Water Quality Certification One

The 401 certification process has been primarily applied to:

• Private hydropower dam construction and operation that requires federal licensing;
• Dredge and fill activities that require federal 404 permits (wetlands); and
• NPDES permits in states where the EPA issues the permits.

It is important to note that 401 applies to all federal licenses and permits, not just those under the Clean Water Act. Attempts to apply Section 401 to other activities, such as grazing permits granted by the U.S. Forest Service and the Bureau of Land Management and permits granted by the U.S. Forest Service to construct and operate ski areas and drinking water reservoirs, have had mixed results.

States, interstate agencies, EPA Administer or tribes grant certification

States, interstate agencies, the EPA Administrator (where EPA has developed federal standards or no state or interstate agency has authority) and tribes (where they have developed and EPA has approved their water quality standards) are all responsible for exercising or waiving the 401 certification of federal licenses and permits. For the purposes of this chapter, we will refer mainly to states' authority.

Possible outcomes of a 401 certification review

When faced with an application for water quality certification, a state can:

1. certify the project;
2. certify the project with conditions necessary to comply with water quality standards (designated uses, water quality criteria and antidegradation);
3. deny certification; or
4. waive its certification authority.

If a state fails to act on an application for certification within one year, the application is automatically “waived.” This means that the permit can go ahead without the state water quality certification.

Most often, states either grant certification or place conditions on the certification that require the applicant to take specific measures to protect water quality. Depending on water quality standards in individual states, the water quality certification can establish a variety of different types of conditions. For example, a certification may establish a minimum flow schedule or flow storage (PUD No.1 of Jefferson County v.Washington Dept. of Ecology, 511 U.S. 700, 723 (1994)), or it can require fish passage or the creation of a recreational facility for enhanced access (America Rivers v. FERC, 129 F.3d 99 (2nd Cir. 1997)).

A certification can be issued with an adaptive management plan to meet water quality targets in the future, and it may also reserve the state’s authority to reopen the certification if the state determines any such condition is necessary to ensure compliance. A federal agency may not amend or delete a certification condition, and a license or permit applicant (or other participant) may challenge an objectionable certification only in state court.