Tennessee 401 Water Quality Certification (14-TN-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 (FERC) 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-TN-d.1 – 401 Water Quality Certification Application
The developer must submit a 401 Water Quality Certification Application (Application) to TDEC. The Application TDEC uses for 401 Certifications is the Application for Aquatic Resource Alteration (ARA) Permits. The Application must include:
- The developer’s name and contact information;
- Details of the project, including:
- The project’s name;
- The project’s location;
- The type of water resource that will be affected;
- A brief description of the project;
- A description of the changes being made to the water resource; and
- A topographic map, indicating the location of the project;
- The project’s anticipated schedule, including start and end dates;
- The purpose of the project; and
- Mitigation measures, if applicable.
The developer must also submit an Application fee. The Application fee varies depending on the type of work proposed. The appropriate fees and fee schedules can be found in Tenn. Comp. R. & Regs. § 0400-40-11.
14-TN-d.2 to 14-TN-d.3 – Review Application Materials for Completeness
After receiving an Application, TDEC reviews the Application for technical and administrative completeness. If the Application is incomplete, TDEC has 30 days to notify the developer of the deficiencies.
14-TN-d.4 to 14-TN-d.5 – Provide Public Notice of Application
After receiving a complete Application, TDEC publishes notice of the Application, seeking public participation and comment on the project. Tenn. Comp. R. & Regs. § 0400-40-07-.04(4)(a). Tenn. Comp. R. & Regs. § 0400-40-07-.04(4)(a)(1). TDEC provides notice to those persons who have requested TDEC to notify them of Applications, and TDEC also publishes notice of the Application on TDEC’s website. Tenn. Comp. R. & Regs. § 0400-40-07-.04(4)(d)(1). The developer must provide notice to neighboring landowners by publishing notice of the Application in a local newspaper of general circulation, and by posting a sign within view of a public road in the vicinity of the proposed project, as determined by TDEC. Tenn. Comp. R. & Regs. § 0400-40-07-.04(4)(d)(2). The notices, with exception to the public sign, must include:
- The name, address and telephone number of the developer;
- The name and address of the TDEC contact person;
- A brief description of the proposed project;
- A brief description of the scope of the proposed project;
- The location of the state waters impacted by the proposed project;
- A sketch or detailed description of the location of the proposed activity and the subject waters of the state;
- The purpose of the proposed project;
- The watershed of the subject waters;
- A description of the conditions of the subject waters and watershed;
- The procedure to submit comments on the proposed project;
- The procedure for requesting a public hearing; and
- A brief description of the procedure for TDEC to make a final determination to issue the 401 Certification.
After the developer and TDEC publish notice, the public has thirty (30) days to comment on the Application. Tenn. Comp. R. & Regs. § 0400-40-07-.04(4)(e). Interested persons, including the developer, may request the TDEC hold a public hearing on the Application. If an interested party requests a hearing, the request must, indicate the interest of the party filing it, concisely state the water quality issues being raised, and the reasons why a hearing is warranted. Tenn. Comp. R. & Regs. § 0400-40-07-.04(4)(f).
If the project will have only minimal impacts on state waters, TDEC may shorten the comment period to 20 days. T.C.R.R. §0400-40-07-.04(4)(a)(2). If the 401 Certification is requested as part of an emergency situation, TDEC may issues the 401 Certification without allowing for public notice and participation. Tenn. Comp. R. & Regs. §0400-40-07-.04(4)(a)(4).
14-TN-d.6 to 14-TN-d.7 – Provide Notice of Public Hearing (If Applicable)
TDEC holds a public hearing on the Application, if TDEC determines that there are water quality issues associated with the proposed project and a significant public interest in having a hearing. Generally, TDEC holds a hearing if one is requested. TDEC must provide public notice of the hearing at least 30 days before the hearing takes place. TDEC distributes notice of the public hearing in the same way notice of the Application was distributed. The notice must contain:
- The date, time and place of the hearing;
- A statement of the issues raised by the person requesting the hearing; and
- The purpose of the hearing.
After appropriate notice is given, TDEC holds a public hearing in the geographical area of the proposed activity. Tenn. Comp. R. & Regs. § 0400-40-07-.04(4)(f).
14-TN-d.8 to 14-TN-d.9 – Review Application for Approval
After the public comment period and public hearing (if necessary), TDEC reviews the Application and determines whether to issue a 401 Certification. TDEC must make a determination on the Application within 90 days after the Application is deemed complete; the timeframe may be extended by up to 180 days due to the public notice requirement. If TDEC does not make a decision within that timeframe, the Application fee can be refunded to the developer. TDEC Aquatic Resource Alteration Permit Webpage.
TDEC considers public comments in making a determination. TDEC also considers the lost resource value associated with proposed project. TDEC will not issue a 401 Certification for a proposed project that will result in an overall net loss of resource value. In determining the loss of resource value, TDEC considers:
- The direct loss of stream length, waters, or wetland area;
- The direct loss of in-stream, waters, or wetlands habitat;
- The impairment of stream channel stability;
- The diminishment in species composition in any stream, wetland, or state waters;
- The direct loss of stream canopy;
- Whether the proposed project is reasonably likely to have cumulative or secondary impacts to the water resource;
- The conversion of unique or high quality waters as established in Tenn. Comp. R. & Regs. § 0400-40-03-.06 to more common systems;
- The hydrologic modifications resulting from the proposed project;
- The adequacy and viability of any proposed mitigation including, but not limited to:
- Quantity, quality, likelihood of long term protection; and
- The inclusion of upland buffers;
- The quality of the stream or wetland proposed to be impacted;
- Whether the proposed project is located in a component of the National Wild and Scenic River System, a State Scenic River, waters designated as Outstanding National Resource Waters, or waters identified as high quality waters as defined in Tenn. Comp. R. & Regs. § 0400-40-03-.06, known as Tier II waters;
- Whether the activity is located in a waterway which has been identified by TDEC as having contaminated sediments;
- Whether the activity will adversely affect species formally listed in State and Federal lists of threatened or endangered species; and
- Any other factors relevant under The Tennessee Water Quality Control Act.
TDEC may decide to issue, deny or issue the 401 Certification with additional conditions.
14-TN-d.10 – 401 Water Quality Certification
If TDEC approves the Application, TDEC issues a 401 Certification to the developer. The 401 Certification and ARA Permit have a set timeframe that cannot exceed five (5) years. TDEC may include certain conditions with the 401 Certification, or require the developer to plan and conduct additional mitigation measures. TDEC may suspend, revoke or modify the 401 Certification for cause, such as the developer misrepresenting material facts in the Application, or violating the terms or conditions of the 401 Certification. Tenn. Comp. R. & Regs. § 0400-40-07-.04(9).
14-TN-d.11 – Appeal Decision (Optional)
If the developer or aggrieved person disagrees with the approval, denial, or the terms and conditions of a permit the developer may request a review of TDEC’s decision by the Tennessee Board of Water Quality, Oil and Gas within 30 days of TDEC’s decision. The review is conducted pursuant to Tenn. Code Ann. § 69-3-105. TDEC’s decision regarding a 401 Certification remains in effect until an order from the Tennessee Board of Water Quality, Oil and Gas or a reviewing court becomes final. Tenn. Comp. R. & Regs. §0400-40-07-.04(9).
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- Clean Water Act (33 U.S.C. § 1251 et seq.)
- Tennessee – Tenn. Code Ann. §§ 69-3 et seq., Water Pollution Control
- Tennessee – Tenn. Comp. R. & Regs. §§ 0400-40-07 et seq., Aquatic Resource Alteration
- Tennessee – Tenn. Comp. R. & Regs. §§ 0400-40-11 et seq., Environmental Protection Fund Fees
- Tennessee – Tenn. Comp. R. & Regs. §§ 0400-40-03 et seq., General Water Quality Criteria
Tennessee Department of Environment and Conservation
Environmental Consultant 615-532-0710