Clean Water Act (CWA) Section 401 — Water Quality Certification
Activities requiring a federal permit must “certify” that the proposed work will not violate state water quality standards.
Clean Water Act USC 33 1341—Section 401(a)(1) - “Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate …. that any such discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307 of this title….”
- EPA Clean Water Act
- Clean Water Act, Section 401 Certification
- Clean Water Act, Section 404
- U.S. Army Corps Sacramento District Regulatory Program
- Nevada 401 Water Quality Certification Status for current Nationwide Permits
- State Authority and Public Notices
Most projects requiring State certification fall into two broad Federal program categories:
- Activities requiring a Federal permit to allow discharges of dredged or fill material to waters of the United States, including oceans, lakes, streams, wetlands, and other water bodies. These permits are issued by the U.S. Army Corps of Engineers (Corps) under CWA Section 404. Activity examples include but are not limited to sediment dredging or gravel mining, channelization, levee construction, filling wetlands for development, culvert installation and river restoration.
- Projects involving construction of hydroelectric dams, power plants, and other facilities requiring Federal Energy Regulatory Commission (FERC) licenses.
The State may respond to this type of application in three ways:
- Waiver - Under Federal law the State may waive its certification authority if it takes no action on an application within a "reasonable time" not to exceed one year. For Section 404 permit projects, the Corps has defined "reasonable time" to be 60 calendar days, starting with receipt of a complete application by the State, but may extend this period up to one year on a case-by-case basis. Waivers carry no conditions, and are, in some ways, equivalent to certification without conditions.
- Certification - Certification is based on a finding that the proposed Section 404 discharge will comply with all pertinent water quality standards. In order to allow certification, special conditions may be required by the State in order to remove or mitigate potential impacts to water quality standards. Such conditions must ultimately be included in the Federal Section 404 permit.
- Denial - The State has the option to deny certification if it is unable to find that the project will comply with water quality standards or other applicable requirements. If a project is denied certification, a Section 404 permit for it cannot be issued by the Federal government. In some instances denial is necessary due to failure by the applicant to meet a procedural requirement or the ability to meet water quality standards. Once the deficiency is addressed, the application for water quality certification may be reconsidered.
The application is provided below in two file formats, these are not online forms:
- Application — 401 Water Quality Certification (Word Format)
- Application — 401 Water Quality Certification
- Guidance for 401 Applications (How to fill out the application)
Applications and attachments can be submitted via email to: email@example.com
An application for 401 certification of a Section 404 activity should include:
- Contact Information and Project Description
- Map which clearly identifies waterbodies that will be impacted by activity
- Best Management Practices (BMPs) that will control erosion and sediment
- Amount of fill to be discharged, dredge removed or linear feet of channel impacted
- Electronic photos of project site
- NDEP 401 Application Addendum*
*New Federal Rules and Regulations become effective September 11, 2020 that impact the 401 Water Quality Certification Process
Pursuant to new Federal Rules and Regulations effective September 11, 2020 that address the 401 Water Quality Certification process, additional information is required to be submitted to the Nevada Division of Environmental Protection.
In addition to completion of the Nevada Division of Environmental Protection’s Clean Water Act §401 Water Quality Certification Application Form and pertinent attachments, the Project Proponent must also complete and submit the NDEP 401 Application Addendum found above.
The new federal rules and regulations further require the applicant to request a Pre-Filing Meeting at least 30 days prior to submittal of the application and pertinent attachments, including the Addendum. Although conducting a Pre-Filing meeting is optional, requesting a Pre-Filing Meeting is required by the new federal rules and regulations.
For more information contact:
Nevada Division of Environmental Protection
Bureau of Water Quality Planning
901 South Stewart Street, Suite 4001
Carson City, Nevada 89701-5249
Zachary Carter, Environmental Scientist III
US Army Corps of Engineers
Nevada Northern Office
300 Booth Street, Room 3060
Reno, Nevada 89509
US Army Corps of Engineers
Nevada Southern Office
196 E Tabernacle Street Room 30
St. George, Utah 84770-3474