Louisiana 401 Water Quality Certification (14-LA-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-LA-d.1 to 14-LA-d.5 – Coordinate with USACE District Office
The process by which LDEQ receives the 401 Water Quality Certification Application (Application) depends on the U.S. Army Corps district office in which the project is located. There is no online application form available.
‘’’New Orleans District’’’
LDEQ has a memorandum of understanding (“MOU”) with the USACE New Orleans District regarding 401 WQC applications. After the New Orleans District office receives the developer’s complete Section 404 permit application, the office forwards the Section 404 application to LDEQ on behalf of the developer. Because of the MOU between the two agencies, the forwarded 404 permit application should include all of the necessary information. LDEQ and the New Orleans District office then prepare a joint public notice.
For projects located in the Vicksburg District, the USACE notifies LDEQ when it issues its public notice of a submitted Section 404 permit application. At the end of the District Office’s public notice period for the 404 permit, LDEQ reviews the application materials for administrative and technical completeness. If the information included in the 404 permit is insufficient, LDEQ requests from the developer any additional information necessary to determine if the proposed discharge meets the relevant standards. L.A.C. § 33:IX.1507(A)(5). The developer must respond to the request in writing; LDEQ also requests that any additional information be sent directly to LDEQ so the agency may file it in its Electronic Document Management System (EDMS). LDEQ FAQs About Water Quality Certifications Website.
LDEQ also reviews the Application for compliance with the relevant requirements, based on the type and extent of the proposed activity. [[Louisiana – La. Admin. Code §§ 33:IX.1501 et seq., Water Quality Certification Procedures|L.A.C. § 33:IX.1507(C)]].
However, if LDEQ does not respond within 30 days, the Application is deemed complete. L.A.C. § 33:IX.1507(C)(1).
‘’’General Application Requirements’’’
Generally, the application must include the following:
- The date of application;
- The developer’s name, address, or principal place of business;
- The name of the individual primarily responsible for conduct of the activity for which certification is sought (i.e., plant manager or other person responsible for facility operation);
- The nature of the activity, including estimates of the volume of excavation for dredge and fill activities;
- Whether the discharge is occurring or proposed, including an estimated schedule for all proposed activities;
- The location of the discharge, including the municipality, parish, drainage basin, name of receiving water, and location of the point of discharge with regard to the receiving water, if applicable;
- The nature of the receiving water, including type (i.e., creek, river, swamp, canal, lake, pond), nature (i.e., fresh, brackish, or salt), and direction of flow;
- Description of water treatment works, if any, that will receive and process the wastewater before discharge into the receiving water;
- The type of discharge, including chemical composition, quantity (expressed as gallons per unit of time), frequency, temperature, and kinds and quantities of pollutants or contaminants;
- Projected future variations in the nature of the discharge;
- The type, diameter, or cross-section and length of any conduit conveying the discharge;
- Names and addresses of adjoining riparian landowners;
- Maps, drawings, or plats at an appropriate scale and referenced to a commonly used set of geographic coordinates (i.e., latitude/longitude or section/range/township) that provide sufficient detail to accurately delineate:
- The boundaries of the lands owned or to be utilized by the developer in carrying out the project;
- The location and extent of receiving waters in the vicinity of those lands;
- The location, dimensions, and type of any temporary or permanent structures or conveyances erected or to be erected on those lands; and
- The location of discharges into receiving waters; and
- Developer’s signature and certification that the application is true and correct, as required by L.A.C. § 33:IX.1507(A)(8).
The Application must also include the applicable one-time processing fee. L.A.C. § 33:IX.1507(A)(2). The Application is considered incomplete if it is not accompanied by the processing fee. L.A.C. § 33:IX.1507(A)(2)(b). If the developer pays the processing fee online using the LDEQ Business Website, the developer must also mail a copy of the payment receipt to LDEQ. Louisiana – Louisiana Department of Environmental Quality Frequently Asked Questions About Water Quality Certifications Website.
Within 10 days of completing its review of the Application, LDEQ sends the developer a public notice. L.A.C. § 33:IX.1507(D)(1).
14-LA-d.6 to 14-LA-d.7 – Publish Notice of Application
The developer must publish the notice received from LDEQ once in “The Advocate,” the state’s official journal, and at least once in one or more local newspapers or journals of general circulation in each parish where the project is located, although it is within LDEQ’s discretion to require additional publications. L.A.C. § 33:IX.1507(D)(1). The developer must send proof of publication to LDEQ. L.A.C. § 33:IX.1507(D)(1)(d).
Notice must include the following:
- Developer’s name and address;
- Activity proposed in the Application;
- Nature and location of the activity;
- Date of and final action proposed by LDEQ;
- Name and address of the LDEQ representative to whom comments must be submitted;
- Statement that comments will be received for 10 days following publication; and
- Statement that additional information is on file with LDEQ, may be inspected at any time during normal working hours, and will be made available upon payment of cost of printing to LDEQ.
Additionally, LDEQ sends a copy of the notice to individuals who are part of a mailing list developed by LDEQ of members of the public who request a copy of public notices for particular actions. L.A.C. § 33:IX.1507(D)(2).
The developer is responsible for paying the costs of notice publication. L.A.C. § 33:IX.1507(D)(7).
14-LA-d.8 to 14-LA-d.9– Comment on Application
Members of the public may comment on the notice for 10 days after the developer publishes notice. L.A.C. § 33:IX.1507(D)(1)(b). During the public comment period, members of the public may also request that LDEQ hold a public hearing. L.A.C. § 33:IX.1507(E)(1)(b).
14-LA-d.10 to 14-LA-d.12– Does LDEQ Elect to Hold a Public Hearing?
LDEQ may determine that a public hearing is necessary before granting or denying the WQC. If a member of the public requested a public hearing, LDEQ must determine whether the issues raised by the request are substantial and such a hearing will serve “a valid public interest.” L.A.C. § 33:IX.1507(E)(1)(b).
If LDEQ decides to hold a public hearing, it must notify the developer of its decision. LDEQ must publish notice of the hearing at least 30 days before the date of the hearing, once in the state’s official journal and once in at least one newspaper or journal having general circulation in the locality in which the activity would occur. Notice of the hearing must include the date, time, place, and nature of the hearing. Additionally LDEQ must send a copy of the notice to the developer, and to any person(s) requesting a hearing, at least 30 days before the hearing. L.A.C. § 33:IX.1507(D)(3). LDEQ must also mail a copy of the hearing notice to individuals who specifically request notice of a hearing on a specific application, as well as to individuals on the notice list maintained by LDEQ. L.A.C. § 33:IX.1507(D)(4).
14-LA-d.13 – Hold Public Hearing
LDEQ must hold the public hearing within 90 days of notifying the developer of its decision. L.A.C. § 33:IX.1507(E)(1)(d).
The hearing must be held before the LDEQ at a “location convenient to the nearest population center affected by the proposed certification,” unless another location is designated. L.A.C. § 33:IX.1507(E)(3). After the hearing occurs, the hearing record remains open for 30 days to written comments, which become part of the official hearing record. L.A.C. § 33:IX.1507(E)(4).
14-LA-d.14 – Review Application and Public Hearing Record
LDEQ reviews the application in conjunction with any public comments received at the public hearings (if applicable) and with any relevant Louisiana Water Quality Standards, approved Water Quality management Plan, or applicable state water laws, rules, or regulations. L.A.C. § 33:IX.1507(F)(3).
14-LA-d.15 to 14-LA-d.18 – Does LDEQ Approve the Application?
If LDEQ does not hold a public hearing, LDEQ must grant or deny the 401 WQC Application within 60 days of deeming the Application complete. L.A.C. § 33:IX.1507(F)(1). If LDEQ holds a public hearing, LDEQ must grant or deny the Application within 90 days of the public hearing, unless the developer agrees in writing to a longer time period, or if any of the following apply:
- The developer or federal agency fails to furnish information necessary to the completion of the application;
- The developer or federal agency refuses LDEQ access to records or premises for the purposes of gathering information necessary to the certification decision;
- Information necessary to the certification decision is unavailable; or
- The application is for a NPDES permit, which requires an extended review period in accordance with an agreement with the federal agency.
If the proposed project will not violate any applicable laws or regulations, LDEQ issues a letter of no objection, along with the 401 Water Quality Certification, to the developer and forwards the 401 WQC to the applicable federal agency. L.A.C. § 33:IX.1507(F)(3)(a). All LDEQ official documents and correspondence from the 401 WQC process, including the final 401 Water Quality Certification document, are stored and accessible on the Electronic Document Management System Website (EDMS).
The letter of certification may include any stipulations or conditions necessary to ensure compliance with relevant Louisiana Water Quality Standards, approved Water Quality Management Plans, or applicable state water laws, rules, or regulations. L.A.C. § 33:IX.1507(F)(3)(b).
If LDEQ denies the Application it must notify the developer by certified or registered mail, return receipt requested, and specify in that letter the reasons for the denial. LDEQ must also send a copy of the denial letter to the appropriate federal agency. L.A.C. § 33:IX.1507(F)(3)(c).
14-LA-d.19 – Request Hearing (Optional)
If LDEQ denies the 401 WQC, the developer may submit a written request for a hearing with LDEQ within 10 days of the denial. However, if LDEQ issued the denial because the proposed activity would violate the CWA or the Louisiana Environmental Quality Act, the developer may not request a hearing. L.A.C. § 33:IX.1507(E)(2).
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- Clean Water Act Section 401 Certification Webpage
- Louisiana – Louisiana Department of Environmental Quality Electronic Document Management System (EDMS) Website
- Louisiana – Louisiana Department of Environmental Quality Frequently Asked Questions About Water Quality Certifications Website
- Louisiana – Louisiana Department of Environmental Quality Business Website