Rule 11-6-1.3.1 - Background and General RequirementsA. Background. Section 401 of the Federal Act, 33 U. S. C. Section 1341, requires any applicant for a Federal license or permit to conduct any activity which may result in any discharge into the waters of the United States to provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate that any discharge will comply with the applicable provisions of §§ 301, 302, 303, 306 and 307 of the Federal Act, 33 U. S. C. §§ 1311, 1312, 1313, 1316 and 1317. Miss. Code Ann. § 49-2-7 provides that the Department shall be responsible for conserving, managing, developing and protecting the natural resources of the State of Mississippi. In addition, Miss. Code Ann. § 49-17-28 authorizes the Mississippi Environmental Quality Permit Board to issue water quality certifications required by Section 401 of the federal Clean Water Act.B. General Requirements of Section 401 Certification.(1) These regulations establish procedures and policies for implementing State water quality certification requirements of Section 401 of the Federal Act, 33 U.S.C. § 1341 ("§ (Section) 401 Certification"), which is incorporated herein and adopted by reference.(2) Pursuant to Miss. Code Ann. § 49-17-28(3) and § 49-17-28(3)(a), the Executive Director is authorized to make decisions on issuance, reissuance, denial, modification, and revocation of water quality certifications on projects regarding which the Department has received no written adverse comments. Additionally, the Permit Board may authorize the Executive Director to implement these regulations and to make decisions on issuance, reissuance, denial, modification, and revocation of water quality certifications for other projects, including projects regarding which the Department receives adverse written comments. The Executive Director may further delegate this authority to appropriate Department staff members, pursuant to Miss. Code Ann. §§ 49-2-13(a) and (c) and 49-17-29(3)(a). For purposes of Miss. Code Ann. § 49-17-29(3)(a), the word "permit" in the phrase " permit issuance, reissuance, denial, modification or revocation" and in the phrase "all other permits within the jurisdiction of the Permit Board," includes water quality certification actions taken pursuant to these regulations. The term "Department" in Rule 1.3.2 through 1.3.4 means: (a) In a case where the Permit Board has authorized the Executive Director or Department staff to act on a certification, the Department acting through or under the direction of the Executive Director or the Executive Director (her/him)self; or(b) In a case where the Permit Board has not authorized the Executive Director to act on a certification, or where the Executive Director has determined that the action should be taken by the Permit Board, the Permit Board. In Rule 1.3.5 and 1.3.6, the terms "Department" and "Permit Board" are specific to those entities.
(3) Any applicant for a federal license or permit to conduct any activity which during construction or operation may result in any discharge to waters of the United States shall first obtain a certification from the Department that any such discharge will comply with the applicable provisions of §§ 301, 302, 303, 306 and 307 of the Federal Act (33 U. S. C. §§ 1311, 1312, 1313, 1316, and 1317). Section 401 provides that no federal license or permit shall be granted until such certification is obtained. Federal permits or licenses for which certification is required include, but are not limited to, the following: (a) individual, general or nationwide Federal permits issued pursuant to § 404 of the Federal Act, 33 U.S.C. § 1344;(b) federal permits issued pursuant to § 10 of the Federal Rivers and Harbors Act, 33 U.S.C. § 403;(c) permits or licenses issued by the Federal Energy Regulatory Commission, 16 U.S.C. §1791, et seq.;(d) permits or licenses issued by the United States Coast Guard, Bridge Administration Branch;(e) any other federal permit or license to conduct any activity which may result in any discharge to waters of the United States.(4) Certification action is not required with regard to permits issued under federal law for which the State has received authority from the Administrator to issue, such as NPDES permits required under Section 402 of the Federal Act.(5) The Department may issue, deny or revoke certifications for categories of activities or for activities specified in Federal nationwide or general dredge and fill permits pursuant to federal law or regulations.(6) Any certification issued shall state that any discharge shall comply with applicable provisions of §§ 301, 302, 303, 306 and 307 of the Federal Act (33 U. S. C. §§ 1311, 1312, 1313, 1316, and 1317) and all State laws and regulations promulgated pursuant to the aforementioned sections of the Federal Act.(7) Any certification issued shall set forth limitations, conditions, and/or monitoring requirements necessary to assure (a) maintenance of classified or existing water uses and standards and (b) compliance with other requirements of these regulations or other appropriate requirements of State law and/or regulations. Monitoring requirements may include, but are not limited to, chemical analysis of water, sediment or fill material, and bioassays to determine potential water quality impacts of dredged material in accordance with EPA approved methods and/or the methods set forth in this Chapter.11 Miss. Code. R. 6-1.3.1
Miss. Code Ann. §§ 49-2-1, et seq. and 49-17-1, et seq.