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(continued)
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; 40 CFR Section 131.3; 40 CFR Section 122.2; Sections 7, 1003.5, 1059, 13050, 13160, 13160.1 and 13350, Water Code; Sections 44533 and 44539, Health and Safety Code; Section 21000 et seq. (CEQA), Public Resources Code; and Section 15000 et seq., State CEQA Guidelines.
s 3832. Number of Copies.
Two copies of each application shall be submitted.
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Section 13160, Water Code; and Sections 44533 and 44539, Health and Safety Code.
s 3833. Application Fees and Refunds.
(a) Each application for a Tax Certification shall be accompanied by a fee of $200.
(b) Each application for a Water Quality Certification shall be accompanied by a fee deposit for processing the application. Processing the application includes evaluating the activity proposed in the application and determining whether the certification should be issued and what conditions, if any, should be imposed on the certification.
(1) If the activity subject to certification includes, or involves construction or modification of facilities for the purpose of, producing hydroelectric power, and the activity or facilities require the issuance or amendment of a FERC license, a deposit in the amount of any annual fees due under section 3833.1 that have not yet been paid shall accompany the application.
(2) If the activity is not subject to subsection (b)(1) of this section but is subject to subparagraph (b)(1)(B) of section 3855, then an initial deposit shall accompany the application, and subsequent deposits shall be required as necessary to cover the state board's reasonable costs of processing the application as follows:
(A) An initial deposit of $1,000 shall accompany all applications.
(B) If the state board's reasonable costs exceed $750, the applicant shall provide a second deposit in the amount of the unpaid reasonable costs, if any, plus $5,000, or a lesser amount estimated by the state board to be necessary to complete processing the application.
The state board may require additional deposits when the state board's reasonable costs exceed the total amount previously deposited less $2,000. The additional deposits shall be in the amount of the state board's unpaid reasonable costs, if any, plus $5,000, or a lesser amount that the state board estimates to be necessary to complete processing the application. The state board shall notify the applicant by certified mail of any deposits required under this subsection (b)(1)(B), and the deposit shall be due within sixty (60) days from receipt of the notice.
(C) After the state board acts on the application, or if the applicant withdraws the application, the applicant shall make a final payment so that the total fee paid by the applicant equals the reasonable costs incurred by the state board in processing the application. The state board shall notify the applicant by certified mail if the applicant owes a final payment on the application fee, and the final payment shall be due within sixty (60) days from receipt of the notice. If the deposit(s) exceed the state board's reasonable costs, the state board shall refund the excess amount to the applicant within sixty (60) days of final action on the application.
(D) For the purposes of this subsection (b)(2), the reasonable costs of processing the application include the state board's reasonable costs incurred in anticipation of the filing of an application, including participation in pre-filing consultation and any investigations or studies to evaluate the impacts of the proposed activity, to the extent that these costs are reasonably necessary to process the subsequently filed application. The state board's reasonable costs include any reasonable costs of processing the application incurred by a regional board at the state board's request. The state board may seek reimbursement of costs pursuant to this subsection (b)(2) only after the applicant has submitted an application to the state board.
(E) If the activity subject to water quality certification is also the subject of a pending application, petition, or registration subject to section 1062, 1064, 1067 or 1068 of this division, and the application, petition, or registration is filed before or simultaneously with the application for certification, the applicant shall pay only the fees imposed under chapter 5 (commencing with section 1061) of this division, and no additional deposit is required under this subsection (b)(2).
(3) If the activity is not subject to Subsection (b)(1) or (b)(2) of this Section, then:
(A) An initial deposit of $500 shall accompany all applications.
(B) The total fee, including deposit, for taking any certification action shall be the appropriate one-time amount determined from Section 2200, Title 23, of the California Code of Regulations.
(C) If waste discharge requirements or a waiver of waste discharge requirements are to be issued in conjunction and simultaneously with taking action on the application for water quality certification, or the project is to be regulated through general waste discharge requirements or general waivers thereof, the applicant shall pay only one fee. If action is taken on the application for water quality certification, but waste discharge requirements or a waiver of waste discharge requirements are later issued for the same or revised activity, the applicant shall pay a new fee for the subsequent waste discharge requirements.
(4) If a revised application for water quality certification is filed for the same project that had been previously denied certification without prejudice or when an original application is voluntarily withdrawn by the applicant pursuant to Subsections 3835(b), 3836(b), 3836(c), or 3838(c) of this Chapter, the revised application shall be accompanied by any unpaid fee or portion thereof for the original application. Except as provided in this Section, no additional fee shall be required for the revised application if:
(A) the revised application is filed within twelve (12) months of the denial without prejudice or voluntary application withdrawal,
(B) the revised application package corrects the procedural problems which caused the original denial without prejudice or voluntary application withdrawal, and
(C) the project has not changed significantly in scope or potential for adverse impact (i.e., no further technical review is necessary).
(c) The fee for processing an application if a specific fee is not established under this section shall be set at the hourly rate specified in Section 2200.4, Title 23, of the California Code of Regulations. An initial deposit of $500 shall accompany all such applications.
(d) The fees described in this Section do not include the costs of preparation of any CEQA document, should one be required.
(e) Denial of certification shall not be grounds for refund of any part of a certification application fee.
(f) If the applicant is a federal agency, the fees described in this Section apply to the extent authorized by federal law.
Note: Authority cited: Sections 1058 and 13160.1, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 33 USC Section 1341; and Sections 1060, 13160 and 13160.1, Water Code.
s 3833.1. Annual Fees for FERC Licensed Hydroelectric Projects.
(a) Each applicant seeking water quality certification for an activity that includes, or involves construction or modification of facilities for the purpose of, producing hydroelectric power, where the activity or facilities require the issuance or amendment of a FERC license, shall pay an annual fee in accordance with this section.
(b)(1) An annual fee calculated pursuant to paragraphs (4) and (5) shall apply in each fiscal year (July 1 through June 30) during or after the year in which review in anticipation of consideration of certification is initiated as specified in paragraph (2) and until and including the fiscal year in which certification and related federal proceedings are complete as specified in paragraph (3).
(2) Review in anticipation of consideration of certification shall be deemed to have been initiated when any of the following occurs or has occurred:
(A) A notice of intent is filed pursuant to 18 CFR s 5.6 or 18 CFR s 16.6.
(B) Consultation is initiated pursuant to 18 CFR s 4.38.
(C) An application for water quality certification is filed.
(3) Certification and related proceedings shall be deemed to have been completed when any of the following occurs:
(A) FERC issues or denies the license or license amendment for which review in anticipation of consideration of certification was initiated.
(B) FERC determines that no license, other than a license already in effect, or license amendment is required.
(C) The applicant abandons the proposed activity, including withdrawal or voluntary surrender of any applicable notification of intent, FERC preliminary permit, FERC license application or FERC license.
(4) The annual fee shall be $1,000 plus $ 0.13 per kilowatt, based on the authorized or proposed installed generating capacity of the hydroelectric facility.
(A) In the case of an application for an original, new or subsequent license, as those terms are used in Parts 4, 5 and 16 of Title 18 of the CFR, the annual fee shall be based on the installed generating capacity of the facility as proposed in the notification of intent, application for FERC license, application for certification, or existing license that is proposed for takeover or relicensing, whichever is greatest.
(B) In the case of a proposed amendment to an existing FERC license, the component of the fee based on installed generating capacity shall be based on the amount by which the installed generating capacity of the hydroelectric facility would be increased by the proposed amendment.
(5) If an applicant for certification has paid any deposit pursuant to subdivision (b) of section 3833 as that subdivision was in effect before January 1, 2004, the state board shall credit against the annual fee specified in paragraph (4) any portion of that deposit that was for costs incurred after June 30, 2003. If an applicant for certification was required to pay but did not pay any deposit pursuant to subdivision (b) of section 3833 as that subdivision was in effect before January 1, 2004, the annual fee shall include any unpaid deposit, less any portion of that unpaid deposit that was for costs incurred after June 30, 2003, in addition to the annual fee specified in paragraph (4).
(6) If an application for certification is filed for an activity for which no annual fees have previously been imposed, the annual fee shall be due upon filing of the application for certification, and shall be paid to the state board. In all other cases, the annual fee shall become due thirty days after the State Board of Equalization gives notice of the fee, and shall be paid to the State Board of Equalization.
(c)(1) The holder of any FERC license for a hydroelectric project for which water quality certification has been issued shall pay an annual fee in the amount of $100 plus $0.01 per kilowatt, based on the authorized installed generating capacity of the hydroelectric project.
(2) The fee imposed under this subdivision shall not apply in the fiscal year when the FERC license is issued if an annual fee is imposed in that fiscal year pursuant to subdivision (b).
(3) The annual fee imposed under this subdivision shall be due thirty days after the State Board of Equalization gives notice of the fee, and shall be paid to the State Board of Equalization.
(d)(1) A determination by the state board that an applicant is required to pay a fee under this section or paragraph (1) of subdivision (b) of section 3833, and any determination by the state board regarding the amount of that fee, is subject to review under chapter 4 (commencing with Section 1120) of part 1 of division 2 of the Water Code. Any petition by an applicant to the state board for review shall be submitted in accordance with that chapter and article 12 (commencing with section 768) of chapter 2 of division 3 of this title.
(2) If the subject of a petition for reconsideration relates to an annual fee, other than an annual fee first required to be paid pursuant to paragraph (1) of subdivision (b) of section 3833, the board's decision regarding an annual fee shall be deemed adopted on the date of assessment by the State Board of Equalization. The petition must be received by the board within 30 days of the date of assessment by the State Board of Equalization.
Note: Authority cited: Section 13160.1, Water Code. Reference: Section 13160.1, Water Code.
s 3834. Amendments to Applications.
An amendment to an application prior to a certification action being taken shall be submitted in the same manner as the original application and shall be considered a part of the application it amends. No additional fee shall be required for an amendment to an application prior to a certification action unless the activity's size, design, scope, or potential for adverse impact has changed significantly, prompting the need for further technical or administrative review or otherwise triggering a larger fee as required pursuant to Section 3833 of this Chapter.
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Sections 13160 and 13160.1, Water Code; and Sections 44533 and 44539, Health and Safety Code.
s 3835. Complete, Incomplete, and Valid Applications.
(a) Upon receipt of an application, it shall be reviewed by the certifying agency to determine if it is complete. If the application is incomplete, the applicant shall be notified in writing no later than 30 days after receipt of the application, of any additional information or action needed.
(b) If an application is determined to be incomplete by the certifying agency, an extension of the federal period for certification cannot be obtained, and the federal period for certification will expire before the certifying agency can receive and properly review the missing information, the certifying agency shall deny without prejudice certification for any discharge resulting from the proposed activity unless the applicant in writing withdraws the request for certification.
(c) When a complete application is received, the applicant, the federal agency, and EPA shall be notified no later than 30 days after receipt of the application.
(d) A request for certification shall be considered valid if and only if a complete application is received by the certifying agency.
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Section 13160, Water Code; Sections 44533 and 44539, Health and Safety Code; and Section 65943, Government Code.
s 3836. Additional Information.
(a) Once a certifying agency determines that an application is complete, it may request further information from the applicant. Such information must clarify, amplify, correct, or otherwise supplement the contents of a complete application in order for the certifying agency to determine whether a certification should be issued. Supplemental information may include evidence of compliance with appropriate requirements of a water quality control plan.
(b) If an application is determined to be complete by the certifying agency but supplemental information is requested by the certifying agency pursuant to Subsection (a) of this Section, an extension of the federal period for certification cannot be obtained, and the federal period for certification will expire before the certifying agency can receive and properly review the supplemental information, the certifying agency shall deny without prejudice certification for any discharge resulting from the proposed activity unless the applicant in writing withdraws the request for certification.
(c) If an application is determined to be complete by the certifying agency, but CEQA requires that the certifying agency review a final environmental document before taking a certification action, an extension of the federal period for certification cannot be obtained, and the federal period for certification will expire before the certifying agency can receive and properly review the necessary environmental documentation, the certifying agency shall deny without prejudice certification for any discharge resulting from the proposed activity unless the applicant in writing withdraws the request for certification.
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; 40 CFR Section 121.2; Sections 13160 and 13160.1, Water Code; Sections 44533 and 44539, Health and Safety Code; Sections 21100 and 21100.2, (CEQA) Public Resources Code; and Section 15111, State CEQA Guidelines.
s 3837. Denial of Certification.
(a) If certification is denied, the applicant shall be notified in writing of the denial and the reasons for the denial. Written notification of the denial shall be sent to the applicant, the state board or appropriate regional board(s), the federal agency, EPA, and other persons and agencies known to be interested no later than three (3) days after taking the certification (denial) action.
(b) An application for water quality certification may be denied when:
(1) the activity requiring a federal license or permit will result in a discharge which will not comply with applicable water quality standards and other appropriate requirements; or
(2) compliance with water quality standards and other appropriate requirements is not yet necessarily determined, but the application suffers from some procedural inadequacy (e.g., failure to provide a complete fee or to meet CEQA requirements). In this case denial shall be without prejudice.
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Section 13160, Water Code; and Sections 44533 and 44539, Health and Safety Code.
s 3838. Authority of Executive Director, Executive Officers, and Regional Boards.
(a) The executive director, or his/her designee, is authorized to take all actions connected with applications for certification, including issuance and denial of certification.
(b) An executive officer is authorized to receive applications for water quality certification and to take water quality certification action on activities associated with such applications within the executive officer's region of jurisdiction, except as otherwise provided in Subsection 3855(b) of this Chapter.
(c) A regional board, at its discretion, may take any action its executive officer is authorized to take under Subsection (b) of this Section. If a regional board directs that a water quality certification action will be taken by that regional board, but an extension of the federal period for certification cannot be obtained, and the federal period for certification will expire before the regional board can take an action, the executive officer shall deny without prejudice certification for any discharge resulting from the proposed activity before the period allowed for certification expires, unless the applicant in writing withdraws the request for certification. Such denial shall be in effect only until the regional board takes an action on the request for certification. The applicant shall not be required to submit a new application or supply an additional fee before the regional board takes an action, unless the project changes significantly in scope or potential for adverse impact and further technical review is necessary.
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Sections 7, 1059 and 13160, Water Code; and Sections 44533 and 44539, Health and Safety Code.
s 3841. Application Forms; Compliance with Federal Regulations.
(a) Applications shall be made on forms provided by EPA.
(b) Issuance of Tax Certifications is subject to compliance with applicable federal regulations (current federal regulations are contained in 40 CFR Part 20).
Note: Authority cited: Sections 1058, 13160, and 13160.1, Water Code. Reference: 26 USC 169, 40 CFR 20.
s 3842. Filing of Application.
The application shall be filed with the executive officer of the regional board having jurisdiction over any discharge. If no discharge will occur, the application shall be filed with the executive officer of the regional board having jurisdiction over the site of the facility.
Note: Authority cited: Sections 1058, 13160, and 13160.1, Water Code. Reference: 26 USC 169, 40 CFR 20.
s 3843. Reports of Waste Discharge.
The application shall be accompanied by a report of waste discharge or a report of material change in waste discharge as required by Water Code Section 13260 unless there are existing waste discharge requirements for the facility, or the facility discharges to a community sewer system.
Note: Authority cited: Sections 1058, 13160, and 13160.1, Water Code. Reference: 26 USC 169, 40 CFR 20.
s 3844. Regional Board Action.
(a) The regional board executive officer shall promptly review the completed application and shall recommend either issuance or denial of the certification by the state board. A recommendation to deny shall be accompanied by a report detailing the reasons for the recommendation.
(b) If the review indicates that adoption or revision of waste discharge requirements is necessary, action to adopt or revise the waste discharge requirements shall be immediately undertaken.
Note: Authority cited: Sections 1058, 13160, and 13160.1, Water Code. Reference: 26 USC 169, 40 CFR 20.
s 3845. Issuance of Certification.
(a) After review of the regional board recommendation, the executive director shall issue or deny the certification.
(b) The certification shall be issued if the executive director determines that the facility is in conformity with state programs and requirements for abatement or control of water pollution.
(c) If issued, the certification will be forwarded to EPA. A copy of the certification will be sent to the appropriate regional board and the applicant.
Note: Authority cited: Sections 1058, 13160, and 13160.1, Water Code. Reference: 26 USC 169, 40 CFR 20.
s 3848. Federal Regulations; Delegation.
Note: Authority cited: Sections 1058 and 13160, Water Code. Reference: 15 USC 636, 40 CFR 21.
s 3849. Filing of Applications.
Note: Authority cited: Sections 1058 and 13160, Water Code. Reference: 15 USC 636, 40 CFR 21.
s 3850. Content of Applications.
Note: Authority cited: Sections 1058 and 13160, Water Code. Reference: 15 USC 636, 40 CFR 21.
s 3851. Review and Issuance of Certifications.
Note: Authority cited: Sections 1058 and 13160, Water Code. Reference: 15 USC 636, 40 CFR 21.
s 3852. Utilization of Certification.
Note: Authority cited: Sections 1058 and 13160, Water Code. Reference: 15 USC 636, 40 CFR 21.
s 3855. Filing of Application.
(a)(1) An application for water quality certification shall be filed with the regional board executive officer in whose region a discharge may occur except as provided in Subsection (b) of this Section.
(2) Notice of the application shall be sent by the applicant to the state board executive director whenever the proposed activities may involve a FERC-licensed facility.
(b)(1) An application for water quality certification shall be filed with the state board executive director, and notification of the application provided by the applicant to each regional board executive officer in whose region a discharge may occur, whenever a potential discharge from a proposed activity:
(A) may fall under the jurisdiction of more than one regional board, or
(B) is involved or associated with one or more of the following:
1. an appropriation of water, subject to Part 2 (commencing with Section 1200) of Division 2 of the Water Code;
2. a hydroelectric facility, and the proposed activity requires a FERC license or amendment to a FERC license; or
3. any other diversion of water for domestic, irrigation, power, municipal, industrial, or other beneficial use.
(2)(A) For an application subject to Subsection (b)(1)(A) of this Section, copies of the application shall be provided by the applicant to the executive officers of those regional board regions that may be affected by a proposed activity. Those executive officers shall transmit to the executive director, before the federal period for certification expires, any appropriate recommendations and conditions necessary to ensure that the proposed activities will comply with water quality standards and other appropriate requirements within their regions.
(B) For applications subject to Subsection (b)(1)(B) of this Section, the executive director shall forward to the executive officer of the appropriate regional board copies of any portions of the application that may be relevant to adverse water quality impacts, other than specific impacts resulting from alteration/modification to instream flows, from the proposed activity. The executive officer shall review for water quality concerns the relevant portions of the application and transmit back to the executive director any appropriate recommendations and conditions necessary to ensure that the activity will comply with water quality standards and other appropriate requirements.
Note: Authority cited: Section 1058, Water Code. Reference: 33 USC Section 1341; and Sections 1059 and 13160, Water Code.
s 3856. Contents of a Complete Application.
A complete application shall include all of the following information and items:
(a) The name, address, and telephone number of:
(1) the applicant, and
(2) the applicant's agent (if an agent is submitting the application).
(b) A full, technically accurate description, including the purpose and final goal, of the entire activity.
(c) Complete identification of all federal licenses/permits being sought for or applying to the proposed activity, including the:
(1) federal agency;
(2) type (e.g., individual license, regional general permit, nationwide permit, etc.);
(3) license/permit number(s) (e.g., nationwide permit number), if applicable; and
(4) file number(s) assigned by the federal agency(ies), if available.
(d) Complete copies of either:
(1) the application(s) for federal license(s)/permit(s) being sought for the activity, or,
(2) if no federal applications are required, any notification(s) concerning the proposed activity issued by the federal agency(ies), or,
(3) if no federal notifications are issued, any correspondence between the applicant and the federal agency(ies) describing or discussing the proposed activity.
If no application, notification, correspondence or other document must be exchanged between the applicant and federal agency(ies) prior to the start of the activity, the application shall include a written statement to this effect.
(e) Copies of any final and signed federal, state, and local licenses, permits, and agreements (or copies of the draft documents, if not finalized) that will be required for any construction, operation, maintenance, or other actions associated with the activity. If no final or draft document is available, a list of all remaining agency regulatory approvals being sought shall be included.
If the federal licenses or permits required for the activity include a FERC license or amendment to a FERC license, a complete copy of a draft application for the FERC license or amendment of the FERC license meeting the requirements of Subsection 4.38(c)(4) of Title 18 of the Code of Federal Regulations is required.
(f) A copy of any draft or final CEQA document(s), if available, prepared for the activity. Although CEQA documentation is not required for a complete application, the certifying agency shall be provided with and have ample time to properly review a final copy of valid CEQA documentation before taking a certification action.
(g) The correct fee deposit, as identified in Section 3833 of this Chapter.
(h) A complete project description, including:
(1) Name(s) of any receiving water body(ies) that may receive a discharge.
(2) Type(s) of receiving water body(ies) (e.g., at a minimum: river/streambed, lake/reservoir, ocean/estuary/bay, riparian area, or wetland type).
(3) Location of the activity area in latitude and longitude, in township/range, or clearly indicated on a published map of suitable detail, quality, and scale to allow the certifying agency to easily identify the area and water body(ies) receiving any discharge.
(4) For each water body type reported under Subsection (h)(2) of this Section, the total estimated quantity of waters of the United States that may be adversely impacted temporarily or permanently by a discharge or by dredging.
The estimated quantity of waters to be adversely impacted by any discharge shall be reported in acres and (for channels, shorelines, riparian corridors, and other linear habitat) linear feet, except that dredging estimates shall be reported in cubic yards.
(5) The total estimated quantity (in acres and, where appropriate, linear feet) of waters of the United States, by type (see Subsection (h)(2) of this Section) proposed to be created, restored, enhanced, purchased from a mitigation or conservation bank, set aside for protection, or otherwise identified as compensatory mitigation for any anticipated adverse impacts. If compensatory mitigation is to be provided in some other form, that shall be explained.
(6) A description of any other steps that have been or will be taken to avoid, minimize, or compensate for loss of or significant adverse impacts to beneficial uses of waters of the state.
(7) The total size (in acres), length (in feet) where appropriate, type, and description of the entire project area, including areas outside of jurisdictional waters of the United States.
(8) A brief list/description, including estimated adverse impacts of any projects implemented by the applicant within the last five years or planned for implementation by the applicant within the next five years that are in any way related to the proposed activity or that may impact the same receiving water body(ies) as the proposed activity. For purposes of this item, the water body extends to a named source or stream segment identified in the relevant basin plan.
A complete application for water quality certification need not contain unnecessarily duplicative information. If the copy of a federal application contains information requested in this Section, that specific information need not be provided elsewhere in the application provided that the application clearly indicates where all required information and items are to be found.
Note: Authority cited: Section 1058, Water Code. Reference: 33 USC Section 1341; 40 CFR Section 121.2; Sections 13160 and 13160.1, Water Code; and Section 21080, Public Resources Code.
s 3857. Waste Discharge Requirements.
Nothing in this article is intended to limit or prevent the state board or regional boards in any way from issuing or waiving issuance of waste discharge requirements for any activity.
Note: Authority cited: Section 1058, Water Code. Reference: 33 USC Section 1341; and Sections 13160, 13260 and 13263; Water Code.
s 3858. Public Notice and Hearings.
(a) The executive director or the executive officer with whom an application for certification is filed shall provide public notice of an application at least twenty-one (21) days before taking certification action on the application, unless the public notice requirement has been adequately satisfied by the applicant or federal agency. If the applicant or federal agency provides public notice, it shall be in a manner and to an extent fully equivalent to that normally provided by the certifying agency. If an emergency requires that certification be issued in less than 21 days, public notice shall be provided as much in advance of issuance as possible, but no later than simultaneously with issuance of certification.
(b) The state board or a regional board may hold a public hearing with respect to any application for certification.
Note: Authority cited: Section 1058, Water Code. Reference: 33 USC Section 1341; and Sections 179, 183, 1059 and 13160, Water Code.
s 3859. Action on an Application.
(a) After review of the application, all relevant data, and any recommendations of a regional board, other state and federal agencies, and any interested person, the state board, the executive director, when acting as the state board's designee, or executive officer, as provided in Subsection (c) of this Section, shall issue certification or deny certification for any discharge resulting from a pertinent activity before the federal period for certification expires. Conditions shall be added to any certification, if necessary, to ensure that all activities will comply with applicable water quality standards and other appropriate requirements. Copies of any certification or denial of certification issued shall be sent to the applicant, the state board (if not the certifying agency), appropriate regional board(s) (if not the certifying agency[ies]), EPA, the federal agency, and all other parties known to be interested no later than three (3) days, after taking the certification action. A written certification or denial shall include:
(1) the name(s) of the receiving water body(ies) and the number(s) of the hydrologic unit(s) that contain(s) the receiving water body(ies), if available;
(2) the certification action being taken and a complete list of any conditions; and
(3) a suitable summary of the information provided by the applicant as listed in Subsections 3856(a), (b), (c), and (h) of this Chapter.
(b) After such review, if it is clear that all proposed activity(ies) will comply with water quality standards and other appropriate requirements, the state board, executive director, regional board, or executive officer, as provided in Subsection 3859(c) of this Chapter, may issue a standard certification, subject only to the conditions in Section 3860 of this Chapter.
(c) For applications submitted pursuant to Subsection 3855(a) of this Chapter, the regional board or executive officer shall take a certification action under this Section. For applications submitted pursuant to Subsection 3855(b) of this Chapter, the state board or executive director shall take a certification action under this Section.
Note: Authority cited: Section 1058, Water Code. Reference: 33 USC Section 1341; and Sections 1059 and 13160, Water Code.
s 3860. Standard Conditions.
The following shall be included as conditions of all water quality certification actions:
(a) Every certification action is subject to modification or revocation upon administrative or judicial review, including review and amendment pursuant to Section 13330 of the Water Code and Article 6 (commencing with Section 3867) of this Chapter.
(b) Certification is not intended and shall not be construed to apply to any activity involving a hydroelectric facility and requiring a FERC license or an amendment to a FERC license unless the pertinent certification application was filed pursuant to Subsection 3855(b) of this Chapter and that application specifically identified that a FERC license or amendment to a FERC license for a hydroelectric facility was being sought.
(c) Certification is conditioned upon total payment of any fee required under this Chapter and owed by the applicant.
Note: Authority cited: Section 1058, Water Code. Reference: 33 USC Section 1341; and Sections 1059, 13160, 13160.1 and 13321, Water Code.
s 3861. Water Quality Certification for Classes of Activities.
(a) A certifying agency may, on its own motion, take a "general" certification action on discharges within its own geographic area of jurisdiction that may result from a class or classes of activities. No application is required for a general certification action issued under this Section.
(b) A class of activities receiving general certification shall:
(1) consist of the same or similar types of activities;
(2) involve the same or similar types of discharges and possible adverse impacts requiring the same or similar certification conditions or limitations in order to alleviate potential adverse impacts to water quality; and
(3) be determined by the certifying agency to more appropriately be regulated under a general certification action than under individual certification actions.
(c) General certification:
(1) shall apply only to activities subject to federal licenses and permits, issued in reliance on such certification, during a fixed term not to exceed five years after the general certification is issued;
(2) shall require public notification at least 45 days before general certification is issued;
(3) shall be conditioned to require subsequent notification to the appropriate regional board(s) and to the state board by proponents of projects to which the action applies no less than 21 days before any activity which may result in a discharge is commenced; and to include appropriate monitoring and agency-reporting requirements for all activities subject to federal licenses and permits issued in reliance on such certification;
(4) may require payment of the notification fee from Subsection 3833(b)(3) of this Chapter by project proponents;
(5) shall meet all other applicable requirements of this Chapter and CEQA.
(d) A certifying agency may issue general certification only if the activities to be certified individually or cumulatively will not have any of the following impacts, taking into account the probable effectiveness of any conditions or certification in avoiding or mitigating such impacts:
(1) Significant adverse impacts on water quality that could feasibly be avoided if individual certification, for proposed activities seeking individual federal licenses or permits, was issued.
(2) Violation of any water quality objectives adopted or approved under Sections 13170 or 13245 of the Water Code.
(3) The taking of any candidate, threatened, or endangered species or the violation of the federal Endangered Species Act (16 USC Section 1531 et seq.) or the California Endangered Species Act (Fish and Game Code Section 2050 et seq.).
(4) Exposure of people or structures to potential substantial adverse effects - including the risk of loss, injury, or death - from flooding, landslides, or soil erosion.
(e) The certifying agency may review and revise or revoke (change) a general certification. Any change to a general certification made by the certifying agency pursuant to this subsection shall not apply to activities subject to a federal license or permit issued before such a change is made.
Note: Authority cited: Section 1058, Water Code. Reference: 33 USC Section 1341; and Sections 1059, 13160, 13160.1 and 13321, Water Code.
s 3862. Filing of Applications.
All applications for Pollution Control Certification shall be filed with the California Pollution Control Financing Authority as a part of any application for financing from the Authority.
Note: Authority cited: Section 1058, Water Code. Reference: Sections 44533 and 44539, Health and Safety Code.
s 3863. Contents of Application.
Applications shall include:
(a) A detailed description of the proposed project, the need for the project and the manner in which the project, as designed, will further compliance with federal, state or local water pollution standards and requirements.
(b) A copy of the federal, state or local water pollution standard and requirement involved.
(c) A copy of any report of waste discharge filed by the applicant in connection with the project, and any waste discharge requirements adopted or proposed for the project.
(d) If the project involves wastewater treatment facilities, a detailed description of how the facilities will be operated, including operating procedures, organizational structure, minimum personnel requirements for proper operation and maintenance, and operator training programs.
Note: Authority cited: Section 1058, Water Code. Reference: Sections 44533 and 44539, Health and Safety Code.
s 3864. Review of Applications, Issuance of Certifications.
(a) Applications will normally be reviewed and certifications issued by the regional board having jurisdiction over any discharge of waste to waters of the state connected with the project. If the project does not involve a discharge, review and certification will be handled by the regional board having jurisdiction over the site of the project.
(b) Upon request of the Authority, or of a regional board, review and issuance of certification may be handled by the state board.
Note: Authority cited: Section 1058, Water Code. Reference: Sections 44533 and 44539, Health and Safety Code.
s 3867. Petitions for State Board Reconsideration.
(a)(1) An aggrieved person may petition the state board to reconsider an action or failure to act taken by the executive director, a regional board, or an executive officer under Articles 1 through 5 of this Chapter. The executive director may be designated by the state board to reconsider such an action or failure to act by an executive officer or regional board.
(2) A fee determination under subdivision (1) of subdivision (b) of section 3833 or section 3833.1, made by the state board or by an officer or employee of the board acting under delegated authority, is subject to reconsideration in accordance with chapter 4 (commencing with Section 1120) of part 1 of division 2 of the Water Code and the procedures set forth in Article 12 (commencing with section 768) of chapter 2 of division 3 of this title, and is not subject to the procedures set forth in this section. The petition also shall specify why the petitioner believes that no fee is due or how the petitioner believes that the amount of the fee has been miscalculated.
(b)(1) The state board and the executive director, when acting as the state board's designee, may undertake such reconsideration on their own motion. They shall notify the applicant (if any), the federal agency, and all interested persons known to the state board or executive director and give those notified the opportunity to submit information and comments before taking a final reconsideration action (as listed in Subsection 3869(a) of this Chapter).
(2) If such reconsideration is initiated more than thirty (30) days after the certification action in question, any rescission or amendment of the certification action resulting from such reconsideration shall not apply to any activities subject to a federal license or permit that:
(A) was issued in reliance on that certification action, and
(B) was issued before the federal agency was notified that such reconsideration had been initiated.
(3) Nothing in Subsection (b) of this Section is intended to limit the authority of a federal agency to issue a new or amended license or permit that incorporates any changes ordered by the state board or executive director following reconsideration of a certification action.
(c) A petition for reconsideration shall be submitted in writing to and received by the state board within 30 days of any action or failure to act taken by the executive director, a regional board, or an executive officer under Articles 1 through 5 of this Chapter.
(d) A petition shall contain:
(1) the name, address, and telephone number of the petitioner;
(2) the specific action or failure to act which the state board is requested to reconsider and a copy of any document issuing or denying certification that is referred to in the petition;
(3) the date on which the certification action or failure to act occurred;
(4) a full and complete statement of reasons why the action or failure to act was inappropriate or improper;
(5) the manner in which the petitioner is aggrieved;
(6) the specific action by the state board which the petitioner requests;
(7) a list of persons, if any, other than the petitioner and applicant, if not the petitioner, known to have an interest in the subject matter of the petition;
(8) a statement that the petition has been sent to the appropriate regional board or executive officer and to the applicant, if not the petitioner; and
(9) a copy of a request to the executive director or appropriate executive officer for preparation of the state board or regional board staff record, if applicable and available, which will include a tape recording or transcript of any pertinent regional board or staff hearing.
(10) A summary of the manner in which and to what extent the petitioner participated in any process (e.g., public hearing testimony, discussion with agency personnel, correspondence), if available, leading to the action or failure to act in question. If a process for participation was available, but the applicant did not participate, the petition shall include an explanation for the petitioner's failure to participate.
Note: Authority cited: Sections 1058 and 13160.1, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Sections 7, 183, 186, 1059, 13160 and 13160.1, Water Code; and Sections 44533 and 44539, Health and Safety Code.
s 3867.1. Response to Complete Petitions.
After receipt of a petition that complies with Section 3867 of this Chapter, the state board or executive director, if acting as the state board's designee, shall give written notification to the petitioner, applicant (if not the petitioner), appropriate executive officer(s), appropriate regional board(s), and other interested persons that they shall have 20 days from the date of mailing such notification to file a response to the petition with the state board. Respondents to petitions shall also send copies of their responses to the petitioner, the applicant (if not the petitioner), and the appropriate executive officer(s). The executive director or executive officer shall file the record specified in Subsection 3867(d)(9) of this Chapter with the state board within this 20-day period. The time for filing a response may be extended by the state board or executive director, if acting as the state board's designee.
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Sections 7, 183, 186, 1059 and 13160, Water Code; and Sections 44533 and 44539, Health and Safety Code.
s 3868. Defective Petitions.
After receipt of a petition that does not comply with Section 3867 of this Chapter, the petitioner will be notified in what respect the petition is defective and the time within which an amended petition may be filed. If a properly amended petition is not received by the state board within the time allowed, the petition shall be dismissed unless good cause is shown for an extension of time.
Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Sections 7, 183, 186, 1059 and 13160, Water Code; and Sections 44533 and 44539, Health and Safety Code.
s 3869. Action on a Petition.
(a) Following examination of the petition and any necessary portion of the record, the state board or executive director, when acting as the state board's designee, may:
(1) refuse to reconsider the action or failure to act of the executive director (state board only), regional board, or executive officer if the petition fails to raise substantial issues that are appropriate for reconsideration;
(2) deny the petition upon a finding that the original action or failure to act was appropriate and proper;
(3) set aside or modify, if possible, the previous action or take new appropriate action; or
(4) direct the executive director (state board only), executive officer, or regional board to take appropriate action.
(b) The state board or executive director, if acting as the state board's designee, may augment the record by:
(1) requesting additional written material; or
(2) holding a public hearing, pursuant to the State Board's hearing regulations (Title 23, California Code of Regulations, Sections 648-648.8).
Whenever additional written material is to be added to the record, the state board or executive director, if acting as the state board's designee, shall provide written notification to all interested persons concerning the nature and kind of the additional written material, that the additional material may be viewed and copied at the offices of the state board, and that they shall have 30 days from the date of mailing such notification to file written comments concerning the additional information with the state board. (continued)