Clean Water Act — Section 401 Water Quality Certifications

Updated 9/23/20

The U.S. Environmental Protection Agency (EPA) implemented a new Clean Water Act Section 401 Certification Rule that took effect Sept. 11, 2020. This new federal rule has changed how we process requests for Section 401 water quality certifications.

Under EPA's rule, all applicants must first file a pre-filing meeting request at least 30 days before submitting a Section 401 water quality certification request.

To comply with EPA's new rule:

Before submitting a Section 401 certification request, please request a pre-filing meeting with Ecology at least 30 days beforehand. We have developed a draft pre-filing request form to assist applicants.
Once a minimum of 30 days has passed after submitting a pre-filing meeting request, applicants may then submit their Section 401 request to Ecology and the federal permitting agency. This is typically the U.S. Army Corps of Engineers. For hydropower dams, the federal permitting agency is the Federal Energy Regulatory Commission. For NPDES permits, the federal permitting agency is the EPA.
All Section 401 request must meet the federal requirements in this table.

Applicants must submit their pre-filing meeting requests, Section 401 water quality requests, and any supporting documents to us electronically at ecyrefedpermits@ecy.wa.gov.

We are still working to understand how EPA's new rule might change other state review processes for Section 401 requests. We will be updating our web content and sending notifications as we work to comply with the new rule.

Please check back regularly for the latest updates.

Passed by Congress in 1972, the federal Clean Water Act grants states and tribal governments the authority to approve, condition, or deny proposed projects, actions, and activities directly affecting waters of the United States.

Under Section 401 of the Clean Water Act, federal agencies cannot issue a license or permit before a state makes a determination on a water quality certification request. Any conditions state or tribal governments set then become conditions of a federal permit or license.

Please note: The Section 401 Certification process has changed as of Sept. 11, 2020. See the alert box for the most up-to-date information.

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We use our Section 401 authority to set conditions for projects, actions, and activities that can affect water quality in Washington. For example:

When a port seeks permission to dredge a channel or waterway, we outline where sediment spoils can go.
When hydropower dams request a license for an existing dam or for new construction, we assess whether state water quality standards can be met and set conditions to ensure state waters are protected.
We set standards to protect wetlands during site development, and determine when mitigation or enhancements are necessary.
Shoreline property owners wanting new piers and other structures follow our certification conditions to minimize water quality and environmental impacts.

When we issue a Section 401 water quality certification, it means that we have determined a project or action, as proposed and conditioned, will comply with state water quality standards and other requirements to protect state aquatic resources.

Certifications for state hydropower licenses

We work with the Federal Energy Regulatory Commission (FERC) licensing process for hydropower dams. When an applicant requests a license, either to re-license an existing dam or for new construction, we work with the utility and review studies, analyses, and plans. If we determine that water quality standards are attainable, a 401 certification is issued with conditions to ensure that the standards will be met. These conditions become part of the new FERC license.

More information on certifications for hydropower licenses

Non-hydropower Section 401 Certifications

Washington's Section 401 Certifications provide a strong opportunity to protect and enhance water quality, aquatic species and habitats, water resources, coastal resources, floodplains, and other environmental elements.

More information on non-hydropower Section 401 Certifications

Certifications for NPDES federal permits

National Pollutant Discharge Elimination System (NPDES) permits limit the quality and quantity of wastewater discharge into surface waters like rivers, lakes, and streams. We write NPDES permits for all non-federal discharges in the state, except those on tribal lands.

More information on certifications for NPDES federal permits

Recent 401 certifications for large energy projects

On May 7, 2020, Ecology issued 401 certifications on permits for federal dams on the Columbia and Snake rivers to address temperature pollution, with a 30-day appeal period. The Army Corps of Engineers has appealed our 401 certifications on the eight Columbia and Snake river dams to the Pollution Control Hearings Board.

Below are examples of appeal documents for one of the dams:

To see the rest of the appeal documents and any other documents associated with this case, visit the Pollution Control Hearings Board searchable database.

There are eight separate 401 certification letters and orders for each dam. We have provided the Dalles Dam 401 certification document.

Puget Sound Energy has proposed a liquefied natural gas (LNG) storage facility in Tacoma. The 8 million gallon facility would supply LNG to be used as fuel for Tote Maritime, and supply natural gas to offset peak demand from residential customers.

In 2015, Ecology issued a construction stormwater permit for the project. In 2016, we issued a 401 water quality certification for the facility. Ecology also conducted a coastal zone consistency determination for the project.

On Dec. 10, 2019, the Puget Sound Clean Air Agency issued an approval order for the project.

Contact information

Section 401 help
ecyrefedpermits@ecy.wa.gov
360-407-6076

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