Corps Issues Revised State General Wetlands Permit for Maryland: Significant Changes Will Impact Many Activities
 
October 8, 2001
 
Lawrence R. "Larry" Liebesman- Washington

The Baltimore Corps Office recently issued a revised Maryland State Programmatic General Permit for activities impacting wetlands and waters, which became effective in Maryland on October 1, 2001. (MDSPGP-2). This revised General Permit replaces the General Permit issued in May 1996, and includes several significant changes that will impact many activities in both tidal and nontidal wetlands and waters in the state. The General Permit is designed to delegate many routine activities with minimal impacts to the Maryland Department of the Environment (MDE) for expedited “one stop shopping review.” The Corps would retain authority to review activities with greater impacts under the very detailed federal Clean Water Act Section 404 individual permit (IP) process. The key changes are :

• Impact Limits. The upper threshold of impacts to waters of the United States, including jurisdictional wetlands, is reduced from three acres of tidal waters and five acres of nontidal waters to one acre of tidal or nontidal waters including adjacent wetlands. This is the most significant change. Permittees must now determine if direct and indirect impacts to waters and wetlands for all proposed activities for a “single and complete” project (including road crossings, utility lines, lot fills and storm water management facilities) exceed the one-acre threshold. This could force many projects into the more complex, time consuming and expensive Corps individual permit process.

• Utility Lines. The new general permit states a preference for the use of directional drilling, jack and bore, missile or similar methods when feasible in installing utility lines. In the past, permittees have been able to use traditional trenching methods and best management practices. Now, there is a preference in favor of using these potentially expensive and difficult alternative methods unless the Corps can be convinced that such methods are “not feasible.” The Corps, however, does not define “feasibility” so the applicant is unsure of the amount of evidence needed to convince the Corps.

• Grandfathering. Only projects that have either been completed or are uncompleted but have been authorizedunder the first General permit are grandfathered as follows:

• Permittees with uncompleted but grandfathered projects that also would meet the conditions of the new general permit (e.g. less than one acre of impact) will have up to three years from the date of the original authorization to complete the authorized work in waters and wetlands

• Permittees with uncompleted projects that do not meet the conditions of the new general permit (e.g.. greater than one acre of impact) will have 12 months from the effective date of the new general permit (until October 1, 2002) to complete the authorized work in waters and wetlands

• Companies with applications pending are not grandfathered. This means that a pending application with impacts exceeding one acre will not qualify for this new General Permit, even though the project may have been in the planning stage and under Corps review for some time. These applicants further may have revise their projects in order to qualify for the new general permit or face the more detailed Corps IP process.

• Compliance Certification. Every permittee must now submit a signed certification regarding the completed work and required mitigation.

There are other provisions of the new general permit including a definitional section and limitations on combining certain activities at a project site that may affect various projects. Please feel free to contact Lawrence R. Liebesman at 202-419-2477 or lliebesmn@hklaw.com with any questions on the new Corps General Permit