Arkansas 401 Water Quality Certification (14-AR-d)
Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers, subject to a federal license or permit (e.g., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.), to obtain a 401 Certification or waiver if the project may result in any discharge into the navigable waters of the U.S. 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 Certification.
In addition to projects requiring a 401 Certification for a Federal Energy Regulatory Commission license, a 401 Certification is required for projects triggered by a CWA Section 404 permit from the US Army Corps of Engineers (USACE). For more information on Section 404 permits, see:Clean Water Act Section 404 Permit Application Process:
401 Water Quality Certification Process
14-AR-d.1 - 401 Water Quality Certification Application
The developer must submit a ADEQ Short Term Activity Authorization From (Application) to the ADEQ water quality permits division to obtain a 401 Water Quality Certification. 14-00-008 Ark. Code R. § 203 (2009). An Application must be submitted for any activity that may violate Arkansas' Water Quality Standards.
14-AR-d.2 to 14-AR-d.3 - Review Application Materials for Completeness
All Applications must, at minimum, include:
- The full name, phone number, e-mail address, business address and mailing address of the developer;
- The social security number or tax identification number of the developer;
- The location of the project;
- The total acreage being disturbed;
- The affected water body;
- The full name and business address of any legal entity the developer holds debt or equity of 5% or more;
- A description of the developer's experience and credentials;
- A list and explanation of any environmental civil or criminal actions against the developer in the past ten (10) years; and
- A list of any federal or other state environmental agencies previously having regulatory authority over the developer.
14-AR-d.4 - Publish Public Notice of Application
The developer must publish notice of the Application in the newspaper of general circulation. The notice, at the minimum, must include:
- The developers name and business address;
- The type of permit;
- The name of the division reviewing the permit;
- The Application filing date; and
- Notice that any interested person may request a public hearing within ten (10) days.
14-AR-d.5 - Request Public Hearing (Optional)
Any interested party may submit a written request for a public hearing to the ADEQ within ten (10) days of the notice of Application. ADEQ has the discretion to decide whether to hold a public hearing. 14-00-008 Ark. Code R. § 206 (2009).
14-AR-d.6 - Review Application Materials for Draft Approval
14-AR-d.7 - Publish Notice of Draft Certificate Decision
14-AR-d.8 - Submit Public Comments
Any interested party may submit written comments, data, views or arguments on the draft decision to ADEQ during the public comment period. ADEQ will accept public comments for 30 days after notice of the draft Certificate decision. 14-00-008 Ark. Code R. § 208 (2009).
14-AR-d.9 to 14-AR-d.10 - Publish Notice of Public Hearing (If Applicable)
If ADEQ decides to hold a public hearing, notice must be sent to every person that requested a public hearing, submitted a public comment or requested notice of a public hearing. Additionally, notice of the public hearing must be published in the local newspaper. 14-00-008 Ark. Code R. § 209 (2009).
14-AR-d.11 to 14-AR-d.12 - Review Application Materials for Final Approval
ADEQ must assess the Application materials for final approval.
ADEQ may deny the Application if:
- The developer misrepresented or concealed any material fact in the Application;
- The developer deliberately falsified or omitted relevant information;
- The developer has a documented and continued history of criminal convictions based on violations of any state or federal environmental law or regulation; or
- The developer is affiliated with a person likely to influence the project and cause a negative impact on the environment.
14-AR-d.13 - 401 Water Quality Certification
The developer must comply with any conditions or restrictions on the Certificate. 14-00-008 Ark. Code R. § 211 (2009).
14-AR-d.14 to 14-AR-d.15 - Request Rehearing (Optional)
Any party with standing may request a hearing with the Arkansas Pollution Control and Ecology Commission within thirty (30) days of the permit decision. 14-00-008 Ark. Code R. § 214 (2009). Any party with standing may appeal the Commission's decision to the circuit court with jurisdiction. 14-00-008 Ark. Code R. § 217 (2009).
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