DAR File No. 37362

Environmental Quality, Water Quality

Rule R317-15

Water Quality Certification

Notice of Proposed Rule

(New Rule)

DAR File No.: 37362
Filed: 02/26/2013 10:17:23 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to ensure that federally permitted or licensed activities will be conducted in a manner that will comply with applicable discharge and water quality requirements in order to maintain the chemical, physical, and biological integrity of waters of the United States within Utah. These procedures are currently being followed but have not been documented and available in detailed rule format.

Summary of the rule or change:

This rule establishes procedures for applying for and processing State Water Quality Certification pursuant to Section 401 of the federal Clean Water Act, 33 U.S.C. Sections 1251 through 1387 and consistent with the Utah Water Quality Act, Title 19, Chapter 5. The procedures have not been changed, but are now being documented to allow for better transparency in the application and review process. This rule details the purpose, definitions, applicability, application provisions, public notice and public hearing requirements, director's decision process, enforcement, and transfer of certification.

State statutory or constitutional authorization for this rule:

• Title 19, Chapter 5
• 33 U.S.C. 1251-1387

Anticipated cost or savings to:

the state budget:

No additional costs or savings to state budget are anticipated because the proposed rule will be implemented using existing resources and makes the process more efficient.

local governments:

No additional costs or savings to local governments' budgets are anticipated since the process is not changing, but is being defined and documented.

small businesses:

No additional costs or savings to small businesses' budgets are anticipated because the requirements detailed in this rule are the same as those currently in force although they have not been documented in detail and readily available to the affected parties.

persons other than small businesses, businesses, or local governmental entities:

No additional costs or savings to budgets of persons other than small businesses, businesses, or local government entities are anticipated. Each person who is affected by this rule will now have a written reference which provides more clear and consistent information to use when going through the certification process.

Compliance costs for affected persons:

Compliance costs are anticipated to remain the same for affected persons because no additional requirements have been added, nor have any been deleted. The certification process is now more transparent for all parties.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Utah Division of Water Quality has successfully executed a water quality certification process since the inception of the CWA in 1972. This rule will help ensure that Utah's water quality certification process is consistent and efficient by establishing procedures and criteria for the application and decision-making process. This rule will have no additional fiscal impacts to the affected persons or businesses.

Amanda Smith, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Water QualityRoom DEQ, Third Floor
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Judy Etherington at the above address, by phone at 801-536-4344, by FAX at 801-536-4301, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

04/15/2013

This rule may become effective on:

05/15/2013

Authorized by:

Walter Baker, Director

R317. Environmental Quality, Water Quality.

R317-15. Water Quality Certification.

R317-15-1. Purpose.

This rule establishes procedures for applying for and processing State Water Quality Certification pursuant to Section 401 of the federal Clean Water Act, 33 U.S.C. Sections 1251 through 1387 and consistent with the Utah Water Quality Act, Title 19, Chapter 5. The purpose of Certification is to ensure that the federally permitted or licensed activities will be conducted in a manner that will comply with applicable discharge and water quality requirements in order to maintain the chemical, physical, and biological integrity of waters of the United States within the State.

 

R317-15-2. Definitions.

In addition to the general definitions in Section R317-1-1, the following definitions apply for purposes of this Rule R317-15 only:

"Applicable discharge and water quality requirements" mean requirements in the Utah Water Quality Act, Utah Code Ann. Title 19, Chapter 5, and rules made thereunder that are equivalent to the requirements of 33 U.S.C. Sections 1311, 1312, 1313, 1316 and 1317 and regulations promulgated thereunder.

"Applicant" means a person who applies for a license or permit issued by an agency of the federal government to conduct an activity that is subject to Certification under Section 401.

"Blanket Certification" or "Blanket" means Certification of a group or class of similar activities that may contain conditions.

"Licensing or permit agency" means an agency of the federal government to which application is made for a license or permit that is subject to Certification.

"Section 401" means Section 401 of the federal Clean Water Act, 33 U.S.C. Sections 1251 to 1387.

"State Water Quality Certification" or "Certification" means Certification by the director under Section 401 that a proposed discharge will comply with applicable discharge and water quality requirements. A Certification may be a Blanket or individual Certification that may contain conditions.

 

R317-15-3. Applicability.

3.1. Rule R317-15 applies to any applicant for a federal permit or license that is subject to the requirements of Section 401. Federal permits and licenses most frequently subject to Certification in Utah include the following:

A. permits from the United States Army Corps of Engineers (USACE) pursuant to Section 404 of the federal Clean Water Act, 33 U.S.C. Sections 1251 through 1387; and

B. licenses from the Federal Energy Regulatory Commission under the Federal Powers Act, 16 U.S.C. Section 1791, et seq.

This is not a complete list of federal permits or licenses requiring Certification.

3.2. Certification is required for activities under Section 404 of the federal Clean Water Act, 33 U.S.C. Section 1344. Sections 404 requires approval for the discharge of dredged or fill materials into water of the United States. However, there are certain activities that are ordinarily exempt from Section 404 requirements, and which will not therefore require Certification under this Rule R317-15. Those activities include the discharge of dredge or fill material: from normal farming and ranching activities; from the construction or maintenance of farm or stock ponds or irrigation ditches; from the maintenance of drainage ditches; and from the construction or maintenance of farm roads. See Section 404(f), 33 U.S.C. Section 1344(f) for a complete list of exempt activities.

3.3. A Certification will ordinarily include conditions necessary to comply with the requirements of the Utah Water Quality Act, Title 19, Chapter 5, and rules made under that Act. However, nothing in this rule or a Certification exempts a person from compliance with the Act, or rules made under that Act.

 

R317-15-4. Application Provisions.

4.1. Unless otherwise determined by the director, the application for Certification shall include the following complete information and documentation:

A. application date;

B. name and address of the applicant;

C. signature of the applicant. A corporate application must be signed by an officer of the corporation. Any signature required for application for Certification shall be provided as described in 40 CFR Section 122.22(a);

D. name, address, email address and phone number of a contact for the application, e.g., the person to whom requests for additional information should be addressed;

E. list of names and address of landowners adjacent to the project site;

F. plan or drawings that include a plan view, cross section view, and elevation view;

G. associated existing or pending federal, state, and local permits, including land use permits, with corresponding file numbers;

H. for proposed discharges:

1. name(s) of the waters where the discharge may occur;

2. precise latitude and longitude of the discharge location(s) to 5 ^th decimal place in decimal degrees and to the tenth of a degree in degrees-minutes-seconds notation;

3. beneficial use classifications of potentially affected surface waters (see Section R317-2-13); and

4. list any known causes of water impairment per Sections 303(d) and 314 of the federal Clean Water Act, 33 U.S.C. Sections 1251 through 1387 and the names of any associated local watershed management plans including TMDL studies;

I. a description of the overall project including the construction and operation of the facilities which may result in discharge. Characterize the physical, chemical, biological, thermal and other pertinent properties of the discharge;

J. a description on how the discharges are compliant with water quality standards of the receiving water;

K. a description of the methods and means being used or proposed to monitor the quality and characteristics of the discharge and the operation of the equipment or facilities employed in control of the proposed discharge. Provide a map showing the location(s) of the monitoring point(s);

L. supporting documentation submitted to federal agencies (e.g., maps, plans, specifications, project dimensions, copies of associated federal applications, biological and engineering studies, reference information in FERC filings, Environmental Assessment or Environmental Impact Statements, Alternative Analyses), as applicable;

M. an exhibit that identifies and describes other requirements of State law applicable to the activity that have any relationship to water quality, including requirements under:

1. Section 19-5-114, spills or discharges of oil or other substance;

2. Section R317-2-12, Category 1 and Category 2 waters;

3. Section R317-2-3 Antidegradation Policy (ADR);

4. Utah Pollutant Discharge Elimination System (UPDES) Storm Water General Permit for Construction Activities Permit No. UTR300000; and

5. UPDES General Permit for Construction Dewatering Permit No. UTG070000.

N. estimated dates on which the activity will begin and end and the date or dates on which the discharge(s) will take place;

O. additional information regarding any unique features of the project;

P. any additional information as required by the director.

4.2. If any information required by 4.1 is expected to be developed in the course of the federal application process, the applicant shall include a statement to that effect, and shall provide the information when it is submitted to the federal permitting or licensing agency.

4.3. The director may prescribe a form for application for a Certification.

4.4. If an application for Certification is incomplete or is otherwise deficient, the applicant will be notified and will be given a deadline for the submittal of such information. If the information is not submitted timely and is necessary for reaching a Certification decision, Certification process will be suspended pending the development of additional information.

4.5. The owner or its duly authorized representative shall notify the director in writing of changes which may affect the application for Certification and Certification process.

4.6. The applicant shall pay any applicable application fees to the "Utah Division of Water Quality." Contact the Division for further information about the application fee. The application fee is not refundable or transferable to a separate application.

4.7. An application for Certification shall be made simultaneously with the application to the federal licensing or permit agency. If application is not made in accordance with this requirement, there may be delays and additional fees to allow the collection and consideration of all pertinent information.

 

R317-15-5. Public Notice and Public Hearing.

5.1. The director's draft Certification shall be subject to a public notice and comment period. The comment period shall ordinarily be 30 days, but may be lengthened or shortened for good cause. For example:

A. the period may be shortened if the application is of a type that is routinely granted;

B. the period may be shortened if the impacts of the proposed activity are minor;

C. the period may be shortened if the period for issuing a Certification is shortened by the federal licensing or permitting agency; or

D. the period may be lengthened for a major activity.

5.2. Every five years the USACE advertises the re-evaluation of the general permits under Section 404 of the Clean Water Act for reissuance with a public notice in the Federal Register. At that time, the Division is given the opportunity to reevaluate State requirements for Certification application , conditions and notification as well as how and if the general permits will be recertified with a Blanket Certification. Any general permit denied Blanket Certification during this period would require individual application to the Division for a project by project Certification.

The director then issues a 30-day public notice announcing which general permits will receive Certification and their requirements for the next five years. In an effort to support the streamlined process of the Corps' general permit program, the Division will not hold a project specific Certification public notice for individual activities authorized by the Corps under the general permits during the subsequent five years unless the Division declined to certify specific general permits during the re-evaluation process.

5.3. When practicable, the public notice and comment period and any public hearing for a draft Certification will ordinarily be held jointly with federal agencies that are licensing or permitting the proposed activity.

5.4. If the certification is not public noticed by the federal agency the Division will publish the public notice by one or more of the following methods:

A. Utah Department of Environmental Quality website; or

B. any other means selected by the director that will effectively solicit input from stakeholders representing State and federal agencies, interests groups, and the general public.

5.5. The director may, at the director's discretion, hold a public hearing to take oral comments.

 

R317-15-6. Director's Decision.

6.1. Although the evaluation process may vary on a site-specific basis, the director, in determining whether a proposed discharge complies with applicable discharge and water quality requirements, will ordinarily consider in the evaluation process whether a proposed discharge:

A. prevents or interferes with the attainment or maintenance of applicable water quality standards in Section R317-2 including:

1. impairs the designated beneficial use classifications (e.g., aquatic life, drinking water, recreation) in Section R317-2-6;

2. exceeds water quality criteria, either narrative or .numeric, in Section R317-2-7;

3. fails to meet the antidegradation (ADR) requirements of Section R317-2-3;

B. causes a violation of the Utah Water Quality Act, Title 19, Chapter 5;

C. are inconsistent with wasteloads and permitted load allocations in listed TMDLs in Section R317-1-7;

D. causes an exceedence of effluent limitations or control regulations applicable under Rule R317-8; or

E. otherwise causes a failure of compliance with applicable discharge and water quality requirements.

6.2. In considering whether there will be a discharge or whether any discharge will comply with applicable discharge and water quality requirements, the director may also consider whether the applicant is currently in significant noncompliance of the terms and conditions of any previously issued Certification for another project or activity, and may deny Certification based on the existence of any such outstanding significant noncompliance.

6.3. After review of the application for Certification the director will either:

A. issue a Certification;

B. issue a Certification with specific conditions that must be met in order for the applicant to be in compliance with applicable law;

C. deny the Certification and include reasons for denial; or

D. waive Certification if the director finds that the activity will:

1. cause minimal or no impacts to the quality of State waters; or

2. have a temporary and limited effect on water quality, as provided in Subsection R317-2-3.5.b.4.

6.4. If a person who is required to obtain a Certification fails to do so, the director may, at his discretion, process an application for Certification after-the-fact. An application for an after-the-fact Certifications will be reviewed under the same standards as timely application for Certification. The director may require restoration, other actions, or both, as a condition of Certification. An after-the-fact applicant shall have the burden of proving what the original baseline conditions were, and a Certification may be denied in the absence of such proof. After-the-fact Certifications will not have retroactive effect. Enforcement action may be taken for failure to obtain a Certification even if a person obtains an after-the-fact permit or license from the federal agency.

6.5. A Certification is a Permit Order and may be challenged as provided in Section 19-1-301.5 and R305-7. A recipient of a Certification shall comply with all conditions of the Certification; any noncompliance is a violation of these rules and is grounds for enforcement action.

 

R317-15-7. Enforcement.

A Certification shall be considered an order under the Utah Water Quality Act.

 

R317-15-8. Transfer.

8.1. The applicant shall give written notice to the director of any transfer of the Certification, within 30 days after the transfer.

8.2. The notice shall include a written agreement between the existing and new applicant establishing a specific date for transfer of Certification responsibility, coverage and liability.

 

KEY: Water Quality Certification, Section 401, 401 Certification, Clean Water Act

Date of Enactment or Last Substantive Amendment: 2013

Authorizing, and Implemented or Interpreted Law: 19-5, 33 U.S.C. 1251-1387