Army Corps Proposes Changes to PA State Programmatic General Permit for Wetlands Loss of Less than 1.0 Acre

January 25, 2016
James M. McClammer, Esq.
MGKF Special Alert - Forecast 2016

This past fall, the U.S. Army Corps of Engineers (the "Corps") announced a draft Pennsylvania State Programmatic General Permit No. 5 (PASPGP-5) and provided a 30-day public comment period on the draft permit, which ended October 29, 2015.  The PASPGP program is a general Section 404 permit under the federal Clean Water Act which is issued by the Corps on a Pennsylvania-wide basis for activities that result in no more than minimal individual or cumulative adverse effects on the aquatic environment, including wetlands.  Generally, projects that result in the loss of less than 1.0 acre of wetlands are eligible for a PASPGP permit; otherwise, the project must obtain an individual or nationwide Section 404 permit.  Under the PASPGP program, a Joint Permit Application is submitted to the Pennsylvania Department of Environmental Protection (PADEP), which determines – in accordance with the requirements of the PASPGP program – whether it must forward a copy of the application to the Corps for review, or whether it can issue the PASPGP permit itself without Corps review.

If adopted, the draft PASPGP-5 permit would replace the current PASPGP-4 permit, which is set to expire on June 30, 2016.  The draft PASPGP-5 contains several significant changes from the PASPGP-4, including the following: (1) single and complete projects resulting in a permanent loss of more than 1,000 linear feet of stream would no longer be eligible for a PASPGP permit; (2) post-construction monitoring requirements would be required for temporary impacts to wetlands that exceed 0.10 acre, unless waived by the Corps; and (3) proposed changes to the activities that would be required – and not required – to be reported by PADEP to the Corps for processing. 

The majority of Section 404 authorizations issued in Pennsylvania are through the PASPGP program, so it is important for developers of residential, commercial, or industrial facilities in Pennsylvania to understand the parameters of the PASPGP program.

Additional information on this topic can be found here