R317-15-6. Director's Decision

6.1. Although the evaluation process may vary on a site-specific basis, the director, in determining whether a proposed discharge complies with applicable discharge and water quality requirements, will ordinarily consider in the evaluation process whether a proposed discharge:

A. prevents or interferes with the attainment or maintenance of applicable water quality standards in Section R317-2 including:

1. impairs the designated beneficial use classifications (e.g., aquatic life, drinking water, recreation) in Section R317-2-6;

2. exceeds water quality criteria, either narrative or numeric, in Section R317-2-7;

3. fails to meet the antidegradation (ADR) requirements of Section R317-2-3;

B. causes a violation of the Utah Water Quality Act, Title 19, Chapter 5;

C. are inconsistent with wasteloads and permitted load allocations in listed TMDLs in Section R317-1-7;

D. causes an exceedence of effluent limitations or control regulations applicable under Rule R317-8; or

E. otherwise causes a failure of compliance with applicable discharge and water quality requirements.

6.2. In considering whether there will be a discharge or whether any discharge will comply with applicable discharge and water quality requirements, the director may also consider whether the applicant is currently in significant noncompliance of the terms and conditions of any previously issued Certification for another project or activity, and may deny Certification based on the existence of any such outstanding significant noncompliance.

6.3. After review of the application for Certification the director will either:

A. issue a Certification;

B. issue a Certification with specific conditions that must be met in order for the applicant to be in compliance with applicable law;

C. deny the Certification and include reasons for denial; or

D. waive Certification if the director finds that the activity will:

1. cause minimal or no impacts to the quality of State waters; or

2. have a temporary and limited effect on water quality, as provided in Subsection R317-2-3.5.b.4.

6.4. If a person who is required to obtain a Certification fails to do so, the director may, at his discretion, process an application for Certification after-the-fact. An application for an after-the-fact Certifications will be reviewed under the same standards as timely application for Certification. The director may require restoration, other actions, or both, as a condition of Certification. An after-the-fact applicant shall have the burden of proving what the original baseline conditions were, and a Certification may be denied in the absence of such proof. After-the-fact Certifications will not have retroactive effect. Enforcement action may be taken for failure to obtain a Certification even if a person obtains an after-the-fact permit or license from the federal agency.

6.5. A Certification is a Permit Order and may be challenged as provided in Section 19-1-301.5 and R305-7. A recipient of a Certification shall comply with all conditions of the Certification; any noncompliance is a violation of these rules and is grounds for enforcement action.