Pennsylvania 401 Water Quality Certification (14-PA-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 also required for projects that require approval from the US Army Corps of Engineers pursuant to Section 404 of the CWA. For more information on Section 404 permits, see:Clean Water Act Section 404 Permit:
401 Water Quality Certification Process
14-PA-d.1 – Complete PADEP Permit Application Consultation Tool (Optional)
A developer should first complete the Permit Application Consultation Tool (“PACT”) provided by PADEP. The PACT is a simple questionnaire that asks the developer to provide basic information about the proposed project. By completing the PACT, a developer is able to determine which permits and certifications are required for the project. PEC Hydroelectric Permitting Manual.
14-PA-d.2 to 14-PA-d.3 – Schedule Pre-Application Consultation Meeting (Optional)
After completing the PACT, a developer may contact the assistant regional director of the PADEP region where the proposed project is located and schedule a Pre-Application Consultation Meeting. At this meeting, PADEP and the developer discuss what permits and certifications the developer needs for the project. PADEP also informs the developer of the appropriate fees associated with each permit and application, and what timeframes and deadlines the developer must meet. This includes the 401 Certification. PEC Hydroelectric Permitting Manual.
14-PA-d.4 to 14-PA-d.5 – Does the Project Require Another State Permit?
PADEP has integrated the 401 Certification process into other state permit processes. If the project requires other state permits (e.g. a Chapter 102 Erosion and Sediment Control Permit or a Chapter 105 Encroachment Permit), applying for those permits will automatically trigger the 401 Certification process by PADEP.
14-PA-d.6 – Environmental Assessment Form
If the developer does not need another state permit, the developer submits an Environmental Assessment Form (“Application”) to PADEP. The information the developer provides in the Application allows PADEP to conduct a 401 Certification analysis. In the Application, the developer includes information such as:
- Identification of natural resources in the project area, including;
- A description of the general habitat of the proposed project location;
- A description of the water quantity and stream flow in the proposed project area;
- A description of water quality in the proposed project area; and
- Current recreation use of the proposed project area;
- A general description of the proposed project; and
- Impacts of the proposed project, including;
- Impacts on habitat;
- Impacts on water quantity and stream flow;
- Impacts on water quality; and
- Impacts on recreation.
The developer must also submit an application fee when submitting the Application. Fees are determined based on the standards presented in the PADEP Chapter 105 Fee(s) Calculation Worksheet. The developer submits a copy of the worksheet along with the Application.
14-PA-d.7 to 14-PA-d.8 – Review Application Materials for Completeness
After receiving an Application, PADEP reviews the Application for administrative and technical completeness. PADEP notifies the developer of any deficiencies in the Application.
14-PA-d.9 to 14-PA-d.10 – Publish Notice of 401 Water Quality Certification Application
After receiving an Application or another state permit application, PADEP publishes a notice of the Application in the Pennsylvania Bulletin. Once published, the public has 30 days to comment on the Application.
14-PA-d.11 – Review Application for Approval
After receiving an Application and any public comments made on the Application, PADEP reviews the Application using information provided by the developer and the Environmental Assessment conducted by FERC. PADEP uses this information in deciding to approve or deny the Application. PEC Hydroelectric Permitting Manual.
PADEP has 180 days after receiving all of the developer’s Application information to make a decision on the Application, or else PADEP is deemed to waive Certification. PADEP can also voluntarily waive Certification by providing written notice to FERC and the developer of the waiver.
14-PA-d.12 to 14-PA-d.13 – Publish Notice of Decision
After PADEP makes a decision to approve or deny the Application, PADEP publishes its decision as a final action in the Pennsylvania Bulletin.
14-PA-d.14 – 401 Water Quality Certification
If PADEP approves the project, PADEP issues a Certification. PADEP may add additional conditions to the issuance of the Certification, and may reserve the right to revoke the Certification.
14-PA-d.15 – Appeal Decision (Optional)
An aggrieved person can appeal PADEP’s decision to the Pennsylvania Environmental Hearing Board pursuant to 25 P.C. § 1021. The appeal must be filed with the Pennsylvania Environmental Hearing Board within thirty 30 of the publication of the final action in the 25 P.C. § 1021.
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- Clean Water Act Section 401 Certification Webpage
- Pennsylvania – Environmental Council – Hydroelectric Permitting Manual
- Pennsylvania – Department of Environmental Protection - Permit Application Consultation Tool
- Pennsylvania – Department of Environmental Protection – Environmental Assessment Form
- Pennsylvania – Department of Environmental Protection – Environmental Assessment Form Instructions
- Pennsylvania – Department of Environmental Protection – Chapter 105 Fee(s) Calculation Worksheet
- Pennsylvania Bulletin
Pennsylvania Department of Environmental Protection DEP
Water Quality Certification Contact 717-772-5951 roadams@paabbazabbagov Visit Website