State Water Quality Certification/401
Using the State's Power to Review Federal Permits
The Clean Water Act gives states the authority to veto or place conditions on federally permitted activities that may result in water pollution. Citizens can use this "401 water quality certification process" to protect and restore water quality around and downstream from federally permitted discharges and activities, such as hydroelectric dams. Specifically, Section 401 requires that any applicant for a federal permit or license that may result in a discharge to waters of the United States must first obtain certification from the state. If the state finds that the discharge will violate state water quality standards, it may reject the permit or license.
As explained in the NPDES module, a discharge is defined as an emission from a "discrete conveyance." Federal courts disagree about what activities result in a "discharge." For example, a judge in Oregon ruled that cattle can "discharge" waste to waters, but an appeals court ruled otherwise. Further appeals are pending.
What can states do under Section 401?
When faced with an application for water quality certification, a state can:
certify the project;
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 water quality certification. Most often, states either grant certification or condition certification on agreement to take specific measures to protect water quality. For example, when the City of Tacoma and its utility, Tacoma City Light, sought Section 401 certification for a proposed hydroelectric dam on the Dosewallips River, the State of Washington conditioned certification on the maintenance of specific instream flows necessary to protect the river's fishery. Even though the dam was not a "federal" project, Section 401 certification was necessary because hydroelectric dams require a federal license.
Do states ever deny water quality certification?
A state may deny certification altogether if it believes that a project will cause or contribute to a violation of its water quality standards. For example, the Oregon Department of Environmental Quality denied the City of Klamath Falls' application for certification of a hydroelectric project on the Klamath River because models showed the river would not meet state water quality standards for temperature if the project went forward. States are required to review many general permits that cover entire categories of activity. Once 401 certification is granted to a general permit, it is in place for all entities that apply for and are accepted under the general permit. States can deny 401 certification for these general permits, however.
What activities require this water quality certification?
The certification process has been applied primarily to NPDES permits. It has also been applied to limited number of other activities, including
Attempts to use Section 401 to regulate nonpoint source pollution have included challenges to grazing permits granted by the U. S. Forest Service and Bureau of Land Management, and permits granted by the U. S. Forest Service to construct and operate ski areas and drinking water reservoirs.
When water quality conditions are placed on a permit, how are they monitored?
Most of the "conditions" of the permit are ongoing. For example, in the Dosewallips case, the requirements to protect certain instream flow levels were a continuous condition added to the permit via the 401 certification. Likewise, any discharge limitations or monitoring requirements would be ongoing. Section 401 requires that certifications include "monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with water quality standards.
How are permit conditions enforced?
Either the state or the federal government can enforce the conditions of certification. Any conditions imposed by a state as part of the certification process become conditions of the federal permit, and are enforceable under the citizen suit provisions of the Clean Water Act. For example, if the utility does not maintain the instream flows ordered by the State of Washington in the Dosewallips certification, private citizens can sue the utility to have those conditions enforced.
What if a state's certification doesn't protect water quality?
Citizens can sue a state for issuing a certification that does not provide "reasonable assurance" that water quality standards will be met. In other words, if a state certifies a federal permit despite evidence that the permit will violate water quality standards, citizens can sue in state court to have the certification revoked. Thus, they can stop the activity until reasonable assurance is provided that the facility or activity will not violate water quality standards. This applies even though states have the authority to "waive" certification.
How can I tap into the 401 certification process?
Start by notifying your state water quality agency that you are interested in 401 certifications in some or all of the state's watersheds. Many of the specific provisions for public involvement vary by state. The Clean Water Act requires that states "shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems appropriate, procedures for public hearings in connection with specific applications." Thus, you must ask your state agency or look to individual state rules implementing Section 401 to determine the procedures for public notice and hearing.
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