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Washington 401 Water Quality Certification (14-WA-d)

The Washington State Department of Ecology (WSDE) 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 (i.e., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.) to obtain a 401 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.


Developers requiring a Section 404 dredge and fill permit from the U.S. Army Corps of Engineers (USACE) are required to obtain a Section 401 WQC in the state of Washington. The WSDE’s issuance of a 401 WQC signifies that the WSDE has reasonable assurance that the project will comply with state water quality standards and other aquatic resource protection requirements. A 401 WQC 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.

Hydropower

The developer must submit a 401 WQC application for any hydropower project requiring a FERC license, license amendment, or re-licensing. Washington does not currently require a 401 WQC for FERC exempted hydropower projects. For more information on FERC licensing and exemption, see:

Federal FERC Hydropower Overview:
7-FD-e


401 Water Quality Certification Process

14-WA-d.1 – Hold Pre-Application Meeting (Optional)

Developers are encouraged to meet with WSDE before beginning the permit application process. At these preliminary meetings, the developer and WSDE begin to identify environmental concerns and studies. The parties should also create a realistic timeline on which to get water quality information and process the Water Quality Certification. This timeline should allow both the Water Quality Certification and the FERC process to proceed simultaneously.


14-WA-d.2 – 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 Washington Joint Aquatic Resources Permit Application (JARPA) for:

  • U.S. Army Corps 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;
  • Wetland impacts and mitigation techniques;
  • Waterbody (other than wetlands) impacts and mitigation techniques;
  • Washington State Environmental Policy Act (SEPA) 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 include a pre-submittal checklist for developers to makes 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.3 – 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-WA-d.4 to 14-WA-d.5 – Does the Project Require a Nationwide or an Individual 404 Permit

The USACE determines if the project qualifies for a Nationwide 404 Permit (NWP) or requires an Individual 404 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 WQCC. If the project is covered by a NWP, the USACE will issue a letter notifying the WSDE of its determination.

NWPs may be subject to additional regional and general conditions. For additional information on NWPs in Washington State, see the Washington State Department of Ecology Nationwide Permit Webpage.


14-WA-d.6 to 14-WA-d.8 – Does the Nationwide 404 Permit Require Further 401 Certification from the WSDE?

Certain NWPs require further certification from the WSDE. Below is a list of NWPs and the level of additional review required by the WSDE for 401 WQC:

  • 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 for 401 Water Quality Certification, 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.

Hydropower

The USACE has developed a nationwide permit (NWP 17) 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 Nationwide Permits at 10).

However, as noted above, the WSDE has denied NWP 17 and requires an Individual 401 WQC for these projects.

If the NWP does not require further certification, the USACE’s 404 permit satisfies the conditions of a 401 WQC. No further action is required and the developer may continue with the project. Otherwise the WSDE will review the project information in the JARPA.


14-WA-d.9 to 14-WA-d.10 – 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.11 to 14-WA-d.12 – Does the Project Meet Nationwide Permit and 401 Water Quality Certification Requirements?

If the WSDE determines that the project meets NWP and 401 WQC requirements, the WSDE issues a Letter of Verification and the developer may continue with the project as long as they meet the terms and conditions of the NWP. If the WSDE determines that the project does not meet NWP and 401 WQC requirements, the developer must complete the notice and comment process, followed by a certification determination by the WSDE.


14-WA-d.13 – Issue Public Notice and Allow for Comment

The WSDE must mail notice of the JARPA to all persons and organizations that have requested such notification and all others deemed to require notification. In addition, when the WSDE determines it to be in the public interest, the developer must public a notice for 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 developer is responsible for the cost of publication and must provide the WSDE with an affidavit of publication. WAC 173-225-030.


14-WA-d.14 – 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. The WSDE may also extend the public comment period. WAC 173-225-030.


14-WA-d.15 to 14-WA-d.17 – Review JARPA, Supporting Documents, and Public Comments

The USACE and WSDE will review the JARPA, supporting documents (e.g., mitigation plan), and public comments. Projects that trigger the Washington State Environmental Policy Act (SEPA) must have completed SEPA review prior to the 401 WQC determination.

If the application materials are incomplete, the WSDE will notify the developer and request that the developer submit additional information.


14-WA-d.18 to 14-WA-d.20 – Does the WSDE Approve the 401 Water Quality Certification?

The WSDE will make a decision on the 401 WQC based on Washington water quality standards in WAC 173-201A and either issue a 401 WQC or a letter of denial.

After the WSDE issues the 401 WQC, the USACE may issue the 404 Dredge and Fill Permit. Conditions of the Section 401 WQC become conditions of Federal permits or licenses issued for the project, including FERC licenses or exemptions.

14-WA-d.21 – Appeal Decision (if applicable)

If the WSDE grants the 401 WQC, the public can appeal the decision to the Washington Pollution Control Hearing Board (PCHB). If the WSDE issues a denial, the developer can appeal the denial to the PCHB.




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