You are here:
Water Quality Certification for Tribal Waters
Section 401 of the federal Clean Water Act (CWA) provides a tool for EPA, states and authorized tribes to protect water quality. EPA, States and Tribes can waive, review, approve, condition, or deny all Federal permits or licenses that might result in a discharge to state or tribal waters, including wetlands. The major Federal licenses and permits subject to Section 401 are Section 402 and 404 permits (in non-delegated states), Federal Energy Regulatory Commission hydropower licenses, and Rivers and Harbors Act Section 9 and 10 permits. States and tribes in Region 8 often have additional required authorizations, approvals and permits for work impacting state/tribal waters please contact the state or tribe for additional information on state and tribal permits and authorizations. A CWA 401 certification does not exempt the applicant from additional state and tribal requirements. For additional information please click here.
Treatment in the Same Manner as a State:
Treatment in the same manner as a state (TAS), tribes are authorized to provide 401 certification directly to the applicant. Go here for additional information on what Tribal TAS means.
EPA provides the CWA Section 401 Certification for Tribal waters within the exterior boundary of tribal reservations. Except for authorized tribes, EPA provides the CWA Section 401 Certification for tribal waters within the exterior boundary of tribal reservations. States, tribes and EPA make their decisions to deny, certify, or condition permits or licenses primarily by ensuring the activity will comply with water quality standards. In addition, states and tribes look at whether the activity will violate effluent limitations, new source performance standards, toxic pollutants, and other water resource requirements of state/tribal law or regulation. The Section 401 review allows for better consideration of state/tribal specific concerns. For more information please click here.
CWA 401 Water Quality Certification for Tribal waters within EPA R-8:
The permit or license applicant is responsible for contacting EPA, the state or tribal water quality program and obtaining the 401 Certification for a Federal Permit. For projects on tribal lands, we strongly advise that the applicant include Region 8 water quality certification staff in pre-application meetings with the Corps of Engineers, and to contact EPA as early as possible to address potential issues before planning. We strongly advise that the applicant provide EPA copies (electronic format preferred) of all information, design elements and plans. For additional information on the process, go to the Frequently Asked Questions and Answers page.
Additional information can be found here:
- Region 8 Water Quality Certification Checklist
- CWA 401 Regulations
- CWA 401 Interim Handbook (PDF, 49 pp, 447K)
- CWA 401 Interim Handbook (PDF, 49 pp, 447K)
- 2012 Nationwide Certifications for Region 8 Tribal Waters:
Frequent Questions & Answers:
Q: When do I need a water quality certification?
A: The Clean Water Act (CWA) Section 401 requires every applicant for a federal permit or license for any activity which may result in a discharge to a water body must obtain Water Quality Certification (Certification). The Certification is required to ensure that the proposed activity will comply with state/tribal water quality standards.
Q: Who Needs Certification?
A: All applicants for a federal permit or license for any activity which may result in a discharge to a water body must obtain Water Quality Certification (Certification. The applicant is responsible for obtaining the 401 certification not the federal agency. Most Certifications are issued in connection with U.S. Army Corps of Engineer (Corps) CWA section 404 permits for dredge and fill discharges.
Q: What types of projects require Certification?
A: Any activity that may result in a discharge to a water body.
Most projects requiring Certification fall into two categories:
1. Projects involving discharges of dredged or fill material to waters of the United States including wetlands and other water bodies. Such discharges may result from dredging, channelization, construction, channel clearing, bank stabilization, fill of wetlands for development, or other activities. These projects involve the removal or placement of soil, sediment, and other materials in or near water bodies and require Corps permits under CWA Section 404.
2. Projects involving construction of hydroelectric dams, power plants, and other facilities requiring Federal Energy Regulatory Commission (FERC) licenses.
Q: When do I need a water quality certification from USEPA Region 8?
A: You will need to apply for certification from Region 8 if your project is within the exterior boundaries of a tribal reservation within Region 8 and the tribe has not received "Treatment in the Same Manner as a State" (TAS) for Section 401 of the Clean Water Act.
Q: Why does my 401 certification require an additional public notice issued by EPA?
A: If the permitting agency issued a public notice and does not include EPA as the Section 401 certification agency, EPA must issue a public notice on the proposed certification.
Q: What do I need to do after determining I may need a water quality certification?
A: Water Quality Certifications are based on the need for a federal permit or license. Contact the permitting agency to determine if a federal permit or license may be required. Region 8 can't determine if another federal agency will issue a permit or license.
- Step 1. Contact the local USACE office (link) that will permit your activity to determine if your activity may require a permit (Individual, Nationwide, General, and Letter of Permission)? Determine the correct Water Quality Certification agency (State, TAS Tribe or EPA - link to determine who your 401 agency is). If EPA is the correct agency go to Step 2, otherwise contact the state or tribal contact for instructions to obtain your 401 certification.
- Step 2. Contact the EPA and the appropriate tribal environmental office (see contact links) to begin coordination effort.
- Step 3. Pre-application coordination. Submit preliminary application and associated information to EPA, when the information is submitted to the Corps. This is the best time to discuss alternatives for the project to minimize impacts, potential conditions and limits.
- Step 4. Submit completed application and additional information requested by EPA. The 401 certification review will not begin until a complete information package is received by EPA.
- Step 5. Coordinate with EPA, Corps, other Federal and Tribal agencies.
- Step 6. A CWA Section 401 certification is prepared and sent to the applicant. A copy is generally sent to the permitting agency.
- Step 7. Contact EPA immediately if you have questions or cannot meet the conditions.
Q: How Do I Apply? What does an application for certification consist of?
A: The initial application consists of all the information provided to the permitting federal agency. Please review the Completeness Checklist for additional requirements. Completeness Checklist link
Q: Options for Certification. What options are open to the EPA after reviewing an application for water quality certification for a Section 404 project?
A: The EPA may respond to this type of application in one of several ways: 1. Certification - Certification is issued if the proposed project will comply with water quality standards. Certification conditions may be imposed to mitigate potential impacts to beneficial uses and other standards. By federal law (33 USC §1341(d)), such conditions must be included in the Corps' section 404 permit. 2. Denial - The EPA must deny certification if the project will not comply with water quality standards or with procedural requirements. When denial is due to failure to meet procedural requirements, once the procedural deficiency is addressed, the application for water quality certification may be reconsidered. If certification is denied, the federal permit or license cannot be issued. 3. Waiver - EPA may waive the 401 certification process for minor impacts or if conditions or practices required under other processes will address EPA concerns.
Q: Other Permits. What other permits may be needed?
A: States, tribes and local governments often have additional statutes, regulations, tribal resolutions and ordinances that apply to projects occurring in or near aquatic resources. Check with your local, state and tribal governments to determine if you need to comply with additional rules and restrictions. You are responsible for determining any additional requirements.
Q: Corps Nationwide Permits. What about projects receiving a Corps' "Nationwide Permit" do they need individual 401 certification?
A: Some Nationwide permits will require inividual certification. Review with the Region 8 certification for the 2007 NWPs (link), call EPA or your local Corps office for more information.
Q: Getting Approved Faster. How can an applicant help speed the water quality certification process?
1. Consult with the Corp, EPA and the tribal government when planning the project. Water quality concerns are best addressed early in the planning process.
2. Before applying, contact the USACE, USEPA and other regulatory agencies for the latest information on the application procedure.
3. Supply all information when applying. The lack of necessary information is the single biggest impediment to speedy Certification.
4. If another local, tribal or federal agency requirements must be satisfied, be sure that environmental documentation and consultation has begun with the other agency.
5. Avoid impacts to water resources, especially wetland and riparian areas. Minimize impacts which cannot be avoided. If impacts cannot be avoided or minimized, plan to compensate for all resources temporarily or permanently lost.
Q: Further Information. Where can I get more information?