401 Certification

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….”

Effective April 6, 2022, projects requiring water quality certification from the State must comply with the Clean Water Act (CWA) Section 401 Certification regulations EPA promulgated in 2020, codified at 40 CFR 121. Applicants seeking water quality certification for a project must request a “pre-filing meeting” to initiate the mandatory 30-day wait period prior to submitting a certification request. Pre-filing meeting requests should be directed to ndep401@ndep.nv.gov, and it is recommended that applicants submit draft application material with the pre-filing request.

Quick Links:

• 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 three broad Federal program categories:

1. 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. 
2. Projects involving construction of hydroelectric dams, power plants, utility lines and other facilities requiring Federal Energy Regulatory Commission (FERC) licenses. 
3. Activities that require authorization under Rivers and Harbors Act Section 9 or 10 for projects that have a potential to discharge in navigable waters of the United states. 

The State may respond to this type of application in four ways:

1. Waiver - Under Federal law the State may waive its certification authority if it takes no action on an application within a "reasonable period of time" not to exceed one year. Following submission of a certification request documented as received by a certifying authority in accordance with applicable submission procedures (40 CFR 121.1(m)), the reasonable period of time (RPOT) will be established by the Army Corps of Engineers on an individual project basis. Waivers carry no conditions, and are, in some ways, equivalent to certification without conditions.
2. Certification – Certifications without conditions are granted based on a finding that the proposed project will comply with all pertinent water quality standards and requirements.
3. Certification with Conditions – Conditional certification may be granted for a proposed project when additional project conditions are required for a project to comply with state water quality requirements or to remove or mitigate potential impacts to water quality standards. Such conditions must ultimately be incorporated in the Federal permit.
4. 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, the federal permit or license 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: ndep401@ndep.nv.gov

An application for 401 certification of a federally permitted or licensed activity activity should include:

• Application (templates available above)
• 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

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
775-687-9456 ndep401@ndep.nv.gov

US Army Corps of Engineers
Nevada Northern Office
300 Booth Street, Room 3060
Reno, Nevada 89509
775-784-5304 | spkregulatorymailbox@usace.army.mil

US Army Corps of Engineers
Nevada Southern Office
533 West 2600 South, Suite 150
Bountiful, Utah 84010
435-986-3979 | spkregulatorymailbox@usace.army.mil