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California 401 Water Quality Certification (14-CA-d)

Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers subject to a federal license or permit to obtain a 401 Water Quality Certification (WQC) if the project may result in any discharge into the 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. Accordingly, a federal agency may not issue a license or permit authorizing the construction or operation of a project that may result in any discharge into the navigable waters of the United States unless the appropriate state agency issues a water quality certification for the project or waives certification by failing or refusing to act on a request for certification within a reasonable period of time, not to exceed one year. 33 USC 1341(a)(1). The California State Water Resources Control Board (SWRCB) and the regional water quality control boards oversee the Section 401 water quality certification process for California under Code of Regulations Title 23, Section 3855 et. seq.


401 Water Quality Certification Process

14-CA-d.1 - Section 401 Water Quality Certification Application and Associated Documents

The developer must submit a Section 401 Water Quality Certification Application to the California State Water Resources Control Board (SWRCB) where there is an appropriation of water, a hydroelectric facility licensed or exempted by the Federal Energy Regulatory Commission (FERC), or any other diversion of water for domestic, irrigation, power, municipal, industrial or other beneficial use, if such activity may result in any discharge to a navigable water of the United States. 23 CCR 3855. The application must include:

  • The name, address, and phone number of the applicant (and the applicant’s agent if an agent is submitting the application);
  • A full technically accurate description of the activity (including the purpose and final goal);
  • A complete identification of all federal licenses and permits required for the activity;
  • Complete copies of the federal license and permit applications or a written statement that the project does not require any federal licenses or permits;
  • Copies of any final and signed federal, state, or local permits (or draft permits if not finalized);
  • A copy of any draft or final CEQA document(s);
  • The required fee deposit; and
  • A complete project description, including: the name and type of any receiving body(ies) or water; the location of the activity; an estimate of the amount of water the project will adversely impact; and a description of steps taken or that will be taken to avoid, minimize, or compensate for loss of or significant adverse impacts to the beneficial use of waters of the state.

23 CCR 3856.


Hydropower


For any hydropower project requiring a FERC license, license amendment, or FERC exemption, the developer must submit a Section 401 Water Quality Certification Application, specifically indicating that the developer is seeking a FERC license, amendment, or exemption. See 23 CCR 3860(b).

Closed-System Pumped Storage

If the construction and operation of a closed-system pumped storage facility will not result in a discharge into any navigable waters, even in the event of emergencies when water exceeds the capacity of the project’s reservoirs to absorb the excess waters, the project may not require water quality certification under the CWA. However, if there is any potential for the project to discharge into a navigable water of the United States, the developer still must submit a Section 401 Water Quality Certification Application. The SWRCB may then issue a certification for the project and may include conditions as part of the water quality certification. However, FERC is not required to include such conditions in the FERC license or exemption, but may choose to include the SWRCB’s conditions as recommendations submitted under section 10(a)(1) of the Federal Power Act (FPA).

Note: It is also important to note that California will not issue a Water Quality Certification until the developer of a hydropower project secures a water right meeting the project’s water need.

See Water Access and Water Rights:
19-CA-a


14-CA-d.2 – Notify Regional Board Executive Officer

The developer must notify the appropriate regional water quality control board executive officer in whose region a discharge may occur. 23 CCR 3855.

14-CA-d.3 – Forward Relevant Portions of the Application to Executive Officer

The Executive Director of the SWRCB Board forwards to the executive officer of the appropriate regional water quality control board copies of any portions of the application that are relevant to adverse water quality impacts, other than specific impacts resulting from alterations to instream flow from the proposed activity. 23 CCR 3855(b)(2)(B).

14CA-d.4 – Review Application and Make Recommendations to SWRCB

The executive officer of the appropriate regional water quality control board (RWQCB) reviews the relevant portions of the application for water quality concerns and sends any recommendations and conditions necessary to ensure the activity will comply with water quality standards to the Executive Director. 23 CCR 3855(b)(2)(B).

14-CA-d.5 – Publish Public Notice of Application

The SWRCB must publish public notice of the application at least twenty-one days before taking any action on the application, unless the public notice requirement was already satisfied by the developer or federal agency. 23 CCR 3858(a).

14-CA-d.6 – Hold Public Hearing

The SWRCB or regional water quality control board may hold a public hearing on any Section 401 Water Quality Certification Application. 23 CCR 3858(b).

14-CA-d.7 - Review Application and Associated Comments

The SWRCB reviews the application, all relevant data, any recommendations of the regional board, any recommendations other agencies, and any comments received from interested persons. 23 CCR 3859(a).

14-CA-d.8 – Section 401 Water Quality Certification

If the SWRCB approves the application, the SWRCB issues a written certification to the developer. The written certification includes the action certified and any conditions placed upon that action. The SWRCB must send copies of the certification to the developer, the regional board(s), the EPA, the federal agency, and all other known interested parties no later than three days after approving the application. 23 CCR 3859.




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