The Foundation Water Law Newsletter
(By Lisa M. Bruderly)
On May 12, 2021, the Baltimore, Philadelphia, and Pittsburgh Districts of the U.S. Army Corps of Engineers (Corps) jointly issued a 15-day public notice (SPN 21-26), requesting comments on whether to reinstate certain 2017 and 2021 nationwide permits (NWPs) that are suspended in parts of Pennsylvania. The comment period closed on May 27, 2021.
The reinstatement is being proposed in case Pennsylvania State Programmatic General Permit 6 (PASPGP-6) is not finalized and issued prior to the expiration of Pennsylvania’s current state programmatic general permit (PASPGP-5) on June 30, 2021. At present, if PASPGP-6 is not issued before July 1, 2021, most projects in Pennsylvania impacting federally regulated waters would be required to obtain individual Clean Water Act § 404 permits. Obtaining an individual permit is typically a more lengthy and complicated process than obtaining coverage under a programmatic general permit or NWP.
State Programmatic General Permit
The PASPGP is the mechanism that the Pennsylvania Department of Environmental Protection (PADEP) and the Corps rely upon to permit most projects in Pennsylvania that impact federally regulated waters, but do not require an individual section 404 permit. PASPGP-6 allows applicants to obtain both federal section 404 permits and state water obstruction and encroachment permits for qualified projects impacting federal and state regulated waters.
PASPGP-6 has not yet been finalized. The draft PASPGP-6 was published for public comment on September 4, 2020. See Corps, Special Pub. Notice SPN-20-57 (Sept. 4, 2020); see also Vol. LIII, No. 3 (2020) of this Newsletter. The public comment period closed on October 4, 2020. On February 12, 2021, PADEP issued a conditional state water quality certification (SWQC) under section 401 of the Clean Water Act, which certifies that activities authorized by PASPGP-6 would comply with the commonwealth’s water quality standards if the applicant complies with the following conditions and “constructs, operates and maintains the project in compliance with the terms and conditions of State permits . . . obtained to meet these SWQC conditions”:
- Prior to beginning any activity authorized by the Corps under PASPGP-6, the applicant must obtain all necessary environmental permits or approvals, and submit to PADEP environmental assessments and other information necessary to obtain the permits and approvals, as required under state law.
- Fill material may not contain any wastes as defined in the Solid Waste Management Act.
- Applicants and projects must obtain all state permits and/or approvals necessary to ensure that the project meets the State’s applicable water quality standards.
51 Pa. Bull. 1592 (Mar. 20, 2021).
Proposed NWP Reinstatement
With the availability of the PASPGP, many NWPs have typically been suspended in Pennsylvania, except for projects in certain section 10 waters and, for certain NWPs, when the regulated activity or indirect impacts extend across state boundaries. (“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.) On January 6, 2017, the Corps reissued 54 NWPs, which were effective March 19, 2017. Of these 54 NWPs, 31 NWPs were suspended in Pennsylvania, largely to eliminate redundancy with the PASPGP mechanism. If PASPGP-6 is not issued before PASPGP-5 expires, the Corps is proposing to reinstate 24 of the NWPs suspended in 2017, including NWP 7 (Outfall Structures and Associated Intake Structures), NWP 14 (Linear Transportation Projects), and NWP 18 (Minor Discharges).
On January 13, 2021, the Corps reissued 12 existing NWPs and issued four new NWPs. See 86 Fed. Reg. 2744 (Jan. 13, 2021); see also Vol. LIV, No. 1 (2021) of this Newsletter. The 16 reissued/issued NWPs were effective on March 15, 2021. Of those 16 NWPs, nine were suspended in Pennsylvania, except in “areas within Pittsburgh District’s area of responsibility in the Commonwealth of Pennsylvania.” If PASPGP-6 is not issued before PASPGP-5 expires, the Corps’ proposal would reinstate the nine suspended 2021 NWPs, including NWP 12 (Oil and Natural Gas Pipelines) and NWP 39 (Commercial and Institutional Developments) for the entire state.
If any or all of the NWPs are reinstated, those NWPs would be subject to the applicable 2017 or 2021 regional conditions for Pennsylvania.
Conclusion
If PASPGP-6 is not finalized before PASPGP-5 expires (i.e., by June 30, 2021), the reinstatement of certain currently suspended NWPs would provide flexibility to permit a project impacting regulated waters, without pursuing an often lengthy and complicated individual section 404 permit. However, the prospective permittee must ensure that the project meets the applicability criteria, general conditions, and regional conditions of the selected NWP. These criteria are not the same as under PASPGP-5, and in some instances, a portion of the project may need to be redesigned to meet NWP requirements.
Recent Pipeline Enforcement and Challenges in Pennsylvania
On May 7, 2021, the Pennsylvania Department of Environmental Protection opened the public comment period for a major permit amendment for Sunoco Pipeline, LP, regarding both its Chapter 102 (Erosion and Sediment Control) and Chapter 105 (Water Obstruction and Encroachment) permits for the Mariner East 2 pipeline The amendments request a change to the route and installation method for a water encroachment near Marsh Creek State Park in Chester County, Pennsylvania. The identified location is the same as the location for an 8,000-gallon drilling fluid release.
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