49-256.01. Dredge and fill permit program; permits; rules; prohibitions; exemptions; exceptions; notice

(Conditionally Rpld.)

A. For purposes of implementing the permit program established by 33 United States Code section 1344, the director may establish by rule a dredge and fill permit program that is consistent with and no more stringent than the clean water act dredge and fill program, including a permitting process.

B. During any period in which the state has been granted authority to administer the permit program established by 33 United States Code section 1344, a person may not discharge dredged or fill material unless the discharge is exempt under 33 United States Code section 1344(f) or rules adopted pursuant to this article, except under either of the following conditions:

1. In conformance with a permit that is issued or authorized under this article.

2. Pursuant to a permit that is issued or authorized by the United States army corps of engineers until a permit that is issued or authorized under this article takes effect.

C. Rules adopted by the director for the purposes of a permit program for dredge and fill shall:

1. Provide for issuing, authorizing, denying, modifying, suspending or revoking individual permits, general permits and emergency permits for the discharge of dredged or fill material into navigable waters regulated by this state under the clean water act for purposes of implementing the permit program established by 33 United States Code section 1344.

2. Establish permit conditions that ensure compliance with the applicable requirements of section 404 of the clean water act, including the guidelines issued under 33 United States Code section 1344(b)(1).

3. Establish maintenance, monitoring, sampling, reporting, recordkeeping and any other permitting requirements as necessary to maintain primary enforcement responsibility or to determine compliance with this article.

4. Establish the following in accordance with 33 United States Code section 1344:

(a) Circumstances and activities that do not require a dredge or fill permit.

(b) Activities that are exempt from the requirements of this article for any discharge or fill material that may result from those activities, and the conditions under which those activities are exempt.

(c) Circumstances under which a discharge of dredged or fill material shall not be permitted.

5. Establish procedures for the director to make jurisdictional determinations that determine whether a wetland or waterbody is a navigable water subject to regulatory jurisdiction under this article. Jurisdictional determinations:

(a) Shall be in writing and be identified as either preliminary or approved.

(b) Do not include determinations that a particular activity requires a permit under this article.

6. Establish public notice and comment procedures as necessary to maintain primacy for the dredge and fill program and as the director deems appropriate to inform the public.

7. Provide for any other provisions necessary to maintain state primary enforcement responsibility under 33 United States Code section 1344 and to implement the provisions of this article.

D. Approved jurisdictional determinations are appealable agency actions as defined by section 41-1092 and may be appealed by a party affected by a jurisdictional determination. Preliminary jurisdictional determinations are not appealable agency actions and notwithstanding section 41-1092.03, the right to appeal an approved jurisdictional determination does not extend to adjacent landowners or to third parties that are not parties affected by a jurisdictional determination.

E. On assuming authority to administer the permit program established by 33 United States Code section 1344, the department shall:

1. On request by a party affected by a jurisdictional determination, recognize and adopt any existing approved jurisdictional determinations that were originally issued by the United States army corps of engineers if the federal definition of navigable waters that is applicable in this state has not changed since the issuance of the approved jurisdictional determinations.

2. On request by a party affected by a jurisdictional determination, renew approved jurisdictional determinations that were originally issued by the United States army corps of engineers on the same terms as the original unless:

(a) Physical changes have occurred affecting the determination that are likely to alter the jurisdictional status.

(b) The federal definition of navigable waters that is applicable in this state has changed since the issuance of the approved jurisdictional determinations.

(c) Additional field data show that the original determination was based on inaccurate data and the new data warrant a revision to the original determination.

F. The program established pursuant to this article is exempt from section 41-3102.