Author: Paul A. Kanouff
On July 1, 2011 the U.S. Army Corps of Engineers (Corps) issued the Pennsylvania Special Programmatic General Permit-4 (PASPGP-4) which replaces the expired PASPGP-3. The PASPGP is a federal Clean Water Act, Section 404 permit which can be authorized by the Pennsylvania Department of Environmental Protection (DEP) and county conservation districts for minor activities in wetlands, streams, rivers, and other waters without additional review by the Corps. For the most part, the PASPGP-4 is a continuation of the PASPGP-3 but there are some key changes that will impact linear projects. Although the changes were mainly aimed at the rapidly growing natural gas industry in Pennsylvania, they will affect all linear projects ranging from sewer and water pipelines to electrical, cable, and telephone lines. The changes affecting linear projects are summarized in this posting.
One aspect of the PASPGP-4 which was the focus of a lot of debate was the definition of Single and Complete Projects. The definition of a single and complete linear project still refers to each crossing of a separate water body. However, the PASPGP-4 makes a distinction between the overall project and a single and complete project. The overall project includes all regulated activities that are reasonably related and necessary to accomplish the project purpose. Applicants must supply the locations for the start and end points along with the proposed crossings and the total cumulative impacts needed to accomplish the overall project. Therefore, although a linear project may contain more than one single and complete project, the total cumulative impacts needed to accomplish the overall project must be disclosed. The cumulative impacts (meaning the sum total of all of the crossings) for the overall project will then be used to determine the category of activity. Therefore, if the cumulative impact for the overall project is greater than 1 acre of jurisdictional waters or 250 linear feet of streams, then the overall project will be a Category III activity and will be reviewed by the Corps. However, the cumulative impacts are only used to determine the category level of the activity. They are not used to determine whether the project is eligible for authorization under the PASPGP-4. The project will still be eligible under a PASPGP-4 as long as the impacts for each single crossing are less than 1 acre of jurisdictional waters or 250 linear feet of streams. Therefore, this process has not changed.
The PASPGP-4 includes clarification on the calculation of linear footage of stream impact. The linear footage of stream impact is now to be measured from the top of bank to the top of the opposite bank and from the upstream to downstream limits of work. The linear footage of stream impact will be the greater of these two measurements. Therefore, the right-of-way (ROW) will typically be used to determine the linear footage of stream impacts for pipeline projects.
Through the PASPGP-4, the Corps has established two triggers which can automatically push a project into a Category III review. The first trigger involves threatened and endangered species. If the PNDI for a project identifies a conflict with a federally listed species or includes avoidance measures from the U.S. Fish and Wildlife Service (USFWS), the project will be considered a Category III activity and must be reviewed by the Corps. The second trigger involves interstate projects. Projects which will be located in Pennsylvania and another state will also be considered a Category III activity and must be reviewed by the Corps.
There was one major change to the PASPGP-4 that was included in the draft version of the general permit that was not included in the final version. The Corps was expected to lower activities authorized as Waiver 2 (25 PA Code § 105.12(a)(2) Waiver 2) from a Category III activity to a Category 1 activity. Waiver 2 is for water obstructions in a stream or floodway with a drainage area of 100 acres or less. This waiver applies only to the DEP and not to the Corps. Since these activities are still Category III, they must be reviewed by the Corps to obtain federal authorization for the project.
Lastly, projects which were authorized by the PASPGP-3 have been reauthorized by the PASPGP-4 provided the permit for the project had not expired by June 30, 2011. For most projects, the new expiration date for the reauthorized PASPGP-3 will be tied to any applicable PADEP Chapter 105 applications such as a General Permit or Joint Permit.
If you have any questions regarding the requirements of the PASPGP-4 or any other aspects of the permitting requirements for linear projects in Pennsylvania, please contact Paul Kanouff at firstname.lastname@example.org or 800-899-3610.