Section 401 Water Quality Certification

On Sept. 27, 2023, the U.S. Environmental Protection Agency (EPA) finalized the Water Quality Certification Improvement Rule (WQCIR). The WQCIR modernizes procedures for the certification of compliance with state water quality standards. The rule will be effective Nov. 27, 2023.

Background

Section 401 of the Clean Water Act (CWA) provides states and tribes with an important tool to help protect the water quality of federally regulated waters within their borders. Under Section 401, a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless water quality certification (WQC) has been granted or waived. The state in which the discharge originates is generally responsible for issuing the WQC. The Florida Department of Environmental Protection (DEP) is the state agency delegated by Florida’s governor to act as certifying authority for WQC requests in Florida.

Pre-filing Meeting Request

The WQCIR requires the project proponent request a pre-filing meeting, at least 30 days, prior to submitting a request for certification unless the certifying authority waives this requirement. DEP hereby waives the pre-filing meeting request requirement.  DEP applicants do not need to request a pre-filing meeting, at least 30 days, prior to submitting an ERP application.  An applicant may request a pre-application conference to discuss their activity with DEP staff; however, neither the meeting nor request are required. This specifically waives the pre-filing meeting request requirement of the WQCIR and IS NOT a waiver of certification nor regulatory review.

Request for Certification

To comply with the WQCIR a request for WQC must include the following.

1. A complete Environmental Resource Permit (ERP) application, Notice of Intent to use an Environmental Resource General Permit, or Request for Verification of an Exemption, and any readily available water quality related materials that informed the development of the permit application.
2. A copy of the federal permit application (e.g., U.S. Army Corps of Engineers).

Please include the above items with your ERP application package.

Reasonable Period of Time

Section 401 requires certifying authorities (DEP) act on a request for WQC within a reasonable period of time (RPT). The RPT will begin on the date a complete application, or the last item of timely requested additional information, is received. DEP will act on certification requests within 365 days. DEP will notify the applicant and the federal agency when a complete certification request has been received and the RPT has begun. 

Certification Decisions

DEP’s actions on certification requests are prescribed in Rule 62-330.062, F.A.C. A grant or waiver of WQC is included within the “Federal Review” section of each ERP authorization. 

Contact Us

If you have questions about a specific project or would like to schedule a pre-application conference, please contact your local DEP office.

For more information please visit our Section 401 Water Quality Certification Frequently Asked Questions page. If you have general questions about Section 401 WQC, please email SLERC@FloridaDEP.gov. NOTE: Please do not send application materials to this e-mail address.