Current through Register Vol. 63, No. 3, March 1, 2024
(1) Applicability. The fees established in
this rule apply to any person, including a federal agency, submitting an
application for certification to DEQ.
(2) Fee Determinations. To determine the
appropriate fee to process and review an application for certification, DEQ
will do the following:
(a) Perform an initial
review of the application and other materials submitted;
(b) Determine the estimated program costs
incurred by DEQ in reviewing the proposed project based on the types of tasks
expected, the amount of staff time and other expenses, and assign a tier using
the criteria in Section (3);
(c)
Submit an invoice or, if necessary, multiple invoices, to the applicant based
on the appropriate fee schedule provided in Section (4); and
(d) As necessary, revise an assigned tier
based on documentation of the expected types of tasks or program costs
incurred, if appropriate, and notify the applicant of such revisions.
(3) Project Tiers. The following
tier schedule describes the types of tasks expected to appropriately process
and review proposed projects for certification:
(a) Tier 1- This tier applies to those
projects that incur minimal program costs and impacts to water quality. To
qualify under this tier, the project must meet the following:
(A) Potential for minimal impacts to water
quality;
(B) Low level of public
participation;
(C) No more than
standard coordination with federal state or local agencies required;
(D) Stormwater management plan review not
required or will be addressed through the National Pollutant Discharge
Elimination System permitting process;
(E) Limited technical assistance needed;
or,
(F) Within the scope of a
United States Army Corps of Engineers Nationwide 404 category requiring a DEQ
401 certification and involving only a stormwater management plan or sediment
evaluation review component;
(G)
Within the scope of the proposed application, the project has been modified or
altered that the DEQ 401 review and certification requires re-issuance,
including DEQ public notice.
(b) Tier 2A -This tier applies to those
projects that incur a higher than minimal amount of program costs and impacts
to water quality. To qualify under this tier, the project must meet some of the
following:
(A) Potential for greater than
minimal impacts to water quality;
(B) Basic level of public participation
required, including but not limited to response to comment;
(C) No more than standard coordination with
federal state or local agencies required;
(D) Limited stormwater management plan review
or technical assistance to a reviewing permitted entity or agent
required;
(E) Limited technical
assistance needed; or
(F) Sediment
characterization, if required, finds sediment and new surface suitable for
in-water exposure.
(c)
Tier 2B - This tier applies to those projects that incur higher program costs
due to greater potential impacts on water quality. To qualify for this tier,
the project must meet a majority of the following:
(A) Potential for greater water quality
impacts if the waterway is identified on DEQ's 303(d) list or is covered by a
total maximum daily load, or multiple waters of the state are
affected;
(B) High level of public
participation required with potential for one or more public meetings or
hearings;
(C) More than standard
coordination with multiple federal, state or local agencies required, including
but not limited to one or more meetings or pre-application site
visit;
(D) Complex stormwater
management plan review and coordination required;
(E) Moderate and on-going level of technical
assistance needed;
(F) Large or
complex compensatory mitigation review required;
(G) Sediment characterization, if required,
finds sediment or new surface unsuitable for in-water exposure, so that
coordination with the DEQ Solid Waste or Environmental Cleanup programs is
necessary; or
(H) Preparation of a
full evaluation and findings report needed.
(d) Tier 3 - This tier applies to those
projects that incur very high program costs because a large area is affected, a
high degree of complexity is involved or greater potential water quality
impacts may result. To qualify for this tier, the project must meet a majority
of the following:
(A) Potential for greater
water quality impacts if the waterway is identified on DEQ's 303(d) list or
covered by a total maximum daily load, or multiple waters of the state are
affected;
(B) High level of public
participation required with extensive public comments and the potential for one
or more public meetings or hearings;
(C) Substantially more than standard
coordination with multiple federal, state or local agencies required, including
but not limited to one or more meetings;
(D) Complex stormwater management plan review
and coordination required;
(E) High
level or iterative technical assistance required or substantive project
revisions received;
(F) Large or
complex compensatory mitigation review required;
(G) Site visit(s) needed to understand
impacts and advise on potential alternatives;
(H) Sediment characterization finds sediment
or new surface unsuitable for in-water exposure or contaminated soil is likely
to be present, so that coordination with the DEQ Solid Waste or Environmental
Cleanup Programs is necessary; or
(I) Preparation of a full evaluation and
findings report needed.
(e) Tier 4 - This tier applies to those
projects that incur the highest program costs because a very large area is
affected, an extremely high degree of complexity is involved, or a very high
level of public participation is expected. To qualify for this tier, the
project must meet all of the following:
(A)
All of the applicable factors identified in Tier 3; and
(B) Coordination with the Governor's Office
in conjunction with other state agencies, tribal nations and the federal
government;
(C) Review of
additional documents such as National Environmental Policy Act Resource
Reports, Environmental Assessments and Environmental Impact
Statements.
(4) Fee Schedules. The following fees apply
to tiers assigned under Sections (2) and (3):
(a) Until July 31, 2013, the fees adopted by
the Commission in 2004 and certified on April 15, 2004 apply.
(b) As of July 31, 2013, the following fees
apply:
(A) Tier 1 - $985
(B) Tier 2A - $4,390
(C) Tier 2B - $12,105
(D) Tier 3 - $17,780
(E) Tier 4 - $14,020 per month or average
monthly cost of a senior level technical staff position.
(c) In lieu of fees established by this
section, DEQ may at its discretion enter into an intergovernmental agreement
with another state or federal agency that provides for the payment of the
estimated or actual costs of processing an application for
certification.
(5)
Review of Fee Determinations. An applicant may seek review of DEQ's
determination of the appropriate fee as follows:
(a) An applicant may seek review of the fee
determination by submitting a written request to the DEQ regional administrator
within 30 days of receipt of an invoice. The request must state the specific
reasons and provide documentation that the applicant believes supports a
different fee amount. Upon receiving such a request, the DEQ regional
administrator must respond within 60 days of receipt and render a
decision.
(b) That decision may
include:
(A) Determination that a different
fee tier will apply subject to making specifically identified modifications to
the proposed project;
(B) Denial of
a request for a different fee amount; or;
(C) The determination that the proposed
project meets the criteria for a different tier.
(c) If an applicant is not satisfied by the
decision of the DEQ regional administrator, the applicant is entitled to
request review by the DEQ director in the same manner as described in
subsections (a) and (b) above.
(d)
An applicant who is dissatisfied with the review of the director retains the
right to a contested case hearing as provided in ORS chapter 183, provided the
applicant has sought relief through subsections (a) through (c).
(6) Certification of Hydroelectric
Projects. Fees for certification of a hydroelectric project as proposed to be
licensed by the Federal Energy Regulatory Commission must be paid in accordance
with ORS 468.065(3). Fees for a certification related to a hydroelectric
project but for a license or approval not issued by the Federal Energy
Regulatory Commission are based on the actual expenses incurred by the
department, including expenses of the Environmental Quality Commission, related
to the certification review and decision. In consultation with the applicant,
DEQ will establish a periodic basis for billing the applicant.
(7) DEQ may approve a payment schedule for
fees, including the submission of multiple invoices, for multi-year projects or
projects assigned as a Tier 4.
(8)
DEQ must receive the payment of the full invoiced fee before issuing a
certification, and a review made pursuant to subsection (5) does not suspend
the requirement to pay the appropriate fee. An application for certification is
considered withdrawn if the applicant fails to pay the appropriate fee within
90 days of the invoice date. An applicant may request that DEQ grant an
extension of time to pay the appropriate fee to an applicant upon a showing of
good cause, and DEQ will continue processing the application for certification.
DEQ may refund the fee or some portion if it determines that no certification
is required, that minimal program costs were not incurred, a revised tier
assignment is provided or the wrong application has been filed.
Stat. Auth.: ORS 468.068 & 468B.047
Stats. Implemented: ORS
468.068