July 2017
What Happens Now?
On August 3, 2017, a permit will expire. This permit is the Department of the Army Programmatic General Permit (PGP) for the State of New Hampshire. Most of the permits for wetland impact issued by the NH Department of Environmental Services (DES) Wetland Bureau are vetted under this general permit by the federal agencies to ensure compliance with the Clean Water Act. If you have a minimum impact project, you were most likely automatically issued a “sign off”. For larger projects, you may have received a letter stating that you are in compliance with the general permit and the Clean Water Act.
Most folks conduct the wetland dredge/fill right after they receive the permit. In some cases, knowing that they have 5 years before the permit expires, choose to put off the construction/impacts. However, the letter from the Corps, regardless of the remaining time on the NH DES permit, states that on August 3rd, 2017, the federal permit is no longer valid. What is that? The sounds of scrapping chairs? Is that all of you who have a permit, but not used it yet, jumping up from your desks and running to the file cabinet to find your permit? To see what the Crops letter says?
The Corps compliance letter might simply say: “Activities authorized under this PGP will no longer be authorized upon the expiration of the PGP on August 3, 2017.”
More commonly, the verbiage is: “This PGP will expire on August 3, 2017. Activities authorized under this PGP, however, which are under construction or are under contract to begin construction, will remain authorized provided the activity is completed within twelve months of the expiration date on this permit, unless:
a) the PGP is either modified or revoked; or
b) discretionary authority has been exercised in accordance with 33 CFR 325.2(e)(2).”
Ahhhh! Sighs of relief! As long as you have begun some form of construction or even if you have a contract to begin construction, you have another year to procrastinate.
What if you have not done either one? Well, if it was me, I would get one of those two things started to reserve your rights to that authorization under that PGP.
While some of my clients may have this issue with the expiring PGP, I personally do not. But I am intensely interested in what will become of the PGP.
The current administration in Washington has blocked or limited the number of actions by federal agencies. Despite the fact that the PGP process is a huge saving of time, money and paperwork for the applicant, does Washington understand that a PGP is a good thing to reauthorize?
This PGP process is nearly 20 years old. Prior to the process, it was like playing ping pong between the Corps and the DES, and I was the ball. I would travel south to the Corps offices, at one time in Waltham, to make sure my client’s projects would meet one of the nationwide permits. Then I would travel to Concord to make sure the DES was okay with the Corps conditions of approval. More times than I care to remember, I was shuttling back and forth between Waltham and Concord to broker a permit “deal” that both sides were happy with.
Now clearly, I did not do this for free. Oh boy, did I rack up the hours billable! But, honestly, I am not sorry to see those days go away. Clients were never happy about this “shuttle diplomacy”.
That is not the only thing I am interested in regarding the expiring PGP. I am most interested in its replacement. I have seen a draft of the PGP that was circulated a few months ago. However, things have been “a changing” since comment period of that draft PGP closed
For one thing, what is the federal jurisdiction these days? The guidance “Water of the United States” (WOTUS) has been withdrawn by executive order of POTUS. So, what does that mean for isolated wetlands and intermittent/ephemeral streams? What about vernal pools? It is hard to identify them as “Special Aquatic Sites” given that they are virtually ubiquitous across our glaciated landscape.
Isn’t this fun? Just when you thought you had this wetland stuff figured out!
Stay tuned for next month. I will let you know what has happened.
In My View” is an opinion article that will be posted to you once a month. It is my view of wetland and other environmental issues that will or may affect your business or organization. It will sometimes give you updates on new rules or legislation that has recently passed. In other cases, I will discuss legislation that is “in the works” at our state capital. As the name would imply, it is my view of what this rule, legislation or change means to you. I am constantly meeting with clients, friends and local regulatory officials who are asking me what this rule means or what that piece of legislation does. For that reason, I am sending this out to associates of GES who might care to have this information. I will not be political, but I do reserve the right to be opinionated. If you do not wish to receive further articles, let us know by a “reply to”, and we will delete your name. If you know of someone who might want to receive future articles, just send this on to them and copy us. We will add them to the distribution list. If in the coming months there is a topic, law, rule or regulation that you would like me to discuss, let us know. If I feel that I am competent to say something about it, I will discuss it in the future.
That concludes this Months article. Each past article will be stored on our website at HYPERLINK "http://www.gesinc.biz" www.gesinc.biz or Google: Gove Environmental Services, Inc. I hope this will be of value to you.
Jim Gove
jgove@gesinc.biz
603-778-0644 ext. 15
603-493-0014