W. Va. Code R. § 47-5A-4

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 47-5A-4 - Applications, Procedures for Certification Issuance

4.1. Information contained within environmental processes and reviews such as environmental assessments, environmental impact statements and mining and reclamation plans, may be used to meet part or all of the requirements of this Rule.

4.1.a. Any applicant for an individual state 401water quality certification shall submit two copies of a complete application, or an electronic application, to the Secretary on the forms prescribed by the Secretary. The applicant shall submit an application fee to the Department in the amount of $350.

4.1.a.1. The Secretary has sixty (60) days upon receipt to determine if an application package is complete.

4.1.a.2. The Secretary may request additional information if he or she determines that such information is necessary to properly evaluate the application.

4.1.b. The Secretary shall, within one year after an application is deemed complete, issue, waive or deny the request for a water quality certification.

4.1.b.1. Basis for Certification Decision. -- Any certification decision will be based on compliance with Sections 301, 302, 303, 306 and 307 of the federal Clean Water Act, the West Virginia Water Pollution Control Act, and the rules promulgated thereunder.

4.1.b.2. Distribution of Certification Decision. -- Copies of the proposed certification decision will be sent to the applicant and all persons who commented or attended the public hearing.

4.1.b.3. Withdrawal, Dismissal or Denial of Federal Application Negates the Need for Certification. -- If an application for a federal license or permit is withdrawn, dismissed, denied, or otherwise rendered void, then the certification is no longer needed and any State certification proceeding or action is rendered moot. Any applicant for an activity requiring a State certification, that was rendered moot, must renew its application for certification and the full time period set forth in subsection 4.1.b. of this Rule starts over upon resubmission of a complete application.

4.2. Contents of Application. Application for State 401 Water Quality Certification shall be made on the form prescribed by the Secretary, including an alternative analysis and the following, if applicable:

4.2.a. A Wetlands Delineation. Wetlands shall be identified using the most current and acceptable method as determined by the US Army Corps of Engineers (currently 1987 Corps Manual for Identifying and Delineating Wetlands).

4.2.b. A Stream Restoration Plan. Any activity in waters of the U. S. shall include a Stream Restoration Plan, which outlines a riparian revegetation plan, fluvial geo-morphological methods, or other acceptable methods to address stream impacts. The plan shall also incorporate the monitoring requirements found in section 6.3 of this Rule.

4.2.c. A Conceptual Mitigation Plan to be executed in accordance with section 6.2 of this Rule.

4.2.d. A Public Notice Form for State 401 Certification.

4.2.e. A statement affirming that the information listed in subsections 4.2.a. through 4.2c. above submitted to the Department for review is accurate and true to the best of applicant's knowledge.

4.2.f. Contents of Application for Surface Mining Operations. In addition to the information listed in subsections 4.2.a. through 4.2.e. above, activities that meet the definition of "surface mining operations" as set forth in W. Va. Code § 22-3-3 shall also submit the following information with their applications for State certification:

4.2.f.1. A No Practical Alternative Demonstration. A document containing the following:

4.2.f.1.A. That no practical alternatives exist to the activity for which the federal permit or license is being sought, including an explanation of alternative activities that were considered but eliminated;

4.2.f.1.B. That treatment facilities will be located as close as practical to the source(s) with which it is associated.

4.2.f.1.C. such activity will impact Waters of the United States no more than is necessary to accommodate its proper construction and operation, and

4.2.f.1.D. Maps, plans, specifications and design analyses for the preferred alternative to the project.

4.2.f.2. An Impact Analysis. A detailed analysis of the potential impacts, to the extent applicable, of the proposed project on water quality and quantity, fish and wildlife, aquatic habitat, parks, recreation, in-stream and downstream water uses.

4.2.f.3. A Biological Survey of the Stream. Each applicant will follow established and accepted protocols for collection, analysis, documentation, and presentation of biological data from Waters of the U.S., i.e., the U.S. Environmental Protection Agency's "Rapid Bioassessment Protocols for Use in Wadeable Streams and Rivers". Bioassessment stations shall be located as follows: one above the proposed activity, one at the proposed activity and one downstream of the proposed activity or at other locations necessary to assess the activity's impact. The Secretary may, at his or her discretion, request from the applicant certain State preferred biologic indices to facilitate review. Upon request of the applicant and for good cause shown, the Secretary_may waive the survey requirement.

4.2.f.4. A Delineation of the Stream to be Impacted. The applicant shall measure the length, width and depth of the stream segment to be impacted. Width and depth measurements shall be made at one hundred (100) foot intervals. The stream delineation shall indicate the ephemeral and intermittent/perennial segments to be impacted. The stream shall be measured from the farthest downstream disturbance, excluding stream crossings associated with haul roads for surface mining operations, upstream to the beginning of an intermittent stream, as defined in the Department's rules entitled Requirements Governing Water Quality Standards (47 C.S.R.2 § 2.9) or West Virginia Surface Mining Reclamation Rule (38 C.S.R. 2 §2.69). The applicant shall provide a table listing the station number with the corresponding acreage, including the drainage area from the toe of the pond and the toe of the fill. As an appendix to the Delineation of the Stream to be Impacted, the applicant shall also submit the following information:

4.2.f.4.A. The name of the person(s) conducting the stream delineation and his or her qualifications (i.e. DEP representative, company representative, consultant, biologist, etc.);

4.2.f.4.B. The date on which the delineation was conducted;

4.2.f.4.C. The recent weather conditions and those on the day of the delineation;

4.2.f.4.D. A statement verifying that the applicant followed the October 1999 DEP Stream Delineation Memorandum in the determination process;

4.2.f.4.E. The method used for determination (i.e. post-hole or benthic); and

4.2.f.4.F. A copy of field notes, photographs, and a stream delineation map that indicates the results in relation to the proposed activity, if possible.

4.3. Federal Energy Regulatory Commission Licenses.

4.3.a. The application to the Department for certification of an activity requiring a license from the Federal Energy Regulatory Commission (FERC) shall consist of the following: a letter to the Secretary requesting certification, a completed application form as prescribed by the Secretary, the FERC license application submitted to and accepted by FERC under 18 CFR §4.1 - 4.202, and/or part 5.1 - 5.31 as applicable, the Order from FERC accepting the application, and a certificate of publication from the newspaper publishing the Class II legal advertisement required by subsection 5.1.d. of this Rule.

4.3.b. If the project application is altered or modified during the FERC licensing process prior to FERC's final decision, the applicant shall inform the Department of such changes. The Department may review such alterations or modifications and, if the changes are deemed significant by the Secretary, the Department may require a new application for certification. The Department has (90) days to review such changes or until the end of the one-year review period, authorized in subdivision 4.1.b. whichever is longer, to determine whether to require a new application or to alter its original certification decision. If the Department requires a new application because of a significant application modification, then the Department has six (6) months from the date it receives a complete application to issue its certification decision.

4.3.c. Prior to issuing a Section 401 Certification, the Secretary shall evaluate the recreational resources of all projects under Federal licensor applications therefor and seek, within his/her authority, the ultimate development of these resources, consistent with the needs of the area to the extent that such development is not inconsistent with the primary purpose of the project. Reasonable expenditures by a licensee for public recreational development pursuant to an approved plan, including the purchase of land, will be included as part of the project cost. The licensee shall assume the following responsibilities:

4.3.c.1. To acquire in fee and include within the project boundary enough land to assure optimum development of the recreational resources afforded by the project. To the extent consistent with the other objectives of the license, such lands to be acquired in fee for recreational purposes shall include the lands adjacent to the exterior margin of any project reservoir plus all other project lands specified in any approved recreational use plan for the project.

4.3.c.2. To develop suitable public recreational facilities upon project lands and waters and to make provisions for adequate public access to such project facilities and waters and to include therein consideration of the needs of persons with disabilities in the design and construction of such project facilities and access.

4.3.c.3. To encourage and cooperate with appropriate local, State, and Federal agencies and other interested entities in the determination of public recreation needs and to cooperate in the preparation of plans to meet these needs, including those for sport fishing and hunting.

4.3.c.4. To encourage governmental agencies and private interests, such as operators of user-fee facilities, to assist in carrying out plans for recreation, including operation and adequate maintenance of recreational areas and facilities.

4.3.c.5. To cooperate with local, State, and Federal Government agencies in planning, providing, operating, and maintaining facilities for recreational use of public lands administered by those agencies adjacent to the project area.

4.3.c.6. To comply with Federal, State and local regulations for health, sanitation, and public safety, and to cooperate with law enforcement authorities in the development of additional necessary regulations for such purposes.

4.3.c.7. To provide either by itself or through arrangement with others for facilities to process adequately sewage, litter, and other wastes from recreation facilities including wastes from watercraft, at recreation facilities maintained and operated by the licensee or its concessionaires.

4.3.c.8. To ensure public access and recreational use of project lands and waters without regard to race, color, sex, religious creed or national origin.

4.3.c.9. To inform the public of the opportunities for recreation at licensed projects, as well as of rules governing the accessibility and use of recreational facilities.

W. Va. Code R. § 47-5A-4