Under Clean Water Act (CWA) § 401, Congress provides states, territories, and Tribes with a tool to protect surface water from adverse impacts that could result from federally licensed or permitted projects. The 2023 Clean Water Act § 401 Water Quality Certification Improvement Rule restores the fundamental authority granted by Congress to states, territories, and tribes to protect water resources that are essential to healthy people and thriving communities.
In Arizona, issuing a § 401 Water Quality Certification (WQC) ensures that the project will not violate surface water quality standards of the receiving water. The WQC becomes part of the federal license or permit and is valid for the same time period as the license or permit, typically five years.
EPA’s 401 Rule [Title 40 Part 121]
On Nov. 27, 2023, the Environmental Protection Agency (EPA) published a new federal rule, the 2023 CWA § 401 WQC Improvement Rule. This rule includes requirements from Rapanos and the 2020 401 Rule. Of note is the “Pre-filing Meeting Request Requirement." All applicants must submit a request for a meeting with the appropriate certifying authority (ADEQ) at least 30 days prior to submitting a certification request. The meeting request provides advance notification to the certifying authority that a certification request may be forthcoming.
Certification or waiver is required for any federal license or permit that authorizes any activity which may result in any discharge from a point source into waters of the United States (WOTUS).
If the federal license or permit is being issued by the U.S. Army Corps of Engineers (USACE) and is a Nationwide (NWP) or Regional General (RGP) permit:
A § 401 WQC application submission to ADEQ is required if the activities of the project may discharge to a WOTUS that is:
An Outstanding Arizona Water
An Impaired Water
A Not Attaining Water
A § 401 WQC application submission to ADEQ is not required if the WOTUS doesn’t meet these conditions. The certified activities of the project are conditionally certified under the USACE Nationwide Permit or the Regional General Permit.
List of Nationwide Permits that ADEQ certified/waived in 2021 | View/Download >
If the federal license or permit is being issued by the U.S. Army Corps of Engineers (USACE) and is an individual permit; or the license or permit is being issued by another federal agency, a Clean Water Act § 401 WQC application submission to ADEQ is required.
At this time, there are no fees associated with a CWA § 401 WQC.
Updated CWA § 401 Forms
ADEQ updated our certification request application to be consistent with the 2023 CWA § 401 WQC Improvement Rule | View/Download Form >