The Foundation Water Law Newsletter
(By Lisa M. Bruderly)
On June 25, 2021, the U.S. Army Corps of Engineers (Corps) released the finalized Pennsylvania State Programmatic General Permit-6 (PASPGP-6). See Corps, Special Pub. Notice No. SPN-21-28 (June 25, 2021). Going into effect on July 1, 2021, the permit will expire in five years, on June 30, 2026. Under section 404 of the Clean Water Act, 33 U.S.C. § 1344, and section 10 of the River and Harbor Act of 1899, 33 U.S.C. § 403, PASPGP-6 authorizes work in “waters of the United States” (WOTUS) within Pennsylvania that causes no more than minimal adverse environmental effects. State authorization under the Pennsylvania Department of Environmental Protection’s (PADEP) chapter 105 regulations (typically, a general permit or a waiver) is still required for most activities authorized by PASPGP-6.
For projects that meet the threshold criteria, PASPGP-6 typically provides a quicker and less complicated alternative to obtaining an individual section 404 permit. The permit identifies reporting activities, which require Corps review and coordination, as well as non-reporting activities, which can be authorized by PADEP without Corps involvement. Compensatory mitigation, at a minimum one-to-one ratio, will typically be required for impacts to WOTUS that are greater than 0.1 acre and are a reporting activity.
PASPGP-6 updates include new eligibility and reporting guidelines. Key changes from PASPGP-5 to PASPGP-6 include:
- The 1.0 acre eligibility threshold for temporary and/or permanent impacts to WOTUS was changed to an eligibility threshold for permanent loss, both direct and indirect, of 0.5 acre of WOTUS and 1,000 linear feet of jurisdictional stream channel.
- The eligibility threshold for temporary impacts to WOTUS, including jurisdictional wetlands, was changed from 1.0 acre to unlimited acreage, provided the work is determined to result in no more than minimal impact.
- Eligibility thresholds are determined based on the impacts of each “single and complete project,” as determined by the Corps. Reporting thresholds are determined based on the impacts of the overall project, and not the single and complete project.
- The reporting thresholds of 0.10 acre of permanent wetland conversion and 0.5 acre of temporary and/or permanent impacts to WOTUS were replaced with thresholds of 0.25 acre of permanent impacts to WOTUS, 250 linear feet of permanent impacts to juris-dictional stream channel, and 1.0 acre of temporary impacts to WOTUS.
- Certain formerly ineligible section 10 waters in the Corps’ Pittsburgh District are now eligible for the PASPGP. Except for work that qualifies for authorization under PADEP Waivers 10 and 12, any regulated work within these waters is a reporting activity and requires Corps review.
- Language was added stating that all waters and wetlands are assumed to be WOTUS in the absence of an approved jurisdictional determination.
Grandfathering provisions are in place for activities that were permitted (or intended to be permitted) under PASPGP-5. Generally, verified reporting activities under PASPGP-5 that comply with the terms and conditions of PASPGP-6 are authorized by PASPGP-6. In addition, all previously authorized non-reporting activities under PASPGP-5 that meet the terms and conditions of PASPGP-6 are reauthorized without further notice to the Corps. Activities that obtained PASPGP-5 authorization by June 30, 2021, have a valid state authorization, and commenced construction (or had construction work under contract to commence) prior to June 30, 2021, have until June 30, 2022, at the latest, to complete the regulated work under the terms of the PASPGP-5 authorization and PADEP authorization. The Corps has provided additional guidance on grandfathered activities and other aspects of PASPGP-6 on its websites for the applicable districts.
Copyright © 2021, The Foundation for Natural Resources and Energy Law, Westminster, Colorado