Protecting Public Health and the Environment.
Section 401 of the federal Clean Water Act requires state certification for any permit or license issued by a federal agency for an activity that may result in a discharge into waters of the U.S. This requirement allows each state to have input into federally approved projects that may affect its waters (rivers, streams, lakes, and wetlands) and to ensure the projects will comply with state water quality standards and any other water quality requirements of state law. Any §401 certification in Idaho also ensures that the project will not adversely impact impaired waters (waters that do not meet water quality standards) and that the project complies with applicable water quality improvement plans (TMDLs).
DEQ is responsible for issuing §401 certifications in Idaho for the following types of federal permits or licenses:
DEQ must grant, deny, or waive §401 certification for a project before a federal permit or license can be issued. Depending on the type of project, the applicant will apply for §401 certification directly with DEQ or will apply for a federal permit with the appropriate federal agency and that agency will request the certification from DEQ. DEQ must act on a request for certification within a reasonable period of time, which cannot exceed one year, after which the certification requirement will be waived.
DEQ can waive certification (either expressly or by taking no action), deny the certification, grant the certification, or grant the certification with conditions. It is unusual for DEQ to waive a certification; however, if a certification is waived, then the federal agency may issue the permit or license.
It is also unusual for DEQ to deny a certification, as DEQ generally works closely with the federal agency issuing the permit or the applicant applying for the permit or license to ensure that the project can be certified to meet Idaho's water quality standards. However, a certification may be denied if there is no reasonable assurance the activity can proceed and meet water quality standards. If DEQ denies the certification, the federal agency cannot issue the license or permit. Depending on the circumstances, DEQ may deny the certification without prejudice, which allows the applicant to request certification again after amending the application. DEQ may choose this route when not enough information was provided to give the required assurance of compliance with water quality standards.
When a certification is issued with conditions, it may specify effluent or other limitations and/or other requirements (e.g. monitoring, reporting, implementing best management practices) to ensure that the project will not violate state water quality standards or other water quality requirements of state laws. Those conditions become conditions of the license or permit and are enforceable.
DEQ's final certification decisions can be appealed, as provided by the Idaho Environmental Protection and Health Act and the Idaho Administrative Procedure Act. The appeal is a prerequisite to any court action. The procedures and timelines DEQ follows when issuing state §401 water quality certification decisions are outlined in Idaho's §401 Certification Guidance.
EPA and the U.S. Army Corps of Engineers work with DEQ to obtain certification for NPDES permits and §404 dredge and fill permits. Only companies applying for §401 certification of FERC licenses need to apply directly with DEQ. Whether an applicant applies directly with DEQ or works through a federal agency, the applicant needs to include sufficient information to provide a reasonable assurance that the project will comply with the Clean Water Act and meet state water quality standards. Following are examples of the type of information DEQ needs to make a decision:
DEQ does not charge a fee for §401 certifications.
Access the status of §401 certifications decisions in Idaho, including certifications of general and individual NPDES permits, and nationwide, regional general, and individual dredge and fill permits.
A number of facilities in Idaho are in or soon will be in the process of obtaining new licenses, including the large Hells Canyon Complex (Brownlee, Oxbow, and Hells Canyon Dams). DEQ is currently reviewing a water quality certification application for this project. Learn more.
Water Quality Standards AnalystMiranda AdamsDEQ State OfficeWater Quality Division1410 N. HiltonBoise, ID 83706(208) email@example.com
§401 Certification Guidance (September 2012)
Water Quality and 401 Certification
§401 Certifications: Dredge & Fill§401 Certifications: NPDES Permits