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PADEP Permits Extended by Fiscal Code Bill Signed Yesterday

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While most of the attention in Harrisburg has been on the FY2010-2011 budget, the little noticed Fiscal Code Bill, Senate Bill 1042, was voted on by the General Assembly on July 3 and signed into law by Governor Rendell on July 6.  Buried in that legislation is Article XVI-I, which grants extensions to PADEP permits issued under the Clean Streams Law, the Sewage Facilities Act, the Stormwater Management Act, and the Dam Safety and Encroachments Act for development or construction projects.  It also includes extensions of permit deadlines in E&S Control Plans approved by county conservation districts and building plans and other local approvals granted by cities and municipalities.  To be honest, even after reading through the bill, it is very difficult to understand how this is all going to work. 

Under the enacted Fiscal Code Bill, if you (1) hold a valid PADEP "approval, agreement or permit" that (2) was issued pursuant to one of the statutes listed above and (3) was granted or in effect during the extension period (which is 12/31/08 to 7/2/13) and (4) allows for a development or construction project to proceed, then the expiration date of that approval, agreement or permit is "automatically suspended" during the extension period.   So, if you are a developer who obtained permits from PADEP to construct a subdivision, but the plans were put on hold because of the economy, the General Assembly and the Governor have now just given you a surprise gift in the form of a permit extension.  The extension, more properly seen as a suspension of the expiration date, would appear to run through 7/2/13.   There are a bunch of exceptions listed in the Fiscal Code Bill, carving out approvals from the suspension of the extension period.  For example, any approval issued for a discharge into EV or HQ waters is not subject to the permit extension.  Moreover, if the approval is for a connection to a public sewer system, the application of the extension period is contingent on the availability of capacity for the extended approval.

How do you know if the approval that you were issued by PADEP is subject to the extension provided by the Fiscal Code Bill?  You’ll know soon enough.  Under Section 1607 of the Fiscal Code Bill, PADEP would appear to have until August 5 to publish notice of the applicability of the extension periods in the PA Bulletin.    

I am not sure how deeply involved PADEP was in the development of the Fiscal Code Bill.  My guess is that the Department is going to be scrambling to figure out what this all means.  Putting together a list of applicable approvals, agreements and permits may be very difficult within the time period allowed by the Code Bill.  Just looking at the statutes, it could possibly apply to the following:  Dam safety permits, NPDES Stormwater Construction permits, water obstruction and encroachment permits, submerged lands license agreements, water quality management permits, sewage facility planning approvals, on-lot sewage disposal permits, and NPDES discharge permits into non-EV or HQ waters.  It’s possible PADEP will argue that some of those permits are covered by the exceptions because of federal delegation or the need to comply with federal law, but that is unknown at this point  

If you want to find out whether or not the permit or approval you are holding is subject to the extension granted in the Fiscal Code Bill, the Bill gives you the right to seek written verification from PADEP.  The Bill took effect upon the Governor’s signature, so you could file that written verification request to PADEP any time.  You simply submit a written request seeking verification of the applicable permit termination date.  Under the Fiscal Code Bill, if you put in your written submission the date that you believe is the applicable extension date, and PADEP fails to respond within 30 days, then that is deemed an affirmation of the existence of the approval or expiration date set forth in the written submission.  I’m not sure how PADEP is going to handle those requests, but the consequences of failing to respond are very significant, and a thirty day response period will put new burdens on the Department in some program areas that are currently understaffed due to furloughs and some staff poaching by USEPA.     

The Fiscal Code Bill will be a welcome relief to many Pennsylvania developers (and others) who have been hurt by the recession.  At first blush, the Bill appears to give added breathing room to those developers.  We’ll need to see whether PADEP seeks to narrow the scope of the extensions, but again, we should know relatively quickly what PADEP’s position is given the short period in which the General Assembly gave the permit issuing departments and agencies to publish their notices of applicability.