Current through Reg. 49, No. 52; December 27, 2024
(a) The executive director shall review or
waive certification of any permit application in accordance with §
279.9
of this title (relating to Executive Director Review of Water Quality
Certification). When an application is reviewed, the executive director shall
take final action within 60 days after receiving the certification request from
the U.S. Army Corps of Engineers (Corps) as required by 33 Code of Federal
Regulations, §325.2(b) unless the executive director, in consultation with the
Corps, determines a shorter or longer period is reasonable.
(b) Certification of discharges into aquatic
ecosystems shall avoid unacceptable adverse impacts, including cumulative and
secondary impacts.
(c) If the
executive director reviews a request for certification of a 404 Permit
activity, the review shall be performed using the following criteria.
(1) No discharge shall be certified if there
is a practicable alternative to the proposed discharge that would have less
adverse impact on the aquatic ecosystem, so long as the alternative does not
have other more significant adverse environmental consequences. Activities that
are not water dependent are presumed to have a practicable alternative, unless
the applicant demonstrates otherwise. For the purposes of this section
compensatory mitigation is not considered an alternative.
(2) No discharge of dredged or fill material
shall be certified unless appropriate and practicable steps have been taken
that will minimize potential adverse impacts of the discharge on the aquatic
ecosystem.
(3) Certification shall
require appropriate and practicable compensatory mitigation for all unavoidable
adverse impacts that remain after all practicable avoidance and minimization
have been completed. Compensatory mitigation requirements will provide for a
replacement of impacted functions and values.
(4) If the executive director determines that
the impacts of the project are so significant that the proposed compensatory
mitigation will not accomplish the purpose and policy of this chapter,
certification may be denied even if an alternative is not available.
(d) The executive director shall
send notice of the decision to deny, grant, grant conditionally, or waive
certification, including a copy of the certification decision, to the
applicant, the Corps, the designated contact of any other licensing or
permitting agency, and any person so requesting. The notification shall be in
writing and shall include:
(1) the name and
address of the applicant;
(2) if
certification is granted or denied, a statement of the basis for the executive
director's decision, including a description of the materials and information
examined during the executive director's review. The statement shall include:
(A) if the activity is certified:
(i) a statement that there is a reasonable
assurance the activity, if conducted in accordance with the terms of the
proposed permit, will not violate the criteria enumerated in §
279.9
of this title; or
(ii) a statement
of conditions, including any monitoring and reporting requirements necessary to
assure compliance with the criteria enumerated in §
279.9
of this title;
(B) if
certification is denied, an explanation of how the proposed activity will not
satisfy one or more of the criteria enumerated in §
279.9
of this title.
