Section 401 Water Quality Certification: Frequently Asked Questions

1. What is the Clean Water Act?

The Federal Water Pollution Control Act, as amended in 1972, is more commonly known as the Clean Water Act (CWA). The CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States. The CWA utilizes a cooperative federalism approach with collaboration between the federal and state governments to achieve a common goal.  Some of the notable sections of the CWA include Section 401 Water Quality Certification (WQC), Section 402 National Pollution Discharge Elimination System (NPDES) and Section 404 Dredge and Fill permitting program.

2. What is the purpose of Section 401 of the Clean Water Act?

Following the initial development of state water quality standards but prior to Section 401 of the CWA, federal agencies were able to issue licenses or permits without any assurance the authorized activities would comply with state water quality standards. Section 401 was enacted to provide states with the ability to grant, condition or deny certification for federally licensed or permitted projects that may result in a discharge into waters of the United States. When acting on a request for certification, states consider whether the project will comply with effluent limitations, water quality standards, new source performance standards, toxic pollutant limitations and other appropriate requirements of state law. The federal agency must receive a grant or waiver of WQC from the state prior to issuing the federal license or permit. This certification ensures any license or permit issued by the federal agency will not cause or contribute to violations of state water quality standards. 

3. Why do I need a 401 certification?

Certification of compliance with state water quality standards is required for any federal license or permit authorizing an activity that may result in a discharge into the waters of the United States, e.g., a grant or waiver of WQC from the Florida Department of Environmental Protection (DEP) is required to receive a permit from the U.S. Army Corps of Engineers (USACE). 

4. Is this a new requirement?

No. EPA first established regulations for water quality certification in 1971. Florida has since developed its Environmental Resource Permitting (ERP) program, which regulates all activities in, on or over wetlands or other surface waters. WQC is an integral part of the ERP review. 

5. I am not requesting a federal license or permit. Can I opt-out of the 401 requirement?

WQC is incorporated into ERP review. A grant or waiver of WQC is provided with each ERP authorization (permit).

6. I do not want DEP to notify USACE about my pending application. Can’t I just inform USACE when I apply?

The U.S. Environmental Protection Agency (EPA) WQC Improvement Rule (WQCIR) requires that DEP notify USACE when a request for WQC has been received.

7. I am receiving a State 404 program permit. Do I still need a WQC?

Yes. WQC is a requirement of the State 404 Program (Rule 62-331.070,F.A.C).

8. Can I request a pre-filing meeting?

Yes, although DEP has waived the pre-filing meeting requirement of the WQCIR, early engagement is encouraged. Please contact your local DEP office to schedule a pre-application conference to discuss your project with our staff.

9. How do I request certification?

A complete application for an Individual Permit, Notice of Intent to use an Environmental Resource General Permit, or Verification of Exemption are the forms used to request certification of compliance with state water quality standards through the ERP program.

10. What is the reasonable period of time (RPT)?

DEP is required to act on a certification request within a “reasonable period of time, not to exceed one year from receipt of the request.”

11. When does the RPT begin?

The RPT begins when DEP has received a complete ERP application. The WQCIR requires DEP notify the federal agency and the applicant when a complete certification request is received and the RPT has begun.

12. Will the RPT help me get a permit quicker?

The submission of a complete ERP application and/or timely response to requests for additional information are the most efficient ways to obtain an ERP permit.

13. What if DEP does not act on the certification request within the RPT?

Should DEP fail to act within the reasonable period of time, the certification is waived. 

14. Where can I find the 401 WQC section of my ERP authorization?

Your ERP authorization includes a section titled “Federal Review,” in which the grant or waiver of WQC is located.

15. The USACE has already issued my Nationwide Permit (NWP). Do I still need an ERP?

Yes. Your Nationwide Permit authorization includes a condition that requires you receive the appropriate ERP authorization prior to construction. Without this additional ERP authorization, the activity will be out of compliance with both state and federal agencies.