New York 401 Water Quality Certification (14-NY-d)
Section 401 of the Clean Water Act (CWA) 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, states have the authority to review and approve, condition, waive, or deny a 401 Certification. New York may also require a 401 WQC or other water quality compliance conditions for FERC exempted hydropower projects pursuant to the State’s 30(c) power under the Federal Power Act.
The DEC issues WQCs pursuant to § 1251 of the CWA and in accordance New York State’s effluent limitations and water quality-related limitations, N.Y. Comp. Codes R. & Regs. tit. 6 § 754.1), water quality standards and thermal discharge criteria (N.Y. Comp. Codes R. & Regs. tit. 6 §§ 700-704 et seq.), prohibited discharges (N.Y. Comp. Codes R. & Regs. tit. 6 § 751.2) regulations, N.Y. Comp. Codes R. & Regs. tit. 6 §608.9 (a) and N.Y. Comp. Codes R. & Regs. tit. 6 §§ 615-624 et seq.
In addition to projects requiring a 401 WQC for a FERC license or exemption, a 401 WQC is required for projects triggered by a Clean Water Act 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-NY-d.1 – Hold Pre-application Conference (Optional)
Developers are encouraged to hold a pre-application conference for projects that may require more than one New York State Department of Environmental Conservation permit. During the conference the developer and state regulatory agencies usually identify permit requirements and discuss the mechanics of the application and review process based on the information provided by the developer. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.5.
14-NY-d.2 – Joint Application Form
The developer must submit a complete Joint Application Form (Application) or submit a written request for a 401 Water Quality Certification (WQC) to the New York State Department of Environmental Conservation (DEC) for Federal Energy Regulatory Commission (FERC) licensed or exempted hydroelectric projects that may result in any discharge into navigable waters of the U.S. The Application must include, at minimum:
- The name and contact information of the applicant (developer);
- A location map of the project;
- Project plans;
- A description of the project and the project’s purpose; and
- Other information that the DEC deems necessary to properly review and assess the effects of a project.
The developer may also need to submit supplemental information with respect to impoundments, including:
- Hydrological, hydraulic, and soils information;
- An engineering design report sufficiently detailed for DEC evaluation of the safety aspects of the proposed dam, or the proposed activities concerning an existing dam; and
- Construction plans and specifications.
The DEC may also require that the applicant (developer) prepare a public participation plan for additional public outreach. Such additional public outreach may include, but is not limited to, the distribution or position of information about the project in the area in which the project will be located, conduct of public information meetings, translation of notices for non-English speaking communities and the establishment of document repositories in the area in which the project will be located. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.3.
14-NY-d.3 to 14-NY-d.6 – Review Application Materials for Completeness
In reviewing the Application, the DEC ordinarily inspects the project site or facility and surrounding area to verify existing conditions, determine the accuracy of materials submitted in the Application, assess impacts of a project on the environment in the immediate and surrounding area, and determine whether the project satisfies applicable permitting standards. During the inspection, the DEC may make measurements, analyze physical characteristics of the site, including but not limited to soils and vegetation, and take photos. An applicant’s (developer) failure to allow access to the site or facility may result in an Application denial. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.6 (b)s.
After review the DEC will make a determination of whether the Application is complete or incomplete. The DEC will mail notice of its determination to the developer within 60 days after receipt of the Application. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.6 (c). If the DEC fails to mail notice of its determination of completeness or incompleteness to the Applicant (developer) within 60 days, the application is deemed complete. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.6 (h). If the DEC determines that the Application is incomplete, the notice must include a description of the deficiencies and a list of all identified areas of incompleteness. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.6 (c).
At any time during the review of an Application, the DEC may request in writing any additional information which is reasonably necessary to make any findings or determinations required by law. Failure to provide such information by the date specified in the request may be grounds for denial. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.14(b). Specifically, if an applicant (developer) fails to respond to a notice of incomplete application within one (1) year, the DEC may send a follow-up notice of incomplete application, requesting, by a reasonable date, the necessary items for a complete application or an explanation for the delay. If the DEC sends notice, and the applicant (developer) fails to respond to the follow-up notice of incomplete Application by the date specified in the letter, the DEC may notify the applicant (developer) that the Application is considered chronically incomplete and deemed withdrawn. The DEC must submit the notice of withdrawal via certified mail. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.6 (f).
If the Application is complete, the DEC issues a draft 401 Water Quality Certification.
14-NY-d.7 – Publish Notice of the Application
If the Application is complete, the DEC must immediately provide notice to the chief executive officer of the municipality in which the project is to be located, and to any person who has previously expressed in writing an interest in receiving such notice. 6 CCR-NY §§ 621.7 (a), Public Notice and Comment; N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.6 (g).
The DEC must also publish notice of the complete Application in the Environmental Notice Bulletin no more than ten (10) days after the date of notice to the applicant (developer). N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.7 (a), Public Notice and Comment. The developer must also publish notice in a local newspaper. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.7 (c).
The notice must contain, at minimum, the following information:
- The applicant’s name;
- A brief description of the project and its location;
- The name and telephone number of the DEC representative and, where applicable, of any lead agency representative to contact for further information;
- The status of environmental reviews conducted under the New York State Environmental Quality Review (SEQR), including identification of lead agency, positive or negative determination of significance, and whether the action is Type I, unlisted, or Type II as defined pursuant to N.Y. Comp. Codes R. & Regs. tit. 6 §§ 617 or 618;
- The tentative determination and the availability of either the draft permit or intent to deny; and
- The deadline for submission of written comments on the Application, including any request for public hearing.
The developer must also provide notice of a complete application to the following:
- All agencies which have jurisdiction to fund, approve or are directly undertaking the project;
- Agencies with which the DEC is required to consult prior to its determination of completeness, including but not limited to those responsible for historic preservation and coastal zone management;
- The United States Environmental Protection Agency and other persons and agencies as required for federally delegated permits; and
- Any person on a mailing list, developed by the DEC, of persons interested in such projects. The DEC must publish a notice in the Environmental Notice Bulletin of the opportunity to be on the list.
14-NY-d.8 – Comment on Application
Any interested person may provide written comment on the Application within 15 to 30 days pending on whether the Application is supported by a SEQR negative declaration or draft environmental impact statement. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.7 (b).
Any interested person may also request a public hearing in writing before the end of the public comment period. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.7 (b).
14-NY-d.9 to 14-NY-d.10 – Notice of Public Hearing (If Applicable)
The DEC must evaluate the Application and any comments received to determine whether to hold a public hearing. If a public hearing is held, the DEC must notify the applicant (developer) and all persons who have filed comments by mail within 60 days of the date the Application is deemed complete. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.8 (a), Determination to Conduct a Public Hearing. The meeting, if held, must commence within 90 days after the date the DEC deemed the Application complete. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.8 (f), Determination to Conduct a Public Hearing.
The determination to hold an adjudicatory public hearing is based on whether the DEC’s review raises substantive and significant issues relating to any findings or determinations the DEC is required to make pursuant to N.Y. Cons. Law §§ 1-0101 et seq. In addition, where any comments received from the public or other interested parties raise substantive and significant issues relating to the Application, and resolution of any such issue may result in denial of the permit Application, or the imposition of significant conditions, the DEC should hold an adjudicatory public hearing on the Application. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.8 (b), Determination to Conduct a Public Hearing. If the DEC determines to hold an adjudicatory hearing, the DEC must conduct the hearing pursuant to N.Y. Comp. Codes R. & Regs. tit. 6 §§ 624 et seq., Permit Hearing Procedure. N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.8 (g), Determination to Conduct a Public Hearing.
Regardless of whether the DEC holds an adjudicatory public hearing, a determination to hold a legislative public hearing depends on:
- If a significant degree of public interest exists; or
- Whether a hearing is needed to fulfill the requirement of N.Y. Comp. Codes R. & Regs. tit. 6 §§ 621.7 (a)(4), Preparation and content of environmental impact statements regarding the State Environmental Quality Review.
14-NY-d.11 to 14-NY-d.12 – Does the DEC Approve the Application?
The DEC will review the Application, plans, and other supporting information submitted and may grant a 401 WQC with or without conditions or deny the certification all together. N.Y. Comp. Codes R. & Regs. tit. 6 § 608.7 (a).
The DEC will determine if the project is consistent with New York’s standards pursuant to N.Y. Comp. Codes R. & Regs. tit. 6 § 608.8 which require that the project be:
- Reasonable and necessary;
- Not endanger the health, safety or welfare of the people of the State of New York; and
- Not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State, including soil, forests, water, fish, shellfish, crustaceans and aquatic and land-related environment.
In reviewing the project, the DEC will consider:
- The environmental impacts of the project, including effects on:
- aquatic, wetland, terrestrial habitats; unique and significant habitats; rare, threatened and endangered species habitats;
- water quality, including such criteria as temperature, dissolved oxygen, suspended solids;
- hydrology, including such criteria as water velocity, depth, discharge volume, flooding potential; and
- water course and waterbody integrity, including such criteria as erosion, turbidity, and sedimentation;
- The adequacy of design and construction techniques for structures;
- Operational and maintenance characteristics;
- The safe commercial and recreational use of water resources;
- The safeguarding of life and property; and
- Natural resource management objectives and values.
14-NY-b.13 — Appeal Decision (Optional)
Any interested person may appeal 401 WQC decision by the DEC pursuant to N.Y. Civ. Pract. Law. and Rules §7801 et seq..
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