The Foundation Water Law Newsletter
(By Lisa M. Bruderly)
On September 4, 2020, the U.S. Army Corps of Engineers (Corps) published, for 30-day public comment, draft Pennsylvania State Programmatic General Permit 6 (PASPGP-6). See Corps, Special Pub. Notice SPN 20-57 (Sept. 4, 2020). The public notice was jointly issued by the Corps’ Baltimore, Philadelphia, and Pittsburgh Districts. PASPGP-6 would replace the current PASPGP-5, which was issued on July 1, 2016, and will expire on July 5, 2021, unless suspended or revoked prior to that date.
PASPGP-6 would be issued under section 404(e) of the Clean Water Act, 33 U.S.C. § 1344(e), which allows the Corps to issue general permits on a statewide basis for categories of activities involving discharges of dredged or fill material to “waters of the United States” (WOTUS) if the Corps determines that the activities (1) are similar in nature, (2) will cause only minimal environmental impact when performed separately, and (3) will have only minimal cumulative adverse impacts on the environment. In Pennsylvania, the Corps relies primarily on the state programmatic general permit, rather than nationwide permits, to authorize impacts to regulated waters that meet the criteria of the general permit. Projects impacting WOTUS that do not qualify for coverage under the programmatic permit must obtain an individual permit under section 404.
As discussed below, PASPGP-6 would revise PASPGP-5 in several ways that would likely impact energy projects in Pennsylvania, especially natural gas pipelines. Generally, PASPGP-6 is expected to ease permitting obligations for projects with temporary impacts, and to impose more stringent threshold eligibility and reporting requirements for projects with permanent impacts to regulated waters. The proposed general permit would also require consideration of cumulative effects of the overall project when determining whether the project required additional Corps review.
Revised Project Eligibility
Eligibility Thresholds. PASPGP-6 would change the eligibility thresholds for projects with temporary and/or permanent impacts. Currently, projects that would result in greater than one acre of temporary and/or permanent impacts to WOTUS are not eligible for coverage under PASPGP-5. PASPGP-6 would reduce the eligibility threshold for permanent impacts to 0.5 acre but would eliminate the eligibility threshold for temporary impacts. Consequently, projects involving more than one acre of temporary impacts or “non-adverse permanent impacts,” which are not eligible for PASPGP-5, could be eligible for PASPGP-6. However, projects involving permanent im-pacts of between 0.5 and one acre, which are currently eligible for PASPGP-5, would no longer be eligible for PASPGP-6, thereby potentially requiring more projects to obtain individual permitting.
Eligible Waters. In addition to the eligibility thresholds based on the extent of impacts, PASPGP-6 would expand its coverage to certain section 10 waters, which are currently ineligible for coverage under PASPGP-6. “Section 10 waters” are waters that are considered as navigable under section 10 of the River and Harbor Act of 1899, 33 U.S.C. § 403.
Under PASPGP-5, projects impacting certain segments of 12 section 10 waters are ineligible for general permit coverage. However, 10 of those waterbodies (i.e., all of the Ohio, Beaver, Little Beaver, Mahoning, and Monongahela Rivers, and certain portions of the Youghiogheny, Allegheny, and Kiskiminetas Rivers, Tenmile Creek, and Lake Erie) would be eligible under PASPGP-6. Thus, projects impacting these waterbody segments could obtain coverage under PASPGP-6 if other applicable criteria are met. The remaining two waterbodies (i.e., certain segments of the Delaware River and the Schuylkill River) would remain ineligible for programmatic permitting.
Projects impacting the relevant segments of the Allegheny, Monongahela, and Ohio Rivers and Lake Erie would become “Reporting Activities” under PASPGP-6.
Revised Reporting Requirements
Reporting Thresholds. Many eligible projects are authorized by the programmatic general permit without further notification to the Corps (i.e., “Non-Reporting Activities”). Other projects, referred to as “Reporting Activities,” must undergo a project-specific review by the Corps prior to receiving authorization. PASPGP-6 identifies several changes to the “Non-Reporting Thresholds,” under which projects qualify as Non-Reporting Activities.
- Permanent Impacts. Under PASPGP-6, projects involving less than 0.25 acre of permanent impacts would qualify as Non-Reporting Activities, while projects involving from 0.25 to 0.5 acre of permanent impacts would generally be classified as Reporting Activities. This revision would make PASPGP-6 more stringent that PASPGP-5, which does not require reporting unless permanent impacts are greater than 0.5 acre. In addition, projects involving more than 250 linear feet of permanent impacts to WOTUS (excluding wetlands) would generally continue to be a Reporting Activity under PASPGP-6, with certain exceptions for state-permitted restoration activities. Projects proposing the permanent conversion of more than 0.1 acre of forested and/or scrub-shrub wetland would no longer be a Reporting Activity under PASPGP-6.
- Temporary Impacts. Under PASPGP-6, projects involving less than one acre of temporary impacts would qualify as Non-Reporting Activities, while projects involving greater than one acre of temporary impacts would be considered as Reporting Activities. This change would make PASPGP-6 less stringent than PASPGP-5, under which temporary impacts greater than 0.5 acre would require reporting. Finally, under PASPGP-5, projects involving temporary impacts lasting longer than one year are a Reporting Activity, while under PASPGP-6, such projects only require reporting if the temporary impacts are greater than 0.1 acre.
Utility Line-Specific Reporting and Non-Reporting Activities. PASPGP-6 would change the classification of certain Reporting and Non-Reporting Activities for utility lines, which would directly impact natural gas pipeline construction and operation in Pennsylvania. Specifically, utility line crossings of WOTUS (including wetlands) exceeding 500 linear feet are currently Reporting Activities under PASPGP-5. However, they would not be Reporting Activities under PASPGP-6. Instead, under PASPGP-6, a utility line stream crossing is non-reporting provided the project is authorized by Pennsylvania Department of Environmental Protection General Permit 5 (GP-5 – Utility Line Stream Crossing).
Buried utility lines in WOTUS (including wetlands), where a utility line runs parallel to or along a stream bed, would no longer be a Reporting Activity under PASPGP-6.
Single and Complete Project Versus Overall Project. PASPGP-6 reintroduces a distinction between the impacts that determine eligibility with PASPGP-6, and the impacts that determine reporting to the Corps. Such a distinction was removed from PASPGP-5, but has been added to the draft PASPGP-6. Under PASPGP-6, the eligibility threshold would be based on the impacts associated with the “Single and Complete Project.” However, the reporting threshold would be based on the cumulative effects associated with the “Overall Project.” For linear projects (e.g., pipelines), when crossing a single (or multiple) waterbody several times at separate and distant locations, each crossing is considered a Single and Complete Project for purposes of PASPGP-6 verification. The Overall Project is more broadly defined to include “all regulated activities that are reasonably related and necessary to accomplish the project purpose, including those activities that may occur in the reasonably foreseeable future.” The anticipated effect of this change in identifying Reporting Activities is that more projects would be required to be reported to the Corps for review, likely causing delays in obtaining permitting approval.
Takeaways and Next Steps
In many respects, PASPGP-6 would likely benefit developers of energy projects in Pennsylvania, particularly natural gas pipeline operators, by removing the one-acre eligibility threshold for temporary impacts, allowing use of PASPGP-6 for certain section 10 waters, and reclassifying certain projects as non-reporting. However, other projects may be adversely delayed or impacted by the reduced eligibility threshold for permanent impacts, as well as the consideration of the cumulative effects of the overall project in determining reporting activities. The final PASPGP-6 draft is expected to be released for public comment this spring.
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