What is a 401 Certification?
Section 401 of the Clean Water Act (CWA) gives states the authority to issue a State Water Quality Certification (401 Certification) for an activity or project requiring a federal permit or license, that may result in a discharge to waters of the U.S. Under §401, a federal agency cannot issue a permit or license until the state has certified, conditionally certified or waived the 401 Certification. A federal agency also cannot issue a permit or license if the state denies the 401 certification. By issuing a 401 Certification, ADEQ ensures that the project will not violate surface water quality standards, adversely impact impaired waters (waters that do not meet water quality standards) and that the project complies with applicable water quality improvement plans (total maximum daily loads).
In Arizona, ADEQ reviews 401 certification applications except on tribal lands. Tribes can request authorization from EPA to administer the 401Water Quality Certification program. The process is known as “treatment as a state” and when approved, provides the tribes with the same certification authorities and responsibilities as states.
What activities require this Certification?
A 401 Certification is required for a project or activity requiring a federal permit or license that will result in a discharge to a waters of the U.S. These projects include:
- A Clean Water Act (CWA) Section 404 Permit from the U.S. Army Corps of Engineers (USACE) to allow discharges of dredged or fill materials to waters of the U.S. Examples include: stream crossings, flood control channelization, streambed modification, water diversion for canals and irrigation systems, channel clearing, or filling of wetlands or washes for land development.
- A Rivers and Harbors Act Section 9 or 10 Permit , requiring Congressional approval; Section 9 allows the construction of any bridge, dam, dike or causeway over or in navigable waterways of the U.S.; Section 10 allows the building of any wharfs, piers, jetties, and other structures in navigable waters.
- Applying for a federal permit for projects involved in the construction of hydroelectric dams, power plants, or other facilities regulated by Federal Energy Regulatory Commission (FERC) licenses.
- Other federal permits or licenses that may result in a discharge to waters of the U.S.
How does the 401 Certification Process Work?
Under the CWA 404 Program, the USACE has both individual and general permits. General permits can be issued for use in all states (known as Nationwide Permits) or for a region of the country (known as Regional General Permits).
An individual permit is required for projects that could have significant impacts. Individual permits require a 404 permit application to the USACE describing the proposed activity. Once the application is complete, the USACE issues a public notice containing the information needed to evaluate the likely impacts of the activity. A notice is sent to all interested parties including adjacent property owners, government agencies and others who have requested a notice. A hearing may also be requested for cause. It is during the USACE public notice period of the individual permit that ADEQ conducts its CWA 401 Certification review. As part of the application review, ADEQ may issue a public notice which provides an opportunity for the public to comment on the ADEQ Certification decision prior to finalization.
To streamline the process for specific activities that have minor or minimal impacts, the USACE has developed nearly 50 Nationwide Permits (NWP) (e.g., minor road crossings, utility line backfill, private docks and boat ramps). Prior to issuance of the NWPs, the USACE provides for public notice and an opportunity for a public hearing. It is during this public notice period that the State performs its CWA 401 Certification review of all proposed nationwide permits. NWPs are issued for a specified time period, usually five years. On March 19, 2012, the USACE reissued the NWPs. ADEQ reviewed and certified or conditionally certified all NWPs that are applicable in Arizona.
- 2012 Nationwide Permits (NWP) -- (PDF)
ADEQ has four approval options. ADEQ can certify, conditionally certify, waive or deny the application. When a certification is issued with conditions, it will specify limitations and/or other requirements (e.g., implementing best management practices) to ensure the project will not violate state water quality standards or other water quality requirements of state laws. Those conditions become conditions of the license or permit and are enforceable by the USACE. If ADEQ waives certification, the federal agency may proceed to issue the permit or license without further review.
Where can I get the application for this Certification?
- Application for Certification under the Clean Water Act (CWA) Section 401 -- (PDF)
Do I need to include anything with my application?
In addition to the application, a complete submittal includes the following:
- A USGS topographic map or other contour map of the project area;
- Any plans or drawings to illustrate the project;
- A map delineating the ordinary high water mark of jurisdictional waters to be affected by the activity to be certified;
- A copy of the application for the federal permit or license; and
- A description of the measures that will be applied to the activities in order to demonstrate compliance with state surface water quality standards.
How much does CWA 401 Certification cost?
There is currently no fee for CWA 401 Certification in Arizona.
Is the decision on my Certification dependent on anything besides the information in my application?
If your proposed project will result in discharges to an Outstanding Arizona Water (OAW) or an Impaired Water, ADEQ may require additional review time and may require an Individual Certification with additional conditions. For individual permits, ADEQ will issue a draft 401 Certification for public notice and comment. The public notice period typically lasts for 30 days.
How long is my Certification valid?
The 401 Certification becomes a part of the federal permit or license. The 401 Certification would be in effect for the same time period as the permit or license. NWPs and RGPs are generally issued for five year terms.
What is the appeal process for the Certification?
An applicant may appeal a denial or any condition imposed on a certification pursuant to Arizona Revised Statutes (A.R.S.) Title 41, chapter 6, article 10. Additionally, any person who is or may be adversely affected by the denial or imposed conditions on the certification of a NWP may also appeal the decision.
For Additional Information about the 401 Certification Program, consult these links:
Dredge and Fill Program
View state statutes relating to the Dredge and Fill Program: Arizona Revised Statutes (A.R.S.)
- § 49-202 - Designation of State Agency
View federal rules relating to the Dredge and Fill Program: Code of Federal Regulations (CFR)
View federal rules relating to the Dredge and Fill Program: United States Code (USC).
For further information, please contact us.