Stewards of the Lower Susquehanna, Inc. RIVERKEEPER January 10, 2014 Via Electronic Mail RA-GP8Comments@pa.gov Kenneth Murin, Chief Division of Wetlands, Encroachments, and Training PADEP of Wetlands, Encroachments, and Training P.O. Box 8460 Harrisburg, PA 17105-8460 RE: Comments on Proposal to Modify and Reissue General Permit BWEW-GP-8 (Temporary Crossings and Environmental Testing or Monitoring Activities) Mr. Murin, Stewards of the Lower Susquehanna, Inc. ( SOLS ) and its representative the Lower Susquehanna RIVERKEEPER offer these comments on proposed revisions to General Permit BWEW-GP-8, published in the Pennsylvania Bulletin November 2nd, 2013.1 As explained below we are gravely concerned that, as drafted, this proposal will decrease protection of water resources and unnecessarily subject wetlands and streams of the Commonwealth to far greater risk of pollution. Proposed GP-8 Permit Scope PADEP s proposed GP-8 contains substantial additions to its scope and organization including, respectively: a revised breadth to include both temporary road crossings, service lines and environmental testing and monitoring; as well as new standardized definitions, a modified set of instructions, consolidated coordination and notification requirements, and cross-referenced terms and conditions. On its face we are concerned that these changes and, more broadly, PADEP s inclusion of service lines, environmental testing or monitoring alongside temporary road crossing in the proposed GP-8 permit signifies a policy determination that no adverse effect will occur from authorizing these activities when, in fact, each of these activities individually or cumulatively can create adverse impacts to the environment. The Commonwealth s streams, wetlands and groundwaters represent an interconnected ecosystem predicated on a fragile balance. Streams, regardless of their size or frequency, are connected to and have important effects on downstream waters. These streams supply a significant portion of flow for downstream rivers, transport sediment and organic matter, provide habitat for species, and take up or change nutrients that could otherwise impair downstream waters. Similarly, wetlands and riparian areas of streams and rivers are functionally integrated 1 43 Pa.B. 659, Saturday, November 2, 2013. 1
with those streams and rivers. They strongly influence downstream waters by affecting flow, trapping and reducing nonpoint source pollution, and exchanging biological species. Because of the proven, scientific connectivity between waterways and wetlands and their natural ability to maintain ecological health and mitigate pollution, any permit from PADEP authorizing activities in these areas should contain standards minimizing impacts to the greatest extent practicable. Yet the proposed GP-8 fails to minimize impacts, in fact authorizing the opposite. Instead of limiting the class of activities that can occur within these sensitive areas, the proposed GP-8 in fact expands the categories of activities available for permit coverage. Specifically, the current GP-8 only authorizes temporary road crossings of streams and wetlands where, conversely, the proposed GP-8 would allow temporary service line crossings and pipelines as large as 24 inches in diameter. Further, these large-bore pipelines would be authorized to carry polluting materials, something inherently different from a typical service line such as an electric line. Likewise, the proposed GP-8 would authorize an ambiguous set of activities as temporary testing and monitoring activities. The proposed GP-8 fails to define the scope, intensity, or nature of these types of activities. In fact, the proposed GP-8 includes Environmental Testing or Monitoring Activities which could foreseeably include the construction of industrial-scale operations within the permit s two-year time frame. Given the PADEP s extensive experience with unconventional shale gas development over the past five years, and based on the common knowledge that a shale gas well site can be constructed in less than one year, it is unreasonable to leave open the terms of the proposed GP-8 to potentially include this type of activity. The scope of testing and environmental monitoring activities should be carefully circumscribed so that impacts to streams and wetlands are minimal to the instant site and watershed, individually and cumulatively. Furthermore, the proposed GP-8, like nearly all General Permits in the Commonwealth, fail to incorporate terms and conditions appropriately protective of Exceptional Value and High Quality waters. This oversight is gross in that the PADEP has continually reaffirmed in public settings that it recognizes and seeks to protect waters of the Commonwealth that deserve special protection. We strongly recommend that PADEP amend the proposed GP-8 to clearly require that permittees shall follow restrictions and standards under Chapter 93 (antidegradation). Likewise, the proposed permit should also require that a permittee s initial application containing proposed work plans is subject to technical review and pubic notice to ensure that permitted projects do not unlawfully degrade Special Protection Waters of the Commonwealth. The proposed GP-8 attempts to combine several classes of activity with diverse, uncertain impacts that may substantially vary in terms of duration, intensity, and significance. The majority of these activities fall outside the scope of activities typically covered by a General Permit under 105.442(a)(1). PADEP should amend its proposed GP-8 by removing these new categories of activity for coverage and instead require each of those activities to obtain a site-specific individual permit. Similarly, the proposed GP-8 should contain provisions to the effect that, upon completion of permittee s application, the PADEP reserves the right to authorize approval of proposed work under an Individual Permit if necessary. Lastly, language in proposed GP-8 should specifically state that the PADEP shall consider the totality of the project in relation to its site-specific context to prevent segmentation which, in turn, prevents meaningful understanding of a proposal s direct, indirect, and cumulative impacts and impairs the PADEP s ability to make an informed decision on a proposal or place appropriate conditions protecting waters and wetlands of the Commonwealth. 2
Proposed GP-8 Permit Definitions Proposed GP-8 defines a temporary road crossing as a road utilizing a pipe(s), culvert or a series of culverts, a bridge, a ford, a causeway or other similar features which are placed in, along, under, across, or over a regulated water of the Commonwealth. This definition is a significant departure from the original, current GP-8 which defines crossings as across or along a stream or wetland. In particular, placement of pipelines in or under waters or wetlands of unknown depths can create significant adverse environmental impacts during construction, operation, and removal. The addition of in or under in the proposed GP-8 therefore represents a gross departure from the traditional scope of activities sanctioned by a general permit and, as discussed supra, these novel types of activities should require a separate individual permit. In subsection 12 the proposed GP-8 creates a new word, pollutional, yet fails to define this new word. Therefore the term is, on its face, vague and should either be defined or as discussed here, removed. Pollutional could potentially denote an extremely wide breadth of materials that can significantly threaten the health of waterways and wetlands, even in small quantities. For instance, pollutional could include stormwater, sanitary sewer water, or substances arising from unconventional shale gas fracking operations including but not limited to flowback fluids and tophole water. Each of these types of fluids possess varying properties that if discharge can significantly harm ecological integrity and, as such, require individual consideration not provided under a General Permit. Insofar as the term pollutional is not defined and would allow a wide range of materials or substances not commonly associated with traditional, temporary stream-crossings, service lines, or environmental monitoring. This is especially true, and rings wholly inappropriate, considering the proposed GP-8 would also authorize industrial sized (24 ) pipelines in Special Protection Waters of the Commonwealth. In proposed GP-8, Item 6 uses the terms trenched and bored in the context of explaining that the instant permit does not apply for these actions as applied to temporary service lines. However, trenched and bored are not defined in the definitions section and therefore their use in Item 6 is ambiguous and creates unnecessary confusion. The PADEP needs to identify what type, significance, and intensity of ground disturbance triggers a determination of an activity as trenched or bored as these terms possess differing interpretations across the regulated community. Unless further defined and revised, the proposed GP-8 should therefore also clearly state that no trenching or boring activities are permitted under the permit. Like the discussion of above, Item 6 also states that the proposed GP-8 dos not apply to provide coverage for temporary service lines that transmit hazardous or toxic materials, yet the terms hazardous or toxic materials are not defined. While we are glad that, based on a common-sense understanding of what these terms mean that they are included, and prohibited, under proposed GP-8, they remain undefined and are therefore unenforceable and vague. If the PADEP s intent was for this term to relate to substances with like nomenclature under the federal Resource Recovery and Conservation Act, then the proposed GP-8 should state such incorporation by reference. Proposed GP-8 Permit Standards, Conditions, and Enforcement Proposed GP-8 states that, in regards to the permit s time period, an additional year of work can be authorized by submission of a written request, to be granted on a case by case basis, using the applicant s documentation of need. This section is vague as there is no guidance on how the PADEP will interpret this provision. While we agree determinations on permit extension 3
requests should be conducted on a case-by-case basis, there must be clear language explaining how a project applicant can demonstrate need. In the same vein, proposed GP-8, at Item 12, should discuss permittee workplan alternatives with more specificity. Currently Item 12.A.5 states [t]emporary crossings of wetlands shall be avoided if an alternative location is possible. If the crossing of a wetlands cannot be avoided, the crossing is permissible if it is located at the narrowest practicable point of the wetland. Put simply, proposed GP-8 should explain what a permittee need submit to demonstrate that a crossing cannot be avoided. Further, we urge the PADEP to require submission of an alternatives analysis and a specific rationale concerning why the proposed crossing(s) or action(s) is/are the preferred alternative. Such analysis should consider potential direct, indirect, and cumulative impacts of each proposed alternative. Inclusion of such language will ensure that serious, technical consideration has been given to minimize and avoid impacts as per the policy of the GP-8. In terms of actual impacts to lands and waters, the proposed GP-8 should specify a cumulative acreage limit cap. Because proposed GP-8 is a temporary general permit, and because the Army Corps of Engineers has long required specific mitigation and conditions for earth disturbance cumulatively above.5 acres, to fulfill the policy intent of GP-8 to minimize impacts to wetlands and waterways we suggest a cumulative cap of.25 acres. Similarly, the proposed GP-8 has scant mention of restoration requirements sufficient to fulfill the policy intent of minimizing impacts. Conditions equating to a return to original topography are not sufficient to create the ecologically functional equivalent of former baseline conditions. Rather, proposed GP-8 should state that any disturbed wetlands or riparian areas pursuant to the permit must be restored to the original condition. To ensure there are no unaddressed cumulative impacts the proposed GP-8 should likewise include conditions requiring a follow-up site investigation one-year post completion of restoration to ensure actual baseline conditions are, in fact, restored and if not, specify that further restoration efforts will be required. Proposed GP-8 at Item 12.A.9 & 12.A.13 do not provide requisite specificity ensuring that the above concerns are satisfied. Indeed, use of phrases like regular basis are overly broad and fail to provide assurances that inspections or actual restoration will be conducted or achieved, respectively. In terms of proposed GP-8 authorizing the construction of temporary structures, the permit should include specific conditions requiring removal of said structures contemporary with restoration of baseline conditions. Without this type of language there is a distinct possibility that roads, pipelines or other structures authorized originally as temporary under GP-8 could become permanent by permitees application for GP-5 (pipeline crossing) or GP-7 (road crossing). This type of sleight of hand should specifically be noted as impermissible under GP-8. On a related note, for any line or pipeline covered by the proposed GP-8 we urge PADEP to require terms and conditions such that a project applicant make publicly available exactly what constituents are carried in each temporary line. This increases PADEP s ability to address any accidents and, in turn, ensure that appropriate remediation will occur to protect waters, wetlands and species of the Commonwealth. Equally troubling is proposed GP-8 permit terms in Item 12.G.16, which state that [n]o regulated activity may substantially disrupt the movement of those species of aquatic life indigenous to the watercourse, stream or body of water, including those species which normally migrate through the area. First, this section unnaturally constricts the scope of fauna which are considered for impact under the permit by use of the descriptor aquatic life. Aquatic could 4
mean solely fisheries, while there are many species that use riparian areas that are not solely aquatic but would be impacted by activities authorized under GP-8. PADEP should use (a) more inclusive term(s) better representative of fauna that may be affected. Second, the term substantially disrupt is not defined in the Definitions section of proposed GP-8, nor is there guidance as to how the PADEP will interpret such provision. As such the language is vague and unenforceable. Third, this section also states that [b]reeding areas for migratory waterfowl must be avoided to the maximum extent practicable, yet there is no requirement for a permittee to inventory species, native or migratory, prior to undertaking activities authorized by proposed GP-8. Proposed GP-8 should therefore include a requirement to first conduct a survey of said species in order to understand baseline fauna, just as a permittee should first understand baseline ecological conditions for purposes of later restoring disturbed areas to their original condition. Proposed GP-8 Permit Does Not Provide Sufficient Opportunities for Public Participation From a facial perspective, General Permits do not allow for governmental transparency or public participation. In the Commonwealth permits are solely registered with the PADEP and project permittees are under the lenient strictures of an honor code to abide by that workplan. It is troubling that the PADEP does not conduct a technical review of these permits, instead only providing an administrative acknowledgement that a registration ahs been received. Moreover, such registration is typically forwarded just to the Township and County wherein authorized activities will occur, in essence providing scant opportunity for review or input by the general public. This is especially true, as General Permits are no longer published in the Pennsylvania Bulletin. To correct this failure of substantive public participation we urge the PADEP to, contemporaneous with finalizing the proposed GP-8, to institute a new procedural rule that General Permits be published in the Pennsylvania Bulletin. Conclusion As detailed above the proposed GP-8 contains several significant flaws including an inappropriate scope, conflicting or ambiguous definitions, vague and/or unenforceable conditions and standards, and a substantial lack of opportunity for public participation. These failures are all the more troubling as many of the activities likely to be covered under proposed GP-8 will likely occur in headwater watersheds with Special Protection Waters which, as discussed supra, possess inadequate mention or protections under proposed GP-8. Likewise, GP-8 s longstanding policy intent of minimizing impacts arising from temporary activities is likewise emasculated by proposed GP-8 due to insufficient restoration requirements. We respectfully urge the PADEP to amend its proposed GP-8 in accordance with the foregoing and reissue a revised draft for public comment before a final permit is issued. In so doing, the PADEP will best protect Pennsylvania s water resources from pollution. /s/ Michael Helfrich The Lower Susquehanna Riverkeeper & Executive Director Stewards of the Lower Susquehanna, Inc. 2098 Long Level Rd. Wrightsville, PA 17368 lowsusriver@hotmail.com 5