49-202

49-202. Designation of state agency

A. The department is designated as the agency for this state for all purposes of
the clean water act, including section 505, the resource conservation and recovery act,
including section 7002, and the safe drinking water act. The department may take all
actions necessary to administer and enforce these acts as provided in this section,
including entering into contracts, grants and agreements, the adoption, modification or
repeal of rules, and initiating administrative and judicial actions to secure to this
state the benefits, rights and remedies of such acts.

B. The department shall process requests under section 401 of the clean water act
for certification of permits required by section 404 of the clean water act in accordance
with subsections C through H of this section. Subsections C and D, subsection E,
paragraph 3, subsection F, paragraph 3 and subsection H of this section apply to the
certification of nationwide or general permits issued under section 404 of the clean
water act. If the department has denied or failed to act on certification of a
nationwide permit or general permit, subsections C through H of this section apply to the
certification of applications for or notices of coverage under those permits.

C. The department shall review the application for section 401 certification solely
to determine whether the effect of the discharge will comply with the water quality
standards for navigable waters established by department rules adopted pursuant to
section 49-221, subsection A, and section 49-222. The department's review shall extend
only to activities conducted within the ordinary high watermark of navigable waters. To
the extent that any other standards are considered applicable pursuant to section
401(a)(1) of the clean water act, certification of these standards is waived.

D. The department may include only those conditions on certification under section
401 of the clean water act that are required to ensure compliance with the standards
identified in subsection C of this section. The department may impose reporting and
monitoring requirements as conditions of certification under section 401 of the clean
water act only in accordance with department rules.

E. Until January 1, 1999:

1. The department may request supplemental information from the section 401
certification applicant if the information is necessary to make the certification
determination pursuant to subsection C of this section. The department shall request this
information in writing within thirty calendar days after receipt of the application for
section 401 certification. The request shall specifically describe the information
requested. Within fifteen calendar days after receipt of the applicant's written
response to a request for supplemental information, the department shall either issue a
written determination that the application is complete or request specific additional
information. The applicant may deem any additional requests for supplemental information
as a denial of certification for purposes of subsection H of this section. If the
department fails to act within the time limits prescribed by this subsection, the
application is deemed complete.

2. The department shall grant or deny section 401 certification and shall send a
written notice of the department's decision to the applicant within thirty calendar days
after receipt of a complete application for certification. Written notice of a denial of
section 401 certification shall include a detailed description of the reasons for denial.

3. The department may waive its right to certification by giving written notice of
that waiver to the applicant. The department's failure to grant or deny an application
within the time limits prescribed by this section is deemed a waiver of certification
pursuant to this subsection and section 401(a)(2) of the clean water act.

F. Beginning January 1, 1999:

1. The department may request supplemental information from the section 401
certification applicant if the information is necessary to make the certification
determination pursuant to subsection C of this section. The department shall request
this information in writing. The request shall specifically describe the information
requested. After receipt of the applicant's written response to a request for
supplemental information, the department shall either issue a written determination that
the application is complete or request specific additional information. The applicant
may deem any additional requests for supplemental information as a denial of
certification for purposes of subsection H of this section. In all other instances, the
application is complete on submission of the information requested by the department.

2. The department shall grant or deny section 401 certification and shall send a
written notice of the department's decision to the applicant after receipt of a complete
application for certification. Written notice of a denial of section 401 certification
shall include a detailed description of the reasons for denial.

3. The department may waive its right to certification by giving written notice of
that waiver to the applicant. The department's failure to act on an application is
deemed a waiver pursuant to this subsection and section 401(a)(2) of the clean water act.

G. The department shall adopt rules specifying the information the department
requires an applicant to submit under this section in order to make the determination
required by subsections C and D of this section. Until these rules are adopted, the
department shall require an applicant to submit only the following information for
certification under this section:

1. The name, address and telephone number of the applicant.

2. A description of the project to be certified, including an identification of the
navigable waters in which the certified activities will occur.

3. The project location, including latitude, longitude and a legal description.

4. A United States geological service topographic map or other contour map of the
project area, if available.

5. A map delineating the ordinary high watermark of navigable waters affected by
the activity to be certified.

6. A description of any measures to be applied to the activities being certified in
order to control the discharge of pollutants to navigable waters from those activities.

7. A description of the materials being discharged to or placed in navigable
waters.

8. A copy of the application for a federal permit or license that is the subject of
the requested certification.

H. Pursuant to title 41, chapter 6, article 10 an applicant for certification may
appeal a denial of certification or any conditions imposed on certification. Any person
who is or may be adversely affected by the denial of or imposition of conditions on the
certification of a nationwide or general permit may appeal that decision pursuant to
title 41, chapter 6, article 10.

I. Certification under section 401 of the clean water act is automatically granted
for quarrying, crushing and screening of nonmetallic minerals in ephemeral waters if all
of the following conditions are satisfied within the ordinary high watermark of
jurisdictional waters:

1. There is no disposal of construction and demolition wastes and contaminated
wastewater.

2. Water for dust suppression, if used, does not contain contaminants that could
violate water quality standards.

3. Pollution from the operation of equipment in the mining area is removed and
properly disposed.

4. Stockpiles of processed materials containing ten per cent or more of particles
of silt are placed or stabilized to minimize loss or erosion during flow events. As used
in this paragraph, "silt" means particles finer than 0.0625 millimeter diameter on a dry
weight basis.

5. Measures are implemented to minimize upstream and downstream scour during flood
events to protect the integrity of buried pipelines.

6. On completion of quarrying operations in an area, areas denuded of shrubs and
woody vegetation are revegetated to the maximum extent practicable.

J. For purposes of subsection I of this section, "ephemeral waters" means waters of
the state that have been designated as ephemeral in rules adopted by the department.

K. Certification under section 401 of the clean water act is automatically granted
for any license or permit required for:

1. Corrective actions taken pursuant to chapter 6, article 1 of this title in
response to a release of a regulated substance as defined in section 49-1001 except for
those off-site facilities that receive for treatment or disposal materials that are
contaminated with a regulated substance and that are received as part of a corrective
action.

2. Response or remedial actions undertaken pursuant to chapter 2, article 5 of this
title or pursuant to CERCLA.

3. Corrective actions taken pursuant to chapter 5, article 1 of this title or the
resource conservation recovery act of 1976, as amended (42 United States Code sections
6901 through 6992).

4. Other remedial actions that have been reviewed and approved by the appropriate
government authority and taken pursuant to applicable federal or state laws.

L. The department of environmental quality is designated as the state water
pollution control agency for this state for all purposes of CERCLA, except that the
department of water resources has joint authority with the department of environmental
quality to conduct feasibility studies and remedial investigations relating to
groundwater quality and may enter into contracts and cooperative agreements under section
104 of CERCLA for such studies and remedial investigations. The department of
environmental quality may take all action necessary or appropriate to secure to this
state the benefits of the act, and all such action shall be taken at the direction of the
director of environmental quality as his duties are prescribed in this chapter.

M. The director and the department of environmental quality may enter into an
interagency contract or agreement with the director of water resources under title 11,
chapter 7, article 3 to implement the provisions of section 104 of CERCLA and to carry
out the purposes of subsection L of this section.