14-WA-d 401 Water Quality Certification
Developers requiring a Section 404 Dredge and Fill Permit from the U S Army Corps of Engineers (Corps) are required to obtain a Section 401 Water Quality Certification from the state of Washington. The Washington State Department of Ecology (WSDE) issues 401 Water Quality Certifications for dredge and fill activities in Washington. The WSDE’s issuance of 401 Water Quality Certification signifies that the WSDE has reasonable assurance the developer’s project will comply with state water quality standards and other aquatic resource protection requirements. 401 Water Quality Certification can cover both the construction and operation of the proposed project. Washington regulates water quality under Revised Statute of Washington Chapter 90.48 and provides water quality standards in Washington Administrative Code Chapter 173-201A.
14-WA-d.1 – Joint Aquatic Resource Permit Application (JARPA) and Associated Documents
Federal, state, and local agencies have developed a single application for a selection of water related approvals to streamline the permitting process in Washington. A developer can submit a Joint Aquatic Resources Permit Application (JARPA) for:
- U.S. Army Corp of Engineers Section 10 and Section 404 Permits;
- U.S. Coast Guard Private Aids to Navigation (PATON);
- Washington State Department of Ecology 401 Water Quality Certification;
- Washington State Department of Fish and Wildlife Hydraulic Project Approval;
- Washington State Department of Natural Resources Aquatic Use Authorization; and
- Local shoreline permits for Substantial Development, Conditional Use, Variance, Exemption, and Revision.
The JARPA requires the developer to submit the following information:
- The project name;
- The applicant/developer;
- Authorized agents;
- Property owner(s);
- Project location;
- Project description;
- Wetlands impacts and mitigation techniques;
- Waterbodies (other than wetlands) impacts and mitigation techniques;
- Washington State Environmental Policy Act compliance; and
- Other additional information as required.
The state of Washington has developed instruction guides for completing and understanding the JARPA process (Washington Completing JARPA Instructions and Washington JARPA Technical Help) which includes a pre-submittal checklist for developers to make sure they have included all necessary information and attachments such as wetland delineations, mitigation plans, best management practices, etc. The developer should submit copies of the JARPA to all relevant permitting agencies at the federal, state, and local level.
14-WA-d.2 to 14-WA-d.3 – Does the Project Require a Nationwide or Individual 404 Permit
The U S Army Corps determines if the project qualifies for a Nationwide Permit (NWP) or requires an Individual Permit (IP). If the project requires an IP, the developer must complete a notice and comment process followed by a WSDE determination of whether to approve the project’s 401 Water Quality Certification. If the project is covered under a NWP the U S Army Corps will issue a letter notifying the WSDE. The process varies depending on which NWP covers the activity. Below is a list of NWPs and the level of additional review required by the WSDE for 401 Water Quality Certification.
- The WSDE has certified the following NWPs for 401 Water Quality Certification if State Conditions have been met and require no further action: 1, 2, 4, 5, 7, 9, 10, 11, 15, 18, 20, 22, 25, 28, 30, and 31.
- The WSDE has certified the following NWPS subject to conditions for 401 Water Quality Certification and may require additional review by the WSDE: 3, 6, 12, 13, 14, 16, 19, 23, 27, 29, 32, 33, 34, 35, 36, 38, 39, 40, 41, 42, 43, 45, 46, and 48.
- The WSDE has denied the following NWPs and requires an Individual 401 Water Quality Certification: 8, 17, 21, 37, 44, 49, 50, 51, and 52.
For additional information on the 404 Permit process see 14-FD-a - Dredge & Fill Permit.
For additional information on NWPs in Washington State see Washington State Department of Ecology Nationwide Permit Webpage.
14-WA-d.4 to 14-WA-d.6 – Does the Nationwide Permit Require Further 401 Certification from the WSDE
As mentioned above, certain NWPs require further certification from the WSDE. If the NWP does not require further certification, no further action is required and the developer can continue with the project. Otherwise, the WSDE will review the project information in the JARPA.
14-WA-d.7 to 14-WA-d.8 – Does the WSDE Request Additional Information
During the WSDE’s review of the JARPA and associated documents, the WSDE may request additional information concerning the project.
14-WA-d.9 to 14-WA-d.10 – Does the Project Meet Nationwide Permit and 401 Permit Requirements
If the WSDE determines that the project meets NWP and 401 Water Quality Certification requirements, the WSDE issues a Letter of Verification and the developer may continue with the project so long as they meet the terms and conditions of the NWP. If the WSDE determines that the project does not meet NWP and 401 Water Quality Certification requirements, the developer must complete the notice and comment process followed by a certification determination by the WSDE.
14-WA-d.11 – Issue Public Notice and Allow for Comment
The WSDE must mail notice of the JARPA to all persons and organizations who have requested such notification and all others deemed to require notification. In addition, when the WSDE determines to be in the public interest, the developer must publish a notice in two consecutive weeks in a newspaper of general circulation in the county in which the activity described in the JARPA is located and in other such counties as the WSDE deems appropriate. The developer must publish the notice in a form approved by the WSDE. The applicant is responsible for the cost of publication and must provide the WSDE with an affidavit of publication. WAC 173-225-030
14-WA-d.12 – Submit Comments
Any person seeking to present views on the JARPA in relation to water pollution control considerations must do so in writing and submit the comments to the regional office of the WSDE identified in the notice within 20 days after the notice was last published in the newspaper of general circulation or longer if the WSDE director extends the period for public comment. WAC 173-225-030
14-WA-d.13 to 14-WA-d.14 – Review JARPA, Supporting Documents, and Public Comments
The WSDE will review the JARPA, supporting documents (e.g. mitigation plan), and public comments. If the application materials are incomplete, the WSDE will notify the developer and request the developer submit additional information.
14-WA-d.15 – Does the WSDE Approve the 401 Water Quality Certification
The WSDE will make a decision on the 401 Water Quality Certification based on Washington water quality standards (WAC 173-201A) and either issue a 401 Water Quality Certification or a Letter of denial. If the WSDE grants the 401 Water Quality Certification the public can appeal the decision to the Washington Pollution Control Hearing Board (PCHB), whereas if the WSDE issues a denial, the developer can appeal the denial to the PCHB. After the WSDE issues the 401 Water Quality Certification, the U S Army Corp may issue the 404 Dredge and Fill Permit. The 401 Water Quality Certification becomes part of the 404 Dredge and Fill Permit and lasts for the life of the 404 Permit. In addition, for projects that trigger the Washington State Environmental Policy Act (SEPA), the SEPA review must be complete prior to a 401 Water Quality Certification decision.
- Joint Aquatic Resources Permit Application (JARPA)
- Washington Completing JARPA Instructions
- Washington JARPA Technical Help
- Washington 401 Water Quality Certification JARPA Process
- Washington Environmental Permitting Handbook - 401 Water Quality Certification
- Washington State Department of Ecology 401 Water Quality Certification Webpage