Conditional State Water Quality Certification under Section 401 of the Clean Water Act for the United States Army Corps of Engineers Nationwide Permits
[51 Pa.B. 238]
[Saturday, January 9, 2021]
On October 31, 2020, the Department of Environmental Protection (Department) published a notice at 50 Pa.B. 6062 (October 31, 2020) that it would accept comments on the proposed State Water Quality Certification (SWQC) for the United States Army Corps of Engineers (Corps) Nationwide Permits (NWP) during a 30-day public comment period that concluded on November 30, 2020. One comment letter was received, and the comments therein were considered by the Department prior to its issuance of the Commonwealth's final conditional SWQC to the Corps on December 15, 2020. These comments are provided and addressed by the Department in the comment and response document that accompanies this final conditional SWQC. The comment and response document is available on the Department's web site at www.dep.pa.gov (select ''Businesses,'' then ''Water,'' then ''Waterways Engineering and Wetlands,'' then ''Water Obstruction'').
Persons aggrieved by the Department's issuance of the final conditional SWQC to the Corps may appeal as provided therein.
The Conditional State Water Quality Certification as issued by the Department is as follows:
Conditional State Water Quality Certification under Section 401 of the Clean Water Act for the United States Army Corps of Engineers Nationwide Permits for the Commonwealth of Pennsylvania
Effective Date: December 15, 2020
The United States Army Corps of Engineers (Corps) has published its proposal to reissue and modify Nationwide permits (NWPs), including the issuance of five new NWPs under section 404 of the Clean Water Act (Act) (33 U.S.C.A. § 1344) and section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. § 403) at 85 FR 57298 (September 15, 2020). The proposed NWPs are listed as follows and would be effective for 5 years upon final issuance in the Federal Register. On October 15, 2020, the Corps Baltimore District requested State Water Quality Certification (SWQC) on behalf of the Baltimore, Philadelphia and Pittsburgh Districts under section 401 of the Act (33 U.S.C.A. § 1341) from the Pennsylvania Department of Environmental Protection (PADEP) for discharges of dredged and fill material into waters of this Commonwealth authorized by the proposed NWPs.
The Department published a notice at 50 Pa.B. 6062 (October 31, 2020) to accept comments on the proposed SWQC for the Corps NWPs during a 30-day public comment period that concluded on November 30, 2020. One comment letter was received which will be addressed by a comment and response document in the final published notice.
Consistent with section 401 of the Act, the Department certifies that activities authorized by the Corps under the proposed NWPs will comply with the applicable provisions of sections 301—303, 306 and 307 of the Act (33 U.S.C.A. §§ 1311—1313, 1316 and 1317), provided the project applicant complies with the following SWQC conditions and constructs, operates and maintains the project in compliance with the State law requirements and State law permit and approval terms and conditions to meet these SWQC conditions. The Department has determined that these SWQC conditions are necessary to achieve the Commonwealth's water quality standards:
1. Prior to beginning any activity authorized by the Corps under a NWP, the applicant shall obtain from the Department all necessary environmental permits or approvals, and submit to PADEP environmental assessments and other information necessary to obtain the permits and approvals, as required under State law, including The Clean Streams Law (35 P.S. §§ 691.1—691.1001), the Dam Safety and Encroachments Act (32 P.S. §§ 693.1—693.27), the Floodplain Management Act (32 P.S. §§ 679.101—679.601), the Oil and Gas Act (58 Pa.C.S. §§ 3201—3274), the Surface Mining Conservation and Reclamation Act (52 P.S. §§ 1396.1—1396.19b), the Noncoal Surface Mining Conservation and Reclamation Act (52 P.S. §§ 3301—3326), The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. §§ 1406.1—1406.21), the Coal Refuse Disposal Control Act (52 P.S. §§ 30.51—30.66), the Solid Waste Management Act (35 P.S. §§ 6018.101—6018.1003), the Hazardous Sites Cleanup Act (35 P.S. §§ 6020.101—6020.1305), the Land Recycling and Environmental Remediation Standards Act (35 P.S. §§ 6026.101—6026.908), 58 Pa.C.S. §§ 3201—3274 (relating to development), the Sewage Facilities Act 35 P.S. §§ 750.7b and 750.9, the Air Pollution Control Act (35 P.S. §§ 4001—4015) and the regulations promulgated thereunder, including 25 Pa. Code Chapters 16, 71, 77, 78, 78a, 86—91, 92a, 93, 95, 96, 102, 105, 106, 127, 245 and 260a—299.
The above-referenced State statutes and regulations have been included as a condition to this SWQC as they comprise the Commonwealth's water quality standards and the environmental regulatory programs, which the Department has determined are necessary to achieve and maintain those standards. See, 33 U.S.C. §§ 1313 and 1370. This condition has been added based on a review of the proposed NWPs and in consideration of public comments received.
2. Fill material may not contain any waste as defined in the Solid Waste Management Act.
The prohibition on fill material not containing any type of waste as defined in the Solid Waste Management Act has been added as a condition to ensure that the Commonwealth's water quality standards are maintained through the prevention of pollution to waters of the Commonwealth. 35 P.S. § 6018.610(1).
3. Applicants and projects eligible for these NWPs must obtain all State permits or approvals, or both, necessary to ensure that the project meets the state's applicable water quality standards, including a project-specific SWQC.
This condition has been added to ensure that applicants and projects eligible for these NWPs obtain the permits, authorizations or approvals referenced under the State laws in Condition 1, including applicants for a project-specific SWQC to prevent pollution to waters of the Commonwealth and meet applicable water quality standards. See 32 P.S. §§ 679.103, 693.2, 693.6, 693.8; 35 P.S. §§ 691.611, 4008, 6018.610, 6020.1108, 6026.106; 52 P.S. §§ 30.55, 1396.4, 1406.5, 3307; 58 P.S. § 3211.
The Department has determined that these SWQC conditions are necessary to achieve the Commonwealth's water quality standards. The SWQC conditions achieve these standards through compliance with existing environmental programs administered by the Department under State laws and regulations.
This SWQC is subject to the Department's determination that the final NWPs are consistent with the Coastal Zone Management Act (16 U.S.C.A. §§ 1451—1466). The Department's Coastal Zone Management Program has issued a concurrent federal consistency concurrence for the proposed NWPs pursuant to section 307 of the Coastal Management Act, 16 U.S.C.A. § 1456, and the National Oceanic and Atmospheric Administration regulations at 15 CFR Part 930, Subpart C (consistency for Federal agency activities) on December 15, 2020.
This SWQC is only available for projects that do not require any Federal authorization other than authorization from the Corps under section 404 of the Act or section 10 of the Rivers and Harbors Act of 1899. Applicants seeking authorization for activities not eligible for coverage under the NWPs, or for activities that require another Federal authorization (such as an interstate natural gas pipeline, a gas storage field or a nuclear or hydroelectric project requiring authorization by another Federal agency), must submit a request to the Department for a project-specific SWQC.
Since at least 2007, Pennsylvania has had the opportunity to consider the Corps' final NWPs prior to issuance of Pennsylvania's SWQC. See 72 FR 11091, 77 FR 10184, and 82 FR 1860. Based upon the change in federal regulations at 40 CFR 121.1—121.16, effective September 21, 2020, the Department has only been provided with an opportunity to review the Corps proposed NWPs. The Department is hereby providing conditional 401 State Water Quality Certification (SWQC) for the Corps' proposed NWP renewals based on the scope of the September 15, 2020 notice at 85 FR 57298 and the October 15, 2020 request. Pursuant to 33 U.S.C. § 1341(a)(1), the Department reserves the right to amend or withdraw this conditional SWQC if the language set forth in the final NWPs, Pennsylvania suspensions or regional conditions published by the Corps differs so substantially from the language in the proposed NWPs, Pennsylvania suspensions or regional conditions that the conditions contained herein can no longer insure compliance with Pennsylvania's State Water Quality Standards Program.
A full text copy of the NWPs is available on the Corps web site at www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits, on the Federal Register web site at www.federalregister.gov/documents/2020/09/15/2020-17116/proposal-to-reissue-and-modify-nationwide-permits, or online at www.regulations.gov—search by Docket COE-2020-0002.
The list of all NWPs proposed for modification or reissuance are as follows:
1. Aids to Navigation
2. Structures in Artificial Canals
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Oil or Natural Gas Pipeline Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. United States Coast Guard Approved Bridges
16. Return Water from Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
27. Aquatic Habitat Restoration, Establishment and Enhancement Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
48. Commercial Shellfish Mariculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
53. Removal of Low-Head Dams
54. Living Shorelines
A. Seaweed Mariculture Activities
B. Finfish Mariculture Activities
C. Electric Utility Line and Telecommunications Activities
D. Utility Line Activities for Water and Other Substances
E. Water Reclamation and Reuse Facilities
The proposed NWP suspensions (Enclosure 1) and regional conditions (Enclosure 3) applicable to the Commonwealth were released by Special Public Notice (SPN-20-60) and are available on the Corps web site by searching for ''SPN-20-60'' or at www.nab.usace.army.mil/Missions/Regulatory/Public-Notices/Public-Notice-View/Article/2364484/spn-20-62-nationwide-permit-reissueance-request-for-comments.
Persons aggrieved by this action may appeal, under section 4 of the Environmental Hearing Board Act (35 P.S. § 7514) and 2 Pa.C.S. §§ 501—508 and 701—704 (relating to Administrative Agency Law) to the Environmental Hearing Board, Second Floor, Rachel Carson State Office Building, 400 Market Street, P.O. Box 8457, Harrisburg, PA 17105-8457, (717) 787-3483. TDD users may contact the Environmental Hearing Board (Board) through the Pennsylvania AT&T Relay Service, (800) 654-5984. Appeals must be filed with the Board within 30 days of publication of this notice, or within 30 days of receipt of written notice of this action, whichever occurs first. Copies of the appeal form and the Board's rules of practice and procedure may be obtained from the Board. The appeal form and the Board's rules of practice and procedure are also available in braille or on audiotape from the Secretary to the Board at (717) 787-3483. This paragraph does not, in and of itself, create any right of appeal beyond that permitted by applicable statutes and decisional law.
For individuals who want to challenge this action, the appeal must reach the Board within 30 days. A lawyer is not needed to file an appeal with the Board.
Important legal rights are at stake, however, so individuals should show this document to a lawyer at once. Persons who cannot afford a lawyer may qualify for free pro bono representation. Call the Secretary to the Board (717) 787-3483 for more information.
[Pa.B. Doc. No. 21-50. Filed for public inspection January 8, 2021, 9:00 a.m.]
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