Sec. 1000.8. Water quality and coastal certification procedures

(a) In accordance with section 401 of the Clean Water Act, if construction or operation of a proposed major electric generating facility, its interconnections, or related facilities would result in any discharge into the navigable water of the United States and require a Federal license or permit, the applicant is required to request and obtain a water quality certification indicating that the proposed activity will be in compliance with water quality standards.

(1) Generally, the request for the water quality certification shall be submitted accompanying the article 10 application. However, in the event the related application for a Federal license or permit has not been submitted on or before the date of submission of the article 10 application, the request for the water quality certification shall be submitted to the board when an application for a Federal license or permit is made. If the request does not accompany the article 10 application, the applicant shall provide a statement describing its plan for making such a request, including a timetable.

(2) A copy of all pertinent State and Federal permit applications related to the water quality certification shall be submitted along with the request for the water quality certification.

(3) In support of any request for a water quality certification, an applicant shall demonstrate compliance with the provisions referenced in 6 NYCRR section 608.9. A request for a water quality certification will not be considered valid until the applicant files with the secretary a copy of its related Federal permit application.

(4) Any applicant that applies for a Federal license or permit that will require a water quality certification shall provide the pertinent contact information for the district engineer of the U.S. Army Corps of Engineers or other Federal lead agency to use in contacting the board as to the applicable time period or any other issue.

(5) When an applicant or certificate holder has requested both a water quality certification from the board and permits from the U.S. Army Corps of Engineers or other Federal lead agency, the board or a designee will provide information to the district engineer or other Federal lead agency as to whether circumstances require a period of time longer than the period specified in applicable Federal regulations for the certifying agency to act on the request for certification in order to avoid a waiver. The board shall issue, waive or deny such certification within such applicable period after the filing of the application or other document in which the request is made, taking into account whether any Federal agency from which the applicant or certificate holder has sought a license or permit to conduct any activity that may result in any discharge into the navigable waters has:

(i) advised the board that such certification must either be issued or denied within a specified shorter period or be waived; or

(ii) determined that such certification may either be issued or denied within a specified longer period, not to exceed one year (based on information provided by a designee of the board), or be waived.

(6) If it appears that the review of a request for a water quality certification cannot be completed within the applicable period identified in paragraph (5) of this subdivision, the board or a designee will deny the certification without prejudice to a later request for certification.

(7) The DPS Director of the Office of Energy Efficiency and the Environment is designated to act as the designee referenced in this section.

(8) If the request for a water quality certification does not accompany an application, it shall be filed and served and notice of it shall be given in the same manner as an application pursuant to sections 1000.6 and 1000.7 of this Part. If the request for a water quality certification is filed after the issuance of the article 10 certificate, and such request proposes changes of a nature that litigated issues would need to be reopened, such request shall be treated as a request also for a revision of the article 10 certificate.

(b) If the proposed facility affects any land or water use or natural resource of the coastal area and Federal authorization or funding is necessary, the applicant shall, contemporaneously with submitting the application, submit to DOS copies of the application, the applicant's coastal consistency certification and necessary data and information sufficient to initiate a review by DOS pursuant to the Federal Coastal Zone Management Act and its regulations.

(1) The hearing shall be used to elicit, and the hearing record in the proceedings shall provide, information on which the Secretary of State may base the determination of whether or not to concur with the applicant's coastal consistency certification.

(2) The Secretary of State may use procedures established in the article 10 proceeding to the extent that they are consistent with the Federal Coastal Zone Management Act and its implementing regulations to facilitate the required concurrence. The Secretary of State is encouraged to provide such determination to the board prior to its decision whether or not to issue a certificate.

(c) If the proposed facility affects any land or water use or natural resource of the coastal areas and inland waterways, the board invites DOS, pursuant to article 42 of the Executive Law, to review, evaluate and issue recommendations and opinions to the board concerning the potential for the proposal to affect such coastal areas and inland waterways, and policies related thereto.