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Arizona 401 Water Quality Certification (14-AZ-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. ARS 49-202 delegates authority to the Arizona Department of Environmental Quality (ADEQ) to review and issue 401 Water Quality Certifications in Arizona. 401 Water Qualification Certificates issued by the ADEQ apply to both the construction and operation of the project for which a federal license or permit is required and apply to all water quality impacts associated with the project. The typical case arises when developers apply for a Section 404 Dredge and Fill Permit from the U.S. Army Corps of Engineers. In those cases, Arizona’s certification process normally takes place during the public notice period for the 404 Dredge and Fill Permit.

401 Water Quality Certification Process

14-AZ-d.1 – ADEQ Application for 401 Certification

The developer must submit the Application for 401 Certification provided by the ADEQ. The application must include:

  • The name, address and telephone number of the applicant;
  • A description of the project to be certified, including an identification of the navigable waters in which the certified activities will occur;
  • The project location, including latitude, longitude and a legal description;
  • A United States geological service topographic map or other contour map of the project area, if available;
  • A map delineating the ordinary high watermark of navigable waters affected by the activity to be certified;
  • A description of any measures to be applied to the activities being certified in order to control the discharge of pollutants to navigable waters from those activities;
  • A description of the materials being discharged to or placed in navigable waters; and
  • A copy of the application for a federal permit or license that is the subject of the requested certification.

ARS 49-202 G. Arizona does not require an application fee for 401 Water Quality Certification.

14-AZ-d.2 to 14-AZ-d.3 – Review Application Materials for Completeness

The 401 Certification application is generally deemed complete by the ADEQ upon submission of the information outlined above and/or contained in the application. ARS 49-202 F(1). However, the ADEQ may request supplemental information. A request for supplemental information must be in writing and may be treated by the developer as a denial of the application. ARS 49-202 G. If the ADEQ requests additional information, the application will only be deemed complete after the developer furnishes the ADEQ with the specified supplemental information.

14-AZ-d.4 to 14-AZ-d.5 – Does the ADEQ Grant or Deny the Application?

The ADEQ will either grant or deny the Application for 401 Certification by sending written notice of the decision to the developer. ARS 49-202 F(2). If the ADEQ grants certification, the process ends. Additionally, if the ADEQ does not act upon an Application for 401 Certification within 30 days of receipt, the failure to act is considered a waiver by the ADEQ, no certification is needed and the process ends. ARS 49-202 F(3).

14-AZ-d.6 to 14-AZ-d.7 – 401 Water Quality Certification Denial

If the ADEQ denies the application, the written notice of denial will include a detailed description of the reasons for denial. At this point, the developer may choose to appeal the denial. ARS 49-202 H. Absent an appeal, the process ends.

14-AZ-d.8 – Submit Appeal

If the developer chooses to appeal, the developer and the ADEQ must follow the procedures outlined in ARS 41-1092. The developer must submit a written appeal to the ADEQ within 30 days of receiving notice from the ADEQ of certification denial.

14-AZ-d.9 to 14-AZ-d.10 – Does the Developer Request an Informal Settlement Conference?

The developer has the opportunity to request an informal settlement conference with the ADEQ prior to a formal hearing on the appeal. The request for an informal settlement conference must be filed with the ADEQ at least 20 days before the scheduled formal hearing. If an informal settlement conference is requested, the ADEQ must notify the Administrative Hearings Unit (AHU) of the request. ARS 41-1092.06 A. During the settlement conference, any statements made by either party, written or oral, are inadmissible in any subsequent administrative hearing. ARS 41-1092.06 B.

14-AZ-d.11 to 14-AZ-d.12 – Do the Parties Reach a Settlement?

If the parties reach a settlement, the ADEQ must notify the AHU regarding the outcome of the informal settlement conference as soon as practicable. ARS 41-1092.06 B.

14-AZ-d.13 to 14-AZ-d.14 – Notice of Hearing

If the parties do not reach a settlement, the AHU will issue a notice of the hearing to both the developer and the ADEQ at least 30 days prior to the hearing date and will subsequently hold the hearing. During the hearing, either party has the right to be represented by counsel or to proceed without counsel. Regardless, both parties may submit evidence and cross-examine witnesses. 41-1092.07 A. At a hearing on the ADEQ’s denial of a permit or a denial of an application or request for modification of a permit, the developer has the burden of persuasion. 41-1092.07 G.

14-AZ-d.15 – Final Decision

Based on the hearing, the presiding Administrative Law Judge (ALJ) issues a written decision within 20 days after the hearing concludes. 41-1092.08 A. The AHU will send a copy of the ALJ’s decision to the head of the ADEQ. Within thirty days of receipt, the head of the ADEQ may review the decision and accept, reject or modify. 41-1092.08 B.

14-AZ-d.16 to 14-AZ-d.17 Does the ADEQ Decline Review of the AHU Decision?

The ADEQ may choose to review the ALJ’s written decision or decline review. If the ADEQ declines review, the ALJ decision becomes final and the ADEQ must send a copy of the decision to the developer. 41-1092.08 A. If the ADEQ does not act on the ALJ decision within 30 days of receipt, the ALJ decision becomes final. 41-1092.08 D.

14-AZ-d.18 to 14-AZ-d.19 – Does the ADEQ Accept the AHU Decision?

If the ADEQ accepts the AHU decision, the decision becomes final and the ADEQ will send a copy of the decision to the developer. 41-1092.08 A. If the ADEQ does not accept the AHU decision but instead rejects or modifies the decision, the ADEQ must file the rejection or modification with the AHU, and serve on all parties a copy of the ALJ’s decision with the rejection or modification and a written justification setting forth the reasons for the rejection or modification. 41-1092.08 B.

14-AZ-d.20 – Review and Modify AHU Decision

After choosing to review but not choosing to accept the AHU decision, the ADEQ may reject and modify the decision. 41-1092.08 B.

14-AZ-d.21 to 14-AZ-d.23 – Does a Governor-appointed Board/commission Review?

If the ADEQ rejects or modifies the decision, the modification may be subject to review by a board/commission whose members are appointed by the governor of Arizona. If the board/commission reviews the decision, they will render a final binding administrative decision. 41-1092.08 C. If the board/commission does not review, then the ADEQ’s modified decision becomes final.

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