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Colorado 401 Water Quality Certification (14-CO-d)

In Colorado, the Colorado Department of Public Health and Environment (CDPHE) Water Quality Control Division (WQCD) reviews and issues Water Quality Certifications pursuant to Colorado Code of Regulations 5 CCR 1002-82, 401 Water Quality Certification Regulationand Colorado – C.R.S. 25-8-302, Duties of Water Quality Control Division. Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers, subject to a federal license or permit (i.e., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.) to obtain a 401 Water Quality Certification (WQC) if the project may result in any discharge into navigable waters of the U.S. 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 . See, also Colorado Code of Regulations 5 CCR 1002-82, 401 Water Quality Certification Regulation and Colorado – C.R.S. 25-8-302, Duties of Water Quality Control Division.


Water Qualification Certificates issued by the WQCD apply to both the construction and operation of the project for which a federal license or permit is required and apply to all water quality impacts associated with the project, including wetland impact. 5 CCR 1002-82.1. CRS § 25-8-103(19); 5 CCR § 1002-31.27; 5 CCR § 1002-31.5(50).


401 Water Quality Certification Process

14-CO-d.1 – Application for Water Quality Certification

A developer must submit a complete 401 Water Quality Certification to the Water Quality Control Division (WQCD) required for permits issued by the U.S. Army Corps of Engineers (USACE) pursuant to Section 404 of the Clean Water Act. In addition a developer must submit a complete 401 Water Quality Certification for Federal Energy Regulatory Commission (FERC) hydropower projects, and other federal permits which involve a discharge into waters of the state, including permits issued by the Environmental Protection Agency (EPA) pursuant to Section 402 of the Clean Water Act. 5 CCR 1002-82.1, 401 Water Quality Certification Regulation.

Also note that beginning in July, 2016 the WQCD requires that the developer submit a fee with 401 Water Quality Certification Application. For more information visit the WQCD 401 Water Quality Certification website.

USACE Section 404 Permits

For applications for state Water Quality Certification for Section 404 permits, the application must include:

  • A copy of the federal application for an USACE Section 404 permit to discharge dredged or fill material;
  • A map of the project location;
  • A site plan; and
  • A listing of the selected Best Management Practices chosen for the project.

5 CCR 1002-82.4(A), Application for Water Quality Certification.


FERC License or Exemption

The developer must submit the Water Quality Certification Application via letter to the WQCD for Federal Energy Commission (FERC) licensed projects . The letter of Application for Water Quality Certification must include:

  • The name, address, and phone number of the applicant;
  • The federal license or permit for which the applicant requests certification;
  • A description of the project, which is expected to result in a discharge into waters of the state;
  • All water quality data, reports, and analyses, which describe the existing and projected water quality for those waters affected by the project;
  • A map of the project location;
  • A site plan; and
  • A listing of the selected Best Management Practices chosen for the project to protect water quality during construction and operation of the project.

5 CCR 1002-82.4(C), Application for Water Quality Certification.

14-CO-d.2 to 14-CO-d.3 – Review Application Material for Completeness

The WQCD will review the certification application material for completeness. 5 CCR 1002-82.5(A)(1), Division Procedures and Determinations.

The WQCD may request additional information from the applicant (developer) if the information contained in the federal application or the application for certification is insufficient to reach a certification decision. 5 CCR 1002-82.4(D), Application for Water Quality Certification.

14-CO-d.4 – Draft Water Quality Certification and Preliminary Anti-Degradation Determination

The WQCD prepares a Draft Water Quality Certification. The draft certification must contain:

  • If applicable, a preliminary anti-degradation determination in accordance with the Basic Standards and Methodologies for Surface Water in 5 CCR 1002-31, Regulation 31.8; and
  • A draft certification determination.

Additionally, the WQCD prepares a Preliminary Anti-Degradation Determination for the project. 5 CCR 1002-82.5(B), Division Procedures and Determinations.

14-CO-d.5 – Publish Public Notice of Draft Water Quality Certification

The WQCD publishes a notice of the Draft Water Quality Certification and the request for comments on the draft certification in the Water Quality Information Bulletin. 5 CCR 1002-82.5(B), Division Procedures and Determinations.

14-CO-d.6 – Comment on Draft Water Quality Certification

After the WQCD publishes notice of the Draft Water Quality Certification in the Water Quality Information Bulletin, the public has 30 days to comment on the project and draft certification. 5 CCR 1002-82.5(B)(1), Division Procedures and Determinations.


14-CO-d.7 – Review Application Materials

In reviewing the application materials and determining whether to issue the Water Quality Certification, the WQCD considers and conducts, as appropriate:

  • Anti-degradation review pursuant to the procedures in 5 CCR 1002-21, section 21.16 (if applicable, the preliminary anti-degradation determination must be part of the draft permit (5 CCR 1008-82 §82.5(B)(1)(a));
  • Classifications and water quality standards assigned to the waters affected by the project for which a federal license or permit is required;
  • Any applicable effluent limitations or control regulations;
  • Any project specific conditions proposed by the applicant and agreed to by the WQCD, including any condition beyond the authority of the WQCD to require; and

5 CCR 1002-82.5(A)(1), Division Procedures and Determinations.

14-CO-d.8 to 14-CO-d.10 – Does the CDPHE Approve the Certification?

The WQCD makes a Final Water Quality Certification determination as soon as practicable after the 30-day public comment period on the draft certification. 5 CCR 1002-82.5(B)(2), Division Procedures and Determinations.

If the federal agency to whom the license or permit application has been made determines that an environmental impact statement, public hearing, or other action is necessary, the WQCD may delay the issuance of the certificate by up to 60 days, following the close of the administrative record, if it finds that such process may produce information relevant to the certification decision.5 CCR 1002-82.5(C)(4), Division Procedures and Determinations.

If, after consideration of the elements above (5 CCR 1002-82.5(A)(1)) the WQCD determines that “there is not a reasonable assurance that the project for which a federal license or permit is required will comply with all applicable requirements” the WQCD will deny the certification of the license or permit. 5 CCR 1002-82.5(A)(5), Division Procedures and Determinations. Note, prior to the denial of certification, the WQCD may hold one or more meetings or conferences to inform the applicant (developer) of the preliminary decision to deny certification and to allow the applicant (developer) to make necessary modifications to the project leading toward certification, if possible. 5 CCR 1002-82.5(A)(5), Division Procedures and Determinations.

The WQCD will grant regular certification if, after consideration of all the relevant approval criteria, the division concludes that the project will comply with all applicable requirements if constructed, operated, and maintained as designed. 5 CCR 1002-82.5(A)(2), Division Procedures and Determinations.

The WQCD will grant conditional certification if, after consideration of all the relevant approval criteria, the division concludes that the project will comply with all applicable requirements only if one or more conditions are placed on the license or permit. The WQCD, as part of conditional approval, may require water quality monitoring, based on site-specific circumstances, to ensure that Best Management Practices are performing as designed and that the project complies with all applicable requirements. All conditions imposed by the WQCD must be consistent with subsection CRS 25-8-104. Prior to the issuance of conditional certification, the WQCD may hold one or more meetings with the applicant to inform the applicant of the need for the conditions and to discuss options for the project, including redesign or modification. 5 CCR 1002-82.5(A)(3), Division Procedures and Determinations.

14-CO-d.11 – Publish Notice of Final Water Quality Certification

The WQCD publishes notice of the Final Water Quality Certification and Anti-Degradation Determination in the Water Quality Information Bulletin. The final determination must include any changes determined appropriate by the WQCD based upon public comment and information raised during the public comment period for the draft certification. 5 CCR 1002-82.5(B)(2), Division Procedures and Determinations.

14-CO-d.12 – File Appeal (If Applicable)

The applicant (developer) and public have 30 days to appeal the final decision of the WQCD. See, Colorado – C.R.S. 25-8-302, Duties of Water Quality Control Division; Colorado – C.R.S. 24-4-105, Hearings and Determinations.




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