Incidental Operational Single Permit: moving earth, cutting trees and the CES Plan

It is Chapter 3.4 of Joint Regulation No. 9473, titled Environmental Permits, adopted under and in harmony with Act 161-2009 and Act 416-2004 to establish the processes for evaluating the Incidental Operational Single Permit. The permit groups into a single application the environmental authorisations that used to be sought separately, and once issued, OGPe’s system generates a simultaneous notice to the DRNA for oversight of the Consolidated General Activity and to the DRNA for oversight of the Authorisation for Cutting, Pruning, Transplanting and Planting Trees. This guide covers what the permit is, when it is needed, what is filed and how it is kept in force. The number of trees that must be planted, the planting standards and the alternative mitigation routes have their own guides on this site, written from the same reading.

You need the permit, among other cases, if your project moves more than forty cubic metres of earth-crust components incidental to an authorised work and does not qualify for an exemption; if that same activity is incidental to a public infrastructure work promoted by the ACT, DTOP, AAA, AEE, AFI, other infrastructure agencies or the municipalities; if your construction or land-development project, public or private, proposes to cut, fell, debark, move or in any other way affect one or more trees; or if your work falls under the Consolidated General Activity, which requires the Erosion Control and Sedimentation Prevention Permit for constructions or demolitions without asbestos or lead paint on areas of nine hundred square metres or more where the earth-crust volume exceeds forty cubic metres. The chapter has four express exclusions, and the one most people use is the small tree: it does not apply where the tree’s trunk diameter is under four inches and only a pruning is done that removes not more than a third of the crown’s total foliage.

• Selecting in a single application all activities applicable to the project: Incidental Activity to an Authorised Work, Incidental Activity to a Public Infrastructure Work, Authorisation for Cutting, Pruning, Transplanting and Planting Trees, and Consolidated General Permit.Verified against the official source
• Complying with the general filing requirements of Rule 2.1.9 of Volume II, in addition to the specific requirements of each activity applied for.Verified against the official source
• That the work’s owner guarantee one hundred per cent success for all plantings required by the Regulation or by any agreement with the DRNA.Verified against the official source
• Presenting alternatives for managing and disposing of the vegetative material generated by cutting and pruning, under Chapter IX of Regulation 6825 of 15 June 2004, the Recycling Regulation.Verified against the official source
• Showing the proposed action complies with Article 4(B)(3) of Act 416-2004: OGPe will accept no application form without it.Verified against the official source
• To renew: filing the application through the SUI not less than ninety days before the permit’s expiry date.Verified against the official source

• For the Incidental Activity to an Authorised Work: a copy of the construction or urbanisation permit; an explanatory memorial with the area to be impacted, the quantity and type of material to be extracted, excavated, removed and dredged, equipment and machinery, operational method and storage area; whether there will be haulage off site and how the material will be disposed of; and, if explosives are used, at least the critical detonation design.
• For the Consolidated General Activity: the CES Plan, a written document signed and sealed by the engineer or architect who prepared it, with memorial, licences, graphic representation of affected and abutting areas, current and proposed level plan, drainage plan with runoff calculations and water bodies, wetlands and sinkholes, storm plan with discharge points, CES Plan drawing with the erosion control measures, description of provisional and permanent measures with design and maintenance schedule, storage location, cost estimate, forestation or stabilisation document, and the sealed certifications of the preparer, the other professionals and the Inspector in charge of implementation.
• Also for the Consolidated General Activity: the Solid Waste Operation Plan, with the activity’s area and duration, type and quantity of waste, procedures and equipment, final disposal, a copy of the DS-1 permit, the collection company’s letter and a copy of the manifest signed in original. If the activity includes demolition, a certification that the structure is free of asbestos, signed and sealed by the licensed professional, and a certification that it is free of lead paint, signed by the inspector or risk assessor certified by the DRNA.
• For trees: a copy of the construction or urbanisation permit and a Forestation or Compensation Plan prepared and signed by an OGPe-authorised IA de Siembra, with the reasons for the cutting, the forest inventory in table form listing every tree of 4 inches or 10 centimetres DAP or more by scientific name, common name, DAP, height and condition, the proposed action, the tree inventory overlaid on the survey plan with the trees numbered and those to be cut and preserved marked, the forestation plan overlaid on the survey plan, and the planting’s maintenance specifications and schedule.
• To renew: a sworn declaration that the conditions stated in the permit being renewed have not changed — title, rustic character, area, encumbrances — and neither has the environmental document originally filed; the sign notice under Rule 2.1.19 of Volume II; and, if the proponent is a corporation, a current Certificate of Good Standing from the Department of State.

1. 1

   Step 1: Which permits go inside the PUI

   The Incidental Operational Single Permit includes one or more of these permits for construction and demolition works: the Incidental Activity to an Authorised Work Permit, the Incidental Activity to a Public Infrastructure Work Permit, the Authorisation for Cutting, Pruning, Transplanting and Planting Trees, and the Consolidated General Permit. The operative rule is in the same section: all activities applicable to your project must be selected in a single application. They are not four filings, they are one with four boxes. And once issued, OGPe’s system generates a simultaneous notice to the DRNA for oversight of the Consolidated General Activity and to the DRNA for oversight of the Authorisation for Cutting, Pruning, Transplanting and Planting Trees.

2. 2

   Step 2: The forty cubic metres

   Every extraction, excavation, removal and dredging of the earth’s crust components incidental to authorised works exceeding forty cubic metres, meeting one or more of the regulation’s criteria and not qualifying for an exemption, requires an Incidental Operational Single Permit including the Incidental Activity to an Authorised Work. The criteria are two: that the activity take place on private land, on private watercourse beds on private land or on the State’s patrimonial land; and that, if the activity produces surplus material, that material go to another duly approved project, an authorised solid-waste disposal system, a private property holding a fill-deposit permit, or a public purpose. The same forty-cubic-metre rule applies to public infrastructure works promoted by the ACT, DTOP, AAA, AEE and AFI, other infrastructure agencies and the municipalities — even where that activity is exempt from filing a construction permit with OGPe.

3. 3

   Step 3: A single tree already brings you into the permit

   The tree rule is the chapter’s widest: every construction or land-development project or activity, public or private, proposing to cut, fell, debark, move or in any other way affect one or more trees, including infrastructure works promoted by a government instrumentality exempt from filing a construction permit. One or more. There is no quantity threshold. In addition, the work’s owner must guarantee one hundred per cent success for all plantings required by the regulation or by any agreement with the DRNA, and alternatives must be presented for managing and disposing of the vegetative material generated by cutting and pruning, under Chapter IX of the Recycling Regulation.

4. 4

   Step 4: The four exclusions

   The chapter’s provisions do not apply in four cases. First, to construction, operation and maintenance activities of projects the DRNA develops, or of the agencies or private firms to which the DRNA has entrusted the construction, operation or maintenance of its projects. Second — and this is the one most people use — where the tree’s trunk diameter, the DAP, is under four inches and only a pruning is done that removes not more than a third of the crown’s total foliage. Third, to cutting, pruning and branch-removal by agencies empowered by law to do it, such as the AEE. And fourth, to cutting, pruning, branch-removal, planting and mitigation done under agreements formalised with the DRNA.

5. 5

   Step 5: The Consolidated General Activity and its nine hundred metres

   Three individual permits are consolidated inside the Incidental Operational Single Permit as a Consolidated General Activity. The Erosion Control and Sedimentation Prevention Permit, the CES, is required for every construction or demolition of structures not containing asbestos or lead paint, on land surface areas of nine hundred square metres or more, where the total volume of earth-crust components to be used as fill or extracted, stored, disposed of, cleared, piled or removed exceeds forty cubic metres. The Permit to Operate an Emission Source applies to works requiring one for earth movement and construction phases in areas of nine hundred square metres or more. And the Non-Hazardous Solid Waste Generating Activity Permit covers the non-habitual generation of non-hazardous solid waste as the DRNA defines it. The DRNA’s Regulation for Processing General Permits must also be complied with.

6. 6

   Step 6: The CES Plan: who signs it and what it carries

   The Erosion and Sedimentation Control Plan is a written document, signed and sealed by the engineer or architect who prepared it, with each of its sections labelled. It carries an explanatory memorial; evidence of the licences of the professionals certifying it; location and graphic representation of the affected and abutting areas; a plan of current and proposed levels; a drainage plan with the location of existing systems, runoff calculations, perennial or intermittent water bodies and natural systems such as wetlands and sinkholes; a storm plan with the final drainage system and its discharge points; the CES Plan drawing with the erosion control and sedimentation prevention measures to be implemented; the description of those provisional and permanent measures with design, specifications and maintenance schedule; identification of the storage location; the implementation and maintenance cost estimate; the document with the forestation or stabilisation activities; and three certifications signed and sealed in original: that of the engineer or architect who prepared the plan, that of any other professional who prepared included documents, and that of the Inspector in charge of implementation. It closes with the certification that the off-site disposal place holds a current permit to receive earth-crust material and a copy of the construction permit.

7. 7

   Step 7: If there is demolition: asbestos and lead

   The Solid Waste Operation Plan includes the activity’s area and duration, the type and quantity of waste anticipated, the procedures, equipment and staff for collection and storage, the final disposal procedures and place, a copy of the Permit to Operate Non-Hazardous Solid Waste Collection or Transportation Services, a letter from the company providing the service with the final disposal facility’s information, and a copy of the final disposal manifest signed in original by the owner, authorised representative or operator. And if the activity includes demolition, two certifications must be included: one stating the structure to be demolished is free of asbestos material, signed and sealed by the licensed professional who prepared it; and another stating it is free of lead paint, signed by the inspector or risk assessor certified by the DRNA.

8. 8

   Step 8: The Forestation Plan and the IA de Siembra

   For the tree cutting, pruning, transplanting and planting activity, a Forestation or Compensation Plan prepared and signed by an OGPe-authorised IA de Siembra is filed. That plan carries the reasons for the cutting, pruning or removal and a description of the affected area’s environmental conditions; a forest inventory in table form, prepared, signed and sealed by the IA de Siembra, listing every tree with a DAP of four inches or ten centimetres or more with its scientific name, common name, DAP, height and condition, plus the rare, threatened, critical or endangered species; the proposed action for each tree; the tree inventory overlaid on the survey plan, with the trees numbered and those to be cut and preserved marked, signed and sealed by the IA de Siembra; the forestation plan overlaid on the same survey plan; and the specifications, measures and schedule for maintaining the planting. There are also two certifications the IA de Siembra must upload to the SUI case: one at fifty per cent of the project and another at one hundred per cent, stating they inspected the work and it complies. And on transplants, the regulation warns: if the transplanted tree does not survive, it is mitigated under Rule 3.4.2.

9. 9

   Step 9: The trees not touched without a permit

   No person or agency, by themselves or through their IA de Siembra, may cut, fell, debark or in any other way affect these trees, on public or private property, without first obtaining an Incidental Operational Single Permit: those whose characteristics are indispensable or necessary for forest use, including watershed protection, erosion control and the environment’s ecological balance; species protected by state or federal law and classified as rare, scarce, threatened, vulnerable or endangered; those located in public squares and parks; those indispensable to an essential public utility purpose; and those conglomerated on public land that share an ecosystem, sit within the same watershed and function to protect waters, prevent sedimentation of water bodies and control erosion.

10. 10

    Step 10: Five years, and ninety days to renew

    The Incidental Operational Single Permit has a validity of five years. It may be amended at any time by filing an application through the SUI, and the amendment must include any change in plans, documents and certifications. To renew it, the application must be filed through the SUI not less than ninety days before the expiry date, accompanied by a sworn declaration that the conditions stated in the permit being renewed have not changed — such as title, rustic character, area and encumbrances — and that the environmental document originally filed has not changed either; by the sign notice under Rule 2.1.19 of Volume II; and, if the proponent is a corporation, by a current Certificate of Good Standing issued by the Department of State.

11. 11

    Step 11: If you sell the property

    Where an entity changes name or a property changes owner, OGPe transfers the permit immediately to the new owner or entity, provided a declaration from the previous owner accepting the transfer or a document evidencing title is submitted. The new owner or operator is subject to the same limitations, conditions and requirements of the permit as originally issued. And a warning for the buyer: the permit’s new owner is responsible for any violation of the Incidental Operational Single Permit’s conditions from the moment it was transferred into their name.

The application is filed with OGPe, complying with the general requirements of Rule 2.1.9 of Volume II and with each activity’s specific requirements. Amendments and renewal are filed through the SUI. The OGPe-authorised IA de Siembra uploads to the SUI case the two Forestation Plan certifications, at fifty and one hundred per cent of the project. Once the permit is issued, OGPe’s system generates a simultaneous notice to the DRNA for oversight of the Consolidated General Activity and of the Authorisation for Cutting, Pruning, Transplanting and Planting Trees.

• Filing only one of the activities when the project needs several: the regulation asks for all of them in a single application.
• Believing that moving less than forty cubic metres of earth always exempts you: you must also check the CES and the emission source for the nine hundred square metres.
• Assuming cutting a single tree needs no permit in a construction work.
• Applying the small-tree exclusion to a cutting: the exclusion is only for pruning a tree with a DAP under four inches and a third or less of the foliage.
• Commissioning the Forestation Plan from someone who is not an OGPe-authorised IA de Siembra.
• Forgetting the IA de Siembra’s two certifications, at fifty and one hundred per cent of the project.
• Demolishing without the asbestos-free and lead-paint-free certifications.
• Filing the renewal with less than ninety days before the permit expires.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov

• Department of Natural and Environmental Resources

  drna

  www.drna.pr.gov