401 Water Quality Certifications for hydropower licenses

U.S. Supreme Court stays lower court ruling that vacated 2020 EPA rule

April 6, 2022 - The 2020 EPA Clean Water Act Section 401 Certification Rule was previously invalidated (vacated) by the U.S. District Court for the Northern District of California in October 2021. A group of states and industry groups appealed that decision to the Ninth Circuit Court of Appeals and then sought a stay from the U.S. Supreme Court pending the Ninth Circuit appeal.

The U.S. Supreme Court granted the stay on April 6, 2022, which reinstated the 2020 EPA Clean Water Act Section 401 Certification Rule until the Ninth Circuit appeal concludes.

We are reviewing our processes to determine what modifications are needed in response to the Supreme Court ruling. Please review our main Section 401 Water Quality Certification page for the most up-to-date information.

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 pre-filing request form to assist applicants.
At least 30 days after submitting a pre-filing meeting request, applicants may then submit their entire Section 401 request, along with a 401 Request Form, to Ecology and the federal permitting agency.
- For most requests, the federal permitting agency 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 requests 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.

If you are having any difficulties accessing forms, please contact our Federal Permits Unit at ecyrefedpermits@ecy.wa.gov or 360-407-6076.

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.

When an applicant requests a license, either to re-license an existing dam or for new construction, we work with the utility to review studies, analyses, and plans.

If we determine that water quality standards are attainable, a 401 Water Quality Certification is issued, with conditions to ensure that the standards will be met. These conditions become part of the Federal Energy Regulatory Commission (FERC) license.

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401 Guidance Manual

The Water Quality Certifications for Existing Hydropower Dams Guidance Manual spells out our expectations of applicants who want us to certify that a hydropower project meets Washington's water quality standards. This manual is useful for utility districts, local governments, tribes, and the public.

New water quality 401 applications

Goldendale Energy Storage Project

Existing 401 certifications for dams

We have a 401 Water Quality Certification decision for the following projects. If you would like to access a copy of these decisions, please access our list of existing 401 certifications for dams.

Contact information

Bryson Finch
Water Quality & Hydropower Lead Scientist
bryson.finch@ecy.wa.gov
360-407-7158

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