What is the purpose of a Clean Water Act (CWA) 401 Certification?
Applicants seeking the following are required to obtain a Clean Water Act (CWA) Section 401 Water Quality Certification from the Arizona Department of Environmental Quality (ADEQ).
Issuance of a certification means that ADEQ expects that the applicant's project will comply with state surface water quality standards. The CWA 401 Certification can cover both the construction and operation of the proposed project.
States have four action options under the CWA 401 Certification Program: certify, conditional certify, denial or waiver. If certified, no further CWA 401 review by ADEQ is required. If conditionally certified, state imposed conditions become part of the permit or license. If denied, the federal agency cannot issue the permit or license. When the state waives certification, it does not act on the application, therefore the federal agency may proceed to issue the permit or license without further ADEQ review.
What activities require this Certification?
- Applying for a federal permit 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.
- Projects involved construction of hydroelectric dams, power plants, or other facilities regulated by Federal Energy Regulatory Commission (FERC) licenses.
Who issues this Certification?
ADEQ's Water Quality Division.
How does ADEQ issue its Certification for a CWA 404 Permit?
Under the CWA 404 Program, the U.S. Army Corps of Engineers (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 potentially have significant impacts. Individual permits require an application form describing the proposed activity be submitted to the USACE. Once the application is complete, the USACE issues a public notice containing the information needed to evaluate the likely impact of the activity. Notice is sent to all interested parties including adjacent property owners, government agencies and others who have requested notice. A hearing may be requested for cause. It is during the public notice of the individual permit that ADEQ performs its CWA 401 Certification review.
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). Nationwide Permits (NWP) require a 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 general 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.
How much does CWA 401 Certification cost?
There is currently no fee for CWA 401 Certification in Arizona.
Where can I get the application for this Certification?
Do I need to include anything with my application?
In addition to the application, a complete submittal shall include the following:
- A USGS topographic map or other contour map of project area;
- 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 to be applied to the activities in order to control the discharge of pollutant into Waters of the US to (a) minimize potential pollution of surface waters, and (b) demonstrate compliance with state surface water quality standards.
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 or additional conditions. If the application is for a NWP and discharges to an OAW or Impaired Water, ADEQ may require an individual Certification for the specific NWP.
How long is my Certification valid?
CWA 401 Certification becomes part of the federal permit or license. The duration of the 401 Certification would be in effect for same time period as the permit or license. Nationwide Permits (NWP) and Regional General Permits (RGP) are generally issued for five year terms.
What is the appeal process for the Certification?
An applicant for certification may appeal a denial or any condition imposed on a certification pursuant to Title 41, chapter 6, article 10. Additionally, any person who is or may be adversely affected by the denial or imposed conditions may also appeal the decision.