On May 2, 2016, the Baltimore, Philadelphia, and Pittsburgh Districts of the U.S. Army Corps of Engineers (the “Corps”) announced by special public notice that the Pennsylvania State Programmatic General Permit-5 (“PASPGP-5”) has been issued for a five-year period. The PASPGP-5 will be implemented and in full effect on July 1, 2016.

The PASPGP program is a general Section 404 permit issued under the federal Clean Water Act by the Corps on a Pennsylvania-wide basis for activities that would cause no more than minimal adverse environmental effects. 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 (“PADEP”), which makes a decision, in accordance with the requirements of the PASPGP program, whether it must forward a copy of the Joint Permit Application to the Corps for its review, or whether PADEP can issue the PASPGP permit itself without the Corps’ review. The PASPGP permit operates in conjunction with PADEP’s Section 105 permitting program; however, the PASPGP permit does not displace the requirement to comply with, and obtain when necessary, a Section 105 permit from PADEP.

The PASPGP-5 will replace the current PASPGP-4, which is set to expire on June 30, 2016. Generally, current activities authorized by PASPGP-4 that comply with the terms and conditions of PASPGP-5 would be grandfathered without further notice to the Corps and authorized until the PASPGP-5 expires on June 30, 2021, or until the corresponding Section 105 authorization terminates, whichever is sooner. The PASPGP-5 contains several significant changes from the PASPGP-4, including the following:

  • Single and complete projects that will result in a permanent loss of more than 1,000 linear feet of stream would no longer be eligible for a PASPGP permit.
  • A Post-Construction Monitoring Report, including pre-construction photographs as set forth in the Corps’ standard monitoring form, is required for all temporary impacts to wetlands that exceed 0.10 acre, unless waived by the Corps.
  • Some activities that PADEP could previously issue a PASPGP permit itself are now required to be reported to the Corps for processing.

The majority of Section 404 authorizations issued in Pennsylvania have been through the PASPGP program, since many of the nationwide permits have been suspended in the state. Therefore, it is important that developers of residential, commercial or industrial facilities in Pennsylvania understand the parameters of the PASPGP program.