On July 13, 2020, the U.S. Environmental Protection Agency published the final Clean Water Act Section 401 Certification Rule (40 CFR Part 121) to update and clarify the procedural requirements for individual water quality certification under Section 401 of the Clean Water Act. Additional information, including the full text of the Final Rule, is available on EPA’s website (https://www.epa.gov/cwa-401). The Final Rule became effective on September 11, 2020.
1. How does the Final Rule apply to Department of the Army permits?
Under Section 401 of the Clean Water Act, a federal agency, such as the Corps, may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a certifying authority issues a Section 401 water quality certification verifying compliance with existing water quality requirements or waives the certification requirement. An individual water quality certification or waiver is required for Department of the Army permits that would result in the discharge of dredged or fill material, unless the discharge is for an activity where a general water quality certification has already been issued.
2. Who are the certifying authorities for activities in Idaho?
The certifying authority is the agency or tribe responsible for certifying compliance with applicable water quality requirements in accordance with Section 401 of the Clean Water Act. The certifying authorities in Idaho are:
Shoshone-Bannock Tribes of the Fort Hall Indian Reservation. The Shoshone-Bannock Tribes of the Fort Hall Indian Reservation is the certifying authority for activities on their respective tribal lands.
Coeur d’Alene Tribe of the Coeur d’Alene Reservation. The Coeur d’Alene Tribe of the Coeur d’Alene Reservation is the certifying authority for activities on their respective tribal lands.
U.S. Environmental Protection Agency, Region 10. EPA is the certifying authority for activities in all other Indian Country not listed above. Indian Country includes lands within reservation boundaries, lands held in trust by the Federal Government outside of reservation boundaries, and “In-Lieu” sites. EPA is also the certifying authority on lands with exclusive Federal jurisdiction.
Idaho Department of Environmental Quality. The Idaho Department of Environmental Quality is the certifying authority for activities in Idaho on all other lands not identified above.
3. What are the procedural changes in the certification process that affect applications for Department of the Army permits?
The procedural changes include: (a) the requirement to submit a pre-filling meeting request to the certifying authority; (b) the content requirements of a request for water quality certification; and (c) the requirement to submit the certification request to the certifying authority and the Federal permitting or licensing authority concurrently. (Please see the Final Rule for additional procedures not discussed in this notice).
- The regulations at 40 CFR Part 121.4 require the project proponent (i.e., permit applicant) to request a pre-filing meeting with the certifying authority at least 30 days prior to submitting a request for water quality certification. The pre-filing meeting is similar to a “pre-application” meeting, but the certifying authority is not obligated to grant or respond to the pre-filing meeting request. The Final Rule does not set a limit on how early a project proponent may submit a pre-filing meeting request, but it must be at least 30 days prior to submitting a request for water quality certification. For projects that include the discharge of dredged or fill material, permit applicants should complete the pre-filing meeting request requirement before submitting an application to the Corps for a Department of the Army permit.
- The regulations at 40 CFR Part 121.5 list the information that must be included to request an individual water quality certification as follows:
- Identify the project proponent(s) and a point of contact;
- Identify the proposed project;
- Identify the applicable federal license or permit (i.e., the Department of the Army permit);
- Identify the location and nature of any potential discharge that may result from the proposed project and the location of receiving waters;
- Include a description of any methods and means proposed to monitor the discharge and the equipment or measures planned to treat, control, or manage the discharge;
- Include a list of all other federal, interstate, tribal, state, territorial, or local agency authorizations required for the proposed project, including all approvals or denials already received;
- Include documentation that a pre-filing meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request;
- Contain the following statement: “The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief”; and
- Contain the following statement: “The project proponent hereby requests that the certifying authority review and take action on this CWA 401 certification request within the applicable reasonable period of time.”
Please note, the list above requires some information that is not currently included in the Joint Application for Permits and you will need to provide that additional information. Submitting only the Joint Application will not result in a valid request for certification. The agencies are reviewing revision to the Joint Application to meet the content requirement for a certification request. During the review process, certifying entities may request additional information to determine compliance with applicable water quality requirements under federal, state and/or tribal laws. The Corps will determine the reasonable period of time for the certifying authority to take action on the certification request after submittal of a valid request.
- The regulations at 40 CFR Part 121.5 requires the project proponent to submit the request for water quality certification to the certifying authority and to the Federal permitting or licensing agency concurrently. For activities that include a discharge of dredged or fill material, project proponents should submit their permit application for a Department of the Army permit and their certification request to the Corps at the same time. For activities that include a discharge of dredged or fill material, project proponents should not submit their permit application to the Corps before completing the pre-filing meeting request requirement.
- Once WQC is received from the certifying agency:
1. All conditions in the water quality certification that satisfy 40 CFR 121.7(d) shall be incorporated into the Corps’ authorization in accordance with 40 CFR 121.10. The federal agency issuing the applicable federal license or permit is responsible for enforcing certification conditions that are incorporated, at the District’s discretion (40 CFR 121.1(c)). The rule does not authorize States and Tribes to independently enforce Section 401 certification conditions under federal law.
2. Within 5 days of receiving the water quality certification from IDEQ, the Corps must notify the EPA so that they may determine whether a discharge has the potential to impact the water quality of a neighboring jurisdiction (40 CFR 121.12). 30 days are allotted for this review.
3. If EPA determines that the discharge from a certified project may affect water quality in a neighboring jurisdiction, EPA shall notify the neighboring jurisdiction, certifying authority, federal agency, and project proponent; coordinate input from the neighboring jurisdiction; and make recommendations to the federal agency if the neighboring jurisdiction requests a hearing. A hearing may be required as part of the process. Additional time may be needed for this portion of the process if applicable.
If there is no response from EPA after 30 days, the Corps may presume that there will be no affect to water quality in a neighboring jurisdiction. The General Permit or Individual Permit can now be issued.
4. How do you submit a pre-filing meeting request to the certifying authority?
The pre-filing meeting request should be submitted directly to the respective certifying authority based on the location of the activity as described in Item 2 above.
Pre-filing meeting requests may be submitted by email to the Idaho Department of Environmental Quality at: certificationrequests@deq.idaho.gov. The subject line should include the phrase “Pre-filing Meeting Request” or “Certification Request.”
Pre-filing meeting requests may be submitted by email to the U.S. Environmental Protection Agency, Region 10 at: storm.linda@epa.gov and R10-401-Certs@epa.gov. The subject line should include the phrase “Pre-filing Meeting Request” or “Certification Request.”
Pre-filing meeting requests may be submitted to the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation at: ctanaka@sbtribes.com.
Pre-filing meeting requests may be submitted to the Coeur d’Alene Tribe of the Coeur d’Alene Reservation at: PO Box 408, Plummer, Idaho, 83851.
5. How do you submit a certification request related to a Department of the Army permit?
The certification request must be submitted to the respective certifying authority and to the Corps concurrently, following the pre-filing meeting request. Certification requests must include the criteria outlined in Item 3 and should be submitted to the certifying authority by the method identified in Item 4 above.
The certification request and application for a Department of the Army permit should be submitted to the Corps together via email at: CENWW-RD@usace.army.mil.
Please note, the list in Item 3 above requires some information that is not currently included in the Joint Application for Permits, meaning the project proponent will need to provide the additional information. At present, submitting only the Joint Application will not result in a valid request for certification. The agencies are reviewing the possibility of revising the Joint Application to meet the content requirement for a certification request.
The Corps will determine the reasonable period of time for the certifying authority to take action on the certification request after submittal of a valid request.
6. What is the Corps doing to address the procedures in the Clean Water Act Section 401 Certification Rule?
The Corps recognizes there will be a transition period as project proponents, consultants and members of the regulated public become familiar with the requirements of the Final Rule. Applications for Department of the Army permits for activities that require water quality certification submitted on or after September 11, 2020, will be subject to the 30-day pre-filing meeting request and certification request process, which may affect the timeline for an applicant to obtain a valid Department of the Army permit. The Corps encourages all permit applicants to complete the pre-filing meeting request requirement prior to submitting a permit application to the Corps.
The Corps is actively coordinating with the certifying authorities to address our procedures related to the Final Rule. As commented above, the agencies are evaluating revisions to the Joint Application for Permits to meet the content requirements for a certification request.
For additional information on the certification process, please contact the respective certifying authority as identified in Item 2 and 4 above.
For additional information on the Corps’ Regulatory Program, including information on how to apply for a permit from the Walla Walla District, please see our website at: https://www.nww.usace.army.mil/Business-With-Us/Regulatory-Division/.