Resources for Neighboring Jurisdiction Process
On this page:
- Overview
- Federal Agency Notice to EPA
- EPA's May Affect Analysis
- Neighboring Jurisdiction Evaluation
- Public Hearing Process
Overview
CWA Section 401(a)(2), more commonly known as the neighboring jurisdiction process, provides notified neighboring jurisdictions the opportunity to evaluate and object to the issuance of the federal license or permit if a discharge originating in another jurisdiction will violate its water quality requirements. EPA provides notification to a neighboring jurisdiction in circumstances where the agency has determined, following appropriate notification from the Federal licensing or permitting agency, that discharge from a project may affect the neighboring jurisdiction's water quality. A federal license or permit may not be issued until the CWA Section 401(a)(2) process is complete.
New to CWA Section 401(a)(2)?
This presentation provides an overview of CWA Section 401(a)(2). Additional resources about CWA Section 401 regulations, treatment in a similar manner as a State (TAS), and for when EPA is the certifying authority are available.
EPA's May Affect Analysis
Upon receiving appropriate notification from the Federal agency, EPA has 30 days to determine whether the discharge from a federally licensed or permitted activity may affect the water quality of a neighboring jurisdiction. A neighboring jurisdiction is "any state, or Tribe with treatment in a similar manner as a state for Clean Water Act section 401 in its entirety or only for Clean Water Act section 401(a)(2), other than the jurisdiction in which the discharge originates or will originate."
If EPA determines that the discharge from the project may affect water quality in a neighboring jurisdiction, EPA must notify the neighboring jurisdiction, the Federal agency, and the project proponent.
Neighboring Jurisdiction Evaluation
The neighboring jurisdiction has 60 days upon notification from EPA to determine whether a discharge from the project will violate such water quality requirements, and if so, to notify the Federal agency and EPA to object to the issuance of the federal license or permit and request a public hearing from the Federal licensing or permitting agency.
Notifications from the notified neighboring jurisdiction to the Federal agency and EPA must be in writing and include the following components:
- A statement that the notified neighboring jurisdiction objects to the issuance of the federal license or permit
- An explanation of the reasons supporting the notified neighboring jurisdiction’s determination that the discharge from the project will violate its water quality requirements (e.g., an identification of those water quality requirements that will be violated)
- A request for a public hearing from the Federal agency on the notified neighboring jurisdiction’s objection
The neighboring jurisdiction may withdraw its objection prior to the public hearing and shall notify both the Federal agency and the EPA, in writing, of such withdrawal.
Public Hearing Process
If a notified neighboring jurisdiction notifies the Federal agency and the EPA in writing of its objection to the issuance of the license or permit and requests a public hearing on such objection, the licensing or permitting agency shall hold such a hearing.
The Federal agency shall provide public notice at least 30 days in advance of the hearing to interested parties, including but not limited to the notified neighboring jurisdiction, the certifying authority, the project proponent, and EPA.
During the public hearing process, EPA objectively and neutrally evaluates the notified neighboring jurisdiction’s objection and provides recommendations to the Federal agency based on its expert, technical analysis of the record before it at the public hearing.