On Friday, June 25, 2021, the U.S. Army Corps of Engineers (Corps) released the final Pennsylvania State Programmatic General Permit-6 (PASPGP-6). The PASPGP-6 went into effect on July 1, 2021 for a period of five years, replacing PASPGP-5. This statewide General Permit authorizes certain eligible activities that will result in no more than minimal adverse effects to Waters of the U.S. (WOTUS) that are regulated pursuant to Section 404 of the Clean Water Act. The PASPGP-6 also authorizes activities on navigable waterways regulated pursuant to Section 10 of the Rivers and Harbors Act of 1899, with the exception of the Delaware River downstream of New Hope and the Schuylkill River, downstream of the Fairmont Dam in Philadelphia. Ineligible activities require a Department of the Army Standard Individual Permit.
The PASPGP-6 reduces regulatory redundancy by allowing the Pennsylvania Department of Environmental Protection (PADEP) to issue Section 10 and/or Section 404 approval on behalf of the Corps for projects that fall under certain “reporting” thresholds. Activities that exceed these reporting thresholds require separate Corps review and federal authorization in addition to receiving Chapter 105 authorization from PADEP.
The following are the key changes from PASPGP-5 to PASPGP-6:
- The eligibility threshold of 1.0 acre of temporary and/or permanent impacts to WOTUS was replaced with 0.5 acre of permanent and unlimited temporary impacts to WOTUS.
- Reporting thresholds will be based on the overall project and no longer the single and complete project.
- Ineligible Section 10 waters in the Pittsburgh Corps District are now eligible for the PASPGP.
- The reporting thresholds of 0.10 acre of permanent wetland conversion and 0.50 acre of temporary and/or permanent impacts to WOTUS were replaced with 0.25 acre of permanent and 1.0 acre of temporary impacts to WOTUS.
- Language was added indicating that all waters and wetlands are assumed to be WOTUS in the absence of an Approved Jurisdictional Determination, which is in accordance with the existing Regulatory Guidance Letter 16-01.
- Monitoring of temporary wetland impacts greater than 0.10 acre is no longer required.
- Information, Planning, and Consultation System (IPAC) search results indicating that an activity will not affect federally listed species is acceptable for demonstrating compliance with the Endangered Species Act. At some point in the future, the Pennsylvania Natural Diversity Inventory (PNDI) will be updated to direct an applicant to the IPAC when a project has potential impacts to federally listed species. The IPAC search results will either require the applicant to contact the U.S. Fish and Wildlife Service (USFWS) for a Section 7 determination or will require an avoidance measure without the need for further consultation.
Changes to eligibility thresholds will make the PASPGP-6 available to many projects that would have required a Standard Individual Permit under PASPGP-5. However, many other projects that were eligible for PASPGP-5 will now require a Standard Individual Permit. Similarly, changes to reporting thresholds will reduce the amount of permits requiring Corps review for some industries, but increase the need for Corps review for others. Most notably is the effect that the change from single and complete to overall project for assessing reporting thresholds may have on linear projects. While the removal of the 0.10 acre of permanent conversion and 0.5 acre of temporary and/or permanent impacts to WOTUS would reduce the number of linear projects requiring Corps review, the evaluation of reporting thresholds based on the overall project may result in the same amount, if not more, to require separate Corps review and potentially lengthier permit review times. In conclusion, these changes will benefit some industries by reducing regulatory reviews and permit review timeframes, but may have the opposite effect for others.
Reporting PASPGP-5 authorizations are automatically reauthorized for the five-year term of PASPGP-6. Non-reporting PASPGP-5 authorizations that meet the new non-reporting thresholds of PASPGP-6 are also automatically reauthorized. Any non-reporting PASPGP-5 authorization that does not meet the new non-reporting thresholds must be submitted to the Corps for review to be reauthorized. Regardless, PASPGP-5 authorizations for activities that have commenced construction or are under contract to commence construction, remain valid provided the activity is completed before July 1, 2022.
A copy of the Corps’ Special Public Notice of the PASPGP-6 issuance can be found here: https://www.nab.usace.army.mil/Missions/Regulatory/Public-Notices/Public-Notice-View/Article/2671932/spn-21-28-pennsylvania-state-programmatic-general-permit-6-paspgp-6/, along with a copy of the signed PASPGP-6 permit document.
If you have questions about how these changes may affect your project, we are here to help. Our experts have decades of experience wading through Pennsylvania’s complex stream and wetland regulations. We can provide solutions that will help you to overcome regulatory hurdles and reduce permit timeframes to meet project schedules.
Please contact Peter Staudenmeier, Principal, Ecological Services, at firstname.lastname@example.org with any questions.
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Our ecological sciences practice solves the wide range of ecological issues you may confront during your project. With extensive experience working with regulatory agencies, our multi-disciplinary team includes terrestrial and aquatic ecologists, wetland scientists, threatened and endangered species experts, and agency-approved surveyors of federally and state-listed plants and animals. We determine the presence or absence of protected species, offer measures to provide mitigation solutions, work with regulators to resolve conflicts, and recommend a permitting strategy. We’re experienced with natural channel stream design, watershed-based restoration, and on-site mitigation projects.