeal is a Department Order issued ... on April 2, 2024.

Gary and MaryAnn Pruden v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · May 19, 2025 · 2025 EHB 360 (EHB Docket No. 2024-023-BP) (Opinion and Order on Motion for Summary Judgment) [22]

Holding: Denied neighbors' motion for summary judgment against PAG-02 NPDES coverage because the objections raised were not within the genre of issues in their notice of appeal; a motion to amend would be needed.

Why it matters for a pond: Neighbors can appeal a pond builder's Chapter 102 permit coverage to the EHB within 30 days of notice in the Pennsylvania Bulletin, so an issued permit can still be challenged during that window.

Later history: Not verified.

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proposing new coverage for discharge of stormwater associated with earth disturbance activities at a clean fill site ... a person aggrieved by an action of the Department must file its appeal with the Board within 30 days after receiving notice of the action. 25 Pa. Code § 1021.52(a)(2). The thirty-day period begins to run after publication in the Pennsylvania Bulletin, or if no publication occurs, then after actual notice is provided to the aggrieved party. ... An appeal may then be amended “as-of-right” within 20 days after the initial filing.

Virtus Capital Advisors, LLC and Steven Gidumal v. Department of Environmental Protection, Department of Transportation, et al. (Environmental Hearing Board)

Commonwealth Court of Pennsylvania · June 5, 2026 · No. 1272 C.D. 2024 (Pa. Cmwlth. June 5, 2026) (unreported memorandum opinion by Wolf, J.) [15]

Holding: Granted DEP's application to dismiss as moot a petition for review of an EHB adjudication upholding a Chapter 105 permit, because the permit expired by its own terms and no exception to the mootness doctrine applied.

Why it matters for a pond: This Chapter 105 permit carried a completion date and said it would become void if the work was not completed by then unless DEP extended it in writing; the court treated the expired permit as void and the challenge as moot. Check the completion-date and extension terms in any individual permit; the opinion does not say all Chapter 105 permits carry the same term.

Later history: Not verified.

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PennDOT’s Permit expired on December 31, 2024. ... DEP submits that the Permit expired on December 31, 2024, and it did not receive an application from PennDOT to renew or extend its terms beyond that expiration date. By its own terms, the Permit states that “[i]f the work authorized by this permit is not completed on or before 12/31/2024, this permit, if not previously revoked or specifically extended by the Department in writing, shall become void without further notification.” ... We agree with DEP that the expiration of the Permit renders this matter moot.

WTA Properties, LLC v. Department of Environmental Protection

Pennsylvania Environmental Hearing Board · January 7, 2026 · EHB Docket No. 2025-100-BP (Opinion and Order on Dismissal of Appeal for Failure to Obtain Counsel, Jan. 7, 2026) (slip opinion) [26]

Holding: Dismissed under 25 Pa. Code § 1021.161 an LLC's appeal of a DEP determination that an individual NPDES permit was required before earth disturbance, because the LLC failed to obtain counsel or respond to Board orders.

Why it matters for a pond: A pond builder that operates through an LLC or corporation and wants to contest a Chapter 102 NPDES determination must hire a lawyer to appear before the EHB.

Later history: Not verified.

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challenges the Department of Environmental Protection’s (“Department”) August 28, 2025 e-mail stating that Appellant would need to obtain an individual NPDES permit before conducting any earth disturbance activities. ... Under Pennsylvania law, a limited liability company must be represented by legal counsel in a judicial proceeding and may not appear pro se. ... “[p]arties, except individuals appearing on their own behalf, shall be represented by an attorney in good standing at all stages of the proceedings subsequent to the filing of the notice of appeal or complaint[,]”

Osevala v. Gaudette

Commonwealth Court of Pennsylvania · October 9, 2020 · No. 1329 C.D. 2019 (Pa. Cmwlth. Oct. 9, 2020) (reported opinion by Judge Fizzano Cannon) [27]

Holding: Adjacent landowners harmed by unpermitted floodplain fill may bring private public-nuisance actions under Flood Plain Management Act § 502(b) (and the Storm Water Management Act) in common pleas court without first exhausting zoning hearing board remedies; order sustaining preliminary objections reversed and remanded.

Why it matters for a pond: Unpermitted fill or grading for a pond in a floodplain exposes the owner to neighbor lawsuits seeking removal of the fill and restoration, in addition to municipal enforcement.

Later history: Remanded to the Court of Common Pleas of Dauphin County; later history not checked.

Show the source text
Gaudette Junior and Senior never obtained a permit for placement of the fill or for any grading or excavation work, despite the fact that the properties are located within a floodplain. ... Similarly, here we find that the Osevalas, as adjacent landowners, have an independent right to seek equitable relief under both the Storm Water Management Act and the Flood Plain Management Act. ... Neither act requires that a township or zoning hearing board finally determine the issue of a violation prior to the assertion of a claim by an aggrieved person before a court.

DiPaolo v. Zoning Hearing Board of Bensalem Township

Commonwealth Court of Pennsylvania · July 18, 2018 · No. 1815 C.D. 2016 (Pa. Cmwlth. July 18, 2018) (unreported memorandum opinion by Judge Covey) [28]

Holding: Township floodplain enforcement notices for unpermitted structures and paving in the floodplain/floodway upheld; delay of about ten years did not establish laches, estoppel, vested rights or justifiable reliance absent proof of prejudice or an affirmative municipal act.

Why it matters for a pond: Floodplain-permit violations do not become safe with time; a municipality can enforce years later.

Later history: Not checked.

Show the source text
Because substantial record evidence supports the ZHB’s determination that the DiPaolos constructed and/or placed the deck, sheds, paved/stoned areas and gazebo in the Property’s floodplain without necessary permits or variances, the trial court properly upheld the ZHB’s November 6, 2014 decisions. ... This Court acknowledges that the Township did not enforce the DiPaolos’ deck violation for nearly ten years ... Because the DiPaolos have not proven the necessary criteria, the Enforcement Notices are not barred by laches, estoppel, vested rights or justifiable reliance doctrines.

Clean Air Council, The Delaware Riverkeeper Network, and Mountain Watershed Association, Inc. v. DEP and Sunoco Pipeline, L.P.

Pennsylvania Environmental Hearing Board · January 8, 2018 · 2018 EHB 35 (EHB Docket No. 2017-009-L) [18]

Holding: Denied summary judgment; held the EV wetland regulations are sufficiently protective that no further analysis of actual existing uses of each EV wetland is required, and explained that EV wetland classification generally occurs as part of a final permit action.

Why it matters for a pond: Indicates EV wetland classification generally occurs as part of DEP's final permit or approval action, although wetlands associated with a stream designated EV may in effect be designated EV.

Later history: Interlocutory opinion on summary judgment; later history not verified.

Show the source text
the Department generally does not directly designate the uses of wetlands, as opposed to streams. ... Instead, the Department “classifies” wetlands as EV (as opposed to “other wetlands”), and that classification generally takes place as part of a final permit or approval action. ... Wetlands may in effect be designated EV if they are associated with a stream that is designated EV.

Liberty Township and CEASRA, Inc. v. DEP and Tri-County Landfill

Pennsylvania Environmental Hearing Board · April 5, 2024 · 2024 EHB 872 (EHB Docket No. 2023-036-L) [8]

Holding: Denied cross-motions for summary judgment in a third-party appeal of an NPDES permit; whether DEP determined existing uses of the receiving stream during permitting was a disputed material fact.

Why it matters for a pond: Shows existing-use determinations are made, and can be challenged, at the permit stage, so a designated use in the drainage list is not the final word.

Later history: Interlocutory opinion on summary judgment; later history not verified.

Show the source text
The Department must make a determination of existing ... use protection for a surface water as part of taking a final action or approval on a permit. ... Whether or not the Department made a determination of the existing uses of the UNT to Black Run during the permitting process is a disputed issue of material fact that must be resolved in favor of the non-moving parties and prevents the entry of summary judgment.

Wayne Land & Mineral Group LLC v. Delaware River Basin Commission

U.S. Court of Appeals for the Third Circuit · July 3, 2018 · 894 F.3d 509 (3d Cir. 2018) (No. 17-1800) [29]

Holding: The Compact's term 'project' is ambiguous; dismissal vacated and case remanded for fact-finding on the drafters' intent.

Why it matters for a pond: Context only: shows that the outer reach of DRBC's Section 3.8 project-review authority (which covers 'impoundment of water' and other activities) has been litigated. The case concerned a natural gas well pad, not a pond.

Later history: The Third Circuit later decided a related appeal on intervention by state senators, No. 19-2354 (May 19, 2020), vacating and remanding. Later proceedings were not verified in this research.

Show the source text
after determining ... that Wayne’s proposed activities constituted a “project” ... subject to the Commission’s oversight, according to the ... unambiguous terms of the interstate compact. Because we ... conclude that the meaning of the word “project” as used in the ... compact is ambiguous, we will vacate the order of dismissal ... and remand the case for fact-finding on the intent of the ... compact’s drafters.

More detail

More detail: 10 more verified statements on the High, Pileggi and Brouse cases and a DEP settlement over dam work

  • Case lawIn Craig High v. DEP (EHB, Jan. 5, 2024), a farmer excavated a ditch through an area of wetlands to convey water that was collected in part through a field drainage system. The EHB upheld DEP's compliance order addressing the wetlands encroachment as legal and reasonable when issued: under section 6 of the Dam Safety and Encroachments Act (32 P.S. § 693.6) the activity required a DEP permit, which he did not have, and he also did not have the required Erosion and Sedimentation Control Plan. His defenses did not eliminate the permit requirement. (The EHB nonetheless revised the order's remedies because conditions had changed; see pa-caselaw-005.)

    High v. DEP, 2024 EHB 1, 1-2, 31-33 [8]
    Show the source text
    compliance order in part addressing a wetlands encroachment as legal and reasonable when issued. The defenses offered by the appellant did not eliminate the requirement for a permit from the Department for the actions that were undertaken by the appellant. ... Mr. High excavated a ditch through an area of wetlands in order to convey water that was collected in part through a field drainage system. ... Under Section 693.6 of the DSEA, such an activity requires a permit from the Department, and Mr. High did not have one nor did he have the required Erosion and Sedimentation Control Plan.
    Open Pennsylvania Environmental Hearing Board (ehb.pa.gov) (opens in a new tab)

  • Case lawCraig High v. DEP: prior converted cropland status (25 Pa. Code § 105.452) must be shown for the specific area disturbed; the status of an adjoining field does not transfer to it. The EHB also found the area would have met the definition of abandonment by the time of the order even if it had once qualified. The landowner carries the burden of proving such affirmative defenses.

    High v. DEP, 2024 EHB 1, 20-23, 33 (Conclusions of Law 12-13) [8]
    Show the source text
    Even if Field 14 is prior converted cropland, nothing in the testimony or our reading of 25 Pa. Code § 105.452 suggests that the status of Field 14 can somehow stand in for and transfer its prior converted cropland status to Area 2 merely because it is adjoining it ... Even if Area 2 ever satisfied the definition of prior converted cropland, overall, the evidence supports a finding that Area 2 would have also met the definition for abandonment by the time the Compliance Order was issued. ... Mr. High bears the burden of proof on any affirmative defenses he raises to the Department's order.
    Open Pennsylvania Environmental Hearing Board (ehb.pa.gov) (opens in a new tab)

  • Case lawCraig High v. DEP: treating it as a question of first impression, the EHB held the 25 Pa. Code § 105.12 waiver for maintenance of field drainage systems did not excuse the work, mainly because the landowner did not demonstrate a pre-existing channel in the area that was part of his field drainage system. It added that the waiver arguably would allow working within the boundaries of an existing ditch to clear vegetation and remove built-up sediment, but would not necessarily cover activities extending meaningfully beyond the channel; placing the excavated material in wetlands adjacent to the new channel would not qualify.

    High v. DEP, 2024 EHB 1, 23-28 (construing 25 Pa. Code § 105.12(7)-(8)) [8]
    Show the source text
    this appears to be a question of first impression ... we are not convinced that Mr. High has demonstrated that there was a channel that should be considered as part of his field drainage system in Area 2. ... The maintenance waiver arguably would allow Mr. High to work within the boundaries of an existing ditch to clear vegetation and remove built up sediment but would not necessarily cover ... activities that extended meaningfully beyond the boundaries of the channel. ... placed the excavated material into wetlands areas adjacent to the new channel. Those actions would not qualify
    Open Pennsylvania Environmental Hearing Board (ehb.pa.gov) (opens in a new tab)

  • Case lawCraig High v. DEP: the EHB stressed that its field-drainage waiver ruling was fact-specific and not intended to create an onerous permit requirement for the thousands of Pennsylvania farmers who routinely maintain field drainage systems. It also quoted the § 105.12 provision that if DEP, upon complaint or investigation, finds that a waiver-eligible structure or activity has a significant effect upon safety or the protection of life, health, property or the environment, DEP may require the owner to apply for and obtain a permit; the EHB was satisfied DEP did not rely on that provision in this case.

    High v. DEP, 2024 EHB 1, 23 n.5, 28 n.7 (quoting 25 Pa. Code § 105.12) [8]
    Show the source text
    if the Department upon complaint or investigation finds that a structure or activity which is eligible for a waiver, has a significant effect upon safety or the protection of life, health, property or the environment, the Department may require the owner of the structure to apply for and obtain a permit under this chapter. ... we are ultimately satisfied that the Department did not rely on this provision. ... Nothing we have decided is intended to create an onerous permit requirement for the thousands of Pennsylvania farmers who are routinely required to maintain their field drainage systems.
    Open Pennsylvania Environmental Hearing Board (ehb.pa.gov) (opens in a new tab)

  • Case lawCraig High v. DEP: DEP had ordered the excavated channel restored to a depth of no more than 10 inches below the pre-existing ground elevation; because the wetland had stabilized by the time of the hearing, the EHB found that restoration no longer reasonable and appropriate and revised the order to delete both the restoration requirement and the requirement to develop and implement an erosion and sediment control plan or conservation plan under Chapter 102.4(a). It said the landowner should discuss any future activities in the area with the Conservation District and/or DEP to determine what requirements and permits apply.

    High v. DEP, 2024 EHB 1, 29-31, 34 (Order) [8]
    Show the source text
    requiring Mr. High to restore the channel to a depth of 10 inches at this point as called for in the Compliance Order is no longer reasonable and appropriate. ... he should discuss them with the Conservation District and/or the Department to determine what, if any, requirements apply and if any permits are necessary. ... The Department’s Compliance Order is revised to delete the requirements that Mr. High (1) restore the excavated ditch ... and; (2) develop and implement an erosion and sediment control plan or conservation plan in accordance with Chapter 102.4(a).
    Open Pennsylvania Environmental Hearing Board (ehb.pa.gov) (opens in a new tab)

  • Case lawPileggi v. DEP (Pa. Cmwlth., Jan. 7, 2026): the Commonwealth Court held that Chapter 102 NPDES requirements apply to earth disturbance that creates pollution or the potential for pollution and are not contingent on a point-source discharge, and that a landowner cannot evade the rules by claiming unpermitted work is complete and nothing further is 'proposed'. It affirmed the Environmental Hearing Board's conclusion that the landowner needed to obtain an NPDES permit and submit an E&S plan, but vacated the Board's order insofar as it adopted the remedies in DEP's administrative order and remanded.

    Pileggi v. Dep't of Env't Prot. (Env't Hearing Bd.), No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026) [5]
    Show the source text
    require NPDES permits for certain earth disturbance activities that create pollution or the potential for pollution ... not contingent on the existence of a point source discharge. ... a landowner may not ... simply evade DEP’s regulations by claiming the activities are complete and no further work is being “proposed.” ... we affirm the Board’s October 2, 2024 Order insofar as it concluded Pileggi needed to obtain an NPDES permit and submit an E&S plan ... we vacate the Board’s Order insofar as it adopted the remedies specified in DEP’s August 11, 2022 Administrative Order, and we remand
    Open Commonwealth Court of Pennsylvania (pacourts.us) (opens in a new tab)

  • StatusSubsequent history of Pileggi: on March 9, 2026 the Pennsylvania Supreme Court discontinued the landowner's appeal request; the EHB then issued its March 18, 2026 remand decision; on or about April 10, 2026 the landowner appealed that remand decision to the Commonwealth Court; and on April 30, 2026 the EHB denied his petition for reconsideration.

    Pileggi v. DEP, EHB Docket No. 2022-068-BP, slip op. at 1, 3 (Opinion and Order on Petition for Reconsideration, Apr. 30, 2026) [6]
    Show the source text
    On March 9, 2026, the Supreme Court of Pennsylvania discontinued Mr. Pileggi’s appeal ... request. Thereafter, the Board completed its remand opinion. On March 18, 2026, the Board ... April 10, 2026, Mr. Pileggi appealed the March 18, 2026 remand decision to the Commonwealth ... Court.
    Open Pennsylvania Environmental Hearing Board (ehb.pa.gov) (opens in a new tab)

  • StatusSubsequent history of High v. DEP: on March 24, 2025 the Commonwealth Court denied the landowner's application for reargument.

    High v. DEP, No. 98 C.D. 2024 (Pa. Cmwlth. Mar. 24, 2025) (order) [9]
    Show the source text
    NOW, March 24, 2025, upon consideration of Petitioner’s application for reargument, the application is DENIED.
    Open Commonwealth Court of Pennsylvania (Unified Judicial System) (opens in a new tab)

  • ProcessBrouse (EHB 2026) sets out the supersedeas standard for appeals of Dam Safety and Encroachments Act actions: an appeal to the EHB does not act as a supersedeas; the Board may grant one on a showing that (1) irreparable harm will result to the petitioner or other interested parties if it is denied, (2) the petitioner is likely to succeed on the merits, and (3) the supersedeas will not cause irreparable harm to the Commonwealth. The EHB Act also bars a supersedeas where pollution or injury to public health, safety or welfare exists or is threatened while it would be in effect.

    Brouse v. DEP, EHB Docket No. 2026-099-L, slip op. at 4 (Sept. 22, 2026) (quoting 32 P.S. § 693.24(b) and 35 P.S. § 7514(d)(2)) [13]
    Show the source text
    prohibits issuing a supersedeas “in cases where pollution or injury to the public health, safety or welfare exists or is threatened ... An appeal to the hearing board of any action of the department shall not act as a supersedeas. A supersedeas may be granted by the hearing board upon a showing by the petitioner: (1) the irreparable harm to the petitioner or other interested parties will result if the supersedeas is denied; (2) that there is a likelihood of the petitioner’s success on the merits; and (3) that the grant of a supersedeas will not result in irreparable harm to the Commonwealth.
    Open Pennsylvania Environmental Hearing Board (opens in a new tab)

  • DEP enforcement context (dam work): during improvements to the Dunmore No. 7 Dam (Lackawanna County) in February 2024, tons of sediment that had built up behind the dam were unexpectedly released into Roaring Brook and the Lackawanna River. In a settlement DEP reached with the dam owner (PA American Water), in lieu of a civil penalty, the company agreed to perform a Community Environmental Project whose value is projected at $350,000.

    DEP news release, June 27, 2025 ("Dunmore No. 7 Dam Sediment Release Response") [30]
    Show the source text
    During improvements to the Dunmore No. 7 Dam in Lackawanna County in February 2024, there was an unexpected release of tons of sediment that had built up behind the dam into the Roaring Brook and Lackawanna River. ... As part of a settlement that DEP reached with PA American Water, in lieu of a civil penalty, the company agreed to perform a Community Environmental Project (CEP) ... The value of the project is projected at $350,000
    Open Pennsylvania Department of Environmental Protection (pa.gov) (opens in a new tab)

Open questions to ask the agency

Not confirmed from a primary source

We could not confirm the following from an official source. Ask the agency listed before relying on any of it.

  • Later history (appeals or final disposition) of DEP v. Seligman (2014), DEP v. Pecora (2008), Glance v. DEP (2018), Williams v. DEP (2021, after remand), DEP v. Spencer (2024), Flatley v. DEP (May 8, 2026), Friends of High Point Lake v. DEP (after Oct. 30, 2025), Angela Cres Trust v. DEP (after Apr. 16, 2026) and the district-court remedies in United States v. Brace after 2021. — ask: Environmental Hearing Board Secretary (717-787-3483; ehb.pa.gov docket search) and Commonwealth Court Prothonotary (UJS Portal case search)
  • The outcome of the landowner's second Commonwealth Court appeal in Pileggi (filed about Apr. 10, 2026), and whether High (after reargument was denied Mar. 24, 2025) or Rickert sought further review. — ask: Commonwealth Court Prothonotary / UJS Portal docket search (ujsportal.pacourts.us)
  • The final outcome of Brouse v. DEP on the merits of the unsafe-dam designation, the terms of any DEP consent order and agreement with the Lake Wynonah association, and which agency issued drawdown Permit No. 97-25. — ask: Environmental Hearing Board Secretary (717-787-3483); DEP Division of Dam Safety; Pennsylvania Fish and Boat Commission (drawdown permits)
  • Any Pennsylvania or Third Circuit decision applying the Clean Water Act section 404(f)(1)(C) farm or stock pond exemption to a Pennsylvania pond. None was located; Brace concerns the normal-farming and drainage exemptions. — ask: U.S. Army Corps of Engineers Baltimore, Philadelphia or Pittsburgh District regulatory office; EPA Region 3
  • Any 2025-2026 EHB or Commonwealth Court decision directly about permitting a new farm or recreation pond (for example a Chapter 105 general permit, a § 105.81 dam permit, or the § 105.3 dam-size thresholds or § 105.12 waivers applied to a pond dam). None was found. — ask: DEP Division of Dam Safety and regional Waterways and Wetlands program; county conservation district; EHB opinion search (ehb.pa.gov)
  • Recent decisions applying the Fish and Boat Code (30 Pa.C.S. §§ 2502, 2504, 3506) or PNDI requirements, the Flood Plain Management Act or a municipal floodplain ordinance, or Chapter 110, SRBC or DRBC review thresholds specifically to ponds. — ask: EHB opinion search (ehb.pa.gov); Commonwealth Court opinion search (pacourts.us)
  • EHB orders not published as opinions (consent adjudications, settlements, withdrawals) and DEP press releases or published consent orders about unpermitted pond or dam construction by landowners. — ask: Environmental Hearing Board Secretary (717-787-3483); DEP Office of Communications, regional Waterways and Wetlands program, or DEP Right-to-Know Office
  • Official (non-repository) text of United States v. Brace, 41 F.3d 117 (3d Cir. 1994) and Baehler v. DEP, 863 A.2d 57 (Pa. Cmwlth. 2004); both were read on CourtListener. — ask: Third Circuit Clerk; Commonwealth Court Prothonotary

Sources

Every statement above links to one of these official sources. Expand “Show the source text” under any statement to read the exact passage it rests on.

  1. High v. Department of Environmental Protection (Environmental Hearing Board), No. 98 C.D. 2024 (Pa. Cmwlth. Jan. 6, 2025) (unreported memorandum opinion) (opens in a new tab) — Commonwealth Court of Pennsylvania (Unified Judicial System), document date 2025-01-06, retrieved September 28, 2026
  2. Becker v. Department of Environmental Protection, No. 560 C.D. 2017 (Pa. Cmwlth. Dec. 1, 2017) (memorandum opinion, not reported) (opens in a new tab) — Commonwealth Court of Pennsylvania (pacourts.us), document date 2017-12-01, retrieved September 28, 2026
  3. Baehler v. Department of Environmental Protection, 863 A.2d 57 (Pa. Cmwlth. 2004) (opens in a new tab) — CourtListener (Free Law Project) - opinion repository, document date decided December 6, 2004, retrieved September 28, 2026
  4. Environmental Hearing Board Adjudications and Opinions, 2008, Vol. 1 (pp. 1-376) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2008, retrieved September 28, 2026
  5. Pileggi v. Department of Environmental Protection (Environmental Hearing Board), No. 1477 C.D. 2024 (Pa. Cmwlth. Jan. 7, 2026) (opens in a new tab) — Commonwealth Court of Pennsylvania (pacourts.us), document date 2026-01-07, retrieved September 28, 2026
  6. Pileggi v. DEP, EHB Docket No. 2022-068-BP, Opinion and Order on Appellant's Petition for Reconsideration (Apr. 30, 2026) (slip opinion) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2026-04-30, retrieved September 28, 2026
  7. Pileggi v. DEP, EHB Docket No. 2022-068-BP, Opinion and Order on Remand (Mar. 18, 2026) (slip opinion) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2026-03-18, retrieved September 28, 2026
  8. Environmental Hearing Board Adjudications and Opinions, 2024, Vols. 1 & 2 (pp. 1-899) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2024, retrieved September 28, 2026
  9. High v. DEP (EHB), No. 98 C.D. 2024, Order denying application for reargument (Mar. 24, 2025) (opens in a new tab) — Commonwealth Court of Pennsylvania (Unified Judicial System), document date 2025-03-24, retrieved September 28, 2026
  10. United States v. Brace, 41 F.3d 117 (3d Cir. 1994), No. 94-3076 (opens in a new tab) — CourtListener (Free Law Project) - opinion repository, document date Decided Nov. 22, 1994; sur petition for rehearing Jan. 9, 1995 (per CourtListener text), retrieved September 28, 2026
  11. United States v. Brace, No. 20-1892 (3d Cir. June 11, 2021) (precedential) (opens in a new tab) — U.S. Court of Appeals for the Third Circuit (ca3.uscourts.gov), document date 2021-06-11, retrieved September 28, 2026
  12. Environmental Hearing Board Adjudications and Opinions, 2014, Vol. 2 (pp. 549-1080) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2014, retrieved September 28, 2026
  13. Brouse v. DEP and Lake Wynonah Property Owners Ass'n, EHB Docket No. 2026-099-L, Opinion and Order on Petition for Supersedeas (scanned PDF, OCR) (opens in a new tab) — Pennsylvania Environmental Hearing Board, document date 2026-09-22, retrieved September 28, 2026
  14. Rickert v. DEP, EHB Docket No. 2025-117-BP, Opinion and Order on Motion to Dismiss and Motion to Appeal Nunc Pro Tunc (scanned PDF, OCR) (opens in a new tab) — Pennsylvania Environmental Hearing Board, document date 2026-06-24, retrieved September 28, 2026
  15. Virtus Capital Advisors, LLC v. DEP (Environmental Hearing Board), No. 1272 C.D. 2024 (Pa. Cmwlth. June 5, 2026) (unreported memorandum opinion) (opens in a new tab) — Commonwealth Court of Pennsylvania (Unified Judicial System), document date 2026-06-05, retrieved September 28, 2026
  16. United States v. Brace, No. 21-2966 (3d Cir. Jan. 6, 2023) (not precedential) (opens in a new tab) — U.S. Court of Appeals for the Third Circuit (ca3.uscourts.gov), document date 2023-01-06, retrieved September 28, 2026
  17. Corsnitz v. Commonwealth of Pennsylvania, Department of Environmental Protection, No. 24-1783 (3d Cir. Apr. 3, 2025) (not precedential) (opens in a new tab) — U.S. Government Publishing Office (govinfo.gov, USCOURTS collection), document date 2025-04-03, retrieved September 28, 2026
  18. Environmental Hearing Board Adjudications and Opinions, 2018, Vol. 1 (pp. 1-436) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2018, retrieved September 28, 2026
  19. Environmental Hearing Board Adjudications and Opinions, 2009, Vol. 2 (pp. 342-669) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2009, retrieved September 28, 2026
  20. Flatley v. DEP, EHB Docket No. 2024-139-B, Opinion and Order on the Department's Motion for Summary Judgment (May 8, 2026) (slip opinion) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2026-05-08, retrieved September 28, 2026
  21. Environmental Hearing Board Adjudications and Opinions, 2021, Vol. 1 (pp. 1-375) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2021, retrieved September 28, 2026
  22. Environmental Hearing Board Adjudications and Opinions, 2025, Vols. 1 & 2 (pp. 1-798) (opens in a new tab) — Pennsylvania Environmental Hearing Board (ehb.pa.gov), document date 2025, retrieved September 28, 2026
  23. Lake v. The Hankin Group, No. 278 C.D. 2013 (Pa. Cmwlth. Nov. 6, 2013) (opens in a new tab) — Commonwealth Court of Pennsylvania (pacourts.us), document date 2013-11-06, retrieved September 28, 2026
  24. Angela Cres Trust of June 25, 1998 v. DEP, EHB Docket No. 2025-005-W (cons.), Opinion and Order on Motions for Summary Judgment (opens in a new tab) — Pennsylvania Environmental Hearing Board, document date 2026-04-16, retrieved September 28, 2026
  25. Rickert v. DEP, EHB Docket No. 2025-117-BP, Opinion and Order on Motion to Amend Notice of Appeal (opens in a new tab) — Pennsylvania Environmental Hearing Board, document date 2026-04-01, retrieved September 28, 2026
  26. WTA Properties, LLC v. DEP, EHB Docket No. 2025-100-BP, Opinion and Order on Dismissal of Appeal for Failure to Obtain Counsel (opens in a new tab) — Pennsylvania Environmental Hearing Board, document date 2026-01-07, retrieved September 28, 2026
  27. Osevala v. Gaudette, No. 1329 C.D. 2019 (Pa. Cmwlth. Oct. 9, 2020) (opinion) (opens in a new tab) — Commonwealth Court of Pennsylvania (pacourts.us), document date 2020-10-09, retrieved September 28, 2026
  28. DiPaolo v. Zoning Hearing Board of Bensalem Township, No. 1815 C.D. 2016 (Pa. Cmwlth. July 18, 2018) (unreported memorandum opinion) (opens in a new tab) — Commonwealth Court of Pennsylvania (pacourts.us), document date 2018-07-18, retrieved September 28, 2026
  29. Wayne Land & Mineral Group LLC v. Delaware River Basin Commission, No. 17-1800 (3d Cir. July 3, 2018) (precedential) (opens in a new tab) — U.S. Court of Appeals for the Third Circuit via govinfo.gov (USCOURTS), document date filed July 3, 2018, retrieved September 28, 2026
  30. DEP Staff Recognized with Governor's Awards for Excellence for Responses to Mine Subsidence and Dam Sediment Release (DEP news release) (opens in a new tab) — Pennsylvania Department of Environmental Protection (pa.gov), document date 2025-06-27, retrieved September 28, 2026

This is not legal advice. It is a plain-English summary of official sources, checked September 28, 2026. Laws, permits and agency practice change, and how they apply depends on your exact site. Confirm with the agencies named here, and with a licensed professional engineer for any dam, before you build.

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