West Virginia 401 Water Quality Certification (14-WV-d)
WVDEP is responsible for reviewing and issuing 401 Certifications in West Virginia. W.V. Code §22-1-6(d)(7). 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 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-WV-d.1 – 401 Water Quality Certification Application
The developer must submit a 401 Certification Application (Application) to WVDEP. The Application may be submitted electronically or in hard copy. If the developer submits the Application in hard copy, two (2) copies must be submitted. 401 Certification Application Instructions The developer must also submit an Application filing fee of $350 along with the Application. W.V.C.S.R. §47-5A-4.1.a. In addition to other information, the Application must include:
- The developer’s information, including:
- Phone number; and
- Email address;
- The FERC project number, and a copy of the FERC license application;
- Information about the project, including:
- The type of project (road construction, hydroelectric, etc.);
- The type of activities proposed in streams or wetlands (filling, dredging, draining, reconstruction; etc.);
- A brief description of the purpose of the project;
- The location of the project; and
- The name and locations of any streams or wetlands on the project site and identification of which streams or wetlands will be affected by the project;
- A map of the project location with scaled plan drawings and sections;
- A demonstration that other alternatives were considered, and the reasons those alternatives were eliminated; and
- A stream restoration plan.
14-WV-d.2 to 14-WV-d.3 – Review Application Materials for Completeness
After WVDEP receives an Application, WVDEP has sixty (60) days to review the Application for administrative and technical completeness. If the Application is incomplete, WVDEP requests additional information from the developer. If the Application is complete, WVDEP notifies the developer in writing that the Application is complete. W.V.C.S.R. §47-5A-4.1.a.1; 401 Certification Application.
14-WV-d.4 to 14-WV-d.6 – Provide Public Notice of Application
After receiving written confirmation from WVDEP that the Application is complete, the developer must provide public notice of the Application. The developer must provide notice by publishing a one-time notice of the Application in a qualified newspaper of general circulation in the county in which the project will take place. If the proposed project requires a FERC license, the developer must also publish a one-time notice in a newspaper of regional circulation in the area where the project will be located. 401 Certification Application Instructions. All published notices must provide the following information:
- A clear and accurate location map of a scale and detail equal to the West Virginia General Highway Map. The map must be a minimum of four inches (4”) by four inches (4”). Near the center of the proposed project, note the longitude and latitude line, and place a North Arrow in the upper corner of the map;
- The name and business address of the developer;
- A narrative description clearly describing the location of the proposed project;
- The name(s) of the receiving stream(s) being proposed for impact;
- The location where a copy of the Application is available for public review;
- The name and address of the WVDEP office where written comments or requests for public hearing on the certification request can be submitted;
- The type of operation proposed; and
- The type of federal permit being sought.
The developer must have the notice and publication dates certified and notarized by the publishing newspaper and this certification is then added as an approved part of the Application. 401 Certification Application Instructions.
After the developer submits the notice for publishing, the developer must inform WVDEP of the date the notice will be published, and WVDEP then provides notice of the Application to the appropriate WVDEP email subscribers. 401 Certification Application Instructions.
After the developer publishes the notice there is a 30 day comment period, where any person having an interest that is or may be adversely affected by the project, may file written comments, objections or requests for a hearing. W.V.C.S.R. §47-5A-5.1.c. Any comments submitted may be forwarded to the developer in order to resolve disputes and rebut adverse comments and information. W.V.C.S.R. §47-5A-5.1.e.
Based on the Application and/or comments on the Application, WVDEP may elect to hold a public hearing on the Application. W.V.C.S.R. §47-5A-5.2.a.
14-WV-d.7 to 14-WV-d.8 – Provide Notice of Public Hearing
If WVDEP elects to hold a public hearing on the Application, WVDEP sends notice of the hearing to all parties that requested the hearing. The developer must also provide notice of the hearing by publishing a one-time notice of the Application in a qualified newspaper of general circulation in the county in which the project will take place. Such notices must be given at least 30 days prior to the hearing, and include pertinent information such as the location, date and time of the hearing. W.V.C.S.R. §47-5A-5.2.d.
14-WV-d.9 to 14-WV-d.10 – Review Application for Approval
WVDEP uses information provided in the Application, as well as comments made by interested parties in determining whether or not to issue a 401 Certification. WVDEP may choose to grant, grant with conditions, deny or waive the 401 Certification. If WVDEP does not respond to the Application within one year after deeming the Application complete, WVDEP waivers certification. W.V.C.S.R. §47-5A-4.1.b.
WVDEP will not issue a 401 Certification if the project does not comply with West Virginia’s Water Quality Standards or the project would potentially result in adverse long-term or short-term impacts on water quality. WVDEP may also consider the proposed project’s impact on water resources, fish and wildlife, recreation, critical habitats, wetlands, and other natural resources. W.V.C.S.R. §47-5A-3.1; 401 Certification Application.
14-WV-d.11 – 401 Water Quality Certification
If WVDEP approves the Application, WVDEP issues a 401 Certification to the developer.
If the Application is approved, WVDEP may require the developer to enter into a Mitigation/Compensation Agreement with WVDEP as a condition of approval. The agreement’s purpose is to compensate for the loss of aquatic resources, either through mitigation or monetary compensation. As a part of the agreement, the developer must either submit a Conceptual Mitigation Plan required under W.V.C.S.R. §47-5A-6.1, and/or follow the Compensation Mitigation Requirements set forth in W.V.C.S.R. §47-5A-6.2. 401 Certification Application Instructions.
14-WV-d.12 – Appeal Decision (Optional)
The developer, or any person whose property or property interest is directly affected by WVDEP’s approval or denial of a 401 Certification, may request a hearing within 15 days after receiving notice of WVDEP’s decision. W.V.C.S.R. §47-5A-7.1.a. The request must be made to WVDEP and identify the adverse effect. W.V.C.S.R. §47-5A-7.1.b.
After receiving a request, WVDEP determines whether or not to hold a hearing. W.V.C.S.R. §47-5A-7.1.c. If WVDEP decides to hold a hearing, the hearing is held within 60 days of WVDEP receiving the hearing request. After the hearing, WVDEP makes a final decision on the 401 Certification and notify the parties (including the developer) in writing of the final decision. W.V.C.S.R. §47-5A-7.2.
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- Clean Water Act
- West Virginia – W.V. Code §§ 22-1 et seq., Department of Environmental Protection
- West Virginia – W.V. Code of State Rules §§ 47-5A et seq., Rules for Individual State Certification of Activities Requiring a Federal Permit
- West Virginia – W.V. Code of State Rules §§ 47-2 et seq., Requirements Governing Water Quality Standards
West Virginia Department of Environmental Protection
Water Quality Certification Contact 304-926-0499 Ext. 1599 Visit Website