Idaho 401 NPDES Water Quality Certification (14-ID-f)
- National Pollutant Discharge Elimination System (NPDES) Permits: The NPDES program requires facilities discharging from a point source such as a pipe into waters of the U.S. to obtain discharge permits. EPA is responsible for permitting and enforcing all NPDES permits in Idaho. Learn more at IDEQ’s NPDES Permits webpage.
- 404 Dredge and Fill Permits: The federal Clean Water Act requires a permit to conduct water-related construction activities, such as fills for development, water resource projects, and infrastructure development. The U S Army Corps of Engineers is responsible for issuing dredge and fill permits in Idaho. Learn more at IDEQ’s 404 Dredge and Fill Permits webpage.
This page includes the 401 certification process followed in Idaho for projects obtaining a NPDES permit. If the developer needs a 401 certification for dredge or fill activities under a 404 permit, follow the link here:
Section 401 of the federal Clean Water Act requires state certification for any permit or license issued by a federal agency for an activity that may result in a discharge into waters of the U.S. This requirement allows each state to have input into federally approved projects that may affect its waters (rivers, streams, lakes, and wetlands) and to ensure the projects will comply with state water quality standards and any other water quality requirements of state law. Any 401 certification in Idaho also ensures that the project will not adversely impact impaired waters (waters that do not meet water quality standards) and that the project complies with applicable water quality improvement plans (TMDLs).
The IDEQ must grant, deny, or waive 401 certification for a project before a federal permit or license can be issued. Depending on the type of project, the applicant will apply for section 401 certification directly with IDEQ or will apply for a federal permit with the appropriate federal agency and that agency will request the certification from IDEQ. IDEQ must act on a request for certification within a reasonable period of time, which cannot exceed one year, after which the certification requirement will be waived.IDEQ can waive certification (either expressly or by taking no action), deny the certification, grant the certification, or grant the certification with conditions. It is unusual for IDEQ to waive a certification; however, if a certification is waived, then the federal agency may issue the permit or license.
401 NPDES Water Quality Certification Process
14-ID-f.1 - Send Preliminary Draft NPDES Permit to IDEQ
The U.S. EPA works with IDEQ to obtain certification for NPDES permits and the applicant need not apply to IDEQ directly for section 401 certification. Whether an applicant applies directly with IDEQ or works through a federal agency, the applicant needs to include sufficient information to provide a reasonable assurance that the project will comply with the Clean Water Act and meet state water quality standards. Following are examples of the type of information IDEQ needs to make a decision:
- Legal name and address of activity owner or operator
- Legal name and address of owner or operators authorized representative
- Names of waterbodies impacted by the project
- Complete written description of activity, including maps, diagrams and other information
- Description of water quality impacts from the existing activities and proposed activities
- Identification of measures to prevent or mitigate violations or contributions to violations of water quality standards
- Copies of environmental information submitted to the federal licensing or permitting agency
IDEQ does not charge a fee for section 401 certifications.
14-ID-f.2 - Will IDEQ Conduct its Own Public Comment Period
IDEQ will provide the public with the opportunity to review and comment on draft 401 certification decisions. Typically, IDEQ will rely upon EPA Region 10 public notice practices; however, there may be instances where IDEQ issues its own public notice regarding certification decisions.
14-ID-f.3 - Review NPDES Permit and Comments to EPA
Under EPA Region 10 current practices, IDEQ often receives a preliminary draft NPDES permit and request for water quality certification before the EPA issues their draft NPDES permit for public comment. EPA typically requests that IDEQ provide a draft water quality certification decision within 30 days. IDEQ will consider the NPDES permit and any comments before drafting and issuing their own 401 water quality certification for public comment.
14-ID-f.4 - Issue Public Notice for Draft NPDES Permit and Request 401 Certification from IDEQ
If IDEQ did not provide a draft 401 water quality certification to EPA and intends to conduct their own comment period first, EPA will send a copy of the draft permit and fact sheet to IDEQ and formally request water quality certification within 30-days. IDEQ will prepare a draft certification and issue an electronic news release. The draft certification will be made available for review on IDEQ’s Web site and the public will be given 30-days to submit comments.
14-ID-f.5 to 14-ID-f.7 - Review NPDES Permit and Prepare Draft 401 Certification
IDEQ will provide its final certification decision based upon the draft permit and comments received during its own public comment period. The draft 401 certification will be sent to EPA along with any additional comments received during the comment period.
14-ID-f.8 - Review NPDES Permit and Send Draft 401 Certification to EPA
Under EPA Region 10 current practices, IDEQ often receives a preliminary draft NPDES permit and request for water quality certification before the EPA issues their draft NPDES permit for public comment. EPA typically requests that IDEQ provide a draft water quality certification decision within 30 days. IDEQ may provide comments and/or a draft certification to EPA regarding the preliminary draft permit.
EPA is required to publish notice to the public and provide an opportunity for the public to comment on the draft NPDES permit. The public comment period is a minimum of thirty 30 days.
14-ID-f.9 to 14-ID-f.10 - Append Draft 401 Certification to NPDES Public Notice
If IDEQ provides a draft water quality certification to EPA without conducing their own comment period, IDEQ will request EPA append the draft 401 certification to the Fact Sheet. IDEQ also requests that EPA include in their public notice and fact sheet a statement that the draft certification is available for review and IDEQ will accept public comments through the end of the draft permit comment period.
14-ID-f.11 to 14-ID-f.12 - Final 401 Certification
It is unusual for IDEQ to deny a certification, as IDEQ generally works closely with the federal agency issuing the permit or the applicant applying for the permit or license to ensure that the project can be certified to meet Idaho's water quality standards. However, a certification may be denied if there is no reasonable assurance the activity can proceed and meet water quality standards. If IDEQ denies the certification, the federal agency cannot issue the license or permit. Depending on the circumstances, IDEQ may deny the certification without prejudice, which allows the applicant to request certification again after amending the application. IDEQ may choose this route when not enough information was provided to give the required assurance of compliance with water quality standards.
When a certification is issued with conditions, it may specify effluent or other limitations and/or other requirements (e.g. monitoring, reporting, implementing best management practices) to ensure that the project will not violate state water quality standards or other water quality requirements of state laws. Those conditions become conditions of the license or permit and are enforceable. 40 CFR 124.53(e) provides that the Idaho state certification must include:
- conditions which are necessary to assure compliance with the applicable provisions of the Clean Water Act, state water quality standards and appropriate requirements of state law;
- any conditions more stringent than those in the draft permit which the state finds necessary to meet the requirements under the Clean Water Act, state water quality standards or other appropriate state law; and
- a statement of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of state law, including state water quality standards.
IDEQ's final certification decisions can be appealed, as provided by the Idaho Environmental Protection and Health Act and the Idaho Administrative Procedure Act. The appeal is a prerequisite to any court action. The procedures and timelines IDEQ follows when issuing state 401 water quality certification decisions are outlined in Idaho's §401 Certification Guidance.
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