Vol. 30, No. 3  ●  March 24, 2022

Virginia’s 2022 Draft State Programmatic General Permit Released

On March 21, 2022, the U.S. Army Corps of Engineers – Norfolk District released the draft of two 2022 State Programmatic General Permits (SPGPs) for public comment: one SPGP addresses impacts to non-tidal Waters of the U.S. (WOTUS) from Residential, Commercial, Institutional and Recreational Developments (22-SPGP-RCIR) while the other focuses on impacts from Linear Transportation (22-SPGP-LT). The Corps has made a number of noteworthy changes intended to streamline regulatory review of the permit application. Wetland Studies and Solutions, Inc. (WSSI) has summarized them for you.

The new 22-SPGP-RCIR and 22-SPGP-LT are scheduled to go into effect June 1, 2022 and expire August 1, 2026. The existing SPGP (17-SPGP-01) will expire on May 31, 2022. The comment period is open from now until April 21, 2022; details are provided below.

What Does This Mean for Existing SPGP Authorizations?

If your project is currently authorized by a 17-SPGP-01, and you are under construction or under contract to begin construction by May 31, 2022, the project will remain authorized under the existing permit until May 31, 2023. If your project is not under construction or under contract to begin construction, you will need to apply for coverage under either 22-SPGP-RCIR or 22-SPGP-LT. WSSI is ready to assist with this evaluation and renewal process.

Significant Changes

• There will be two SPGPs instead of one. Both 22-SPGPs address the discharge of dredged or fill material in non-tidal waters.

  • 22-SPGP-RCIR

    • For impacts associated with residential, commercial, institutional, and recreational development

    • Permanent impact maximum: 1.0 acre of WOTUS (including stream acreage)

  • 22-SPGP-LT

    • For impacts associated with linear transportation projects

    • Permanent impact maximum: 0.5 acre of WOTUS (including stream acreage) for each single and complete project as defined in the 22-SPGP-LT language

  • The 22-SPGPs do not address impacts associated with mining activities, Total Maximum Daily Load (TMDL) projects, stand-alone stormwater management facilities, or stand-alone substations. Impacts from these activities would be addressed by other Corps permits (Nationwide, Regional, or Individual).

    
    

• Prior to submitting an application requesting 22-SPGP approval, an applicant “must first obtain” a Jurisdictional Determination (JD) or have an approved preliminary federal screening from the Corps.

  • The JD can be either Preliminary or Approved; note that under current guidance, the Approved JD must be “confirmed under the governing jurisdictional rule in place at the time of receipt of the application.” (In this case, “application” refers to request for authorization under the 22-SPGPs.)

  • If a JD is pending or not yet requested, the applicant may submit a delineation report and request the Corps provide a preliminary federal screening of the proposed development plan.

  • The preliminary screening process is meant “to expedite Corps review of delineations for permitting and federal coordination”. At this time details have not been provided regarding Corps processing and timing.

  • WSSI is coordinating with regulatory agency representatives to obtain details on the process.

    
    

• The 22-SPGPs do not have a linear foot-based cap for stream impact authorization.

  • The 22-SPGP-RCIR and 22-SPGP-LT rely on acreage caps for all WOTUS impacts, no more than 1.0 acre and 0.5 acre respectively.

  • This change makes the permit language consistent with the 2021 and 2022 revisions of Nationwide Permits 14, 29, 39, 42 and 43.

    
    

• An adjustment in the mitigation threshold gives more weight to the surface area of impacted streams. Where stream channel length used to be the determinant, now area is considered as well, consistent with the NWPs.

  • Compensatory mitigation is required for projects that exceed the permanent loss of 0.10 acre of wetlands and/or 0.03 acre OR 300 linear feet of stream channel.

  • Stream channel loss must be reported in both acreage and linear feet.

  • Previously the stream channel impact threshold was assessed only in linear feet.

• All Endangered Species Act Section 7 consultation will be completed by the Corps rather than the Virginia Department of Environmental Quality, as was the standard process under 17-SPGP.

Comments

Comments on the proposed 22-SPGP-RCIR and 22-SPGP-LT are due by close of business on April 21, 2022 and should be submitted to the Corps via:

• Email to Anna Lawston (click name for email link)

or

• Mail to USACE Norfolk District
  Amissville Field Office
  ATTN: Anna Lawston
  P.O. Box 489, Amissville, Virginia 20106

WSSI Can Help

If you have questions about how the new 22-SPGPs or expiration of the 17-SPGP may impact your current and future projects in the Norfolk District’s purview, please contact Christie Blevins, Lauren Conner, or Robbie Clark or talk with your WSSI project manager.

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