Idaho 401 Water Quality Certification (14-ID-d)
- National Pollutant Discharge Elimination System (NPDES) Permits: The NPDES program requires facilities discharging from a point source such as a pipe into waters of the U.S. to obtain discharge permits. EPA is responsible for permitting and enforcing all NPDES permits in Idaho. Learn more at IDEQ’s NPDES Permits webpage.
- 404 Dredge and Fill Permits: The federal Clean Water Act requires a permit to conduct water-related construction activities, such as fills for development, water resource projects, and infrastructure development. The U S Army Corps of Engineers is responsible for issuing dredge and fill permits in Idaho. Learn more at IDEQ’s 404 Dredge and Fill Permits webpage.
This page includes the 401 certification process followed in Idaho for projects obtaining a 404 dredge and fill permit. If the developer needs a 401 certification for dredge or fill activities under a 404 permit, follow the link here:
Section 401 of the federal Clean Water Act requires state certification for any permit or license issued by a federal agency for an activity that may result in a discharge into waters of the U.S. This requirement allows each state to have input into federally approved projects that may affect its waters (rivers, streams, lakes, and wetlands) and to ensure the projects will comply with state water quality standards and any other water quality requirements of state law. Any 401 certification in Idaho also ensures that the project will not adversely impact impaired waters (waters that do not meet water quality standards) and that the project complies with applicable water quality improvement plans (TMDLs).
The Idaho Department of Environmental Quality (IDEQ) must grant, deny, or waive 401 certification for a project before a federal permit or license can be issued. Depending on the type of project, the applicant will apply for section 401 certification directly with IDEQ or will apply for a federal permit with the appropriate federal agency and that agency will request the certification from IDEQ. IDEQ must act on a request for certification within a reasonable period of time, which cannot exceed one year, after which the certification requirement will be waived.IDEQ can waive certification (either expressly or by taking no action), deny the certification, grant the certification, or grant the certification with conditions. It is unusual for IDEQ to waive a certification; however, if a certification is waived, then the federal agency may issue the permit or license.
401 Water Quality Certification Process
14-ID-d.1 - Will the Army Corps Issue a Regional or Nationwide 404 Permit
The Corps may issue individual or general permits under 33 CFR 325.5(a)(1). If neither a regional or general permit is being issued, the developer will be obtaining their 404 dredge and fill permit under an individual permit. All individual permits are required to obtain a 401 certification from IDEQ.
14-ID-d.2 to 14-ID-d.3 - Does the Nationwide Permit Require Additional Individual 401 Certification
Activities requiring only a general permit do not need additional 401 certification from the state. However, some nationwide permit may require a separate state 401 certification. The developer should consult the specific nationwide permit conditions to see if an individual 401 certification is required. Only activities requiring an individual permit and specific nationwide permits requiring an individual certification will require an individual 401 certification from IDEQ.
14-ID-d.4 - Send Permit Application Materials to IDEQ Before Public Notice
Within 15 days of receiving an application for an individual 404 permit, the Corps must make a determination regarding whether the application is complete, and if the application is complete, the Corps must issue a public notice of the receipt of a complete application (33 CFR 325.1(d)(9) and 33 CFR 325.2(a)(2). If the activity requires a 401 certification, the public notice must include a statement concerning the 401 certification requirements (33 CFR 325.2(b)(1)(i) and 33 CFR 325.3(a)(8)).
If certification is required, the Corps’ district engineer will notify the applicant that 401 certification is necessary (33 CFR 325.2(b)(1)). The certification requirement will be deemed waived if Idaho does not act on the 401 certification request within 60 days of its receipt, unless the Corps determines a shorter or longer period is reasonable for the state to act. If a longer period of time is determined reasonable, based upon information provided by the state, the Corps may allow a longer period of time to certify, not to exceed one year (33 CFR 325.2(b)(1)(ii)). With respect to Corps activities for the discharge of dredged or fill material, the public notice regarding the activity constitutes the request to the state for 401 certification (33 CFR 336.1(b)(8)).
The U S Army Corps of Engineers works with IDEQ to obtain certification for 404 dredge and fill permits and the applicant need not apply directly with IDEQ for a 401 certification. Whether an applicant applies directly with IDEQ or works through a federal agency, the applicant needs to include sufficient information to provide a reasonable assurance that the project will comply with the Clean Water Act and meet state water quality standards. Following are examples of the type of information IDEQ needs to make a decision:
- Legal name and address of activity owner or operator
- Legal name and address of owner or operators authorized representative
- Names of waterbodies impacted by the project
- Complete written description of activity, including maps, diagrams and other information
- Description of water quality impacts from the existing activities and proposed activities
- Identification of measures to prevent or mitigate violations or contributions to violations of water quality standards
- Copies of environmental information submitted to the federal licensing or permitting agency
IDEQ does not charge a fee for section 401 certifications.
14-ID-d.5 to 14-ID-d.6 - Does 404 Application Include sufficient Information for IDEQ Review
IDEQ will review the information provided by the Corps and determine if it is sufficient to make a 401 certification decision. If the information is insufficient, IDEQ will work with the Corps and the applicant to obtain all the necessary information.
14-ID-d.7 to 14-ID-d.8 - Will Proposed Activity Comply with Idaho State Water Quality Standards
If IDEQ determines that the project will not meet Idaho state water quality standards, then the proposed activity can be denied a 401 certification by IDEQ. IDEQ has the option of notifying the Corps of compliance issues to modify the activity. However, the 401 certification may be denied at this step in the process if the proposed activity cannot be modified to meet state water quality standards.
14-ID-d.9 to 14-ID-d.10 - Draft 401 Certification
Once sufficient information is provided, IDEQ will post a draft certification on IDEQ’s Web site. If the project, as proposed will not comply with water quality standards, IDEQ will work with the Corps and the applicant in modifying the activity it may comply with water quality standards.
The draft certification will be open to public comment for at least 21-days.
14-ID-d.11 - Does IDEQ certify that Proposed Activity Complies with Idaho State Water Quality Standards
At the close of the public comment period, IDEQ will consider any comments received and will make a final 401 certification decision. The final certification decision will be posted on IDEQ Web site. If IDEQ determines the project will not comply with water quality standards, then IDEQ will deny certification.
It is unusual for IDEQ to deny a certification, as IDEQ generally works closely with the federal agency issuing the permit or the applicant applying for the permit or license to ensure that the project can be certified to meet Idaho's water quality standards. However, a certification may be denied if there is no reasonable assurance the activity can proceed and meet water quality standards. If IDEQ denies the certification, the federal agency cannot issue the license or permit. Depending on the circumstances, IDEQ may deny the certification without prejudice, which allows the applicant to request certification again after amending the application. IDEQ may choose this route when not enough information was provided to give the required assurance of compliance with water quality standards.
When a certification is issued with conditions, it may specify effluent or other limitations and/or other requirements (e.g. monitoring, reporting, implementing best management practices) to ensure that the project will not violate state water quality standards or other water quality requirements of state laws. Those conditions become conditions of the license or permit and are enforceable.
14-ID-d.12 - Final 401 Certification
The Corps typically issues a letter of verification for activities covered under a nationwide permit within 45-days of receipt of a complete pre-construction notification. For activities requiring an individual permit, the Corps' will issue an individual permit within roughly 120 days from receipt of a complete application. IDEQ strives to complete the 401 certification process within these time periods however, if IDEQ is unable to meet the deadlines, they may ask the Corps for an extension.
IDEQ's final certification decisions can be appealed, as provided by the Idaho Environmental Protection and Health Act and the Idaho Administrative Procedure Act. The appeal is a prerequisite to any court action. The procedures and timelines IDEQ follows when issuing state 401 water quality certification decisions are outlined in Idaho's §401 Certification Guidance.
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