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Utah 401 Water Quality Certification (14-UT-d)

Section 401 of the Clean Water Act (CWA) requires a Water Quality Certification for any federal license or permit that is issued to construct or operate a facility, which may result in any fill or discharge into the navigable waters of the United States. The Utah Division of Water Quality oversees the 401 Water Quality Certification process in the state of Utah. The director of the Utah Division of Water Quality (“director”) handles the nuances of the permitting process.

401 Water Quality Certification Process

14-UT-d.1 to 14-UT-d.2 – 401 Water Quality Application

The developer must submit an application for certification simultaneously with the application to the federal licensing or permit agency. If the application is not submitted simultaneously, then there may be delays and additional fees.

The application for certification must include the following information and documentation:

  • Application date;
  • Name and address of the developer;
  • Signature of the developer. A corporate application must be signed by an officer of the corporation. Any signature required for application for certification must be provided as described in 40 CFR Section 122.22(a);
  • Name, address, email address and phone number of a contact for the application;
  • List of names and address of landowners adjacent to the project site;
  • Plans or drawings that include a plan view, cross section view, and elevation view;
  • Associated existing or pending federal, state, and local permits, including land use permits, with corresponding file numbers;
  • For proposed discharges, specific information about the discharge must be included as required by U.A.C. R317-15-4.1H;
  • A description of the overall project including the construction and operation of the facilities which may result in discharge. Characterize the physical, chemical, biological, thermal and other pertinent properties of the discharge;
  • A description on how the discharges are compliant with water quality standards of the receiving water including anti-degradation requirements, beneficial use designations, narrative standards and numeric criteria;
  • A description of the methods and means being used or proposed to monitor the quality and characteristics of the discharge and the operation of the equipment or facilities employed in control of the proposed discharge;
  • Supporting documentation submitted to federal agencies, as applicable;
  • An exhibit that identifies and describes other requirements of Utah law applicable to the activity that have any relationship to water quality, including requirements under:
  1. Section 19-5-114, spills or discharges of oil or other substance;
  2. U.A.C. R317-2-12, Category 1 and Category 2 waters;
  3. U.A.C. R317-2-3 Anti-degradation Policy (ADR);
  4. Utah Pollutant Discharge Elimination System (UPDES) Storm Water General Permit for Construction Activities Permit No. UTR300000; and
  5. UPDES General Permit for Construction Dewatering Permit No. UTG070000.
  • Estimated dates on which the activity will begin and end and the date or dates on which the discharge(s) will take place;
  • Additional information regarding any unique features of the project; and
  • Any additional information as required by the director.

See U.A.C. R317-15-4.

14-UT-d.3 – Review Application Materials for Completeness

The director will review the application materials to ensure that all necessary information is included. See U.A.C. R317-15-4.4.

14-UT-d.4 – Is the Application Complete?

The developer will be notified if the application is incomplete, and given a deadline to provide the information necessary. If the developer fails to furnish the required information within the time limit, then the application will be placed on hold. See U.A.C. R317-15-4.4.

14-UT-d.5 – Review Application Materials

The evaluation process used by the director varies on a site-specific basis. In determining whether a proposed discharge complies with applicable discharge and water quality requirements, the director will ordinarily consider in the evaluation process whether a proposed discharge:

  • Prevents or interferes with the attainment or maintenance of applicable water quality standards in U.A.C. R317-2 including: impairs the designated beneficial use classifications, exceeds water quality criteria, or fails to meet the anti-degradation requirements of U.A.C. R317-2-3;
  • Causes a violation of the Utah Water Quality Act, Title 19, Chapter 5;
  • Is inconsistent with wasteloads and permitted load allocations in listed TMDLs in U.A.C. R317-1-7;
  • Causes an exceedence of effluent limitations for control regulations applicable under U.A.C. R317-8; or
  • Otherwise causes a failure of compliance with applicable discharge and water quality requirements.

See U.A.C. R317-15-6.1.

14-UT-d.6 – Draft Water Quality Certification

Following review of the application materials, the director will develop a draft Water Quality Certification for the project. See See U.A.C. R317-15-5.

14-UT-d.7 – Provide Public Notice of Draft Certification

The director will provide public notice, when practicable, jointly with federal agencies that are licensing or permitting the proposed activity. If public notice in conjunction with federal agencies is not possible, then the director will publish public notice by one or more of the following methods:

  • Utah Department of Environmental Quality website; or
  • Any other means selected by the director that will effectively solicit input from stakeholders representing state and federal agencies, interest groups, and the general public.

See U.A.C. R317-15-5.

14-UT-d.8 – Comment on Draft Certification

The draft certification must be subject to public comment. The comment period is ordinarily 30 days, but may be lengthened or shortened for good cause. For example, the period may be shortened if the application is of the type that is routinely granted or the impacts of the proposed activity are minor. The period may also be shortened if the period for issuing a Certification is shortened by the federal licensing or permitting agency. A comment period may be lengthened for a major activity. See U.A.C. R317-15-5.1.

14-UT-d.9 – Hold Public Hearing, If Necessary

The director has discretion to hold a public hearing if deemed necessary. See U.A.C. R317-15-5.5

14-UT-d.10 to 14-UT-d.12 – Does the UDWQ Approve the Certification?

After reviewing the application for certification and comments, the director will either:

  • Issue a certification;
  • Issue a certification with specific conditions that must be met in order for the developer to be in compliance with applicable law;
  • Deny the certification and include reasons for denial; or
  • Waive certification if the director finds that the activity will cause minimal impacts to water quality, or have temporary or limited effect on water quality.

See U.A.C. R317-15-6.3.

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