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Water Quality Certification

Section 401(a) of the CWA requires that before issuing a license or permit that could result in any discharge to waters of the United States, an applicant for a federal permit or license must obtain from the state or authorized tribe where the proposed project is location, a certification that the discharge is consistent with the CWA, including attainment of applicable water quality standards. The CWA also provides a mechanism whereby downstream states whose water quality could 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. 401 certification also applies to non-CWA federal permits or licenses that could result in a discharge to waters of the United States. These typically have included discharge permits issued by the Army Corps of Engineers under the Rivers and Harbors Act section 10, and licenses for non-federal hydroelectric dams issued by the Federal Energy Regulatory Commission.

Section 401 certification has been a key issue in the relicensing of private hydropower dams by the Federal Energy Regulatory Commission (FERC). Section 401 certification requires FERC or any other federal agency to include all conditions on a state/tribal 401 cert in the resulting permit or license. The only alternative is to not issue the permit or license. In many cases, states have thus required FERC to include conditions in the new licenses for dams, requiring changes in dam management designed to prevent impairing uses designated for affected waters in state water quality standards.