NOTICES
Issuance of General Permit BWM-GP-11 for Maintenance, Testing, Repair, Rehabilitation or Replacement of Water Obstructions and Encroachments and 401 Water Quality Certification
[34 Pa.B. 3324] The Department of Environmental Protection (Department), under the authority of section 7 of the Dam Safety and Encroachments Act (act) (32 P. S. § 693.7) and 25 Pa. Code Chapter 105, Subchapter L (relating to general permits), authorizes, by General Permit BWM-GP-11, the maintenance, testing, repair, rehabilitation or replacement of water obstructions and encroachments. The Department is authorized by the act and regulations to issue general permits when 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 maintenance, testing, repair, rehabilitation or replacement of water obstructions and encroachments to be a category that 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 applicant who intends to maintain, test, repair, rehabilitate or replace a water obstruction or encroachment, in accordance with the terms, criteria and conditions of the general permit. The applicant will be required to register the project by submitting written notice and all applicable information to the Department indicating the intent to maintain, test, repair, rehabilitate or replace a water obstruction or encroachment.
This permit contains provisions for the protection of public health and safety through the development and Department review of engineering plans and calculations; places restrictions on the permit to protect species of special concern; requires the development and implementation of erosion and sediment control plans to protect water quality; and supports environmental enhancements and improvements by requiring fish passage, the protection of wild and stocked trout streams and the restoration and stabilization of all temporary impacts.
Since there is no individual permit application, there will be significant savings of both time and money for those using the general permit. In addition to the monetary savings, the general permit enables applicants to proceed on projects with reduced time and effort while still complying with the act. Traditionally, review times for individual permits reach 120 days. A general permit can be acknowledged in approximately 30 days. A review of the permit data from 1995 to the present indicates that approximately 20% of individual permit applicants will qualify for this proposed general permit
Minor deviations in the structure's configuration or filled area are allowed. These include changes in materials, construction techniques, current construction codes or safety standards which are necessary to repair, modify or replace. These minor deviations will be allowed, however, only if the environmental impacts resulting from the repair, rehabilitation, modification or replacement are minimal and in compliance with the terms and conditions of the general permit and there is no impact on public health and safety. The minor deviations may not change the structure's configuration so that the structure could be put to a different use.
This permit may not be used for maintenance, repair, rehabilitation, removal or replacement of dams.
Notice of intent to issue the proposed BWM-GP-11 was published at 33 Pa.B. 4981 (October 4, 2003) with a 60-day public comment period. Two hundred sixty-three comments from 22 persons/agencies were received. Comments received in response to this notice were reviewed and incorporated into the General Permit where applicable. The major comments on the proposed BWM-GP-11 follow.
Several commentators stated that a search of the Pennsylvania Natural Diversity Inventory (PNDI) was necessary to protect endangered and threatened species. The permit has been revised to require that the PNDI search be current at the time work begins to screen for species of special concern or their habitat to ensure their protection. The permit has been revised to utilize the bog turtle screening process in Adams, Berks, Bucks, Chester, Cumberland, Delaware, Franklin, Lancaster, Lebanon, Lehigh, Monroe, Montgomery, Northampton, Schuylkill and York Counties. The incorporation of the bog turtle screening protocol will facilitate Federal permitting under PAPSPG-2.
Some commentators suggested the language regarding the time of year restrictions for the protection of wild and stocked trout needed to be clarified. The permit has been clarified to highlight the time of year restrictions necessary for the protection of both wild and stocked trout.
Several commentators suggested that requirements for fish passage needed to be clarified. The permit has been revised to include conditions for fish passage including culvert depression, low flow channels and baffles.
Some commentators suggested that the General Permit should not be used to put a structure to a different use. The permit has been clarified to indicate that structures cannot be put to a different use than for which they were originally constructed (for example, conversion and upgrade of a logging road for use as subdivision access).
Several commentators suggested that Department engineers review the General Permit to ensure the protection of public health, safety and the environment and compliance with 25 Pa. Code Chapter 105 (relating to dam safety and waterway management). Department engineers and environmental staff will review the General Permit registrations to ensure protection of the public health, safety and the environment. The permit has been conditioned to require a hydraulics and hydrology report prepared by a professional engineer and Professional Engineering seals on plans for any bridge/culvert projects across a stream that will be used by the general public.
Many commentators believe that the review and approval of an erosion and sedimentation plan should be a condition of BWM-GP-11. The permit has been revised to require the submission of an erosion and sediment control plan for Department review. Further, the permit requires the plan be implemented and available onsite.
401 Water Quality Certification
The projects covered by the proposed general permit BWM-GP-11 may also require a Federal license or permit. Section 401(a) of the 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 BWM-GP-11, 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 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 act, will be effective on July 26, 2004.
KATHLEEN A. MCGINTY,
Secretary
[Pa.B. Doc. No. 04-1146. Filed for public inspection June 25, 2004, 9:00 a.m.]
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