NOTICES
Amendment of General Permit BDWW-GP-15: Private Residential Construction in Wetlands and 401 Water Quality Certification
[27 Pa.B. 1195] The Department of Environmental Protection, 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 amends General Permit BDWW-GP-15, renamed General Permit BWQP-GP-15, which authorizes the placement and maintenance of fill in, or 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, storage shed and utilities, on a residential lot purchased by the permittee prior to November 22, 1991, within established subdivisions that were approved by the local governing authority, where such activities do not impact greater than 0.50 acre of nontidal 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 amendments reflected in BWQP-GP-15 are a result of a settlement with the Chesapeake Bay Foundation regarding its appeal of BDWW-GP-15 issued February 3, 1995. The Department believes the settlement reflects a compromise that, while meeting the concerns of the Foundation, still maintains the original intent of the permit to provide an expedited and simplified permit process for people caught in a change to the regulations, and permit requirements. In addition to the substantive amendments, the name of the permit has been changed to reflect the recent reorganization of the Water Management Deputate. The administration of the Chapter 105 program is now the responsibility of the Bureau of Water Quality Protection (BWQP).
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 allows a maximum impact of 0.50 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 affects of cumulative fills on local stormwater, the permit has been conditioned so that fills or excavations in wetlands, including previously filled areas may not exceed more then 40% of the total lot area, except where lots are less than 0.25 acre in size where a maximum of 0.10 acre of fill in wetlands is authorized. Further, all proposed wetland impacts over 0.10 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 the full range of environmental factors including the potential impacts of stormwater and 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 the environmental 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.
The major amendments to the permit, aside from minor editorial and format changes, include the following:
Issue Old BDWW-GP-15 New BWQP-GP-15 Qualifying Date Date of subdivision approval prior to November 22, 1991 Individual must have purchased the lot prior to November 22, 1991 Yards May be included with new construction Yards are not authorized Wetland delineation Only required for lots greater than 0.50 acre Required for all lots. USCOE and DEP will provide the service upon request Sketch plan Required baseline information Require more specific information for registration review Federal authorization under PASPGP-1 Cites PASPGP-1 approval process Eliminates reference to PASPGP-1 Sewerage facilities Does not define central sewerage Clarifies by definition the term central sewerage Activities in floodplains Does not allow activities in floodways Does not allow activities in floodplains Notice of intent to amend BDWW-GP-15 was published in the Pennsylvania Bulletin on October 26, 1996. Comments received in response to this notice were reviewed and incorporated into the General Permit where applicable. A complete set of comments and the Department's responses are available by contacting Department of Environmental Protection, Bureau of Water Quality Protection, P. O. Box 8465, Harrisburg, PA 17105-8465 or by visiting the Department's web site at http://www.dep.state.pa.us., (choose Water Management, Bureau of Water Quality Protection).
401 Water Quality Certification The projects covered by the General Permit BWQP-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 certificate 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 any encroachment or water obstruction as proposed in the BWQP-GP-15 complies 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 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 criteria and conditions of the permit.
This certification is further subject to the following conditions:
1. Prior to commencing any activity covered by the General Permit, the applicant must obtain all other necessary permits or approvals from the Department of Environmental Protection, including, but not limited to, those required by The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the Dam Safety and Encroachments Act (32 P. S. §§ 6018.101--6018.1003), and the regulations promulgated thereunder including 25 Pa. Code Chapters 75, 91, 92, 93, 95, 101, 102 and 105.
2. Fill material cannot contain wastes as defined in the Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003).
BWQP-GP-15, in accordance with section 7(d) of the Dam Safety and Encroachments Act, will be effective 30 days from the date of this notice.
GENERAL PERMIT
BWQP-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, non-tidal 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, storage shed and utilities on a residential lot purchased by the permitttee prior to November 22, 1991, within established subdivisions approved by the local governing authority 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 monetary 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. The use of this general permit is not authorized until the potential impact is resolved.
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. Delineate the wetlands in accordance with established Department procedures. Delineation services for the purpose of registering this general permit will be provided by the U. S. Army Corps of Engineers or the Department of Environmental Protection or its designee, upon request. If you choose to have delineation services provided by the Army Corps of Engineers or the Department, please request this service in writing early in the project planning stage to allow sufficient response and scheduling time to avoid project delays.
4. Prepare an Erosion and Sedimentation control plan. Permit users are encouraged to contact County Conservation Districts for erosion and sedimentation control planning assistance.
5. 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,
d. dimension of the proposed wetland impact area,
e. location of house/driveways, and the like,
f. location of waterways, drainage ditches, and the like,
g. existing utilities,
h. proposed utilities, water, sewer, telephone, and the like.
i. building setbacks,
j. previously filled wetlands,
k. floodplains,
l. location of replacement wetlands.
6. To register use of the general permit send one copy of the:
a. Location Map,
b. Registration Form (Exhibit A),
c. Sketch Plan (Exhibit B),
d. Wetland delineation,
e. Erosion and Sedimentation Control Plan approval letter, for lots greater than 0.5 acre (see D.8. below),
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. Supplement Number 1, PNDI (see B.1); and
h. Corps authorization if the wetland impact is greater than .10 acre;
to the DEP Regional Soils and Waterways Section or the delegated County Conservation District.
7. You may not begin construction until you receive confirmation of registration and Federal authorization from the U. S. Army Corps of Engineers under Section 404 of The Clean Water Act. Please contact the appropriate Corps District for permit information.
Delaware River Basin Susquehanna River Basin Ohio River Basin Philadelphia District Corps of Engineers
Wanamaker Bldg.
100 Penn Square East
Philadelphia, PA 19107
Phone: 215-656-6728Baltimore District Corps of Engineers
P. O. Box 1715
Baltimore, MD 21203-1715
Phone: 410-962-1846Pittsburgh District Corps of Engineers
Room 1834, Federal Bldg.
1000 Liberty Avenue
Pittsburgh, PA 15222
Phone: 412-644-6872C. Definitions Applicable to this General Permit:
Central Sewage--A sewerage system consisting of pipes, lateral lines, trunk lines or mains, which convey waste to a facility that provides treatment for final disposal. The term Central Sewage does not include onlot disposal, community onlot disposal, or any other system that requires a land surface or subsurface absorption area for treatment and disposal purposes.
FEMA--The Federal Emergency Management Agency
Floodplain--The lands adjoining a river or stream that have been or may be expected to be inundated by flood waters in a 100-year frequency flood. Unless otherwise specified, the boundary of the 100-year floodplain 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 floodplain it is assumed, absent evidence to the contrary, that the floodplain extends from the stream to 50 feet from the top of the bank of the stream. Other evidence of the extent of the floodplain may include local stormwater management plans, local zoning ordinances, subdivision plans and similar land use mapping.
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, and the like) by the same individual as of November 22, 1991 (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 onsite 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 impact associated with the fill or excavation exceed 0.50 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 40% of Maximum Area of in Acres x Lot Area Wetland Fill 0.25 x 0.40 = 0.10 acre 0.33 x 0.40 = 0.13 acre 0.50 x 0.40 = 0.20 acre 0.75 x 0.40 = 0.30 acre 1.00 x 0.40 = 0.40 acre 1.25 x 0.40 = 0.50 acre 3. Fills, and/or excavations, in wetlands located on floodplains are not authorized by this General Permit. Information on floodplains may be available through local municipalities, home owner associations, county planning offices, FEMA and similar agencies.
4. This permit may only be used once by an individual.
5. This permit may only be used for a single-family home for a personal residence by an individual who purchased the lot prior to November 22, 1991.
6. This permit may only be used on residential 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 onlot 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 all other lots equal to or 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.)
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:
Deminimus 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.
11. This permit is not valid for use within the corridor of a watercourse or body of water that has been designated as a National Wild or Scenic River in accordance with the Wild and Scenic Rivers Act of 1968 (16 U.S.C.A. §§ 1271--1287) or designated as wild or scenic under the Pennsylvania Scenic Rivers Act (32 P. S. §§ 820.21--820.29). Information may be obtained by contacting the Department of Conservation and Natural Resources (DCNR), Bureau of Recreation and Conservation, Scenic Rivers Program, P. O., Box 8475, Harrisburg, PA 17105 or calling (717) 787-2316.
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 April 7, 1997, and will remain in effect indefinitely unless specifically modified, suspended or revoked by the Department.
JAMES M. SEIF,
Secretary
[Pa.B. Doc. No. 97-363. Filed for public inspection March 7, 1997, 9:00 a.m.]
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