WQS Certification

Section 401(a) of the CWA requires that before issuing a license or permit that may result in any discharge to waters of the United States, a federal agency must obtain from the state in which the proposed project is located, a certification that the discharge is consistent with the CWA, including attainment of applicable state ambient water quality standards. (The CWA also provides a mechanism whereby downstream states whose water quality may be affected by a federally-permitted or licensed project can engage in the 401 process.)

CWA provisions to which Section 401 certification applies include 404 permits from the Corps of Engineers and EPA-issued NPDES permits.

Section 401 certification has been a key issue in the relicensing of private hydropower dams by the Federal Energy Regulatory Commission (FERC.) In a number of cases, states have convinced FERC to include conditions in the new licenses for dams, requiring changes in dam management designed to prevent impairment of uses designated for affected waters in state water quality standards.