1801 Proposed amendments to General Permit BDWW- GP-15: Private Residential Construction in Wetlands and 401 Water Quality Certification

Proposed Amendments to General Permit BDWW-GP-15:  Private Residential Construction in Wetlands and 401 Water Quality Certification

[26 Pa.B. 5152]

   The Department of Environmental Protection, under the authority of section 7 of the Dam Safety and Encroachments Act (32 P. S. § 693.7) and 25 Pa. Code Chapter 105 Subchapter L (relating to general permits), proposes to amend General Permit BDWW-GP-15 which allows the placement and maintenance of fill in, or the excavation of, wetlands for the construction of a private residence, driveway, storage shed, and utilities, on residential lots within established subdivisions where such activities do not impact greater than 0.50 acre of wetland. The Department originally issued BDWW-GP-15 on February 3, 1996. The Notice of Issuance was published in the Pennsylvania Bulletin at 26 Pa.B. 526.

   The following is a summary of the proposed amendments to the General Permit BDWW-GP-15:

Issue	Present GP-15	Proposed 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

401 Water Quality Certification

   The projects covered by the proposed amended 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 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, proposes to certify that the construction, operation and maintenance of any encroachment or water obstruction as proposed in the amended BDWW-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 further proposes to certify 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 regulation 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).

   Comments concerning the proposed amendments to the General Permit and 401 Water Quality Certification should be directed to Kenneth R. Reisinger, Chief, Division of Wetlands Protection, Bureau of Dams, Waterways and Wetlands, P. O. Box 8554, Harrisburg, PA 17105-8554, [phone], or through the Pennsylvania AT&T Relay Service at [phone] (TDD). Copies of BDWW-GP-15 are available by contacting the Division of Wetlands Protection or visit DEP's web site at http://www.dep.state.pa.us (choose Water management/Bureau of Dams, Waterways and Wetlands). Comments must be submitted in writing and contain the name, address and telephone number of the person commenting and a concise statement of comments, objections or suggestions on this proposal. No comments submitted by facsimile will be accepted. The Department will consider all relevant and timely comments received. Comments must be submitted within 30 days of this publication.

   Comments may be submitted electronically to the Department at RegComments @ A1.dep.state.pa.us. A subject heading of the proposal must be included in each transaction. Comments submitted electronically must also be received by the Department within 30 days of the publication of this proposed statement of policy.

General Permit
BDWW-GP-15 (Amended):
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 permittee prior to November 22, 1991, within established subdivisions approved by the local governing authority where such activities do not impart greater than .50 acre of non-tidal 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. 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 designated 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 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 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 etc.,

   f.  location of waterways, drainage ditches etc.,

   g.  existing utilities,

   h.  proposed utilities, water, sewer, telephone etc.

   i.  building setbacks,

   j.  previously filled wetlands,

   k.  floodways/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, and

   g.  Supplement Number 1, PNDI (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, Pennsylvania Natural Diversity Inventory Form (PNDI), attached). You may not start your project until you have received confirmation of registration.

   7.  You may not begin construction until you receive Federal authorization under Section 404 of the Clean Water Act.

   C.  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 on-lot disposal, community on-lot 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 non-tidal wetlands of the Commonwealth including any filled area previously permitted, the proposed filled area, and any other non-tidal 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. Non-wetland 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		40% of	Maximum Area of
in Acres	×	Lot Area	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 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 per parcel of land.

   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 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 all other lots .50 acre or less, 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:

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.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 DCNR, Bureau of Recreation and Conservation, Scenic Rivers Program, P. O. Box 8475, Harrisburg, PA 17105 or calling [phone].

   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 pursuant to 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 ______ and will remain in effect indefinitely unless specifically modified, suspended or revoked by the Department.

JAMES M. SEIF,   
Secretary

 

[Pa.B. Doc. No. 96-1801. Filed for public inspection October 25, 1996, 9:00 a.m.]