By Special Public Notice issued on September 29, 2015, the Baltimore, Pittsburgh and Philadelphia District of the U.S. Army - Corps of Engineers (the "Corps") announced the availability for public comment of a draft Pennsylvania State Programmatic General Permit No. 5 ("PASPGP-5"). Comments on the draft are due on or before October 29, 2015. The Special Notice, and draft PASPGP-5, can be found here.
The PASPGP program is a general Section 404 permit issued by the Corps on a Pennsylvania-wide basis for activities that result in no more than minimal individual or cumulative adverse effect on the aquatic environment. Generally, projects that result in the loss of less than 1.0 acre of wetlands are eligible for a PASPGP permit - otherwise, the project must obtain an individual or nationwide Section 404 permit. Under the PASPGP program, a Joint Permit Application is submitted to the appropriate Regional Office of the Pennsylvania Department of Environmental Protection ("DEP"), which makes a decision, in accordance with the requirements of the PASPGP program, whether it must forward a copy of the application to the Corps for its review, or whether DEP can issue the PASPGP permit itself without Corps' review. The PASPGP permit is issued under the Corps' Section 404 permit authority, and does not displace the requirement to comply with, and obtain when necessary, a Section 105 permit from DEP.
If adopted, the draft PASPGP-5 permit would replace the current PASPGP-4 permit, which is set to expire on June 30, 2016. Some of the important changes from the PASPGP-4 permit found in the draft PASPGP-5 permit are the following:
- Single and complete projects resulting in a permanent loss of more than 1,000 linear feet of stream would no longer be eligible for a PASPGP permit.
- Unless waived in writing by the Corps, post-construction monitoring by the permittee will be required for any temporary impacts to wetlands greater than 0.1 acre. Monitoring will be completed on a form developed by the Corps, and will be required one month after completion of the work, and again after the first full growing season. Completed forms would be submitted to the Corps.
- There are changes to the activities that would be required to be reported by DEP to the Corps for processing, and those activities that DEP does not have to report.
- Generally, existing PASPGP-4 authorizations would be grandfathered by the PASPGP-5 if it is adopted in its current form.
Since the adoption of the first PASPGP permit, the majority of Section 404 authorizations issued in Pennsylvania have been through the PASPGP program. Therefore, it is important that developers of residential, commercial or industrial facilities in Pennsylvania understand the parameters of the PASPGP program.