Permit Extension Act Breathes New Life Into Pennsylvania Environmental Approvals

August 8, 2010
by JONATHAN RINDE and MICHAEL GROSS
Client Alert Newsletter August 2010

In an effort to salvage countless real estate projects throughout the Commonwealth which have stalled due to economic conditions, Governor Rendell signed into law the Permit Extension Act which automatically extends the expiration date of certain permits issued by the Pennsylvania Department of Environmental Protection ("PADEP") until July 1, 2013. With limited exceptions, this law explicitly applies to approvals, agreements, permits, authorizations and decisions (collectively "Approvals") for development or construction projects issued under various Pennsylvania environmental statutes including the Pennsylvania Clean Streams Law, the Sewage Facilities Act, and the Dam Safety and Encroachment Act. Equally important, the extension also covers non-environmental Approvals issued pursuant to other Pennsylvania statutes such as the Municipalities Planning Code and the Pennsylvania Construction Code.

Effect of Extension and How to Confirm. The new law applies to Approvals that were in effect on January 1, 2009, or after. These Approvals are now automatically extended, regardless of expiration date, without any notice required to the applicable agency (except if the Approval was issued by the City of Philadelphia) until July 1, 2013. Approval holders are authorized, but not required, to request written verification from the issuing government agency of the extension. If the government agency does not respond in 30 days, the extension of the Approval is "deemed approved." For Philadelphia-specific Approvals, extensions are valid twenty days after the Approval holder provides written notice to the applicable City agency of its intent to suspend the expiration date.

Approvals to which the Extension Applies and Exclusions. Pennsylvania environmental permits impacted by the new law include (and are not limited to) Dam, Water Obstruction and Encroachment permits, and General Permit authorizations issued under 25 PA Code Section 105, Water Quality Certifications under Section 401 of the federal Clean Water Act for General Permits, various authorizations for the beneficial use of residual waste, deadlines for the construction in public water systems construction permits, and Part II permits for the construction of sewage treatment facilities. Significantly, PADEP has stated that NPDES permits for the discharge of stormwater from construction sites are not subject to the Permit Extension Act.

There are several noteworthy limits on extensions for PADEP Approvals: Approvals to facilitate discharges into "Exceptional Value" or "High Quality" waters of the Commonwealth or wetlands are not being extended. Approvals for connections to public sewer systems are also not automatically extended and are dictated by current capacity constraints. In addition to exceptions applicable to environmental Approvals, specific exceptions also apply to PENNDOT permits, "one call" determinations and benefits/approvals impacting Keystone Opportunity Zones.

Fees and Miscellaneous. Government agencies can charge a fee for extension of Approvals--up to 25 percent of the application fee (50 percent within the City of Philadelphia) up to a maximum of $5,000. The enforcement authority of government agencies is not altered by the legislation (e.g. Approvals can still be revoked for noncompliance).

On August 7, 2010, PADEP published a notice in the Pennsylvania Bulletin specifying which PADEP Approvals are covered by the Permit Extension Act. Concurrently, PADEP issued a document entitled, “Guidance for Implementation of Act 46” which describes in summary detail the permits and authorizations covered and not covered by the Permit Extension Act, and the procedure to confirm the extension. In this document, PADEP stated that Section 404 permits issued by the Corps of Engineers through the Pennsylvania State Programmatic General Permit (PASPGP) will also be extended concurrently with the related state Section 105 permits.

For more information regarding the potential applicability of the Permit Extension Act to existing environmental Approvals, please contact Jonathan Rinde at 484-430-2325 or Michael Gross at 484-430-2321.