Kentucky 401 Water Quality Certification (14-KY-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. For more information on Section 404 permits, see:Clean Water Act Section 404 Permit Application Process:
401 Water Quality Certification Process
14-KY-d.1 – Hold Pre-Application Meeting (Optional)
Prior to submitting a 401 Certification Application (Application), the developer may choose to have a pre-application meeting with KYDEP. This meeting allows the developer to receive feedback from KYDEP, and adjust the proposed project and Application accordingly.
14-KY-d.2 – 401 Water Quality Certification Application
The developer must submit a 401 Certification Application for an individual 401 Certification. Kentucky has a general 401 Certification process that is streamlined for projects or activities that are deemed to result in small or minor impacts, but KYDEP has determined that hydropower projects do not qualify for a general 401 Certification. KYDEP General Water Quality Certification of Nationwide Permits.
The Application should be submitted on standard size sheets between 8 x 10 inches and 17 x 22 inches. For dam projects, the Application should be on 24 x 36 inch sheets. 401 Certification Application Instructions. Additionally, a professional engineer licensed to practice in Kentucky must prepare all plans and specifications submitted with the Application. K.R.S. § 151.260. The Application must include:
- The developer’s information, including name, address, telephone number, etc.;
- A general description of the location of the proposed site and the body of water affected;
- Plans of the project including the following information:
- The name of the project;
- Relevant dates of scheduled activities;
- The name, location, and direction of flow of the body of water affected;
- The purpose and intended use of the proposed project; and
- Photographs of the proposed construction site looking both upstream and downstream; and
- For hydropower projects involving dams, the plans must include:
- The hazard classification determined by the design engineer; and
- Details of the spillways and other hydraulic structures.
The developer must also submit appropriate Application fees and a 401 Certification Fee Payment Form with the Application. The Application fee for a project impacting wetlands is $500 per acre of impacted wetland with a maximum fee of $5,000. The Application fee for a project impacting a stream is as follows:
- $1,000 for an impact greater than 500 linear feet, but less than 1,000 linear feet;
- $2,500 for an impact of 1,000 to 5,000 linear feet; and
- $5,000 for an impact greater than 5,000 linear feet.
14-KY-d.3 to 14-KY-d.4 – Review Application Materials for Completeness
After receiving an Application, KYDEP reviews the Application for administrative and technical completeness. If the Application is missing information, KYDEP notifies the developer of the deficiencies within thirty (30) days of receiving the Application and requests the developer respond with the information in a specified time period. If the developer does not respond, KYDEP may either suspend or deny the Application. 401 K.A.R. § 9:020(6)
14-KY-d.5 to 14-KY-d.6 – Provide Public Notice of Application
Once KYDEP determines that an Application is complete, KYDEP publishes public notice of the completed Application on the KYDEP 401 Certification Applications Pending Approval Webpage, and either emails or mails notices to persons who have requested copies of public notices for 401 Certification Applications. 401 K.A.R. § 9:010(2). The public notice provided by KYDEP must contain:
- The name, address and telephone number of the developer;
- The address or location of the activity regulated by the 401 Certification;
- A brief description of the comment procedures and deadlines;
- A brief description of the proposed activity and its purpose;
- The location of the water(s) affected by the proposed activity; and
- The location and availability of the Application for public inspection.
After KYDEP publishes the public notice, the public has thirty (30) days to comment on the on the Application. 401 K.A.R. § 9:010(4).
After submitting an Application, the developer may be required to publish notice in a newspaper of general circulation in the area of the project. This is only necessary if the 401 Certification is sought in addition to a floodplains permit from KYDEP.
14-KY-d.7 to 14-KY-d.8 – Review Application for Approval
After the comment period has passed, KYDEP has one hundred twenty (120) days to review the Application and make a determination. 401 K.A.R. § 9:020(6). KYDEP considers comments made on the Application in making a final determination. 401 K.A.R. § 9:010(4).
In reviewing the Application, KYDEP conducts a site visit and reviews the proposed plan and the anticipated impacts. KYDEP 401 Certification Process Flowchart. Any discharge from the proposed project must not violate Kentucky’s Water Quality Standards.
14-KY-d.9 – 401 Water Quality Certification
If KYDEP approves the Application, a 401 Certification is issued to the developer. 401 Certifications are valid for the time required to complete to proposed activity. However, if the developer does not begin the project within one (1) year after the issuance of the 401 Certification, the developer will need to reapply for the 401 Certification. All 401 Certifications issued by KYDEP are subject to the following general conditions:
- The developer must take measures to prevent or control spills of fuels, lubricants or other toxic materials used in construction from entering the watercourse;
- All dredged material must be removed to an upland location and/or graded on adjacent areas (so long as such areas are not regulated wetlands), to obtain original streamside elevations;
- In areas not riprapped or otherwise stabilized, revegetation of stream banks and riparian zones must occur concurrently with project progression. At a minimum, revegetation must approximate pre-disturbance conditions;
- To the maximum extent practicable, all instream work under a 401 Certification must be performed during low flow;
- Heavy equipment (bulldozers, backhoes, draglines, etc.), if required for the project, should not be used or operated within the stream channel. In those instances where instream work is unavoidable, it must be performed in such a manner and duration as to minimize the suspension of sediments and disturbance to the substrates and bank or riparian vegetation;
- Any fill or riprap including refuse fill, must not adversely affect the biological, chemical or physical properties of the receiving waters and/or cause violations of Kentucky’s Water Quality Standards. If riprap is utilized, the weight and size must not cause bank stress or slump conditions;
- If there are water supply intakes located downstream that may be affected by increased turbidity and suspended solids, the developer must notify the operator of those intakes when project work will be done;
- Removal of existing riparian vegetation should be restricted to the minimum necessary for project construction; and
- If the developer sees evidence of stream pollution or jurisdictional wetland impairment and/or violations of Kentucky’s Water Quality Standards as a result of project activity, the developer must immediately notify KYDEP’s Division of Water by phone.
KYDEP may suspend or revoke an issued 401 Certification if the developer’s project is violating Kentucky’s Water Quality Standards or any terms of the 401 Certification. If this occurs, KYDEP notifies the developer of the suspension or revocation.
14-KY-d.10 – Appeal Decision (Optional)
Any party affected by KYDEP’s final order may appeal that order. The affected party must file the appeal within thirty (30) days of the entry of the final order to the Circuit Court of the county where the structure or activity subject to the order is located. The appeal petition must fully state the grounds for which a review is sought. K.R.S. § 151.186.
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- Clean Water Act
- Kentucky – Ky. Rev. Stat. §§ 151 et seq., Geology and Water Resources
- Kentucky – 401 Ky. Admin Reg. §§ 9:020 et seq., Section 401 Water Quality Certification Fees and Certification Timetable
- Kentucky – 401 Ky. Admin Reg. §§ 9:010 et seq., Section 401 Individual Water Quality Certification Public Notice
- Kentucky – 401 Ky. Admin Reg. §§ 10 et seq., Water Quality Standards
- Clean Water Act Section 401 Certification Webpage
- Kentucky – Department of Environmental Protection – 401 Water Quality Certification Process Flowchart
- Kentucky – Department of Environmental Protection – 401 Water Quality Certification Application
- Kentucky – Department of Environmental Protection – 401 Water Quality Certification Application Instructions
- Kentucky – Department of Environmental Protection – General Water Quality Certification of Nationwide Permits
- Kentucky – Department of Environmental Protection – 401 Water Quality Certification Fee Payment Form
- Kentucky – Department of Environmental Protection – 401 Water Quality Certification Applications Pending Approval Webpage
- Kentucky – Department of Environmental Protection – General Conditions of 401 Water Quality Certifications