SECTION 279.11. Final Agency Action on Department of the Army Permits

(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.

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