|(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
(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
(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.
|Source Note: The provision of this §279.11 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569