U.S. Army Corps of Engineers Releases Final Pennsylvania General Permit

On May 2, 2016, the U.S. Army Corps of Engineers (“USACOE”) released the final Pennsylvania State Programmatic General Permit-5 (“PASPGP-5”).  USACOE administers this permit program jointly with the Pennsylvania Department of Environmental Protection (“DEP”) to authorize the placement of dredged or fill material into regulated waters.  USACOE has issued PASPGP-5 for a five-year period.  The permit will go into effect on July 1, 2016.

PASPGP-5 replaces the previously issued PASPGP-4 and contains significant modifications from PASPGP-4.  Perhaps most notably, PASPGP-5 replaces the Category I through III system of agency review in favor of a “Reporting” versus “Non-Reporting” system.  In general, Category I and II activities under PASPGP-4 are called “Non-Reporting Activities” under PASPGP-5, and Category III Activities are now called “Reporting Activities.”  PASPGP-5 also includes terms that address the “grandfathered” status of certain activities that were previously authorized under PASPGP-4.  In some cases, such projects must be submitted to USACOE to determine if the project qualifies for coverage under PASPGP-5.

USACE Revises PASPGP-4, Requests Comments on Draft PASPGP-5

On September 29, 2015, the U.S. Army Corps of Engineers (USACE) issued a public notice regarding revisions to the Pennsylvania State Programmatic General Permit – 4 (PASPGP-4).  In general, PASPGP-4 authorizes the discharge of dredged or fill materials and the placement of temporary or permanent structures that result in impacts to one acre or less of waters of the United States, including jurisdictional wetlands.  The revisions announced by USACE are intended to “streamline the PASPGP-4 review process by adding Avoidance Measures (AMs) identified on a Pennsylvania Natural Diversity Inventory (PNDI) receipt for Federally listed threatened or endangered species as a Special Condition of the PASPGP-4 without the need for a [USACE] review of the application.”  The revisions allow certain PASPGP-4 applications to proceed under Category I or Category II review.  The changes are effective immediately.

Also on September 29, USACE released a separate public notice requesting comments on its plan to issue, for a five-year period, PASPGP-5.  PASPGP-5 would replace PASPGP-4, which is set to expire on June 30, 2016.  Comments regarding the proposed new version of the general permit are due on October 29, 2015.

Federal Agencies Publish Final Rule to Redefine Waters of the United States

Today the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published in the Federal Register a joint final rulemaking to redefine “waters of the United States” and the scope of the federal agencies’ jurisdiction under the Clean Water Act.  This final rule will be effective on August 28, 2015.  For more information, read our Administrative Watch regarding the Clean Water Rule.

EPA Issues New Rule on Definition of Waters of the United States

On May 27, 2015, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) released the long-awaited final rule redefining the extent of the agencies’ jurisdiction over “waters of the United States” (WOTUS) under the Clean Water Act.  The Final Rule, known as the “Clean Water Rule,” abruptly changes (i.e., within 60 days of publication in the Federal Register) the types of waters that will be regulated under numerous federal programs, including NPDES permitting, wetland and watercourse (i.e., dredge and fill) permitting, spill response planning, and spill reporting.  The Final Rule will affect all types of industries, real estate development, construction activities, and other entities by increasing the types and extent of waters that will be regulated under the Clean Water Act and introducing a new analysis for evaluating whether a water is jurisdictional.

For more information, read our Administrative Watch regarding the Clean Water Rule.

Clean Water Act Jurisdiction Rule Sent to White House for Review

This week the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced that they have submitted to the White House Office of Management and Budget (OMB) a joint final rule aimed at clarifying which water bodies are subject to Federal jurisdiction under the Clean Water Act.  On April 6, 2015, the agencies announced on an EPA blog that the draft final rule was recently submitted to OMB for interagency review.  EPA and the Corps published their initial rulemaking proposal in early 2014 and reportedly received more than one million stakeholder comments since then.  Interagency review of a final draft rule is generally considered the last step in the federal rulemaking process.

FERC Approves Interstate Pipeline from Pennsylvania to New York and New England

StateImpact, a reporting collaboration supported by NPR, that the Federal Energy Regulatory Commission has approved a proposed interstate pipeline that would transport Marcellus Shale natural gas from Pennsylvania to New York and New England markets.  The 30-inch pipeline would cover 124 miles, connecting gas production in Susquehanna County, Pennsylvania to existing transmission lines in New York.  The pipeline will be operated by subsidiaries of Williams Partners, Cabot Oil and Gas, Piedmont Natural Gas, and WGL Holdings.   The Pennsylvania Department of Environmental Protection, the U.S. Army Corps of Engineers and the New York Department of Environmental Conservation must still issue final permits.

USEPA Extends Waters of the United States Comment Deadline

The U.S. Environmental Protection Agency (USEPA) has, for a second time, extended the public comment deadline associated with its proposed rule to redefine “waters of the United States” and related terms for purposes of various federal Clean Water Act programs.  USEPA and the U.S. Army Corps of Engineers initiated the joint rulemaking effort this past spring.  Comments are now due on Friday, November 14, 2014.  Additional information is available at http://www2.epa.gov/uswaters.

House Votes to Thwart USEPA and Army Corps’ ‘Waters of the United States’ Rulemaking

On September 9, the U.S. House of Representatives voted to pass a bill introduced in response to the ‘Waters of the United States’ Proposed Rule that was prepared jointly by the U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency (USEPA) and published in April 2014.  The bill, known as the “Waters of the United States Regulatory Overreach Protection Act of 2014” (H.R. 5078), would prohibit USEPA and USACE from “developing, finalizing, adopting, implementing, applying, administering, or enforcing” the proposed rule.  On September 8, the White House announced its objections to the bill, including concerns that H.R. 5078 would “derail” efforts to clarify the scope of the Clean Water Act.  The announcement also noted that if the President were presented with H.R. 5078, his senior advisors would recommend that he veto the bill.   Notwithstanding H.R. 5078, the public comment deadline for the proposed rule is fast-approaching.  Comments are due to USEPA/USACE by Monday, October 20, 2014.

EPA and Army Corps Release Proposed Rule on Clean Water Act Jurisdiction

On March 25, 2014, U.S. EPA and the U.S. Army Corps of Engineers released the pre-publication version of a proposed rule intended to make the process of identifying “waters of the United States” covered under the Clean Water Act less complicated and more efficient.  Decisions of the U.S. Supreme Court in recent years which addressed the regulatory definition of “waters of the United States” created confusion and uncertainty for permitting programs under the Clean Water Act.  The proposed rule attempts to clarify Clean Water Act jurisdictional issues in light of these cases.  According to EPA’s webpage regarding the proposed rule, it does not cover any new water bodies not historically protected under the Clean Water Act and clarifies protection for streams and wetlands.  Notably, the proposed rule would adopt the “significant nexus” standard enunciated in Justice Kennedy’s concurring opinion in Rapanos v. United States for determining whether “other waters,” which do not fit within the specific categories of waters that are jurisdictional by rule, would be subject to the Clean Water Act.  Public comments on the proposed rule will be accepted for 90 days upon publication in the Federal Register.

Army Corps Issues Permit for Northeast Upgrade Project

According to StateImpact and the Pike County Courier, on March 22, 2013, the U.S. Army Corps of Engineers issued a permit to Tennessee Gas Pipeline Company (TGPC) for wetland, stream, and river crossings associated with its Northeast Upgrade Project.  Despite opposition from environmental groups and local citizens, regulators at the Army Corps’ Philadelphia District determined that the proposed work is not contrary to the public interest.
The Project aims to increase the capacity on TGPC’s Line 300 by constructing 40 miles of new pipeline in Pennsylvania and New Jersey and modifying four compressor stations.  As indicated in a March 2011 Economic Report by Rutgers University, the Project will create 1,100 job years, $37.8M in income for local labor, and $51.4M in GDP in Pennsylvania, as well as $12.2M in federal tax revenues, $1.9M in state tax revenues, and $2.1M in local tax revenues.  The Federal Energy Regulatory Commission issued a certificate of public convenience and necessity for the Project in May 2012.  FERC is the lead federal agency for the Project.