Our nation's waterways not only provide beautiful scenery, water to drink, and a place to fish and boat; they also provide hydroelectric power, a receptacle for wastewater, and a highway for commerce. While these uses provide great benefits, they can also alter and pollute the waterways. Federal permits or licenses are required to conduct many of these types of operations, including building and operating hydroelectric dams and discharging wastewater.

Clean Water Act Section 401 certification is required for any permit or license issued by a federal agency for any activity that may result in a discharge into waters of the state to ensure that the proposed project will not violate state water quality standards. This water quality certification is part of the 1974 Clean Water Act, which allows each state to have input into projects that may affect its waters (rivers, streams, lakes, and wetlands). This not only protects the public at large, but also protects lands adjacent to projects from damage (thereby also protecting landowners' rights and investments). DEQ is responsible for issuing §401 certifications in Idaho.

Any §401 certification in Idaho also ensures that the project will comply with water quality improvement plans (TMDLs) developed for affected water bodies and that the project will not adversely impact §303(d) listed streams (streams that already do not meet water quality standards).

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 license 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 (see below for the time allowed for each type of project), 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.

It is also unusual for DEQ to deny a certification, as DEQ generally works closely with the federal agency issuing the license or the company applying for the license (depending on the type of project) 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 method by which 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, but allow the applicant to request certification again after amending the application. DEQ may choose this route when it was not provided enough information to make a decision on the certification.

When a certification is approved with conditions, it may specify effluent or other limitations and/or monitoring to ensure that the project will not violate state water quality standards or other state laws. Those conditions become conditions of the license or permit.

DEQ's final certification decision can be appealed, pursuant to 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 (DEQ Publication, January 2002: pdf 41 kb, 12 pages).

State certification is required before the Federal Energy Regulatory Commission (FERC) may license or re-license non-federal hydroelectric dams. Most hydroelectric projects in the U.S. are operating under their original licenses that were issued for 50 years. In order to operate beyond the original license period, a facility must obtain a new FERC license. 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).

A company that has applied for a FERC license must request a §401 certification from DEQ. DEQ must grant or deny certification within one year of receipt of the request, unless all parties agree to extend the time frame. If the state has not granted or denied the certification within one year of the request (or within the agreed-upon time frame), certification is considered waived. A large project, like the Hells Canyon complex, often requires an extended period of time for certification. Because FERC licenses are usually complex, DEQ is generally involved in the project long before the company officially applies for certification.

Ninety days before it must grant or deny the certification (nine months into the 12-month period), DEQ provides notice to the public that it has made its preliminary decision regarding §401 certification and provide the public the opportunity to comment on the decision. The applicant must provide a copy of the §401 certification to FERC before the final license is issued. View a flow chart (pdf 13 kb, 1 page) of DEQ's process for §401 certification of FERC licenses.

DEQ is currently examining water quality certification applications from two major hydroelectric projects. Link to information on these projects below:

› Hells Canyon Complex Hydroelectric Project (FERC Project No. 1971-079) -
  Snake River

› Post Falls Hydroelectric Project (FERC Project No. 2545-091) - Spokane River

The NPDES program requires that point source dischargers into U.S. waters obtain permits (a point source is a source of pollution that comes from a discrete pipe or other "point"). An NPDES permit contains limits on what can be discharged and other provisions to ensure that the discharge does not harm water quality or the public's health.

The U.S. Environmental Protection Agency (EPA) is responsible for permitting and enforcing all NPDES permits in Idaho. DEQ is involved in the process by issuing §401 certifications to ensure the permits meet Idaho water quality standards. The EPA issues a draft permit and a public notice that includes a notice to the public that the state will consider §401 certification. The proposed final permit is provided to DEQ for certification; DEQ usually has 30 days to issue or deny its certification. Through the EPA, the public has the opportunity to comment on Idaho's §401 preliminary certification decisions (EPA requests public comment on the permit and the §401 certification simultaneously). In some cases, DEQ may request public comment directly for permits for particularly large or sensitive projects.

In the fact sheet it prepares for each draft NPDES permit for Idaho, EPA states that Idaho must provide §401 certification for the permit to be issued. In each final NPDES permit, EPA provides information on Idaho's §401 certification and notes any changes that were made in response to that certification. View a flow chart (pdf 13 kb, 1 page) of DEQ's process for §401 certification of NPDES permits.

Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged and fill material into waters of the United States. The basic premise of Section 404 is that dredged or fill material cannot be discharged into water if the nation's waters would be significantly degraded or if a feasible alternative exists that is less damaging to the aquatic environment.

Dredge and fill activities are controlled by a permit process administered by the U.S. Army Corps of Engineers and overseen by the EPA. Activities that are regulated under this program include fills for development, water resource projects (e.g., dams), infrastructure development (e.g., highways), and other water related construction activities.

The Army Corps of Engineers issues a public notice concerning the dredge and fill permit. The notice also contains a request for DEQ's certification action. DEQ has 60 days from issuance of the public notice to grant or deny certification (the Corps of Engineers can specify a longer or shorter time frame if necessary, not to exceed one year). As with §401 certification for NPDES permits, the public has the opportunity to comment on Idaho's §401 preliminary certification decisions through the Corps of Engineers' public comment period for the permit. DEQ may request public comment directly for certification of permits for particularly large or sensitive projects. View a flow chart (pdf 12 kb, 1 page) of DEQ's process for §401 certification of §404 permits.

The Army Corps of Engineers issued its final nationwide permits on March 12, 2007.  These nationwide permits authorize the discharge of dredge or fill material associated with 49 general types of activities such as bank stabilization, aquatic habitat restoration, establishment and enhancement, and residential developments. DEQ issued a final §401 certification for the final nationwide permits on May 11, 2007.

While individual permits are usually required for projects with potentially significant impacts, general NPDES and dredge and fill permits (§404 permits) may be issued by the EPA/Corps of Engineers to encompass many, similar, relatively small projects that will have only minimal adverse impacts. These permits may be issued on a nationwide, regional, or statewide basis for certain activities, such as minor road crossings, utility line maintenance, or storm water discharge from construction sites. As with certification for individual permits, general permits can be waived, denied, certified, or certified with conditions.

Nationwide §404 permits are issued every five years. As part of this process, DEQ reviews all of the proposed nationwide permits that potentially affect projects in Idaho and certifies (or doesn't certify) the permits for Idaho. All nationwide permits are on the same cycle. DEQ also certifies (or not) any new nationwide permits that are issued in the middle of the five-year cycle. Those permits are only valid until the next cycle begins, at which time they are put on the same cycle as the rest of the nationwide permits.

If DEQ denies certification for a nationwide or general permit, any activity that would have been covered under that permit will need an individual §401 certification before it can proceed.