401 Water Quality Certifications for non-hydropower permits

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EPA's 2020 Section 401 rule vacated Oct. 21, 2021

The U.S. District Court for the Northern District of California vacated and remanded the "EPA 2020 Clean Water Act Section 401 Certification Rule," which went into effect Sept. 11, 2020. We will continue to review and issue Section 401 water quality certification decisions while federal agencies are reviewing the court decision and considering next steps. 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.

How to request a Section 401 certification

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 non-hydropower 401 request, the federal permitting agency is typically the U.S. Army Corps of Engineers
  • 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.

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.