11 Miss. Code. R. 6-1.3.4

Current through January 14, 2025

Rule 11-6-1.3.4 - Scope of Review for Application Decisions

A. Factors. The factors related to the construction and operations of the activity which must be addressed by the applicant and will be considered in determining certification action are as follows:

(1) feasible alternatives to the activity;

(2) mitigation;

(3) initial and secondary impacts on all existing and all classified uses of the waters of the State;

(4) degree of compliance of the proposed activity with the State of Mississippi Water Quality Criteria for Intrastate, Interstate, and Coastal Waters;

(5) degree of physical, chemical, and biological impacts on waters of the State;

(6) the effect on circulation patterns and water movement on waters of the State;

(7) degree of alteration of the aquatic ecosystem;

(8) degree of consistency with approved water quality management plans adopted by the Commission;

(9) storm water management;

(10) compliance history of the applicant; and

(11) any other factors deemed to be necessary by the Department to protect water quality.

B. Denial. After consideration of the factors in Rule 1.3.4.A, a decision to issue or deny certification shall be made. However, it is the policy of the Department to deny certification when any of the following determinations are made unless the Department is assured that appropriate measures will be taken to eliminate unreasonable degradation and irreparable harm to waters of the State.

(1) The proposed activity permanently alters the aquatic ecosystem such that water quality criteria are violated and/or it no longer supports its existing or classified uses. An example is the channelization of streams.

(2) There is a feasible alternative to the activity which reduces adverse consequences on water quality and classified or existing uses of waters of the State.

(3) The proposed activity adversely impacts waters containing State or federally recognized threatened or endangered species.

(4) The proposed activity adversely impacts a special or unique aquatic habitat, such as National or State Wild and Scenic Rivers and/or State Outstanding Resource Waters.

(5) The proposed activity in conjunction with other activities may result in adverse cumulative impacts.

(6) Nonpoint source/storm water management practices necessary to protect water quality have not been proposed.

(7) Denial of wastewater permits and/or approvals by the State with regard to the proposed activities.

(8) The proposed activity results in significant environmental impacts which may adversely impact water quality.

C. Criteria. The Department has developed a number of criteria which the applicant must substantially satisfy when the proposed activity involves any of the items addressed below.

(1) Excavated Canals. These canals generally have flow and circulation less than that of the parent body of water and can become traps for organic material, nutrients and pollutants, resulting in a decline in water quality. Due to this potential for water quality degradation, the Department discourages canals. If no feasible alternatives are available, the Department has formulated a set of design and construction criteria to minimize the anticipated adverse water quality impacts. These criteria must be substantially satisfied in order for certification issuance to be considered. The criteria with regard to canals is attached hereto as Exhibit A and incorporated herein by reference.

(2) Marinas. Numerous construction, development and operation activities at a marina can adversely impact water quality. In order to prevent potential adverse water quality impacts, the Department has formulated a set of criteria for marina development. These criteria must be substantially satisfied in order for certification issuance to be considered. The criteria with regard to marinas is attached hereto as Exhibit B and incorporated herein by reference.

(3) Sand and Gravel Mining Within or Adjacent to Streams. Potential physical effects of excavations adjacent to streams and sand/gravel mining within stream banks include, but are not limited to, stream channel modifications, such as alteration of flow patterns, sediment transport, increased headcutting and channelization. These effects may adversely impact water quality by causing increased turbidity, reduced light penetration, resuspension of pollutants, increased water temperatures, and decreased dissolved oxygen. All sand and gravel mining activities which require a Section 401 Water Quality Certification shall be evaluated in accordance with Rule 1.3.4.A and B. In addition, the Department shall consider the following in evaluating sand and gravel mining within or adjacent to streams.

(a) Excavations Adjacent to Streams. To prevent adverse water quality impacts resulting from excavations adjacent to streams, the Department shall require a buffer zone between the mining activity and adjacent water bodies. A buffer zone (natural or undisturbed greenbelt on the perimeter of a land disturbing activity) shall be measured as the distance between the edge of the mining activity and the highest point of the top bank of the stream. Mining activity includes, but is not limited to, extraction operations, stockpiling of overburden or sand and gravel, gravel washing operations and sedimentation ponds. The purpose of the buffer zone is to prevent nonpoint source impacts and channel and hydraulic modifications. Channel and hydrologic modifications occur when the water body captures a mining pit during high water. The width of the buffer zone shall be based on the stream size. The buffer zone requirements for excavations adjacent to streams are as follow:

(1) Intermittent Streams. Mining activities adjacent to intermittent streams shall normally have a 50-foot buffer zone. Intermittent streams will generally be indicated by a broken blue line on the latest version of the United States Department of the Interior Geological Survey Quadrangle Map (Scale 1:24,000, 7.5 minute series). The applicant may file a written request with the Department to reroute an intermittent stream, either temporarily or permanently, to avoid the mining activity. The Department shall approve the applicant's request only if the applicant can demonstrate that no significant adverse water quality impacts will result from the rerouting. In the event the Department approves the rerouting of an intermittent stream, appropriate erosion and siltation controls shall be implemented. Slopes shall normally be graded to 3 to 1 (horizontal to vertical) or flatter and seeded with a native species of grass to prevent erosion. The Department may require a different slope, on a case-by-case basis, as long as the slope is protective of the integrity of the stream bank and water quality.

(2) Perennial Streams. Mining activities adjacent to perennial streams shall normally have a 150-foot buffer zone. Perennial streams will generally be indicated by a solid blue line on the latest version of the United States Department of the Interior Geological Survey Quadrangle Map (Scale 1:24,000, 7.5 minute series). When a perennial stream is also classified as a navigable waterway, the requirements regarding navigable waterways shall be applied.

(3) Navigable Waterways. Mining activities adjacent to navigable waterways shall normally have a 300-foot buffer zone. Navigable waterways are defined and designated by the U. S. Army Corps of Engineers pursuant to Section 10 of the Rivers and Harbors Act.

The Department may require a different buffer zone, on a case by case basis, as long as the buffer zone is protective of water quality. In determining whether a different buffer zone is appropriate, the

Department may consider factors including, but not limited to, the stability of the stream banks and the existing uses of the stream and adjacent areas.

(b) Sand/Gravel Mining within Stream Banks. The two types of sand/gravel mining within stream banks include sand/gravel bar mining in-the-dry and sand/gravel mining in-the-wet¹³. To prevent adverse water quality impacts, the Department has formulated a set of criteria for sand/gravel bar mining in-the-dry. These criteria are attached hereto as Exhibit C and incorporated herein by reference. Except as otherwise provided in these regulations, sand/gravel mining in-the-wet may be allowed if the applicant can demonstrate to the satisfaction of the Department that the water quality impacts associated with the proposed activity are minor. In assessing the impacts on water quality, the Department shall consider these activities on a case-by-case basis in accordance with the factors set forth in Rule 1.3.4.A and B.

(4) Development Requiring Storm Water Management. Nonpoint source pollution is a significant obstacle to preserving and improving the quality of our state's waterways. In order to prevent adverse water quality impacts, the Department has formulated a set of criteria for storm water management. These criteria must be substantially satisfied in order for certification issuance to be considered. The criteria with regard to storm water management is attached hereto as Exhibit D and incorporated herein by reference. These storm water runoff criteria are separate from any Storm Water Pollution Prevention Plan (SWPPP) required under any required storm water permit.

(5) Certain Existing Subdivisions on the Mississippi Gulf Coast originally platted in lands which, because of the passage of the Federal Act and related laws and/or regulations, are presently unsuitable for development. Several coastal subdivisions were platted prior to the passage of a number of pertinent regulatory laws, including but not limited to, Sections 401 and 404 of the Federal Act. These subdivisions typically have waterfront access to estuarine waters by man-made canals, have inadequate sewage treatment, and require filling of productive salt marsh. Current law and regulatory policy would not allow the platting and/or development of such subdivisions due to adverse environmental impacts. However, in an attempt to allow residential development to proceed in existing platted and partially developed subdivisions, while addressing water quality concerns, the Department has formulated a set of criteria that must be substantially satisfied in order for certification issuance to be considered. The

¹³ "Sand/gravel bar mining in-the-dry" is mining in such a manner that no equipment or dredged material is in contact with flowing water, that the soil/water or groundwater interface is not touched by the equipment and that infiltration in the mining site is not pumped into the stream. "Sand/gravel mining in-the-wet" is mining in such a manner that equipment and dredged material may come in contact with water. criteria with regard to residential development in such subdivisions is attached hereto as Exhibit E and incorporated herein by reference.

Notwithstanding the criteria set forth above, the Department may develop criteria for other proposed activities which may have an adverse impact on water quality.

11 Miss. Code. R. 6-1.3.4

Miss. Code Ann. §§ 49-2-1, et seq. and 49-17-1, et seq.