September 2017
What Happened?
In July, I wrote that the Department of the Army General Permits for the State of New Hampshire (SPGP) was expiring on August 3rd, 2017. I want to thank those who corrected me about the SPGP being 25 years old. Time just flies…
The SPGP was issued on August 18, and will be effective until August 18, 2022. In talking with folks, the following questions were asked:
What does Self Verification (SV) mean?
SV is the term used by the US Army Corps of Engineers (Corps) to identify what the New Hampshire Department of Environmental Services Wetlands Bureau (DES) call Minimum Impact Projects: those projects with less than 3000 SF of direct wetland impact.
When can I start work if I submit an SV application?
As soon as you get the DES Wetlands Permit (and any other required permits) under the SV, you can start work. The only caveat is that if the Corps has contacted either DES or you that a higher review must take place, you may have to wait.
What makes for a higher review?
Under the SV, you must submit the information in Appendix B – “Corps Secondary Impacts Checklist”. After reviewing the responses on the checklist, the Corps assess the direct, indirect, secondary and cumulative impacts. Based upon their review, they will either allow the project to proceed once the DES permit is issued, or will notify the DES to not issue the permit and will contact you for additional information that may be required.
What does Pre-Construction Notification (PCN) mean?
PCN is the term used by the Corps to identify what the DES calls both Minor and Major Impact Projects. The Minors and Majors are lumped together by the Corps. Under this category are 23 New Hampshire General Permits (GP). The ones we deal with most are GP 17 – New/expanded residential, and commercial developments & recreational facilities, and GP 23 – Wetland, Stream, River, and Brook crossings.
When can I start work if I submit a PCN application?
After you get the DES Wetlands Permit, you have to wait for written authorization from the Corps. At one time, for certain projects you could just wait 30 days. If you did not hear from the Corps, you could begin work. That is no longer the case. All PCNs must have a letter from the Corps before work can begin. Within 30 days, the Corps will either say “go ahead”, or will say “more info is needed” or will say “you are headed for an Individual Permit review”. If you are in the last scenario, you can figure that permitting time just got extended for 6 months to a year.
What is the other scenario where I am required to get an Individual Permit?
If you are filling over 3 acres of wetlands, you are required to get a DES Wetland Permit, a DES Water Quality Certificate, a DES Alteration of Terrain Permit, and an Individual Permit from the Corps.
What are the federal jurisdictional boundaries?
Under a PCN, all aquatic resources must be identified. That includes wetlands, streams, ponds, lakes, tidal areas, vernal pools, etc. The SPGP presume that all are waters of the U.S. unless you obtain an approved jurisdictional determination from the Corps saying that some of the aquatic resources are not waters of the U.S.
What are the conditions on permits that the Corps may impose?
The Corps and EPA have always promoted low impact development, but it is listed under mitigation minimization in this SPGP. “Applicants should consider riparian/forested buffers for stormwater management and low impact development (LID) best management practices (BMPs) to reduce impervious cover and manage stormwater to minimize impacts to the maximum extent practicable.”
I am required to have the DES Wetlands Permit displayed on the work site. How about the Corps letter?
The SPGP specifically says that for PCN projects, you will have a copy of the Corps entire permit authorization at the work site and that all personnel doing work are aware of the terms and conditions. “The term ‘entire permit authorization’ means these GPs, including General Conditions and the authorization letter (including its drawings, plans, appendices and other attachments), and any permit modifications.”
What about vernal pools?
For a PCN (not an SV) vernal pools must be identified on the plan showing the aquatic resource delineation. There are no suggested setbacks or buffers, but a statement that “adverse impacts to vernal pools, vernal pool envelopes, and critical terrestrial habitats should be avoided and minimized to the maximum extent practicable”.
In the Appendix B – Corps Secondary Impacts Checklist, I can see no mention of vernal pools. However, there is a question about riparian buffers, which reinforces the mitigation minimization aspect noted above.
What if I sell the project? I know I have to have the name changed on the DES Wetlands Permit. What about the Corps?
“If the permittee sells the property associated with a General Permit authorization, the permittee may transfer the General Permit authorization to the new owner by submitting a letter to the Corps to validate the transfer.”
So this has been my attempt to boil down the 25 pages of permit and the 31 pages of appendices in the new SPGP for you. I hope this is helpful.
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.
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Jim Gove
jgove@gesinc.biz
603-778-0644 ext. 15
603-493-0014