1. (a) Nationwide Permit Certification.

   1. (1) The executive director shall consider all proposed nationwide permits for certification for activities which may result in any discharge into or adjacent to waters in the state consistent with §279.9 of this title (relating to Executive Director Review of Water Quality Certification Application). Water Quality Certification for activities authorized under a nationwide permit is complete at the time the permit is issued. No additional certification is required for activities authorized under that nationwide permit.

   2. (2) When a federal licensing or permitting agency proposes a nationwide permit for an activity which may result in a discharge, the executive director shall notify:

      1. (A) the Texas Parks and Wildlife Department;
      2. (B) the Texas Water Development Board;
      3. (C) the Texas General Land Office;
      4. (D) any other appropriate person;
      5. (E) any person who requests to be put on the mailing list; and
      6. (F) any other appropriate person.
   3. (3) After considering comments and other information, the executive director shall grant, grant conditionally, deny or waive certification.
   4. (4) The executive director shall maintain a list of all certifications of nationwide permits granted or granted conditionally.

2. (b) General Permit Certification.

   1. (1) The executive director shall consider all proposed general permits for certification for activities which may result in any discharge into or adjacent to waters in the state consistent with §279.9 of this title (relating to Executive Director Review of Water Quality Certification Application). Water Quality Certification for activities authorized under a general permit is complete at the time the permit is issued. No additional certification is required for activities authorized under that general permit.

   2. (2) When a federal licensing or permitting agency proposes a general permit for an activity which may result in a discharge, the executive director shall notify:

      1. (A) the Texas Parks and Wildlife Department;
      2. (B) the Texas Water Development Board;
      3. (C) the Texas General Land Office;
      4. (D) any other appropriate person;
      5. (E) any person who requests to be put on the mailing list; and
      6. (F) any other appropriate person.
   3. (3) After considering public comments and other information the executive director shall grant, grant conditionally, deny or waive certification.
   4. (4) The executive director shall maintain a list of all certifications of all general permits granted or granted conditionally.

3. (c) Final Action on Other Certification.

   1. (1) The executive director shall send notice, including a copy of the certification, to the applicant, the designated contact of the 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. (A) the name and address of the applicant;

      2. (B) a statement that the executive director has either:

         1. (i) 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. (ii) examined other information furnished by the applicant or provided in a nonadjudicative public hearing, sufficient to permit the executive director to reach the decision;

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

         1. (i) 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. (ii) if a grant or conditional grant of 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 which the executive director deems necessary with respect to the discharge, including any necessary monitoring requirements to assure the discharge will not violate applicable water quality standards;
         3. (iii) 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.
   2. (2) After considering public comments and other information the executive director shall grant, grant conditionally, deny or waive certification.

Source Note:The provision of this §279.12 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693.