Md. Code Regs. 26.08.02.10

Current through Register Vol. 51, No. 22, November 1, 2024

Section 26.08.02.10 - Water Quality Certification

A. General.

(1) The Federal Act prohibits the issuance of a federal permit or license to conduct any activity which may result in any discharge to navigable waters unless the applicant provides a certification from this State that the activity does not violate State water quality standards or limitations. This regulation establishes the procedures under which this certification will be issued.

(2) Discharges permitted by the Department under the National Pollutant Discharge Elimination System are certified by the Department.

B. Application for a Water Quality Certification.

(1) An applicant for certification shall submit to the Department an application which includes:

(a) Name and address of the applicant.

(b) A description of the facility or activity.

(c) A description of any discharge which may result from the conduct of any activity including:

(i) Biological, chemical, thermal or other characteristics of the potential discharge; and

(ii) The location or locations at which any discharge may enter navigable waters.

(d) A description, if applicable, of the function and operation of any equipment or facilities to treat any discharge and the degree of treatment to be attained.

(e) The date on which the activity will begin or end, if known, and the date or dates on which any discharge may occur.

(f) A description, if applicable, of the methods proposed or employed to monitor the quality and characteristics of any discharge.

(g) Any other information the Department determines is necessary for evaluation of the impact of the activity on water quality. This may include quantitative analysis to demonstrate that the proposed activity may not violate State water quality standards.

(2) Discharges to Outstanding National Resource Waters (ONRW) will be certified only if:

(a) There is minimal adverse environmental impact;

(b) The discharges will not impair the water quality necessary to maintain the exceptional biological resource of the ONRW; and

(c) All practical actions have been taken to avoid impacts.

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

C. Public Notice.

(1) The Department shall provide public notice of each application for certification.

(2) The public notice shall:

(a) Give a brief description of the proposed activity;

(b) Provide instructions for submission of written comments; and

(c) Specify the expiration date for the opportunity to comment.

(3) The public notice may be given by:

(a) Joint notice with the federal permitting agency;

(b) Joint notice with other State agencies; or

(c) Selected mailings to State, county, or municipal authorities and other parties known to be interested in the matter.

D. Determination of Need for Public Hearing. The Department may hold a public hearing before issuing any water quality certification if:

(1) The Department determines the activity requiring certification is of broad, general interest; or

(2) The application for certification generated substantial public interest as indicated by written comments concerning water quality issues.

E. Issuance of Certification.

(1) Certification Issuance. If the Department determines the proposed activities will not cause a violation of applicable State water quality standards, the Department shall issue the water quality certification.

(2) Applicant Responsibilities.

(a) Issuance of water quality certification does not relieve the applicant of his responsibility to comply at all times with federal and State law.

(b) The applicant shall:

(i) Obtain the State water quality certification before the conduct of any activity requiring the federal permit;

(ii) Comply with all conditions of the State water quality certification to assure achievement of State water quality standards.

(3) Emergency Procedures. The Department:

(a) May issue an emergency water quality certification in those cases when the Department determines that an unacceptable threat to human life, water quality, or aquatic resources may occur or in those cases when a severe loss of property may result before a certification can be issued in accordance with procedures specified in §C of this regulation;

(b) Shall issue a notice stating its action and the reasons for the action in accordance with the requirements of §C of this regulation, not later than 10 days following the issuance of the emergency certification;

(c) Shall incorporate in the emergency certification all standards and criteria normally applied to the specific type of project authorized by the emergency certification.

F. Procedures for Public Hearing.

(1) Notice of Public Hearing. The notice of public hearing shall:

(a) Include a brief description of the project;

(b) Include information concerning the date, time, and location of the public hearing;

(c) Include a brief description of the nature of the written comments received; and

(d) Be published in the Maryland Register at least 45 days before the hearing.

(2) Public Hearing.

(a) An interested person shall be given an opportunity to present evidence for or against the granting of water quality certification at the public hearing.

(b) Written comments shall be received by the Department by the date of the public hearing, unless the comment period is specifically extended at the hearing.

(3) Final Determination. After the closing date for receipt of written comments and after any public hearing the Department shall:

(a) Consider the testimony and other information presented;

(b) Prepare a written decision; and

(c) Publish the decision in the Maryland Register.

(4) Appeal of Final Decision.

(a) A person aggrieved by the Department's decision concerning a water quality certification may appeal the decision of the Department. The appeal shall:

(i) Be filed within 30 days of the publication of the final decision with the hearing office; and

(ii) Specify, in writing, the reason why the final determination should be reconsidered.

(b) A further appeal shall be in accordance with the applicable provisions of State Government Article, § 10-201 et seq., Annotated Code of Maryland.

G. General Certification.

(1) The Department may issue a general water quality certification for a class of activities requiring any federal license or permit.

(2) A general certification shall authorize all activities that meet the class description.

(3) In unique circumstances not considered in the issuance of the general certification, the Department may require issuance of an individual water quality certification for an activity that could be regulated under a general certification.

H. General Certification Issuance and Renewal.

(1) If the Department determines to adopt a general certification for a specific class of activities, the Department shall prepare a fact sheet:

(a) Describing the class of activities to be included; and

(b) Outlining the proposed conditions and limitations of the general certification.

(2) Notice of Intent to Adopt General Certification.

(a) The Department shall prepare a public notice which includes:

(i) A brief description of the general and special conditions which are proposed to be included in the general certification.

(ii) Provisions for examination by interested parties of the draft permit and other information related to the preliminary determination made by the Department.

(iii) A request for written comments concerning the general permit and a statement that a public hearing may be held if significant written public comment concerning the application is received by the Department.

(iv) Instructions for submission of written comments.

(v) The deadline specified for the submission of written comments. The deadline shall be at least 30 days from the date of publication of notice in the Maryland Register.

(b) The Department shall publish the notice in the Maryland Register. A copy of the notice shall be sent to:

(i) Local health officers;

(ii) Other interested State and local agencies; and

(iii) Any person requesting to be notified.

(3) Public Hearings.

(a) A public hearing shall be held and a notice of the public hearing shall be prepared and distributed if:

(i) There is significant public comment concerning the tentative determination to issue a general certification; or

(ii) The Department determines that a public hearing is necessary.

(b) The notice of public hearing shall be prepared and published in accordance with §F of this regulation.

(c) The public hearing shall be conducted in accordance with the procedure outlined in §F of this regulation.

(4) Appeal of Final Decision. A person aggrieved by the Department's decision concerning a general water quality certification may appeal the decision of the Department. The appeal shall be in accordance with §F(4) of this regulation.

I. Applicant's Responsibility. General certification of any activity does not relieve the applicant of his responsibility to comply at all times with federal and State laws.

Md. Code Regs. 26.08.02.10

Regulation .10E amended effective February 19, 1990 (17:3 Md. R. 303)
Regulation .10B amended effective February 5, 2001 (28:2 Md. R. 104)