Permitting

Permitting A. Scope and Applicability - All water, whether occurring on the surface of the ground or underneath the surface of the ground, has been declared by statute to be among the basic resources of this state and subject to this regulation governing control, development, and use of water for all beneficial purposes. No person who is not specifically exempted by statute and this regulation shall initiate actions to use water without having first obtained a permit as provided herein and without having otherwise complied with the provisions of this regulation and any applicable permit conditions. Measures set forth in this regulation have been promulgated by the commission to effectively and efficiently conserve, manage, protect and utilize the water resources of Mississippi. In order to protect and preserve the groundwater resources of the state, the Commission may declare that mining of an aquifer is occurring in any area of the state where withdrawal of groundwater is adversely affecting the quality or quantity of water available for beneficial use; is adversely affecting other natural resources of the state that are either hydrologically interconnected with the aquifer, or are dependent upon discharges from the aquifer as a source of water; is posing a threat to the health, safety, or general welfare of the public by jeopardizing sustainable sources of water; or is posing a substantial threat to the long-term viability of the aquifer as a source of groundwater. The Commission may also designate and delineate “special water use areas” where water resources including surface water, groundwater, or both are inadequate to meet present or reasonably foreseeable needs. However, the lack of a specific Commission declaration, designation, or delineation of a “special water use area” will in no way diminish the authority of the Commission to issue necessary orders, or of the Permit Board to deny permits found to be contrary to the public interest, to attach conditions to issued permits as required, or to take any other action with regard to an individual permit or application for permit as set forth in other sections of this regulation. If the Permit Board takes such an action in the absence of a specific Commission declaration, designation, or delineation of a “special water use area,” the Permit Board will specify the scientific or other public policy basis for its action in the minutes of the Permit Board meeting and, where applicable, within the permit document itself. B. Designation of Special Water Use Areas - The Commission shall issue a water use warning or declare and delineate a water use caution area for any area of the state where existing water resources, including surface water, groundwater, or both, are inadequate to meet present or reasonably foreseeable needs; or if mining of an aquifer is occurring. Under normal circumstances, the Commission will not designate a water use caution area without first attempting to address a problem through the water use warning procedure. The water use warning procedure generally involves the regulated public, stakeholders, and other interested parties and organizations in a collaborative effort to formulate a plan and timetable to resolve the problem and seeks a cooperative, voluntary approach to plan implementation. However, the decision whether to issue a water use warning or, instead, to declare a water use caution area, shall be made pursuant to the criterion stated in Miss. Code Ann. Section 51-3-11(2)(a) and (3)(a) as to whether time allows the development of a solution through the water use warning process or prompt and immediate action is required to protect the resource, thus requiring the declaration and delineation of a water use caution area. (1) Water Use Warning Area – Mississippi Department of Environmental Quality monitors water levels and water quality parameters in aquifers at regular intervals and utilizes data from stream gaging stations, water quality monitoring stations, reports of other state and federal agencies, and historic stream flow records on surface waters to assess the quality and availability of water for present and projected beneficial uses in various regions of the state. The Commission may issue a water use warning when analysis of available scientific data identifies unacceptable trends that may lead to possible adverse long-term conditions affecting the water resources of the state. Actions that may be taken after a water use warning is issued include, but are not limited to, the following: (a) Coordinating with the permit holders, political subdivisions, and water management districts within the area to develop a plan and implementation schedule for alleviating or correcting the conditions, if possible, or to safeguard supplies of water for highest priority uses if necessary; (b) Sending notice to all permit holders, political subdivisions, and water management districts within the affected area. The notice will describe the conditions that required the issuance of the warning, set forth the proposed corrective measures, request assistance from all recipients in implementing the identified corrective measures, and request voluntary compliance with the proposed corrective measures from the permit holders; (c) Reducing permitted volumes of water through either voluntary permittee agreement to implement water conservation practices and a conjunctive use plan, or modification of existing permits to mandate such action by the permittee; (d) Establishing a monitoring network to verify effectiveness of implementation of the plan; and (e) Requiring metering and/or reporting for all water uses within the affected area, regardless of whether the use may have been previously exempted from regulation and reporting. (2) Water Use Caution Area - The Commission may establish, after notice and hearing, a water use caution area when it is evident from analysis of available scientific data that the actions implemented through the water use warning process will not achieve the desired results in a timely manner; or when analysis of available scientific data indicates prompt and immediate action is required to protect the water resources. Actions that may be taken after a caution area is established include, but are not limited to, the following: (a) Developing a plan, including an implementation schedule, to alleviate or correct the conditions; (b) Declaring a moratorium on processing new applications for groundwater withdrawal or surface water diversion permits in the caution area; (c) Reducing permitted volumes of water through modification of existing permits and issuance of orders by the Commission to restrict water usage in the affected area; and (d) Requiring metering and water use reporting for all wells and/or diversion points in the area. If the Commission orders the establishment of a water use caution area, the Commission shall, within one hundred twenty (120) days following entry of the order, adopt regulations consistent with Miss. Code Ann. Title 51, Chapter 3 and commensurate with the necessary degree of control pursuant to its regulatory authority in Miss. Code Ann. Section 51-3-25. C. Basic Requirements - No person shall initiate the drilling of a groundwater well or the placement of a surface water intake until an appropriate groundwater or surface water use permit has been issued by the Permit Board, or its designee as required by Miss. Code Ann. Sections 51-3-5 and 51-3-7. Likewise, no person shall commence construction of a surface water impoundment until an appropriate surface water permit for storage or use of water from an impoundment as required by Miss. Code Ann. Section 51-3-39 paragraph (1)(c) has been issued by the Permit Board, or its designee. This requirement does not apply to properly authorized emergency situations discussed in Rule 1.2.K-Emergency Authorizations, to exempted surface water diversions discussed in Rule 1.3.A or to exempted groundwater withdrawals discussed in Rule 1.4.A Applications for use of groundwater or surface water must meet the following requirements in order to be considered for approval by the Permit Board: (1) The application must completely and accurately describe the purpose for the proposed use of water; (2) Such use must not be prohibited by state or federal statutes or regulations; and (3) The proposed source of water must be free of Commission-imposed restrictions that preclude processing of the application. D. Content of Applications and Owner Responsibilities - The applicant shall submit a completed application to MDEQ, on forms prescribed by the Commission, for each separate withdrawal or diversion point. Where mobile pumps are proposed for use in the diversion of surface water, a separate permit will be required for each quarter-quarter section from which water is to be diverted. For irregularly shaped sections, MDEQ will determine on a case-by-case basis the number of permits required. Applications shall be completed using maximum volume of water required, estimated dates for initial use of the water, and estimated values for withdrawal or diversion rates. MDEQ may request additional information from the landowner/applicant, if the submitted form lacks sufficient information for processing. All permit applications, including maps and aerial photographs shall become the property of MDEQ. (1) Maps — Applications shall be accompanied by a suitable map. (a) Submitted maps may be photocopies of United States Geological Survey quadrangle maps, photocopies of county maps, aerial photos, or other types of maps, provided sufficient detail is included. Details commonly required include section lines, townships and ranges, and (if nearby), highways and county roads, large bodies of water such as rivers, streams, lakes, etc., utility rights-of-way, and communities. The map must be of suitable detail for locating the well / diversion point and any irrigated lands or ponds on a USGS quadrangle map. (b) Maps must show location of well/diversion point applied for and, if applicable, all land being irrigated, in use as fish ponds, or flooded for wildlife habitat. One map may be used to indicate locations of several wells/diversion points and several tracts of land. However, the tracts of land must be designated on the map to indicate which well/diversion point supplies water to each tract. If two or more wells/diversion points provide water to the same tract of land, the overlapping area must be indicated, or an imaginary boundary line must be drawn to divide the tract into areas served by each well/diversion point. (2) Fees – A fee of ten dollars ($10.00) must accompany each permit application. A separate application is required for each new well or diversion point. If more than one application is submitted at one time, a single check, money order, or electronic payment may be sent for the total amount of the application fees. DO NOT SEND CASH! (3) Preliminary Assessment Report – For proposed regulated wells or surface water intakes that will be part of a public water supply system, MDEQ will be responsible for preparation of a Preliminary Assessment Report (PAR) addressing the suitability of the proposed well site or diversion point to supply a source of safe drinking water. The assessment will consider the inherent vulnerability of the intended source water aquifer or surface water body as well as the identification and proximity of potential sources of contamination, including any improperly abandoned (unplugged) wells, to the proposed site. Final approval of a groundwater withdrawal permit or surface water diversion permit by the Permit Board, or its designee, will be based upon the findings of the preliminary assessment as to the suitability of the site, without exposure to higher than normal risk, for a public water system well. (4) Publication of Intent — When MDEQ accepts the completed application for a permit, MDEQ will furnish the landowner/applicant a prepared notice of intent to use waters of the state along with instructions for publishing the notice. The landowner/applicant shall publish the notice of intent one time in a newspaper of general circulation in the county in which the proposed well/diversion point will be located. The landowner/applicant must pay the expense of the publication and must direct the newspaper to forward a proof of publication to MDEQ. E. Issuance or Denial - MDEQ may hold a public hearing regarding any application. The application and results of the public hearing will then be presented to the Permit Board, or its designee. The Permit Board will either issue or deny the permit, and that decision will be effective as of the date the action is taken. The Permit Board may deny a permit or issue a permit for less than the requested withdrawal rate or volume if, in the opinion of the Permit Board, the use is not for a beneficial purpose; or such use would adversely interfere with existing permitted uses; or such use would be in conflict with the public interest. Any permit issued may contain such conditions (Rule 1.2.J) as the Board deems necessary to assist MDEQ in management of the water resources of the state. If action authority for a permit application has been delegated by the Permit Board to MDEQ Staff, the permit action may be taken according to Permit Board regulations regarding delegation of permit action authority. The Permit Board may issue a permit for a beneficial use that constitutes mining of an aquifer only if it finds that such use is essential to the safety of human life and property; or the landowner/applicant: (1) Provides written assurance to the Permit Board that the requested use will be temporary, (2) Submits a viable plan and acceptable time schedule for acquiring the required water from another source which will not result in mining of any other aquifer; and (3) Submits an annual report, net worth statement, or other documentation, as may be required by the Permit Board, to demonstrate financial ability to develop the proposed alternate water supply. Once a permit is issued, MDEQ will provide the permittee a copy of the permit document, which shall constitute authorization to begin the use of the waters of the state. F. Duration of Permit. (1) Construction Period – For public water supply wells, construction must be initiated within two (2) years after the water use permit is issued or the permit will be null and void without further action by the Permit Board. For all other water uses, except as stated below, if well/diversion system construction has not begun within one year after a permit is issued by the Permit Board, the permit will be null and void without further action by the Permit Board. In such cases, the landowner/applicant will have to reapply and follow the same procedures required for the original application. The Permit Board may grant variances from this requirement, if the landowner/applicant can demonstrate to the Permit Board that mitigating circumstances dictate the need for delaying the onset of construction beyond the one year limit. (2) Expiration –Water use permits normally will be issued for a period of ten (10) years. Longer terms may be permitted for certain public entities in order to assure reasonable amortization of capital investment in water-related equipment. Such entities are limited to municipalities, counties or other governmental subdivisions, public utilities, or publicly regulated utilities. Shorter terms may be permitted when the Permit Board determines that such terms are necessary to protect the public interest. (3) Reissuance – (a) Notification – Six months prior to the expiration date of the permit, MDEQ will send, by certified mail to the address of record in the permit file, a notice to the landowner/permittee informing him of the requirement to re-apply in order to maintain the right to use water under the permit. An application form and instructions for submitting the application will be included with the notice. However, failure by MDEQ to provide such notice shall not relieve the landowner/permittee from the legal. (b) Application – When MDEQ accepts a completed application for reissuance, the applicant must publish a notice of intent to continue the permitted use and assure that the publisher provides proof of publication to the MDEQ. The Permit Board will then reissue the permit, unless the Permit Board determines such continued use is contrary to the public interest. The Permit Board may change the conditions of the permit at reissuance upon finding that such a change would be in the public interest. (c) Termination – If the permittee fails to submit an application for reissuance prior to the expiration of the permit, the right to use the water described in the permit shall automatically terminate upon the expiration date. If processing of a completed application received prior to the expiration date extends beyond the expiration date, the permit will remain in effect until a final decision on reissuance is made by the Permit Board. G. Permit Modification – (1) Actions Requiring Modification – A permit may be modified for any of the following reasons: (a) Any change in the beneficial use of, and/or the volume of, water withdrawn from a well or diverted from a surface water body. (b) Any change in location of a surface water diversion point. (c) Any change in permit parameters requested by the landowner/permittee such as change of ownership, change of permittee, or change of mailing address. (d) Any change in permit conditions. (e) Any substantive errors in a permit that must be corrected. (f) Legislative action or judicial decision. (2) Procedures (a) The landowner/permittee must provide MDEQ a written request for modification for proposed changes as identified in Rule 1.2.G.1.a. and b. above, or written notification of any proposed change in permit parameters as described in Rule 1.2.G.1.c. above. (b) Modifications that result from changes in administrative information only, such as names and mailing addresses; or modifications that are required only to correct administrative errors will be presented to the Permit Board, or its designee, for immediate final action. (c) The procedure for processing a requested modification for proposed changes in beneficial use, withdrawal volume, or location of diversion point will depend upon the nature and significance of the change: (1) A requested modification that involves significant deviations from the conditions established under the original permit may be deemed by the Permit Board to constitute a new activity. If so, the request will be returned to the requestor with instructions to submit a new application. (2) A requested modification may be deemed by the Permit Board to require advertisement of a notice of intent to modify the permit. If so, the requestor will be informed of the decision and provided a prepared notice for publication. The requestor shall publish the notice of intent one time in a newspaper of general circulation in the county in which the permitted well/diversion point is located. The landowner/applicant must pay the expense of the publication and must direct the newspaper to forward a proof of publication to MDEQ. (3) A requested modification that proposes only minor changes in volume of withdrawal/diversion or location of a diversion point may be processed by the Permit Board, or its designee, without further action being required on the part of the requestor (d) MDEQ may hold a public hearing regarding any request for modification. The request and results of the public hearing will then be presented to the Permit Board. The Permit Board will either approve the modification or deny the request, and that decision will be effective as of the date the action is taken. H. Revocation. - The Board will normally give the permittee at least sixty (60) days written notice prior to taking any final action to revoke a permit unilaterally, unless such delay is deemed to be contrary to the public interest. Conditions which may lead to the revocation of a permit include, but are not limited to, the following: (1) Noncompliance with any condition in the permit. (2) Failure by the landowner/applicant to disclose all relevant facts during the application and permitting process, or misrepresentation of any relevant facts by the landowner/applicant/permittee, at any time. (3) A determination by the Permit Board that the permit holder is using the water resources of the state in a manner deemed to be contrary to the public interest. I. Hearings and Appeals - Any person aggrieved by any initial action of the Permit Board to issue, deny, transfer, modify or revoke a permit may request an evidentiary hearing before the Permit Board regarding the decision. Procedures for hearings and further appeals of Permit Board decisions are set forth in Mississippi Code Annotated Section 49-17-29. J. Special Conditions. The Permit Board may establish conditions on permits to require: (1) Compliance schedules for the accomplishment of certain tasks deemed necessary and appropriate by the Permit Board. (2) Compliance schedules for the cessation of use of groundwater for once-through, non-contact cooling purposes, which is subsequently discharged to the environment. NOTE: Facilities that are authorized use of less than 20,000 gallons per day (gpd), or such other small volume as may be approved by the Permit Board, for once-through non-contact cooling will be considered on a case- by-case basis and may not be required to cease such usage. (3) Installation of flow metering or measuring devices. (4) Installation and mandatory operation of flow restriction devices on flowing artesian wells. (5) Future reductions in the volume of water withdrawn or diverted, provided the schedule for such reductions is explicitly outlined in a compliance schedule. (6) Reports as necessary to provide data on the volume of water withdrawn or diverted. (7) Any other conditions the Board determines to be necessary to protect the public interest. K. Emergency Authorization - A written authorization for emergency use of water from a well or a surface water diversion point may be granted by the Permit Board, or its designee. An emergency authorization may be issued only when the Permit Board, or its designee, determines groundwater or surface water must be used to safeguard life, property, public safety, or other compelling public interests, and the exigency precludes waiting for the time required to process a normal permit application. Emergency authorizations will remain in effect only for the time required to process a permit application for the use authorized under emergency conditions, and the written authorization will include a time limit for submittal of the required application. If a complete application is not received by MDEQ within the time limit specified in the emergency authorization, the authorization will automatically stand rescinded. The emergency authorization does not guarantee that the Permit Board will ultimately issue a permit for such authorized use. If the Permit Board denies the permit, the emergency authorization is rescinded and the previously authorized water usage shall cease unless and until the decision of the Board is reversed or modified on appeal. L. General Permits - The Permit Board may issue General Permits, following appropriate public notice and comment period. The Public Notice indicating the Permit Board’s intent to issue such a General Permit will describe the nature of activities to be covered under the permit, set forth any required notification procedures, and establish documentation requirements for individual projects that may be pursued under authority of the General Permit.