Vermont 401 Water Quality Certification (14-VT-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, states have the authority to review and approve, condition, waive, or deny a 401 Certification. In Vermont, ANR also requires a 401 WQC for Federal Energy Regulatory Commission (FERC) exempted hydropower projects pursuant to the State’s 30(c) power under the Federal Power Act. See, Vermont Agency of Natural Resources Section 401 Water Quality Certification Practice.
A developer must file a Vermont Water Quality Certification Application for Hydroelectric Facilities “along with the FERC exemption application and any environmental studies completed as part of the FERC process” with the DEC. Vermont Section 401 Water Certification Practice, p. 2. The DEC reviews Section 401 water quality certification applications to determine if the project will comply with 1 Vt. Code R. 12 004 052. The DEC reviews 401 WQC applications to determine if the hydroelectric facility will comply with 1 Vt. Code R. 12 004 052.
Clean Water Act Section 404 Permit Application Process:
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. Vt. Stat. Ann. tit. 10 § 1004; Vt. Stat. Ann. tit. 10 § 1006. For more information on Section 404 permits, see:
401 Water Quality Certification Process
14-VT-d.1 – Hold Pre-Application Scoping Meeting (if applicable)
The Department of Environmental Conservation (DEC) strongly encourages developers who are applying for a 401 Water Quality Certification (WQC), triggered by US Army Corps of Engineers 404 permit, to attend a pre-application scoping meeting. Representatives from ANR, including the DEC, Fish and Wildlife Service, and a number of agents from DEC’s Watershed Management Division are required to attend. The Watershed Management Division’s Streamflow Protection Program Coordinator is responsible for working with developers to schedule pre-application meetings. DEC 401 WQC Practice; Vt. Stat. Ann. tit. 10 § 1006.
14-VT-d.2—Is the 401 WQC Application in Connection with a FERC License or Exemption?
If a Federal Energy Regulatory Commission (FERC) license or exemption is required for the proposed project, the developer will file a request for a FERC 401 WQC Application. DEC 401 WQC Practice. A FERC license is required to construct, operate and maintain most dams, water conduits, reservoirs, and transmission lines to improve navigation and to develop power from streams and other bodies of water over which it has jurisdiction. 16 U.S.C § 797(e). FERC jurisdiction extends to all hydropower dams not owned by the federal government that either:
- Occupy federal public lands or federal reservations;
- Are located on navigable streams;
- Use surplus water or water power from a federal government dam; or
- Were constructed after August 26, 1935 and are located on a non-navigable stream that affects the interests of interstate or foreign commerce.
Developers of hydropower facilities located on non-federally owned conduits with installed capacities up to 5 MW are not required to be licensed or exempted by FERC. 16 U.S.C § 823a(2). Certain projects may qualify for an FERC exemption from the licensing provisions outlined in FPA Part 1. For more information:
If a FERC license or exemption is not required for the project, the developer will file a request for an Individual 401 WQC application. DEC 401 WQC Practice; Vt. Stat. Ann. tit. 10 § 1006; Vt. Code. R. 12-033-003 Rule 13.11.
14-VT-d.3 to 14-VT-d.4 — FERC 401 WQC Application; Individual 401 WQC Application
The developer must submit the applicable 401 WQC application to the DEC. The 401 WQC is used to ensure state water quality standards. The state issues 401 WQC for U.S. Army Corps of Engineers (USACE) 404 permits and FERC permit, license, or exemption processes. Rule 13.11(b) of the Vt. Code R. 12-033-003 (VWPCPR) states that a 401 WQC application must contain sufficient information including “such additional information deemed necessary” to evaluate the application. The application must include:
- The name, address, e-mail, and telephone number of the applicant (developer);
- The name, address, e-mail, and telephone number of the landowner, if the developer is not the landowner;
- The date of the Pre-Application Meeting, if applicable;
- A description of the resource proposed for alteration and the type of alteration proposed;
- A complete identification of all federal license and permit applications required;
- Copies of the federal license and permit applications or a written statement that the project does not require any federal licenses or permits;
- A technically accurate description of the project details (including the purpose and final goal);
- Complete identification and description of any receiving bodies of water; an estimate of the amount of water the project will adversely impact; and a description of steps taken or that will be taken to avoid, minimize, or compensate for loss of or significant adverse impacts to the beneficial use of waters of the state;
- Complete identification and description of existing fish and wildlife resources within the waters that the project impacts or discharges into; and
- A statement that there is a “reasonable assurance that the activity will be conducted in a manner that will not violate applicable water quality standards.”
FERC License and Exemption
In addition to information on the application form, the project developer in connection with a FERC license or exemption needs to provide additional supporting information. The timing of the application should be coordinated with the applicable FERC process. Additional information may include:
- FERC licensed projects using the Traditional Licensing Process (TLP): The developer needs to submit the license application and responses to any FERC additional information requests.
- FERC license projects using the Integrated Licensing Process (ILP): The developer needs to submit the license application.
- FERC exempt projects: The developer needs to submit the exemption application and the results of any environmental studies completed as part of the FERC process.
Note: a temporary or “annual licenses” in effect while an application for permit renewal is under review may not require a 401 WQC where issuance of the temporary licenses is a “ministerial and nondiscretionary act.” California Trout, Inc. v. FERC 313 F.3d 1131, 1134 (9th Cir. 2002). Where interim or other types of permits are involved, developers should consult with EPA, the state or tribal agency, and FERC to determine whether 401 WQC applies. Environmental Protection Agency Clean Water Act 401 WQC Guidelines.
14-VT-d.5 — Review 401 WQC Application for Administrative Completeness
Within two weeks of receipt of an application, the DEC reviews the application and determines whether it is administratively complete. An administratively complete application is an application that the DEC determines includes all of the initially required documentation necessary to begin a technical review of the application. These documents include the correct completed application form(s) and supporting information, signatures, and fees. 401 WQC Practice; Vt. Code. R. 12-033-002 § 13.2(c). The DEC may request additional materials prior to making a 401 WQC application decision. The DEC may require the developer:
- To perform various studies or environmental quality tests including chemical analyses of water, sediment, or fill material; biological assessments; and assessments of habitat suitability;
- Pursuant to Vt. Stat. Ann. tit. 3 § 2809, pay the cost of research, scientific, programmatic, or engineering expertise or services that the DEC does not have when such expertise or services are required for the processing of the 401 WQC application; and
- To submit additional information necessary to make its anti-degradation findings pursuant to Vermont’s Anti-Degradation Policy § 1-03 and anti-degradation procedure or rule in effect at the time of application.
Section 401 of the CWA provides that a state must act on a request for certification within a “reasonable period of time,” which cannot exceed one year after receipt of the request, or the certification requirement is waived. However, federal regulation also gives flexibility to federal agencies to either shorten or lengthen the period of time for states’ decision-making. DEC 401 WQC Practice; Vt. Code R. 12-033-003 § 13.2.
To avoid an inadvertent waiver of a 401 WQC, the Streamflow Protection Program Coordinator will contact the involved federal agency upon receipt of a 401 WQC application to determine the federal agency’s timeframe for noticing and issuing its federal license or permit. The Streamflow Protection Program Coordinator documents this timeline in writing. If more time is needed to make a decision, the Streamflow Protection Program Coordinator will request an extension and confirm in writing. If the federal agency does not grant additional time, the DEC may suggest to the developer (applicant) that they withdraw and resubmit their application, thereby restarting the clock, or the DEC may deny the 401 WQC without prejudice if there is insufficient information to make a final decision and encourage the developer to resubmit the application. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.2(c).
14-VT-d.6 — Is the 401 WQC Application Administratively Complete?
If an application is not administratively complete, the DEC will contact the developer via phone, email, or letter, and inform the developer of the materials necessary to make the application administratively complete. If the required information is not provided within the timeframe provided by the DEC, the developer may be denied without prejudice and the developer may re-apply at any time. The notice of denial is provided via email or letter. DEC 401 Practice; Vt. Code R. 12-033-002 § 13.3(c).
If an application is administratively complete, the DEC will issue a letter to the developer indicating the date of receipt of the application and its administrative completeness. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(a).
Upon determining that an application is administratively complete, the Streamflow Protection Program Coordinator promptly provides written notification via email to all Watershed Management Division (WSMD) program managers, the WSMD Director and Deputy, other affected ANR divisions and departments, FERC, and USACE (if applicable) with a copy of the application. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(e).
14-VT-d.7 — Review 401 WQC Application for Technical Completeness
The WSMD Director of the DEC designates a lead WSMD program manager or staff person for an application who, in coordination with the Streamflow Protection Program Coordinator, ensures coordination in evaluating the technical completeness of the application and takes the lead in writing the draft 401 WQC decision. A technically complete application means an application that contains a material record sufficient to support the creation of a draft decision for public notice purposes. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(a). The Streamflow Protection Program Coordinator, in coordination with the lead WSMD manager/staff ensures coordination with other affected ANR divisions and departments, including the DEC, WSMD, and the Fish and Wildlife Department. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(b).
The Streamflow Protection Program Coordinator schedules a meeting to discuss the project and application and discuss assigned roles for evaluating the application and drafting a tentative decision. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(b),(e).
The Streamflow Protection Program Coordinator develops a single email address list for all ANR managers and staff involved in the review and processing of the application. All involved staff and managers use this email address throughout the application review and decision-making process to ensure internal coordination. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(b),(e).
The Streamflow Protection Program Coordinator, in consultation with the WSMD manager/staff, provide a date by which other affected divisions and departments must respond to the Streamflow Protection Program Coordinator as to whether the application is technically complete for their purposes and identify any additional information that is needed. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(b).
If the Streamflow Protection Program Coordinator determines that other ANR divisions and departments are not able to meet the specified deadline for response, the Coordinator will notify the WSMD Director/Deputy. The Director/Deputy works with the Coordinator, the DEC Commissioner, and others as necessary to promptly resolve any timing issues. Any disagreement among or between ANR divisions and departments should be identified early and brought to the ANR Secretary if it cannot be promptly resolved. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(b).
14-VT-d.8 — Is the 401 WQC Technically Complete?
Once an application is deemed technically complete, the Streamflow Protection Program Coordinator notifies the developer in writing. If an application is deemed technically incomplete, the Streamflow Protection Program Coordinator will notify the developer in writing with sufficient detail to identify the information or materials necessary to complete the application. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(b),(c).
If an application is technically incomplete, at the DEC’s sole discretion, no further processing of the application will take place until the information requested is received and determined to be technically complete. If the requested information is not provided within the timeframe provided by the DEC, the application may be denied without prejudice and the developer may re-apply at any time. The DEC provides the notice of denial in writing. DEC 401 WQC Practice.
The DEC may at any time require a developer to submit any additional information that it considers necessary to make a determination that an application is technically complete. The application may be denied without prejudice if any requested information is not provided within the timeframe provided by the DEC. DEC 401 WQC Practice; Vt. Code R. 12-033-002 § 13.3(b).
14-VT-d.9 to 14-VT-d.10 — Does the Project Qualify for an Expedited Application Process?
The DEC recognizes special provisions for developers in connection with a FERC license or exemption. The DEC processes certain applications that meet the requirements under the Vermont Public Service Department’s Small Hydropower Assistance Program within 120 days after a determination that an application is technically complete and ANR staff has had an opportunity to conduct a site visit at an appropriate time of year and during appropriate flow conditions. Projects qualifying for an expedited process are:
- Run-of-river projects at existing dams (no change to extent of impoundment) for which the proposal provides bypass flows consistent with the default hydrologic standards (Vermont Water Quality Standards, § 3-01(C)), and the proposal does not impact existing or designated uses or water quality criteria;
- Run-of-river projects at existing dams (no change to extent of impoundment) with short bypasses having the following characteristics:
- very low habitat value (e.g., very steep with prominent ledges), or
- consists solely of one or more pools with minimal flow needs to provide for movement of fish and to maintain water quality and aquatic habitat, and
- the project site does not have aesthetic or recreational values (e.g., for some waterfalls) or provide habitat for threatened or endangered species.
- Conduit projects which are physically removed from state and federal waters and have no impact on water quality;
- Projects for which a five (5) MW exemption application has been filed and accepted by FERC (Note: the Hydropower Regulatory Efficiency Act amended section 405 of the Public Utility Regulatory Policies Act in 2013, increasing the size of the projects that may qualify for a FERC exemption from five (5) MW to ten (10) MW).
For more information regarding the Vermont Small Hydropower Assistance Program, see: Small Hydropower Assistance Program:
14-VT-d.11 — Issue Draft 401 WQC Determination
Prior to issuing a draft 401 WQC determination for public comment, the Streamflow Protection Program Coordinator ensures appropriate coordination with other affected ANR divisions and departments as follows:
- Prior to issuing a draft tentative determination for public notice, a draft is provided to other affected ANR divisions and departments with a specified period of time to participate in drafting and providing comments;
- The Streamflow Protection Program Coordinator and lead WSMD program manager/staff will ensure that comments of other ANR divisions and departments are considered prior to the issuance of a tentative determination for public comment and coordinate internal meetings and discussions as needed. In the case of any conflicts or disagreements among or between divisions and departments, the WSMD Director/Deputy will work with the lead ANR program manager, the Commissioner of ANR, and others as necessary to promptly resolve any disagreements. Any disagreement among or between ANR divisions or departments should be identified early and brought to the Secretary of ANR if they cannot be promptly resolved at the department level;
- If the Streamflow Protection Program determines that other ANR divisions or departments are not able to meet the specified deadline for comment, the WSMD Director/Deputy and lead WSMD program manager will work with the Commissioner and others to resolve any timing issues. Any disagreement among or between ANR divisions and departments should be identified early and brought to the Secretary of ANR) if they cannot be promptly resolved at the department level.
14-VT-d.12 to 14-VT-d.13 — Publish Public Notice
The DEC must publish public notice of every complete application. Public notice must be circulated within the geographical areas of the proposed discharge and mailed to any person or group upon request. Such circulation may include:
- Posting in post office and public places of the municipality;
- Posting near the entrance to the developer’s premises and in nearby places; and
- Publishing in local newspapers, and periodicals, or, if appropriate, in a daily newspaper for general circulation.
The DEC must provide a 30 day written public comment period following the date of the public notice. During this time interested persons may submit their written views on the tentative determinations with respect to the application. The period for comment may be extended at the discretion of the Secretary of ANR. Vt. Code R. 12-033-022 Rule 13.11(c); see alsoVt. Code R. 12-033-002 § 13.3(c)(2),(f)-(h).
14-VT-d.14 to 14-VT-d.16 — Is a Public Hearing Warranted?
The developer (applicant), any affected Vermont agency, interstate agency, country, or any interested agency, person, or group may request a public hearing with respect to the 401 WQC application. Any request for public hearing must be filed within the 30 day public comment period, and must indicate the interest of the party filing and reasons for the requested public hearing. Vermont Water Pollution Control Permit Regulations, Rule 13.11(d)-(f); see also Vt. Code R. 12-033-002 § 13.3(g).
If the Secretary of ANR finds a significant degree of public interest in a proposed 401 WQC, the Secretary of ANR may hold a public hearing. Vt. Code R. 12-033-002 § 13.3(i).
If the Secretary of ANR determines that a public hearing is warranted the DEC must publish notice of the public hearing, at least 30 days in advance of the hearing. Vt. Code R. 12-033-002 § 13.3(g). Notice must include at least:
- Notice published in at least one newspaper of general circulation within the geographic area of the discharge;
- Notice to all persons and Government agencies which received a copy of the notice for the 401 WQC application (notice does not have to meet the 30 day advance notice);
- Notice mailed to any person or group upon request.
The contents of the public notice should follow the regulations pursuant to Vt. Code R. 12-033-002 § 13.3(h)(2).
Public hearings are conducted by the Secretary of ANR or a designee. During the public hearing any person is permitted to submit oral or written comment and data concerning the proposed 401 WQC. The Secretary of ANR has the discretion to fix reasonable limits on the time allowed for oral statements and may require the submissions of statements in writing. Vt. Code R. 12-033-002 § 13.3(i).
14-VT-d.17 — Draft Final 401 WQC Determination
After DEC considers the public comments, it creates a response summary and makes a final decision on the application. If the DEC does not approve the application, the developer has an opportunity to appeal the decision.
Rule 13.11(g) of the VWPCPR states the information that the DEC must include in a 401 WQC and grants the DEC the authority to include such other information as the DEC may determine appropriate and any conditions the DEC deems necessary. Pursuant to Rule 13.11(g) a 401 WQC must contain:
- The name and address of the developer;
- A statement of the record upon which the decision is based;
- A statement that the Secretary of ANR has examined:
- the application made by the developer to the Secretary of ANR for certification;
- the application made to the federal licensing or permitting agency (specifically identifying the number or code affixed to such application) and bases his or her decision upon an evaluation of the information contained in such application which is relevant to water quality considerations; and
- any other information furnished by the developer sufficient to permit the Secretary of ANR to issue a 401 WQC.
- A statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate the Vermont Water Quality Standards and other appropriate requirements of state law and will be in compliance with Sections 301, 302, 303, 306, and 307 of the federal Clean Water Act, 33 U.S.C. § 1251 et seq., as amended;
- A statement of any conditions which the Secretary of ANR deems necessary or desirable with respect to discharge or activity;
- A condition vesting the Secretary of ANR with the authority to reopen and alter or amend the certification conditions over the life of the project when such action is necessary to assure compliance with the Vermont Water Quality Standards and other appropriate requirements of state law;
- A condition stating that authorized representatives from the ANR, at reasonable times and upon presentation of credentials, may enter upon the site where the activity is taking place for purposes of inspecting and determining compliance with 401 WQC conditions;
- The following statement concerning the effective date and expiration of the 401 WQC. The 401 WQC will become effective on the date of issuance, and the conditions of the 401 WQC will become conditions of the federal license or permit (33 U.S.C. § 1341(d)). If the federal authority denies a license or permit, the 401 WQC becomes null and void. Otherwise, it runs for the term of the federal license or permit.
- The following statement concerning enforcement of the 401 WQC. This 401 WQC is only valid for those activities that fully comply with the terms and conditions of the federal license of permit and this 401 WQC. ANR reserves the authority to enforce any violation of the Vermont Water Quality Standards that results from any activity or discharge and to enforce all other state laws applicable to such activities and discharges.
- Appeals language.
14-VT-d.18 — Appeal Decision (Optional)
If the state has jurisdiction over the proposed project, a certificate of public good is required under Vt. Stat. Ann. tit. 30 § 248. In practice, state jurisdiction, through the authority of the Vermont Public Service Board, is limited primarily to facilities built prior to 1935 and have not been extensively modified since then. Vermont ANR Report; 16 U.S.C. § 797(e). An appeal of a Public Service Board decision must be filed with the Public Service Board pursuant to Vt. Stat. Ann. tit. 10 § 8506. Most hydroelectric facilities are under the jurisdiction of FERC. FERC has jurisdiction over all non-federal hydroelectric projects located on navigable waters or are located on a non-navigable stream, built or substantially modified since 1935 and affect the interests of interstate or foreign commerce (including providing power to the interstate electric grid). Vermont ANR Report; 16 U.S.C. § 797(e). An appeal of a FERC jurisdictional decision must be filed with the clerk of the Environmental Division of the Superior Court within 30 days of the date of the decision. Vt. Stat. Ann. tit. 10 §8504.
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- Vermont - 1 Vt. Code R. 12 004 052, Vermont Water Quality Standards
- Vt. Stat. Ann. tit. 10 § 1004 et seq., Regulation of Stream Flow
- Vermont - Vt. Stat. Ann. tit. 10 § 1006 et seq., Certification of Hydroelectric Projects Application Process
- 16 U.S.C § 797(e), Federal Power Act
- 16 U.S.C § 823a(2), Conduit Hydroelectric Facilities
- Vermont - Vt. Code R. 12-033-003, Vermont Water Pollution Control Permit Regulations
- Vermont - Vt. Stat. Ann. tit. 10 § 8506 et seq., Appeals to the Environmental Division,