Section 401 Water Quality Certification

The Federal Water Pollution Control Act (33 USC 1251) (also known as the Clean Water Act), includes a provision that “Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates…”. The certification ensures that the applicant has complied with the standards listed in the Clean Water Act and with the Vermont Water Quality Standards.

When It Is Required

A 401 Water Quality Certification (WQC) is required when any other federal permit is obtained for an activity that may result in a discharge to Waters of the United States, such as a Section 404 Army Corps permit, a Section 10 permit, or a National Pollutant Discharge Elimination System (NPDES) permit. If the WQC is denied, the federal license or permit may not be granted.

Permit Process

Although it is a provision of federal law, the WQC is administered by the state. The Army Corps of Engineers’ General Permit for wetlands provides advance WQC for all Category 1 (smaller scale, non-reporting) projects, and a WQC for all Category 2 (reporting) projects after screening by ANR. ANR may require an Individual WQC for any Category 2 activity. The ANR Stream Alteration General Permit includes a provision that any “non-reporting” activity listed in the permit is waived from the requirements of the WQC.

ANR should be contacted to determine whether a project will require an individual WQC. For projects requiring an Individual WQC, an application form is completed and submitted to the Watershed Management Division with attachments. The application form includes information about the proposed project, proposed wetland mitigation (if any), and a demonstration that the project is in compliance with the anti-degradation provisions in the Vermont Water Quality Standards. The anti-degradation provisions include three tiers of water quality protection. Tier 1 provides that existing uses, and the water quality supporting those uses, must be maintained. Tier 2 provides that water quality in waters that currently exceed (are better than) water quality standards should be maintained, and can only be reduced when maintaining the higher water quality would have significant adverse social and economic impacts to people of the state, and when all new and existing point sources must meet the highest regulatory standards. Tier 3 provides that the existing water quality of waters formally designated as Outstanding Resource Waters must be maintained. The Vermont Water Quality Standards also include temperature requirements, allowable pollutant limits, and fish habitat designations for rivers and lakes in Vermont.

When the Section 401 certification becomes part of a federal permit or license, the duration of the approval would match that of the associated permit. No permit timeframes are specified for Vermont individual Section 401 certifications.

Related Regulations

Regulatory programs with overlapping jurisdiction with Section 401 of the Clean Water Act include, but are not necessarily limited to, the following:

  • Vermont Stormwater Discharge Permit Program: Vermont regulates temporary and permanent stormwater discharges into waters of the state under this state program. Applicants may need to apply for permits under both the 401 Water Quality Certification Program and the Vermont Stormwater Discharge Permit Program.

  • Section 404 Army Corps Permit: Projects that receive a Section 404 wetlands permit will also need a Section 401 Water Quality Certification. As described above, WQC is granted in advance for certain categories of projects.

  • Stream Alteration Permit: The Vermont Stream Alteration General Permit includes a waiver from the requirement for any project listed as “non-reporting” under the permit.

For More Information

Vermont Agency of Natural Resources DEC

802-828-1535

http://www.anr.state.vt.us/dec/waterq/stormwater.htm

Application for Individual Water Quality Certification – Vermont DEC

http://www.vtwaterquality.org/permits/docs/pm_401application.pdf

Department of the Army General Permit

http://www.nae.usace.army.mil/Regulatory/Public%20Notices/12/spn20121211.pdf