1. (a) The executive director shall review all permit applications for consistency with §279.9 of this title (relating to Executive Director Review of Water Quality Certification) and shall issue a final determination within 60 days after receipt of a certification request from the district engineer as required by 33 Code of Federal Regulations §325.2(b) unless the executive director, in consultation with the district engineer, determines a shorter or longer period is reasonable.
2. (b) Certification of discharges into aquatic ecosystems shall avoid unacceptable adverse impacts, including cumulative and secondary impacts.

3. (c) The executive director shall review all request for certification of 404 permit activities using the following criteria.

   1. (1) No discharge shall be certified if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other more significant adverse environmental consequences. Activities which are not water dependent are presumed to have practicable alternatives, unless the applicant clearly demonstrates otherwise. For the purposes of this section compensatory mitigation is not considered an alternative.
   2. (2) No discharge of dredged or fill material shall be certified unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.
   3. (3) Certification shall require appropriate and practicable compensatory mitigation for all unavoidable adverse impacts which remain after all practicable avoidance and minimization has been completed. Compensatory mitigation requirements will provide for a replacement of impacted functions and values.
   4. (4) There may be circumstances where the impacts of the project are so significant that even if alternatives are not available, certification may be denied regardless of the compensatory mitigation proposed.

4. (d) The executive director shall send notice, including a copy of the certification, to the applicant, the district engineer, the designated contact of any other licensing or permitting agency and any person so requesting of the decision to deny, grant, grant conditionally or waive certification. Such notification shall be in writing and shall include:

   1. (1) the name and address of the applicant;

   2. (2) a statement that the executive director:

      1. (A) examined the complete application, specifically identifying the number or code affixed to such application, and based its determination upon an evaluation of the information contained in the application which is relevant to the 401 certification; and/or
      2. (B) examined other information, sufficient to enable the executive director to reach the decision;

   3. (3) a statement of basis for the executive director's decision:

      1. (A) if a waiver of certification is made, a statement explaining the determination that no discharge will result from the activity, or that the activity does not fall within the jurisdiction of the Commission's authority, or the Commission expressly waives its authority to act on a request for certification for other reasons; or

      2. (B) if a certification or conditional certification is made:

         1. (i) a statement that there is a reasonable assurance the activity will be conducted in a manner which will not violate the criteria enumerated in §279.9 of this title; or
         2. (ii) a statement of conditions, including any monitoring and reporting requirements, which are necessary to assure compliance with the criteria enumerated in §279.9 of this title;
      3. (C) if a denial of certification is made, a statement explaining why the activity will result in the unacceptable discharge of pollutants into or adjacent to waters in the state and detailing the criteria enumerated in §279.9 of this title which will be violated.

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.