7 Del. Admin. Code § 7201-5.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 7201-5.0 - Water Quality Certification

Part I - General

5.1 Introduction. Under federal law, § 401 of the federal Clean Water Act, 33 U.S.C. § 1341, et seq., any applicant for a federal license or permit to conduct any activity which may result in a discharge of pollutants into State waters (e.g. a NPDES discharge permit or a federal permit for the discharge of dredged or fill material) is to provide a certification from the state or interstate water pollution control agency having jurisdiction (i.e. the Department) that any such discharge will comply with the applicable provisions of §§ 301, 302, 303, 306 and 307 of the Act. This section of the regulations outlines the application requirements and administrative procedures to be followed in connection with any such water quality certification issued by the Secretary. These administrative procedures encourage and provide opportunities for public involvement in the decision-making process.

Potential applicants are encouraged to contact the Department prior to submitting an application. Federal law provides that no federal license or permit is to be granted until such certification has been obtained; no license or permit is to be granted if certification has been denied.

5.2 Applicability. This section of the regulations applies to all activities requiring a federal license or permit that affect State waters.

5.3 Penalties. Violations of these regulations shall be punishable in accordance with 7 Del.C.§§ 6005, 6013, 6617 and 7214 and all other applicable laws.

5.4 Other Regulatory Agencies. Compliance with these regulations does not relieve any person from complying with the laws, rules, regulations and requirements imposed on the same lands, uses, structures, facilities or other appurtenances by local, state and federal government agencies, or other divisions within the Department.

5.5 Public Information. All material submitted in connection with any application shall be deemed public record subject to disclosure in accordance with 7 Del.C.§ 6014 and 29Del.C.Ch. 100 unless designated by the applicant and accepted by the Department as covered by one or more of the exceptions enumerated in 29Del.C.§ 10002(d) or 7Del.C.§ 6014.

5.6 Site Access. The Department may decide that a site visit is necessary to evaluate or verify the information provided in the application or collect additional data to process an application for certification. In such cases, the Department shall notify the applicant and schedule the site visit. In addition, the Department may conduct an inspection of the activity or site for which certification was provided to determine compliance with any certification conditions.

In accordance with 7Del.C.§ 6024, the Secretary, or his duly authorized representative, shall be provided access to and shall be allowed to enter any public or private property where any activity subject to certification is, or will be, conducted, after giving verbal notice and presentation of official identification.

5.7 Enforcement. Certification decisions, including conditions of federal permits or licenses, are subject to the enforcement mechanisms available to the Department and/or the federal agency issuing the permit or license. In the case of Federally authorized or delegated state programs such as the NPDES, certification decisions including conditions of permit or licenses, are subject to the enforcement mechanisms available to both the Department and the federal agency granting delegation. Other mechanisms under State law may also be used to correct or prevent adverse water quality impacts from construction or operation of activities for which certification has been issued.

Part II - Application and Public Notice

5.10 Application Procedure. Any application for certification must include complete information and be presented on a form provided by the Department:

5.10.1 As a minimum, the application must contain the information outlined in § 5.10.1.1 through 5.10.1.7 and, if applicable, § 5.10.2.1 and 5.10.2.2. The application forms required by the federal permitting agency will be accepted provided they contain the minimum information required.

5.10.1.1 The name, address, phone number of the applicant and, if applicable, the name and address and telephone number of the agent for the applicant.

5.10.1.2 A complete description of the proposed activity, including the location, affected water(s), purpose, and intent of the project; maps, drawings, and plans sufficient for review purposes.

5.10.1.3 A description of all proposed activities reasonably associated with the proposed project either directly or indirectly, including planned or proposed future development that relate to water quality considerations.

5.10.1.4 An assessment of existing resources which fully considers ecological functions and values tailored to the site.

5.10.1.5 Plans for monitoring water quality in the area(s) affected by the proposed activity, e.g. the dredge area and the overflow from the disposal site(s).

5.10.1.6 The names and mailing addresses of adjacent property owners.

5.10.1.7 A description of feasible alternatives considered to avoid, minimize or compensate for impacts to or loss of State waters, e.g. clustering development on upland parcels, considering alternative layouts that avoid or minimize impacts to waters of the State, replacement of State waters lost due to activity where such loss can neither be avoided nor minimized. Such discussion shall justify the selection of the proposed activity as the most practicable alternative.

An alternative is feasible if it is available at the time of application, if it is capable of being carried out and if it would eliminate or reduce impacts to State waters after taking into consideration cost, existing technology and logistics in light of overall project purposes. This may include an area which is not owned by the applicant, but which could reasonably be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed activity. Feasible alternatives that do not involve waters of the State are presumed to be available unless clearly demonstrated otherwise.

The applicant shall use the following mitigation sequence in evaluating feasible alternatives:

5.10.1.7.1 Avoidance - The Secretary shall consider whether the applicant has provided sufficient information on practicable alternatives to the proposed activity that would eliminate the need for conducting such activity, e.g. whether upland sites exist to meet the needs of the applicant.

5.10.1.7.2 Minimization - The Secretary shall consider whether the applicant has provided sufficient information on minimizing activities in waters of the State. Consideration shall be given to such measures as the identification of wetland areas as an element of the project, clustering of development on upland parcels, and alternative layouts that avoid waters of the State.

5.10.1.7.3 Compensation - The Secretary shall require the applicant to provide for replacement of waters of the State lost due to the activity where they can neither be avoided nor minimized.

5.10.1.7.3.1 Methods of compensation shall include the creation of new waters or the restoration of previously impacted or degraded waters. Compensation may also include establishing compensation banks where waters are established in one location to compensate for losses in several locations.

5.10.1.7.3.2 The compensation of waters on site and within the same watershed is given preference over compensation off site and in a different watershed.

5.10.1.7.3.3 Compensation for waters shall provide functional replacement of acres impacted not to exceed a ratio of three times the area of impacted waters.

5.10.1.7.3.4 To the extent practicable, compensation will be implemented prior to the activity for which such compensation is required. In the event compensation banks have not been established, this provision shall not apply.

5.10.1.7.3.5 When waters are created or restored as part of any antidegradation requirements, the Secretary may require conservation easements or other similar means to protect such waters from adverse alterations in perpertuity.

5.10.1.7.3.6 All certifications requiring wetlands creation or restoration shall include monitoring, functional assessment, maintenance and reporting programs to document timely achievement of a fully functional ecological system.

5.10.2 If the proposed activity involves the discharge of dredged or fill material, the application must contain the following additional information:

5.10.2.1 A description of the composition, source, and quantity of any material to be dredged or used as fill and a description of the area to be impacted, including the area of fill in acres. If the proposed activity involves dredge or fill at multiple sites, the applicant must identify the location for each site and specify the area to be dredged or filled at each location.

5.10.2.2 The method of dredging or filling and specific plans for disposal and control of dredge spoils.

5.10.3 For any activity which is covered in its entirety by Department regulations adopted pursuant to 7Del.C.Chs. 60, 66 or 72 (i.e. NPDES permits issued by the Secretary, wetlands permits, or subaqueous lands permits or leases), the applicant need not submit a separate application for water quality certification.

5.10.4 By agreement with either federal or state agencies, the Department may develop a joint application for a federal license or permit and State water quality certification in order to facilitate the certification process.

5.10.5 Upon receipt of an application, the Department may require additional information to make the application complete. If the Department does not request additional information within 30 working days of receipt of the application or joint public notice, the application will be deemed complete for processing. However, the Department may request additional information anytime prior to issuing the Notice of Decision per § 5.22.

5.10.6 The Department may require the applicant to provide water quality monitoring data, water quality modelling results, or other environmental assessments prior to accepting or processing the application and assessing the impacts of the proposed activity.

5.10.7 When the Department requests additional information, it will specify a deadline for submittal of such information. The applicant will be given a reasonable period of time, not to exceed 30 working days unless the Department finds that unusual circumstances warrant a longer timeframe, to provide any requested information. If the information requested is not submitted within the timeframe specified and is necessary for reaching a certification decision, the application will be considered inactive and may be returned to the applicant. Any subsequent resubmittal will be considered a new application.

5.11 Public Notification

5.11.1 The Department shall follow the public notice provisions of 7Del.C.§ 6004(b) in processing applications for certification; i.e. the Department shall advertise receipt of and provide an opportunity for the public to comment on the application.

5.11.2 Public notice shall be given by the following methods:

5.11.2.1 Publication in a daily newspaper of general circulation statewide and a newspaper of general distribution in the county(ies) in which the activity is proposed; or

5.11.2.2 Joint notice with the federal permitting agency or with other state agencies, when consistent with the procedures herein and practical to facilitate processing of the application; and

5.11.2.3 Selected mailings of a copy of the public notice of application to state, county, or municipal authorities and other parties known to be interested in the matter, including the applicant, any agency with jurisdiction over or interest in the activity or disposal site and the owners or residents of property who would be reasonably affected by the proposed activity, as identified in the application.

5.11.3 The public notice of application shall provide a reasonable period of time, not less than 15 days from the date of notice, within which interested persons may submit additional information and comments on the application for certification to the Department.

5.11.4 The public notice shall:

5.11.4.1 Give a brief description of the location and nature of the proposed activity;

5.11.4.2 Provide instructions for submission of written comments and requesting a public hearing, if a hearing has not been scheduled; and

5.11.4.3 Specify the expiration date for the opportunity to comment.

5.12 Determination of Need for Public Hearing

5.12.1 The Department may hold a public hearing before issuing any water quality certification if:

5.12.1.1 The Secretary determines the activity requiring certification is of broad, general interest; or

5.12.1.2 The application for certification generated substantial public interest as indicated by written comments concerning water quality issues; or

5.12.1.3 The Secretary determines that such a hearing will be useful in reaching a decision on an application; or

5.12.1.4 The Secretary receives a written meritorious request to hold a public hearing; the request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the activity's probable impact.

5.12.2 Any person may request a public hearing during the public comment period. Requests shall be in writing and shall state the nature of the issues to be raised at the hearing.

5.13 Procedures for Public Hearing

5.13.1 Notice of Public Hearing. The notice of public hearing shall be published in a newspaper of general circulation in the county(ies) in which the activity is proposed and in a daily newspaper of general circulation statewide not less than 20 days before the hearing. The notice of public hearing shall include:

5.13.1.1 A brief description of the project or activity;

5.13.1.2 Information concerning the date, time and location of the public hearing; and

5.13.1.3 A brief description of the nature of the written comments received or issues raised during the public comment period.

5.13.2 Any interested person shall be given an opportunity to present evidence for or against the granting of water quality certification at the public hearing.

5.13.3 Written comments shall be received by the Department until the close of the public hearing, unless the comment period is specifically extended at the hearing.

5.13.4 All public hearings shall be recorded. A copy of the transcript, if any, shall be made available for public inspection.

5.13.5 The public comment period on an application shall automatically be extended to the date of the hearing. Further extensions may be granted at the discretion of the hearing officer.

5.13.6 The Department will coordinate with other regulatory agencies and conduct joint public hearings where feasible.

5.13.7 All reasonable costs for proceedings held pursuant to these regulations shall be assessed to the applicant.

Part III - Certification Determinations

5.20 Criteria for Certification

5.20.1 The Department shall provide water quality certification where the applicant has provided reasonable assurance that the activity will be conducted in a manner which will not violate State water quality standards. Certification will be denied if such assurance cannot be provided. The Department may issue a certification with conditions, including effluent or other limitations and monitoring requirements, that will provide such assurances.

5.20.2 Where appropriate, any certification issued by the Department shall specify that the discharge will comply with the applicable provisions of § 301, 302, 303, 306, and 307 of the federal Clean Water Act.

5.20.3 It is the applicant's responsibility to provide information to the Department to show that State water quality standards will be met.

In assessing a project's compliance with water quality standards, the applicant shall address and consider all potential environmental impacts of the project, both direct and indirect, present and future, including but not limited to:

5.20.3.1 impact on existing or designated uses;

5.20.3.2 impacts on the physical, chemical, and biological characteristics of the receiving waters' aquatic ecosystem;

5.20.3.3 effects on hydrology, circulation patterns and water movement;

5.20.3.4 secondary impacts; and

5.20.3.5 cumulative effects.

5.21 Issuance of Certification

5.21.1 Issuance of water quality certification does not relieve the applicant of his responsibility to comply at all times with federal and state law.

5.22 Notice of Decision

5.22.1 The Department shall prepare a document which summarizes its certification decision, including any conditions. The Department shall provide notice of its decision by mailing a copy of the certification, including any conditions, to the following: the applicant, the EPA Regional Administrator or other federal official responsible for issuing the federal license or permit and those persons who provided comments on the application.

5.23 Conditions. Pursuant to §401(d) of the federal Clean Water Act, any certification conditions shall become conditions of the federal permit or license.

5.24 Timing. Pursuant to §401(a)(1) of the federal Clean Water Act, the Department is required to issue or deny certification for federal permits or licenses within a reasonable period of time not to exceed one (1) year of acceptance of a completed application unless processing of the application is suspended by the federal permitting or licensing agency. If the federal permitting or licensing agency suspends processing of the application, suspension of processing of application for certification will also occur unless specified otherwise in writing by the Department.

5.25 Appeal of Final Decision

5.25.1 Any person whose interest is substantially affected by any action of the Secretary pursuant to these regulations may appeal to the Environmental Appeals Board as per 7Del.C.§ 7210 or § 6008. The appeal shall:

5.25.1.1 Be filed within 20 days of the publication or announcement of the final decision; and

5.25.1.2 Specify, in writing, the reason why the final determination should be reconsidered.

5.25.2 Any further appeal shall be in accordance with 7Del.C.Ch. 60, § 6009.

Part IV - Statewide Water Quality Certification For Specified Categories Of Activities Requiring A Federal License Or Permit(Reserved)

7 Del. Admin. Code § 7201-5.0