401 Water Quality Certifications for non-hydropower permits

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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.

The federal Clean Water Act enables states to approve, condition, or deny projects proposed in waters of the United States — including wetlands — when a federal permit is needed.

Issuance of a Section 401 Certification under the federal Clean Water Act 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. The Section 401 Certification can cover both construction and operation of a proposed project. Conditions of the Section 401 Certification become conditions of a federal permit or license.

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.

Requesting a 401 water quality certification

The 2020 Rule, now back in effect, requires that all project proponents requesting a Section 401 water quality certification must first file a pre-filing meeting request with Ecology at least 30 days before submitting a 401 request.

To request a 401 Water Quality Certification:

  • 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.

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 or using these forms, please contact our Federal Permits Unit at ecyrefedpermits@ecy.wa.gov or 360-407-6076.

How are proposed projects reviewed?

Project review is often a collaborative process between Ecology, the federal permitting agency, and the applicant. We will work with the applicant and applicable permitting agencies to make sure application information is adequate and, if needed, mitigation is proposed. We review projects for reasonable assurance that they will meet state water quality standards, coastal resource protection requirements, fish and wildlife habitat standards, and other applicable regulations.

Public involvement

A public notice may be issued jointly by both Ecology and the federal agency issuing the permit or license; otherwise we will issue a separate public notice for the project. Each public notice will include a comment period during which the public, federal, state, and local agencies, tribes, and other interested parties can submit comments on the proposed project.

Comments can be submitted by mail or email and will be made part of the official record.