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Clean Water Act (CWA) Section 401 Water Quality Certification (WQC)


Section 401(a)(1) of the CWA, 33 U.S.C. Section 1251, et seq., requires that certain types of activities obtain a state WQC. The Department issues certification, for a period generally limited to five (5) years from the date of issuance, when there is reasonable assurance that discharges resulting from the proposed activities will not violate applicable water quality standards established under Section 303 of the CWA and Title 22, Section 22-22-9(g), Code of Alabama 1975, provided the applicant acts in accordance with conditions specified in the certification. The Department also certifies that there are no applicable effluent limitations under Section 301 and 302 nor applicable standards under Section 306 and 307 of the CWA in regard to the activities specified in each submittal. The WQCs are conducted in conjunction with CWA Section 404 Individual, General, and Nationwide permits that are issued by the Mobile and Nashville Districts of the U.S. Army Corps of Engineers (COE). The Department also issues WQCs for certain Federal Energy Regulatory Commission (FERC) licensed activities.

Headquarters, U.S. Army Corps of Engineers
Mobile District, U.S. Army Corps of Engineers
Nashville District, U.S. Army Corps of Engineers
Joint Corps 404 Permit and ADEM 401 Application

CWA §401 WQC Program Overview


The Department manages programs designed to ensure the protection of Alabama's environment. This responsibility includes the protection of water quality and is accomplished through applicable state and federal statutes, implementing regulations, and permitting programs. One such mechanism for protecting water quality in the state is the federal CWA §401 WQC Program for dredge and fill activities that can impact state and federal waters. Below is a brief overview of the statutory framework of this program and the state and federal agencies involved in the process.

Statutory And Regulatory Authority


Federal and state statutes, regulations, court rulings, etc. influence current regulatory mechanisms for implementing CWA §401 water quality certification programs. Three federal statutes play a primary role.

Section 10 of the Rivers and Harbors Act of 1899, as amended
§10 of the Rivers and Harbors Act (RHA) of 1899 prohibits the unauthorized alteration of any navigable water of the United States including the excavation or filling of any such water. The Act defined navigable waters as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use, to transport interstate or foreign commerce".

Section 404 of the Clean Water Act, as amended
§404 of the Clean Water Act (CWA) requires that the Corps of Engineers (COE) regulate and permit dredge and fill activities in waters of the United States. §404(a) authorizes the COE to issue permits for fill in navigable waters, including wetlands. The regulatory definition for waters of the United States is, "All waters covered by §10 of the RHA; all interstate waters and interstate wetlands; all other waters (of various types) which could be used in interstate commerce; all impoundments of waters of the United States; tributaries of the above waters; territorial seas of the United States; and wetlands adjacent to waters identified in this section". §404(b) requires the COE to determine that there are no practicable alternative to the proposed discharge and that no significant degradation of waters will occur if the activity is permitted. §404(c) gives the Environmental Protection Agency (EPA) veto authority over COE issued permits when EPA believes the activity will have unacceptable adverse effects. §404(e) authorizes the COE to issue state, regional, or nationwide permits in some cases. §404(f) exempts some agricultural, silvicultural, and mining activities from the permitting process. §404(q) requires the COE to develop memoranda of agreement with other federal agencies to facilitate elevation of agency review.

Section 401 of the Clean Water Act, as amended
§401 of the CWA grants states the authority to certify, conditionally certify, waive, and deny that federally permitted or licensed activities comply with applicable state water quality requirements. The state water quality requirements in many cases can be more stringent than the federal requirements. The federal permit applications most often reviewed by ADEM are issued under §404 of the CWA, while some §10 of the RHA applications are reviewed at the request of the COE. These permits are issued by the COE and relate to dredge and fill activities in navigable waters and waters of the United States. The COE §404 permits cannot be issued without water quality certification or a waiver of certification from ADEM. Typically, water quality certifications issued by ADEM impose special conditions designed to protect water quality that the COE must include into the final §404 or §10 permit.

This section of the CWA gives ADEM the authority to issue water quality certifications for waters in the State of Alabama. There are also several other state and federal agencies involved in the review process of COE permit applications. Each has a specific role in the review and at times these roles may overlap.

State And Federal Agencies Involved


U.S. Army Corps of Engineers (COE)
The COE is a federal agency with regulatory duties being delegated to 36 District Engineers and 11 Division Engineers. The COE authority over dredge and fill projects is granted by the RHA and CWA §404. The COE estimates that approximately two thirds of §404 permits applications received must also be reviewed under the RHA. §404 of the CWA assigns the authority for permitting and primary enforcement to the COE. The COE may issue individual permits or provide coverage under their Nationwide or General permits as determined appropriate by the District Engineer.

Alabama Department of Environmental Management (ADEM)
CWA §401 provides States with sole authority regarding state water quality certification of federal permits, and EPA does not have an oversight role relative to ADEM's §401 certification process. ADEM reviews COE permit applications under §401 of the CWA in order to make a determination relative to certify that the project will cause or contribute to a violation of Alabama water quality standards. Water quality certification reviews are coordinated by ADEM's Office of Field Services, Field Operations Division. Reviews of FERC licensed activities are conducted by ADEM's Water Quality Branch, Water Division. ADEM applies technical standards, administrative requirements, and Best Management Practices (BMP) conditions as appropriate to ensure the protection of water quality, and to ensure consistency with Alabama National Pollutant Discharge Elimination System (NPDES) rules and other water quality protection efforts. Certifications are generally limited to a maximum five-year duration.

U.S. Environmental Protection Agency (EPA)
In addition to participating as a reviewing agency of the COE proposed §404 permit, EPA exercises oversight authority regarding the COE permitting process. EPA can veto the permit if EPA believes that the COE permit will not be protective of the environment, or believes that the COE did not adhere to the CWA §404 administrative or procedural requirements. The COE can then elevate the veto decision for reconsideration/review through procedures agreed to by both EPA and COE.

Other Agencies
There are other agencies at the federal and state level involved in the permit review process, however for the purposes of §404 permit issuance and §401 water quality certification, the COE and ADEM are the lead agencies. Other agencies involved in the process through federal or state requirements, or through the comment process required for permits, include the U.S. Fish and Wildlife Service, the Alabama Department of Conservation and Natural Resources, the Alabama Historical Commission, and the Alabama Department of Economic and Community Affairs.

COE Permitting and ADEM Water Quality Certification Process
Once a landowner, developer, contractor, consultant, etc. determines or becomes aware that a given project involves dredge or fill activities in a water of the United States (including regulated wetlands), the appropriate COE District Office should be contacted. The Nashville District manages COE permitting and regulatory concerns for the Tennessee River watershed located in Alabama. The Mobile District manages all other watersheds in Alabama. ADEM's Office of Field Services, Field Operations Division manages §401 WQCs for permits drafted by either COE District for Alabama, with the exception of Mobile, Baldwin, and Washington Counties. §401 WQCs for these counties are managed by ADEM's Mobile Branch, Field Operations Division. Dredge and fill projects within these three counties may also fall under the coastal certification program and may be subject to additional ADEM coastal consistency conditions.

Once the COE has been contacted, a determination will be made by the COE as to which COE permit, if any, will be required. The COE may choose to make a site visit prior to making this determination. The COE may notify the applicant that the proposed activities are not regulated or issue a letter-of-permission for project with de minimus impacts. However, if it is determined that a permit is required, the COE will notify the applicant that either a general permit or nationwide permit coverage, or an individual permit is needed prior to proceeding with the proposed activities. An individual permit requires a project specific public notice and comment period.

An individual WQC from ADEM is only required for projects that fall under COE individual permits. ADEM reviews COE nationwide permits and general permits as a group and issues WQCs, with conditions as appropriate, for a period not to exceed 5-years. Unless contacted, an applicant does not need to coordinate with ADEM when applying for nationwide or general permit coverage from the COE. However, should the proposed activities fall under an individual CWA §404 Permit, and in some cases a RHA §10 permit as determined by the COE, an ADEM individual WQC is required to be obtained prior to commencing the project.

The COE district office will issue a COE-ADEM Joint Public Notice (JPN) for proposed CWA §404 individual permit coverage once the COE has made a preliminary decision that the applicant has met applicable COE technical and administrative requirements. This notice serves as the applicant's request for WQC and the applicant is contacted by ADEM requesting that the appropriate processing fee and any needed technical information be submitted in order that a comprehensive water quality review can be completed and determination relative to certification can be made. Fees for ADEM §401 WQC review depend on the type, scale, and activities of the proposed project.

Once the JPN period expires, the COE forwards all correspondence/comments along with applicable responses to comments by the COE or the applicant, to ADEM and makes a formal request to ADEM for a determination relative to WQC. ADEM will make this determination after a detailed review of all relevant available information. Often, the ADEM certification is issued with special conditions identified that must be included as conditions of the COE permit. However, ADEM may determine that there is not reasonable assurance that the project can be conducted in a manner which will be protective of water quality and the certification will be denied, unless the project is modified by the applicant. In this case, the COE is unable to issue the §404 permit. ADEM also reserves the right to waive certification for After-The-Fact (ATF) permit requests and in other specific instances.

During project implementation, the operator should ensure compliance with applicable requirements of ADEM. Admin. Code Chapter 335-6-6 [National Pollutant Discharge Elimination System (NPDES)], Chapter 335-6-10 (Water Quality Criteria), and Chapter 335-6-11 (Water Use Classifications for Interstate and Intrastate Waters).

ADEM permit coverage may be required prior to commencing and/or continuing certain activities/operations relating to or resulting from a COE permitted or ADEM CWA §401 Water Quality certified activity/project. Generally, ADEM certifications require an operator to obtain applicable ADEM permits/approvals prior to commencing the project as a condition of the certification. If the operator has any questions regarding ADEM regulated activity or the need for NPDES permit coverage, the operator should contact ADEM's Water Division at (334) 271-7823 or h2omail.com@adem.state.al.us. If the operator has any questions regarding ADEM regulated activity or the need for air permit coverage, the operator should contact ADEM's Air Division at (334) 271-7861 or airmail@adem.state.al.us. If the operator has any questions regarding ADEM regulated activity or the need for hazardous, toxic, and/or solid waste permit coverage, the operator should contact ADEM's Land Division at (334) 271-7730 or landmail@adem.state.al.us.

Agency Contact Information


Nashville District - Tennessee River Watershed
U.S. Army Corps of Engineers (COE)
Regulatory Branch

3701 Bell Road
Nashville, Tennessee 37214
(615) 369-7500
(615) 369-7501 Fax
www.orn.usace.army.mil/

Mobile District
U.S. Army Corps of Engineers (COE)
Regulatory Branch
PO Box 2288
Mobile, AL 36628-0001
(251) 690-2658
(251) 690-2660 Fax
www.sam.usace.army.mil/

Mobile District
Birmingham Field Office
U.S. Army Corps of Engineers (COE)

Regulatory Division
218 Summit Parkway, Suite 222
Homewood, Alabama 35209
(205) 290-9096
dll-cesam-rd-pn@sam.usace.army.mil

Alabama Department of Environmental Management
Field Operations Division
Office of Field Services
PO Box 301463
Montgomery, AL 36130
(334) 394-4311
(334) 394-4326 Fax
fieldmail@adem.state.al.us

Alabama Department of Environmental Management
Field Operations Division
Mobile Branch
Coastal Section
3664 Dauphin Street, Suite B
Mobile, AL 36608
(251) 304-1176
(251) 304-1189 Fax
coastal@adem.state.al.us