A Second Look at What We Are Digging Into
Everyone’s favorite part of the land development process, third-party approvals. A developer can control and work through most of the land development checklist items together with the Township at their own pace, but third-party approvals are a different animal. Two of the most common third-party approvals needed for land development approvals are PennDOT’s Highway Occupancy permits and the Pennsylvania Department of Environmental Protection’s (“DEP”) National Pollutant Discharge Elimination System (“NPDES”) Erosion and Sediment Control permit. Both can be difficult and time-consuming approvals. Additionally, some Townships are weary to grant a conditional final approval with these third-party approvals outstanding. Understanding that these approvals may be a developer’s final hurdle, it makes sense to stay up to date with third-party approval checklist items. The NPDES permit may be adding a new checklist item.
Proposal No. 012-0700-001 (the “Proposal”) was advertised in December of 2020 but has not been adopted yet. The Proposal’s Comment Period is over, and the comments can be found here. In general, the Proposal seeks to include a Pennsylvania Historical and Museum Commission (“PHMC”) checklist item on the General NPDES permit for Construction activities. This checklist item assesses potential cultural resource impacts. Currently, this PHMC checklist item is only triggered on the Individual NPDES permit for Construction activities with land disturbance over 10 acres. Unless listed as an exemption in the Proposal’s Appendix A (bottom of the Proposal), a permit applicant will need to submit a State Historic Preservation Office (“SHPO”) Project Review Form to the PHMC for a review of historic properties (such as architecturally significant buildings and significant archaeological sites). A permit applicant will need to receive this PHMC review prior to submitting a General NPDES permit application. This increases the lead time for a General NPDES permit even more.
A permit applicant may be exempt from this PHMC checklist item if they meet one of the ten activities and corresponding conditions listed on the Proposal’s Appendix A. At a quick glance, it seems that a solar developer may be able to meet one of the activity exemptions, “Permits or approvals where proposed activity will not affect above ground historic resources or archaeological resources 50 years of age or older.” Of course, this will be site specific. Do you think a typical solar development could meet any of these other exemptions?
| ACTIVITY | CONDITIONS |
| 1. Permits or approvals where no earth disturbance or alterations to above ground historic resources (including buildings, structures, and landscapes) is planned. | |
| 2. Permits or approvals where the proposed ground disturbance activity is in areas that can be documented as having been previously disturbed. | The extent of new ground disturbance will not extend beyond that of the previous disturbance.
New small flow sewage treatment systems that replace existing failing systems on residential lots are exempt. |
| 3. Permits or approvals where proposed activity will not affect above ground historic resources or archaeological resources 50 years of age or older. | |
| 4. Permit or approval renewals with no significant physical changes to previously authorized activities. | Changes do not involve additional earth disturbances or alterations to building, structures, and landscapes other than what was approved in previous permit. |
| 5. Permits or approvals for replacements of existing facilities. | And meet criteria in listed Activities 1 and 3. |
| 6. Expansions that do not extend beyond the previously approved footprint or height. | Structure or operational expansion that will occur within the original approved site. |
| 7. Construction and maintenance of temporary road crossings, or crossings over or through regulated waters of the Commonwealth including wetlands. Replacement of 50-year old bridges are not exempt from this policy. | Temporary crossings are limited to the following:
Bridge -Single span structure erected from top of bank to top of bank carrying temporary roadway over a stream. Causeway – An embankment constructed partially across or along a stream. Ford – A road crossing of a stream utilizing the existing stream bed. |
| 8. Permits or approvals for placement of fill. | Permits needed to bring approved fill in to a project site/area. May not be exempt if the original top soil is removed before applying the fill. |
| 9. Permits and approvals specific to agricultural plowing or tilling activities, timber harvesting and road maintenance activities. | Timber harvesting may be exempt if activity occurs on previously timbered site and the |
| 10. Emergency Permits and Undertakings. | An emergency undertaking is one that requires an immediate response to an imminent threat to public health, safety, property or the environment. Examples of emergencies may include responses to natural disasters or major environmental accidents.
When addressing an emergency, DEP will make reasonable efforts to notify PHMC of such emergency undertakings as the situation allows. Some emergencies may require follow-up permits, which may not be exempt from PHMC coordination. |
Again, this Proposal has not been adopted, but we will keep an eye on its activity. Third-party approvals can unnecessarily delay the land development process and permit applicants want to avoid any of these delays at all costs. Anticipating new requirements can save time down the road.
Thanks to our colleagues over at BOW Renewables who inquired about this DEP Proposal. BOW Renewables has a deep knowledge of the land development process and is efficient and detail-oriented when it comes to obtaining these types of third-party approvals.
DECOMMISSIONING LEGISLATION UPDATE: As of April 26, 2022, House Bill 2104 still sits in the PA House of Representatives. Meanwhile, Senate Bill 284 still sits in the PA House’s Environmental Resources & Energy Committee.
COMMUNITY SOLAR UPDATE: We all anxiously await any positive movement on the various PA community solar bills. Here is the most recent status of House Bill 1555 and here is the most recent status of Senate Bill 472.
If you have other specific questions about third-party approvals, renewable energy, or anything related or unrelated, please don’t hesitate to call our firm at (717-845-1524) or email Andy Miller (amiller@mpl-law.com) or Cory Dillinger (cdillinger@mpl-law.com) with any questions or comments.
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