Under Section 401 of the Clean Water Act, certification of compliance with state or tribal water quality standards by the state/tribal water quality certifying authority is required for any discharge of dredged/fill material into water of the United States under Section 404 of the Act (see 33 CFR 325.2 [Individual Permits] and 33 CFR 330.4(c) [Nationwide Permits]). The Environmental Protection Agency (EPA) administers Section 401 Water Quality Certification (WQC) for tribes that do not have water quality certifying authority.
WQC for Nationwide Permits (NWPs) and Regional General Permits (RGPs)
New Mexico:
The New Mexico Environment Department (NMED) issued conditional WQC for NWPs to ensure that the NWPs are consistent with state law, comply with the state Water Quality Standards (New Mexico Administrative Code [NMAC] 20.6.4), the Water Quality Management Plan/Continuing Planning Process, including Total Maximum Daily Loads (TMDLs), and the Antidegradation Policy. Certification is also required to comply with General Condition 25 (Water Quality) and General Condition 27 (Regional and Case-by-Case Conditions) of the NWPs.
NMED denies Certification of NWPs for any activities in Outstanding National Resource Waters (ONRW) designated in 20.6.4.9 NMAC, and NWP 16 (Return Water from Upland Contained Disposal Areas). Although state Water Quality Standards provide for temporary and short-term degradation of water quality in an ONRW under very limited circumstances if approved by the Water Quality Control Commission as specified at NMAC 20.6.4.8.A, the approval process for these activities does not lend itself for use for projects covered under these NWPs. This condition is necessary to ensure that no degradation is allowed in ONRWs by requiring proposed discharges of dredged or fill material to be reviewed on a case-by-case basis. Also, in accordance with General Condition 25 of the NWPs, a project-specific Certification must be obtained (see 33 CFR 330.4(c)) for discharges authorized under NWP 16 prior to construction. The NMED requires a complete CWA Section 404 application prior to commencing the water quality certification review in these cases. This certification process will be conducted pursuant to NMAC 20.6.2.2002.
Texas:
The Texas Commission on Environmental Quality (TCEQ) issued conditional WQC for all current NWPs. The TCEQ has certified pursuant to Section 401 of the CWA and Title 30, Texas Administrative Code, Chapter 279, for the activities for which it is responsible, that activities conducted under Regional General Permits (RGPs) available in the State of Texas would not result in a violation of established Texas Water Quality Standards provided the standard provisions and General Condition 33 in the RGPs are followed.
Colorado:
The State of Colorado has mandated by statute that Section 401 water quality certification is issued without conditions for all general permits. Please visit the Colorado Department of Public Health and Environment (CDPHE)
website for specific information regarding compliance with state water quality certification requirements.
Tribal Lands:
WQCs for NWPs on tribal lands are issued by the tribes where the tribes have water quality certifying authority. On tribal lands where the tribes do not have water quality certifying authority, the EPA has issued WQC (Region 6 in New Mexico and Texas; Region 8 in Colorado; Region 9 for allotted lands within the Navajo Nation). On tribal lands where WQC has been denied by the tribe, Individual WQC is required and must be obtained from the tribe before work may be authorized by a NWP. In order to obtain an individual WQC on tribal lands, the applicant must submit an application to the tribe for WQC and a PCN to the Corps.
The following tribes located in the Albuquerque District have water quality certifying authority:
WQC for Standard Individual Permits (IPs)
New Mexico & Tribal Lands:
For all activities that require an IP, applicants must either submit an application to the NMED, to the tribes listed above, or to the EPA for tribes not listed above to obtain Individual WQC.
Texas:
The TCEQ and the USACE have developed a tiered system of review for all IP applications based on project size and the area of waters affected. Generally, for small project (Tier I) that affect less than three acres of waters in the state, or less than 1,500 linear feet of streams, TCEQ has determined that incorporating certain Best Management Practices (BMPs) and other requirements into the project will sufficiently protect water quality. Any project that does not qualify for a Tier I review, or for which the applicant elects not to incorporate Tier I criteria, or prefers to use alternatives, will be considered a Tier II, which is subject to a certification review by TCEQ. Please note that completion of a questionnaire is not required in order for a Section 404 application to be considered administratively complete by the USACE, but is required for the TCEQ to process a request for WQC. If the project qualifies for Tier I, then the applicant must complete the required BMPs form and submit it to TCEQ. If the project does not qualify for Tier I, if the applicant is unable to follow the BMPs, or if the applicant chooses not to follow the Tier I requirements, then the applicant must complete and submit the Section 401 certification questionnaire and the alternatives analysis checklist to TCEQ. TCEQ has an online 401 Water Quality Certification Tracking System.
TCEQ State Water Quality Certification of Section 404 Permits
Colorado:
The Colorado Department of Public Health and Environment (CDPHE) authorizes WQC for activities in the State of Colorado. Applicants must submit an application to the CDPHE for Individual WQC.