Thursday, May 31, 2012: Earlier today, the Norfolk District of the U.S. Army Corps of Engineers (COE) published a public notice advertising the reissuance of the State Program General Permit (SPGP) through the issuance of 12-SPGP-01, which is effective immediately.

In addition to announcing the issuance of 12-SPGP-01, the public notice outlines how extensions of currently valid 07-SPGP-01 permits will be handled:

1. If you were issued a 07-SPGP-01 and the authorized activity continues to meet the terms and conditions of the 12-SPGP-01, then via the public notice, the new expiration date for the authorized activity is May 31, 2017.

2. If you were issued an 07-SPGP-01 and the authorized activity does not meet the terms and conditions of the 12-SPGP-01 AND you have commenced or are under contract to commence construction, then you will have twelve months (until June 1, 2013) to complete construction under the terms of the 07-SPGP-01. Thereafter, you must reapply for separate permit authorization for any uncompleted portions of your project.

3. If you were issued a 07-SPGP-01 and the authorized activity does not meet the terms and conditions of the 12-SPGP-01 AND you have not commenced construction or are not under contract to commence construction, then the authorized activity must be completed by June 1, 2012. Thereafter, you must reapply for separate permit authorization for any uncompleted portions of your project.

WHAT HAS NOT CHANGED?

• For Residential, Commercial and Institutional Development Activities, the allowable impact authorization limits of the 12-SPGP-01 remain unchanged from the 07-SPGP-01 at the permanent loss of not more than 1 acre of nontidal wetlands or open waters, or not more than 2,000 linear feet of stream channel.

• For Residential, Commercial and Institutional Development Activities, compensatory mitigation is required for all permanent impacts exceeding 1/10 acre of wetlands and/or 300 linear feet of stream channel.

• For Linear Transportation Activities, the allowable impact authorization limits of the 12-SPGP-01 remain unchanged from the 07-SPGP-01 at the permanent loss of not more than 1/3 acre of Waters of the United States (WOUS) at any single impact site with independent utility.

• For Linear Transportation Activities, compensatory mitigation is required for all permanent wetland impacts and for permanent stream channel impacts exceeding 300 linear feet.

• General conditions relating to aquatic life movements (i.e. countersinking of pipes).

• Until such time as the Norfolk District COE finalizes changes to the Section 106 process Programmatic Agreement, the Virginia Department of Environmental Quality (VDEQ) will continue to follow the 07-SPGP-01 Section 106 review process.

WHAT HAS CHANGED?

• The 12-SPGP-01 can be utilized for the purpose of resolving non-compliance and/or enforcement actions issued or modified in conjunction with a VDEQ informal resolution, letter of agreement, executive compliance agreement or consent order. Previously, an NWP 32 or an Individual Permit from the COE would have been required to resolve non-compliance and/or enforcement actions.

• Definitions have been added for VDEQ, permittee and lateral encroachment.

• Within the Linear Transportation Activities Eligibility Criteria, additional language has been added to clarify allowable WOUS impact limits and the authorization of lateral encroachments.

• Within the Linear Transportation Activities Federal Screening Procedures, additional language has been added to clarify that coordination with the COE, U.S. Environmental Protection Agency and U.S. Fish and Wildlife Service will be required for permanent impacts that exceed 300 linear feet of stream channel.

• A new section outlining VDOT Reporting-Only Procedures has been added.

• Within Exclusions from Coverage, additional language has been added to clarify conditions for authorization of extended-detention basins and enhanced extended-detention basins.

• The construction or maintenance of farm or stock ponds that do not fall under the authority of the Virginia Soil and Water Conservation Board has been added to Exclusions from Coverage.

• The Resource Areas of Special Concern section included within 07-SPGP-01 has been removed.

• An independent utility General Condition has been added.

• 12-SPGP-01 can be combined with other COE General Permits as long as the impacts are considered cumulatively and do not exceed the acreage limit or linear foot limits of the 12-SPGP-01.

• A General Condition relating to compliance with the Bald and Golden Eagle Protection Act has been added.

• A General Condition relating to Department of Defense Siting Clearinghouse Coordination for all commercial and institutional development projects that include the construction of wind energy generating structures, solar towers or overhead powerlines has been added.

• A six (6) month timeframe has been added for the restoration of temporary fills. Impacts that will not be restored within 6 months from the start of the temporary impact construction will be considered permanent.

• A General Condition relating to the installation of Invasive Species has been added. Invasive plant species on the most current Virginia Department of Conservation an Recreation's Invasive Alien Plant List can't be used for replanting activities authorized by the SPGP.

• If you have received a 12-SPGP-01 and have not completed the authorized activity by May 31, 2017, you will have twelve (12) months to complete the authorized activity provided you have commenced construction or are under contract to commence construction prior to the 12-SPGP-01 expiration date.

For further information please contact Dan Lucey, Christie Blevins, Doug Chapin, Mark Headly or Mike Rolband.