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PA Bulletin, Doc. No. 96-146

NOTICES

Notice of Issuance of General Permit BDWW-GP-15: Private Residential Construction in Wetlands and 401 Water Quality Certification

[26 Pa.B. 526]

Attention

General Permit-15 Special Processing Procedure

   The Army Corps of Engineers (ACOE) under the conditions of the Pennsylvania State Programmatic General Permit (PASPGP-1), requires that any GP-15 registrant who proposes to impact greater than .10 acre of wetland obtain separate Federal approval. The ACOE and DEP have agreed on a processing procedure that requires such registrants to obtain Federal approval prior to registering GP-15.

   Please carefully review the registration requirements found in the general permit to ensure complete and timely permit processing.

   The Department of Environmental Protection (Department), under the authority of section 7 of the Dam Safety and Encroachments Act (32 P. S. § 693.7) (Act) and 25 Pa. Code Chapter 105, Subchapter L (relating to general permits), hereby authorizes, by General Permit BDWW-GP-15, the placement and maintenance of fill in, or excavation of, wetlands for the construction or expansion of a single-family residence, and associated driveway, yard, storage sheds and utility lines, on residential lots within established subdivisions that were approved by the local governing authority prior to November 22, 1991, where such activities do not impact greater than .50 acre of wetland. The Department is authorized by the Act and regulations to issue general permits where it determines a category of projects are similar in nature and can be adequately regulated using standard specifications and conditions. The Department has found the construction of a single-family residence, and associated driveway, yard, storage sheds and utility lines within these designated subdivisions to be a category which meets the general permit requirements.

   Authorization provided by this general permit will eliminate the need of filing an application for an individual permit by an owner who intends to construct a private residence in wetlands, in accordance with the terms, criteria and conditions of the general permit. The owner will be required to register the project by submitting written notice to the Department or delegated County Conservation District indicating the intent to fill or excavate wetlands in accordance with the conditions and terms of the general permit.

   The general permit is structured to allow a maximum impact of .50 acre of wetlands, consistent with the Clean Water Act Section 404 Single-Family Housing Nationwide Permit issued by the U. S. Army Corps of Engineers (ACOE) on July 27, 1995. Permittees are required to avoid and minimize wetland impacts, utilize nonwetland areas where possible, minimize impacts to natural water regimes and not increase or obstruct stormwater. To address concerns about the effects of cumulative fills on local stormwater, the permit has been further conditioned so that fills or excavations in wetlands, including previously filled areas may not exceed more than 40% of the total lot area, except where lots are less than .25 acre in size where a maximum of .10 acre of fill in wetlands is authorized. In no circumstances may the total fill or excavation exceed .50 acre of wetlands. All proposed wetland impacts over .10 acre must be evaluated by the ACOE for separate Federal approval prior to State authorization. The Corps of Engineers Nationwide Permit review process includes an evaluation of impacts of flooding on adjacent property owners (Condition A.c. of Nationwide Permit 29). In addition to these permitting procedures, the Department, in cooperation with County Conservation Districts and other interested State and Federal resource agencies will monitor the use of GP-15 to evaluate impacts. If significant individual or cumulative impacts are found or indicated, the Department has the authority to condition, modify or revise GP-15 based upon the specific circumstances of an individual subdivision, area or local watershed.

   Under the provisions of the Federal Clean Water Act Section 404 Pennsylvania State Programmatic General Permit (PASPGP-1), the ACOE has determined that wetland impacts .10 acre or less comply with the terms and conditions of PASPGP-1. This determination will eliminate the requirement for a registrant to acquire a separate permit from the ACOE. Impacts greater than .10 acre of wetland require separate Federal approval prior to registration of GP-15. The ACOE and the Department have developed a processing procedure that facilitates Federal approval prior to registration.

   Notice of intent to issue the proposed BDWW-GP-15 was published in the Pennsylvania Bulletin on July 1, 1995. Comments received in response to this notice and the Section 404 Single-Family Housing Nationwide Permit were reviewed and incorporated into the General Permit where applicable. The major comments on the proposed BDWW-GP-15 follow:

   1.  Many commentators suggested that this general permit should only be available to applicants who were recorded as property owners prior to October 5, 1984.

   The Department believes that the use of GP-15 should not be based on date of ownership but rather be based on the date the established subdivision received final approval from the local governing authority. Therefore, individual parcel owners will not be penalized based on when they purchased property. November 22, 1991, is the date that the Federal Section 404 Clean Water Act Nationwide Permits were reauthorized by the ACOE and is also the qualifying date for the new Nationwide Permit for Single-Family Housing. This date has also been adopted by the Department to be consistent with Army Corps of Engineers Nationwide Permit.

   2.  Many commentators were concerned about the cumulative impacts of flooding, and to water quality, associated with GP-15 if the permit registrant was not required to avoid and minimize the impact.

   The Department has included a requirement that users of the General Permit must avoid and minimize impacts to wetlands, and provide a site plan which indicates the wetland area, the extent of fill, and location of erosion and sedimentation control measures. Permittees are also required to minimize impacts to natural water regime and not increase or obstruct stormwater. Further, the impact is limited to 40% of the lot size or .10 acre, whichever is greater. In addition, for impacts greater than .10 acre, the Corps of Engineers Nationwide Permit review process includes an evaluation of impacts of flooding on adjacent property owners (Condition A.c. of Nationwide Permit 29).

   3.  Many commentators suggested that .10 acre (4,356 sq. ft.) of fill is adequate to construct a private residence, driveway and necessary utilities.

   To be consistent with the ACOE Nationwide Permit, GP-15 allows impacts up to .50 acre of wetlands. The Department believes the vast majority of applicants who use this general permit, through avoidance and minimization, will impact .10 acre or less. In some cases greater areal impacts may be warranted. The General Permit is structured to allow the consideration of these permitting situations without necessitating a full joint permit application and review process.

   4.  Several commentators had concerns about allowing onlot sewage systems in wetlands.

   The Department has amended GP-15 restricting fills to lots where a central sewage and collection system is available, in place and operational. Existing sewage facility regulations do not permit the placement of fill for the purpose of installing an onlot sewage system in areas where a seasonal high water table exists.

   5.  Several commenters suggested that GP-15 should only be used once.

   The Department has added a condition that the general permit may only be used once per individual per lot, tract or parcel of land in subdivisions established prior to November 22, 1991. The same condition of one time use per lot is also stated in the ACOE Nationwide Permit for Single-Family Housing.

   6.  Several commentators suggested that the Department should require a wetland delineation to determine the extent of the wetland impact.

   The Department believes that a formal wetland delineation is not necessary for single-family lots within subdivisions. A requirement has been added that if the subdivided lot is greater than .50 acre, a formal wetland delineation, conducted in accordance with established procedures, must be submitted with the registration form. This conclusion is shared by the ACOE Nationwide Permit for Single-Family Housing. For lots less than .50 acre the Department is requiring the individual to indicate the wetland and fill areas on the registration sketch plan.

   7.  Several commentators believe, as in other general permits, that the review and approval of an erosion and sedimentation plan by the County Conservation District should be a condition of GP-15.

   The permit user is responsible for stabilizing the site to control erosion and sedimentation during and after construction. For lots greater than .50 acre, an Erosion and Sedimentation Control Plan must be reviewed by the County Conservation District. For lots less than .50 acre, an Erosion and Sedimentation Control Plan, meeting the requirements of 25 Pa. Code Chapter 102, must be implemented and must be available at the site for review by the Department and/or the County Conservation District. This method of addressing erosion and sedimentation control issues has been tailored specifically to the activities authorized by GP-15. The Department, in the future, will be evaluating each general permit individually to insure the conditions and requirements within each are appropriate and essential for the permitted activity.

401 Water Quality Certification

   The projects covered by the proposed General Permit BDWW-GP-15 may also require a Federal license or permit. Section 401(a) of the Federal Clean Water Act (33 U.S.C.A. § 1341(a)) requires that any applicant for a Federal license or permit to conduct any activity which may result in any discharge into the waters of the United States provide the Federal licensing or permitting agency a certification from the state in which the discharge will originate that the discharge will comply with applicable provisions of the Clean Water Act as well as applicable State law related to water quality protection.

   The Department, by this notice, certifies that the construction, operation and maintenance of encroachment or water obstructions, in accordance with the terms, criteria and conditions of BDWW-GP-15, comply with the applicable provisions of sections 301--303, 306 and 307 of the Clean Water Act (33 U.S.C.A. §§ 1311--1313, 1316 and 1317). The Department further certifies that the construction, operation and maintenance of such projects comply with applicable State laws related to water quality protection and standards, provided that the construction, operation and maintenance complies with the terms, criteria and conditions of the permit.

   This permit, in accordance with section 7(d) of the Dam Safety and Encroachments Act, will be effective on March 4, 1996.

BDWW-GENERAL PERMIT-15
PRIVATE RESIDENTIAL CONSTRUCTION IN WETLANDS
FEDERAL/STATE COORDINATION REQUIREMENTS
SPECIAL PROCESSING PROCEDURES FOR GENERAL PERMIT 15

   Carefully review the requirements of the General Permit to determine if your project can qualify for authorization under this General Permit. If your project cannot be authorized under the General Permit, you may request approval of an individual permit by submitting an application to the appropriate Soils and Waterways Section in the Regional Office.

WETLAND IMPACTS GREATER THAN .10 ACRE

   The ACOE under the conditions of the Pennsylvania State Programmatic General Permit (PASPGP-1), requires that any GP-15 registrant who proposes to impact greater than .10 acre of wetland obtain separate Federal approval. The ACOE and the Department have agreed on a processing procedure that requires such registrants to obtain Federal approval prior to registering GP-15. To obtain Federal approval:

   *  Complete all the information required in General Permit 15.

   *  Send one copy of the entire GP-15 package, with the exception of the check payable to the National Fish and Wildlife Foundation, to the appropriate office of the ACOE.

Delaware River Basin
Philadelphia District Corps of Engineers
Wanamaker Bldg.
100 Penn Square East
Philadelphia, PA 19107
Phone:  215-656-6728

Susquehanna River Basin
Baltimore District Corps of Engineers
P. O. Box 1715
Baltimore, MD 21203-1715
Phone:  410-962-1846

Ohio River Basin
Pittsburgh District Corps of Engineers
Room 1834 Federal Bldg.
1000 Liberty Avenue
Pittsburgh, PA 15222
Phone:  412-644-6872

   *  The ACOE will provide a response within 30 days from the date of receipt of the GP-15 package informing the applicant whether or not the proposed project is authorized by the Pennsylvania State Programmatic General Permit.

   *  To register GP-15 with DEP, forward a copy of the ACOE authorization with your GP-15 registration package and a check in the correct amount payable to the National Fish and Wildlife Foundation to the DEP Regional Office or the delegated County Conservation District.

WETLAND IMPACTS EQUAL TO OR LESS THAN .10 ACRE

   Permit registrants who minimize wetland impacts to .10 acre or less may register to use GP-15 by submitting the complete GP-15 registration package directly to the DEP Regional Office or the delegated County Conservation District.

GENERAL PERMIT BDWW-GP-15
PRIVATE RESIDENTIAL CONSTRUCTION IN
WETLANDS

   A.  General Description. The Department of Environmental Protection hereby authorizes, by general permit, the placement and maintenance of fill in, or the excavation of, nontidal wetlands for the construction or expansion of a single-family home for the personal residence of the permittee, including reasonable and necessary features such as a driveway, yard, storage shed and utilities on residential lots within established subdivisions approved by the local governing authority prior to November 22, 1991, where such activities do not impact greater than .50 acre of nontidal wetlands. The issuance of this General Permit also constitutes approval of a Water Quality Certification under section 401 of the Federal Clean Water Act (33 U.S.C.A. § 1341). The contribution associated with this General Permit is for participation in the Pennsylvania Wetland Replacement Project.

   Neither the Department of Environmental Protection nor any County Conservation District which is delegated Chapter 105 permitting authority shall be liable for incidents resulting from subsidence, structure failure, water damage, vector problems or any other hardships that may occur as a result of building in wetlands.

   B.  Registration procedure:

   1.  Complete the Registration Form (Exhibit A).

   The information requested in Item 2 on the registration form will be used to determine potential impacts to threatened and endangered species. If a potential impact is indicated, the Department will provide assistance to you to address threatened and endangered species concerns.

   If you desire, to avoid possible project delays, a search for potential impacts can be conducted prior to registration by completing the attached Supplement No. 1, Pennsylvania Natural Diversity Inventory Form (PNDI) and submitting it to the appropriate DEP Regional Office or delegated County Conservation District. The completed search information should be submitted when you register the permit.

   2.  Prepare a project location map utilizing a photocopy of a 7-1/2 minute U.S.G.S. Quadrangle Map showing the project site.

   3.  Prepare a sketch plan (Exhibit B) or attach a copy of a plot plan of the project showing the: (a) dimension of the entire property, (b) location of wetland, (c) location of erosion and sedimentation control measures, and (d) dimension of the proposed wetland impact area.

   4.  In addition to B1, 2 and 3, prior to registration, if the subdivided lot is greater than .50 acre; (a) conduct a formal wetland delineation in accordance with established procedures, and (b) obtain an Erosion and Sedimentation Control Plan approval letter from the County Conservation District.

   5.  To register use of the general permit for wetland impacts of .10 acre or less send one copy of the:

   a.  Location Map,

   b.  Registration Form (Exhibit A),

   c.  Sketch Plan (Exhibit B).

   d.  A formal wetland delineation, if required, (see B.4. above),

   e.  Erosion and Sedimentation Control Plan approval letter, if applicable (see B.4. above), and,

   f.  A Wetland Replacement Plan or, a contribution to the Pennsylvania Wetland Replacement Project, as described in Part D.9 of this general permit,

   g.  Processed Supplement Number 1, (if applicable, see B.1);

to the DEP Regional Soils and Waterways Section or the delegated County Conservation District. A list of delegated Conservation Districts and addresses is attached (see Supplement No. 1). You may not start your project until you have received confirmation of registration.

   6.  Special permit processing procedures for wetlands impacts greater than .10 acre.

   a.  Complete all the information required in General Permit 15.

   b.  Send one copy of the entire GP-15 package, with the exception of the check payable to the National Fish and Wildlife Foundation, to the appropriate office of the ACOE.

Delaware River Basin
Philadelphia District Corps of Engineers
Wanamaker Bldg.
100 Penn Square East
Philadelphia, PA 19107
Phone:  215-656-6728

Susquehanna River Basin
Baltimore District Corps of Engineers
P. O. Box 1715
Baltimore, MD 21203-1715
Phone:  410-962-1846

Ohio River Basin
Pittsburgh District Corps of Engineers
Room 1834 Federal Bldg.
1000 Liberty Avenue
Pittsburgh, PA 15222
Phone:  412-644-6872

   c.  The ACOE District will provide a response within 30 days from the date of receipt of the GP-15 package informing the applicant whether or not the proposed project is authorized by the Pennsylvania State Programmatic General Permit.

   d.  To register GP-15, forward a copy of the ACOE authorization with your GP-15 registration package and a check in the correct amount payable to the National Fish and Wildlife Foundation to the DEP Regional Office or the delegated County Conservation District.

   C.  Definitions Applicable to this General Permit:

   Floodway--The channel of the watercourse and those portions of the adjoining floodplains which are reasonably required to carry and discharge the 100-year frequency flood. Unless otherwise specified, the boundary of the floodway is as indicated on maps and flood insurance studies provided by FEMA. In an area where no FEMA maps or studies have defined the boundary of the 100-year frequency floodway, it is assumed, absent evidence to the contrary, that the floodway extends from the stream to 50 feet from the top of the bank of the stream.

   Impact--The loss of nontidal wetlands of the Commonwealth including any filled area previously permitted, the proposed filled area, and any other nontidal wetlands of the Commonwealth that are adversely affected by flooding, excavation or drainage as a result of the project.

   Individual--A natural person and/or couple but does not include a corporation, partnership or similar entity.

   Parcel of Land--The entire contiguous quantity of land in possession of, recorded as property of, or owned (in any form of ownership, including land owned as a partner, corporation, joint tenant, etc.) by the same individual (and/or his or her spouse), and comprises not only the area of wetlands sought to be filled, but also all land contiguous to those wetlands, owned by the individual and/or his or her spouse in any form of ownership.

   Pennsylvania Wetland Replacement Project--A fund managed by the National Fish and Wildlife Foundation from which money is dispersed at the direction of the Department of Environmental Protection, to which Chapter 105 permit applicants can make a monetary contribution, in lieu of creating wetlands.

   Subdivision--The division or redivision of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land including changes in existing lot lines.

   Wetlands--Areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs and similar areas.

   Emergent Wetland--Wetland areas dominated by nonwoody vegetation.

   Forested Wetland--Wetland areas dominated by woody vegetation 20 feet or more in height.

   Scrub/Shrub Wetland--Wetland areas dominated by woody vegetation less than 20 feet in height.

   D.  Conditions:

   1.  Impacts to wetlands must be avoided and minimized. Nonwetland areas on-site must be utilized whenever practical.

   2.  Fills or excavations in wetlands, including previously filled areas may not exceed more than 40% of the total lot area, except where lots are less than .25 acre in size where a maximum of .10 acre of fill in wetlands is authorized. In no circumstances may the total fill or excavation exceed .50 acre of wetlands.

   The following conversion table provides an example of the amount of wetland fill authorized in accordance with the 40% maximum fill condition.

Lot Area
in Acres
×40% of
Lot Area
Maximum Area of
Wetland Fill
0.25×0.40=0.10 acre
0.33×0.40=0.13 acre
0.50 ×0.40=0.20 acre
0.75×0.40=0.30 acre
1.00 ×0.40=0.40 acre
1.25×0.40=0.50 acre

   3.  Fills, and/or excavations, in floodways are not authorized by this General Permit.

   4.  This permit may only be used once per parcel of land.

   5.  This permit may only be used for a single-family home for a personal residence by an individual.

   6.  This permit may only be used on lots with access to a central sewage system which is in place and operational at the time of registration, except in instances where the fill is for the expansion of an existing residence. Under no circumstances may fill be used to construct or expand an on-lot sewage disposal system.

   7.  Fill material cannot contain wastes as defined in the Solid Waste Management Act.

   8.  Appropriate erosion control measures and facilities must be incorporated into all earthmoving activities associated with construction. Upon completion of construction the site shall be stabilized.

   a.  For lots greater than .50 acre an Erosion and Sedimentation Control Plan must be reviewed and approved by the County Conservation District in the county where your project is located prior to registration.

   b.  For lots less than .50 acre an Erosion and Sedimentation Control Plan meeting the requirements of 25 Pa. Code, Chapter 102, must be implemented and must be available at the site for review by the Department and/or the County Conservation District (see Exhibit B, Erosion and Sedimentation Control Notes). Permit users are encouraged to contact County Conservation Districts for erosion and sedimentation control planning assistance.

   9.  Individuals who wish to use this General Permit for impacts of up to .50 acre of wetlands must provide for the replacement of functions, values and areal extent of the wetlands impacted by:

   a.  creating a wetland in accordance with the Department's Design Criteria for Wetland Replacement on a 1:1 area ratio, replacement wetlands to filled wetlands. (Copies of the criteria are available at DEP Regional Offices.)

--or--

   b.  participating in the Pennsylvania Wetland Replacement Project by contributing to the National Fish and Wildlife Foundation Fund Project 95-096.

   The contribution rate is as follows:

De minimus impact less than or
   equal to .05 acre
-   $         0.00
Greater than .05 acre to .10 acre-   $     500.00
Greater than .10 acre to .20 acre-   $  1,000.00
Greater than .20 acre to .30 acre-   $  2,500.00
Greater than .30 acre to .40 acre-   $  5,000.00
Greater than .40 acre to .50 acre-   $  7,500.00

   10.  Fills and/or excavations should not increase flood levels or permanently restrict, impede, accelerate, increase or obstruct the passage of normal or expected stormwater flows in such a manner that adversely impacts the property or riparian rights of owners above, below, or adjacent to the project.

   E.  Activities Not in Accordance with Terms or Conditions--If the Department determines, upon inspection, that the construction, operation or maintenance of a project has violated the terms or criteria of this General Permit or of the Chapter 105 Rules and Regulations, the Department may take such actions, legal or administrative, that it may deem to be appropriate.

   F.  Denial of Authorization--The Department shall have the discretion to deny, revoke or suspend the use of the General Permit for any project which the Department determines to have a substantial risk to life, health, property or the environment.

   G.  Authority--Authorization of this General Permit is under section 7 of the Dam Safety and Encroachment Act (32 P. S. 693.7 et seq.), and the rules and regulations promulgated thereunder at 25 Pa. Code §§ 105.441--105.449 (relating to general permits). This general permit becomes effective March 4, 1996, and will remain in effect indefinitely unless specifically modified, suspended or revoked by the Department.

[Pa.B. Doc. No. 96-146. Filed for public inspection February 2, 1996, 9:00 a.m.]



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