401 Certification Action Checklist

Get on your state’s mailing list for public notices of proposed 401 certifications in your basin.

Find out how many 401 certifications your state has issued in the last year. Review a few to see what kinds of practices they have required and approved. In particular, find out whether and how your state conditions and certifies general permits from the Army Corps of Engineers for dredge and fill activity or from EPA if they issue NPDES permits in your state.

Comment! If draft 401 certifications do not address your concerns about a proposed activity, submit comments to your state agency.

If completed 401 certifications do not address your concerns, and permitted activities are causing water quality problems, consider taking the state agency to state court for inadequate conditions. If the 401 certification is good, but the permittee is not abiding by the conditions, discuss your concerns with your state agency, and consider filing a 60-day notice of intent to sue the permittee for noncompliance (CWA, Section 505(f)(5), see See Lesson 9: Enforcing the Clean Water Act).

Contact the federal agencies that grant permits and licenses to identify current and proposed activities in your basin that require water quality certification. For instance, if development of wetlands or construction in water bodies is an issue in your area, contact the Army Corps of Engineers. If new dams are proposed or existing ones are up for relicensing, contact the Federal Energy Regulatory Commission. When licenses or permits are up for renewal, check with the state to find out whether permittees are applying for state water quality certification.

Urge the state to fully exercise its privilege of water quality certification when applications are being submitted. If no 401 certification application is submitted to the state, and the permit is issued, you should evaluate the citizen enforcement opportunities against the permittee for failing to submit a 401 certification (CWA, Section 401(a)(1)) and against the federal permitting agency for failing to require a 401 certificate.

Prevent 401 Waivers. It is important for citizens to prevent “default” waivers from happening automatically after one year of state inaction on an application. Ask your state water quality agency to notify you when 401 applications come in. Mark your calendar and raise concerns if no certification is drafted after nine months.