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Alaska 401 Water Quality Certification (14-AK-d)

In Alaska, the Alaska Department of Environmental Conservation (ADEC) reviews and issues 401 Water Quality Certifications (WQC). Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers, subject to a federal license or permit (e.g., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.), to obtain a WQC if the project may result in any discharge into navigable waters of the United States. Under Section 401(a)(1) of the CWA (33 U.S.C. § 1341), states have the authority to review and approve, condition, waive, or deny a 401 WQC. Title 18 AAC 15.180 – Certification of Other Federal Licenses and Permits. See also Alaska Water Quality Standards (18 AAC 70).


Hydropower

The ADEC reviews hydropower projects filed with the Federal Energy Regulatory Commission (FERC) in accordance with 18 AAC 15.180 and may issue a 401 WQC or waiver.


401 Water Quality Certification Process

14-AK-d.1 - Is the Project Subject to a USACE Section 404 Permit?

Under Section 404 of the Clean Water Act (CWA), the U S Army Corps of Engineers (USACE) has the authority to issue permits authorizing the discharge of dredge or fill material into waters of the United States.

14-AK-d.2 - Is USACE Issuing a Regional General Permit, a Nationwide General Permit, or an Individual Permit?

The U S Army Corps of Engineers (USACE) issues three types of permits under Section 404 of the CWA, including individual permits, nationwide general permits and regional general permits in accordance with Section 404 of the Clean Water Act.

Regional and Nationwide General Permits

Regional and nationwide general permits authorize specific activities under USACE’s regulatory jurisdiction that are minor in scope and result in no more than minimal adverse impacts to water quality, both individually and cumulatively. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

'Hydropower'

USACE developed a nationwide permit for discharges of dredged or fill material associated with hydropower projects having:

  • (a) Less than 5000 kW (5 MW) of total generating capacity at existing reservoirs, where the project, including the fill, is licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920, as amended; or
  • (b) A licensing exemption granted by the FERC pursuant to Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and Section 30 of the Federal Power Act, as amended.

(See USACE 2012 Nationwide Permits at 10).

Individual Permits

Before issuing an individual permit, USACE distributes public notice (usually of 30-day duration) to all known interested persons, posts notice on the Corps Alaska District webpage and conducts a full public interest review of the developer’s application for an individual permit. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

For more information on USACE Section 404 permits, see:

Clean Water Act Section 404 Permit Application Process:
14-FD-a


14-AK-d.3 – Review and Issue Water Quality Certification on the Regional General Permit

ADEC reviews and issues water quality certifications (WQC) for regional general permits. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

A developer wishing to perform work under a regional general permit must ensure that the project meets the guidelines for the permit's terms and conditions, including any regional conditions specific to Alaska. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

14-AK-d.4 - Review and Comment on Individual Actions Carried Out Under a Nationwide General Permits as Time Allows

The ADEC reviews and comments on individual actions carried out under a nationwide permit as time allows. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

A developer wishing to perform work under a national general permit must ensure that the project meets the guidelines for the national permit's terms and conditions. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

14-AK-d.5 - Obtain Notice of Developer’s Application for a USACE Permit

By agreement between the USACE and ADEC, a developer’s application for a USACE permit to discharge dredged and/or fill material into waters of the U.S. under Section 404 of the Clean Water Act (CWA) may also serve as the developer’s application for ADEC 401 WQC. (18 AAC 15.130).



14-AK-d.6 – 401 Water Quality Certification Application

If the project is not subject to a USACE individual permit, nationwide general permit, or regional general permit, the developer must submit a 401 WQC application to the Alaska Department of Environmental Conservation (ADEC). The developer must submit the WQC application to ADEC at the same time that the developer submits its application for a federal license or permit to the federal licensing or permitting agency. The WQC application must include a cover letter requesting certification, a copy of the developer’s application for the federal license or permit, and all accompanying information. 18 AAC 15.130; 18 AAC 15.180.

14-AK-d.7 to 14-AK-d.8 – Review Application Materials for Completeness

Upon receipt, ADEC reviews the developer’s application materials for completeness. If the application is incomplete, ADEC will notify the developer within 30 days of receiving the application that additional information is necessary in order for ADEC to make a determination. 18 AAC 15.130; 18 AAC 15.180.

The developer must provide ADEC with the requested information within 30 days of receiving ADEC’s request. If ADEC does not receive the requested information within the time specified, ADEC will deny the developer’s request for WQC, unless the developer shows that additional time is necessary in order to provide the required information and ADEC approves a time extension. 18 AAC 15.130.


14-AK-d.9 – Publish Public Notice

Generally, ADEC publishes public notice of the developer’s WQC application in a newspaper of general circulation in the area that would be affected by the project and in other media that ADEC considers appropriate to achieve sufficient public notice. However, if the project will be subject to a Section 404 USACE permit, USACE and ADEC issue joint public notice of the developer’s WQC application.

The public notice must include the following:

  • Information on the nature and location of the proposed project;
  • Information on how the public can receive additional information, including a statement that ADEC will send an interested party a copy of the WQC application upon request; and
  • A statement that a party may submit comments on the WQC application by filing written comments with ADEC before the published comment deadline.

18 AAC 15.050; 18 AAC 15.140; 18 AAC 15.180(b).

14-AK-d.10 to 14-AK-d.11 – Does ADEC Determine That Good Cause Exist to Hold a Public Hearing?

ADEC may decide to hold a public hearing on the developer’s WQC application if ADEC determines that good cause exists. If ADEC decides to hold a public hearing, the hearing must be held no sooner that 15 days following publication of public notice of the WCQ application and no more than 30 days following publication of notice. 18 AAC 15.060; 18 AAC 15.150.


14-AK-d.12 - Conduct Initial Project Review

After ADEC issues public notice of the developer’s application for WQC, or upon receipt of the USACE public notice for a 404 permit, ADEC conducts an initial review of the developer’s project to determine whether ADEC can waive 401 WQC or must conduct its own study regarding the project’s potential to impact water quality. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.


14-AK-d.13 - Does the Project Meet the Criteria for a Waiver of Certification and Pose No Significant Risk to Water Quality?

ADEC uses certain criteria to determine whether a project poses a significant risk to water quality. ADEC developed these waiver criteria to address a lack of staff resources to process WQCs for individual permits. ADEC’s waiver criteria do not apply to USACE nationwide permits or USACE regional general permits. The criteria are based on the potential risk that a particular type of activity may affect water quality. Experience has shown that the size of the wetlands fill, the type of activity being permitted, the proximity to a waterbody, and the wetland’s functions and values are all key components for determining risk. To determine whether a project poses a significant threat to water quality, ADEC compares the description of the proposed project in the developer’s WQC application, or the USACE public notice, with the following criteria:

  • The proposed project is less than 5 acres in total project area;
  • The proposed project is in a community that has a wetlands plan and the proposed project is not required to have an individual permit as dictated in the community plan;
  • The proposed project is not adjacent to or will not affect a 303[d]-listed waterbody;
  • The proposed project is not located directly on a waterbody (such as a stream, lake, estuary, or marine waters); and
  • The proposed project is on a waterbody, but the project is for a single family residence and/or will disturb less than one acre of wetlands or tidelands.


Note: If at any point during the waiver of certification process ADEC determines that the project may pose a significant risk to water quality, ADEC will remove the project from the waiver procedures and conduct a more thorough review of the project. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

14-AK-d.14 – Preliminary Decision to Waive Water Quality Certification

If the project meets all of the waiver criteria (outlined above), and poses no significant risk to water quality, ADEC makes a preliminary decision to waive WQC. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

14-AK-d.15 to 14-AK-d.16 – Complete Public Comment Period; Final Water Quality Certification Waiver Determination

After ADEC completes its initial project review and the public comment period closes, ADEC makes a final determination about whether or not to waive WCQ for the project. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

If ADEC finds that there are agency or public comments on the application raising significant water quality concerns, ADEC will not waive WQC even if the project meets the waiver criteria. If no agency or member of the public submits comments regarding water quality concerns, ADEC will waive the Section 401 WQC. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.


14-AK-d.17 – Notify Federal Authorizing Agency, Developer, and Other Interested Parties of Determination

Once ADEC’s final determination is complete, ADEC will notify the federal authorizing agency, the developer, and each party that submitted timely comments or testified at the public hearing of its decision to waive or not waive WQC. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

14-AK-d.18 to 14-AK-d.19 – Does the Alaska Department of Environmental Conservation Waive Water Quality Certification?

If ADEC waives Section 401 WQC, no further review of the project’s effect on water quality is required and the developer can continue with the project. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

If ADEC determines not to waive Section 401 WQC, ADEC will continue with a more thorough review of the project.

14-AK-d.20 - Conduct Detailed Project Review

During the project review process, ADEC will identify any significant water quality issues apparent within the developer’s WQC application or USACE permit application and evaluate any significant issues raised during the public notice period. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.


14-AK-d.21 - Does the Project Pose a Significant Risk to Water Quality?

ADEC may approve the developer’s application for WQC if there is a reasonable assurance the project, and any discharge that might result, will comply with the Clean Water Act, the Alaska Water Quality Standards, and other applicable State laws. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

If ADEC determines that the project poses a significant risk to water quality, in accordance with the Alaska Water Quality Standards, ADEC will deny the developer’s request for Section 401 Certification.

14-AK-d.22 – Revise Project to Comply with Alaska Water Quality Standards

If ADEC denies the developer’s application for WQC, the developer should revise the scope of the project to ensure compliance with Alaska’s Water Quality Standards. ADEC Process for Issuing a 401 Waiver of Corps 404 Permits.

14-AK-d.23 to 14-AK-d.24 - Certification of Reasonable Assurance

If ADEC approves the developer’s application for WQC, ADEC will issue a Certification of Reasonable Assurance. The developer must pay the appropriate fee, as determined by 18 AAC 72.957. More information about the specific fee required can be found at ADEC's Permit Fees webpage.

14-AK-d.25 - Notify USACE of Water Quality Certification Approval

Upon making a final determination and issuing the certification of reasonable assurance, ADEC will notify the federal authorizing agency, the developer, and each party that submitted timely comments or testified at the public hearing of the WQC approval.




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Edit Alaska Department of Environmental Conservation
Storm Water and Wetlands Program Manager
(907) 334-2288
jamesabbazabbarypkema@alaskaabbazabbagov
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