Water Quality Certifications on Tribal Lands in EPA's Pacific Southwest (Region 9)

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About CWA Section 401 Certifications

This page provides information about EPA’s Clean Water Act (CWA) Section (§)401 water quality certifications on Tribal Lands of the Pacific Southwest and §401(a)(2) Neighboring Jurisdiction determinations for all §401 water quality certifications issued in EPA Region 9. EPA’s R9 geographic jurisdiction for certification includes Arizona, California, and Nevada, as well as the Confederated Tribes of the Goshute Reservation in Utah, and some Tribal lands of the Navajo Nation in Utah and New Mexico. A list of all the federally-recognized Tribes in EPA Region 9 can be found at: Federally-Recognized Tribes in EPA's Pacific Southwest.

For general Information About Clean Water Act Section 401 refer to Section 401 of the Clean Water Act.

Implementation Procedures

Under Section 401 of the Clean Water Act (CWA), a federal agency may not issue a permit or license to conduct any activity that may result in a discharge to waters of the United States (which include many wetlands), unless the State, authorized Tribe, or Territory where the discharge occurs issues a certification that the discharge complies with the State, Tribe, or Territory’s water quality requirements or waives certification. On Tribal lands where the Tribe is not authorized to issue water quality certification, EPA is the certifying authority.

Federal licensing and permitting agencies are also required to notify EPA when they receive a water quality certification for that license or permit from the State, Tribe, or Territory in which that discharge occurs. EPA then has 30 days to review that notice to determine if the discharge “may affect…the quality of the waters of any other state” or Tribe with “treatment in a manner as a state” (TAS) status. This is referred to as a neighboring jurisdiction determination. If the discharge “may affect” a neighboring jurisdiction, EPA is required to notify the other state or Tribe, the federal licensing or permitting agency, and the project proponent.

The 2023 401 Certification Rule and additional materials can be found on the 2023 CWA Section 401 Water Quality Certification Improvement Rule page.

For projects on Tribal lands in the Pacific Southwest with a discharge requiring a federal license or permit, the project proponent will need to submit a CWA §401 certification request to EPA. Certification request and materials should be sent to: [email protected]. For additional information and questions, you may also contact Russell Huddleston ([email protected]) or Sahrye Cohen ([email protected]), Wetland Section Manager.

CWA §401 Water Quality Certifications

This fact sheet describes CWA §401 water quality certifications for Tribal lands in the Pacific Southwest.

Pre-Filing Meeting Request

For projects requiring individual certification under the 2023 401 Rule, project proponents must submit a pre-filing meeting request a minimum of 30 days prior to submitting a request for 401 certification. Please send your request to [email protected]. In the subject line of the email, write "Pre-Filing Meeting Request". In the body of the email, state that you are requesting a Pre-filing Meeting request for the 401 certification application for the (Project name, city, state). Include your contact information including email and phone number and a brief project description.

After receiving the pre-filing meeting request, EPA Region 9 staff will contact project proponents to coordinate a pre-filing meeting. Pre-filing meetings may not be needed for all projects, however, the minimum 30 day submittal is still required.

30 days after submitting the prefiling meeting request, you may now send in your 401 certification request to [email protected].

Pursuant to 40 CFR Part 121, Section 121.5(b), the request for 401 certification must include the following:

  • Identify the project proponent(s) and a point of contact;
  • identify the proposed project;
  • identify the applicable federal license or permit;
  • identify the location and nature of any potential discharge that may result from the proposed project and the location of receiving waters;
  • include a description of any methods and means proposed to monitor the discharge and the equipment or measures planned to treat, control, or manage the discharge;
  • include a list of all other federal, interstate, Tribal, state, territorial, or local agency authorizations required for the proposed project, including all approvals or denials already received;
  • include documentation that a prefiling meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request;
  • contain the following statement: ‘The project proponent hereby certifies that all information contained herein is true, accurate, and complete, to the best of my knowledge and belief; and
  • contain the following statement, ‘The project proponent hereby requests that the certifying authority review and take action on this CWA 401 certification request within the applicable reasonable period of time.

Please note that statements in items 8 and 9 must be included exactly as they are worded above. The 401 authorization request should be submitted concurrently to the Federal permitting or licensing agency, which in most cases, will be the U.S. Army Corps of Engineers.

401 Certifications Related to Nationwide Permits Issued by U.S. Army Corps of Engineers

EPA Region 9 has issued programmatic water quality certifications for selected Nationwide Permits issued by the U.S. Army Corps of Engineers (USACE). These certifications are valid for the duration of the permits. Certain Nationwide Permits were denied programmatic certification, and the project proponent must request an individual certification from the EPA. In a few cases, EPA Region 9 waived certification of the Nationwide permit, in which case no §401 action is required on the part of the project proponent. A list of Nationwide Permits and EPA certification actions can be found at EPA Region 9 USACE Nationwide Permit Certification Actions.

For any Nationwide Permit where an EPA Region 9 programmatic certification was granted with conditions, the conditions become binding requirements of the permit for work on Tribal lands. Project proponents working on Tribal lands where the EPA is the certifying authority will need to review the information included in the certification conditions below to determine if those projects meet the conditions are eligible for coverage under the programmatic certification.

Projects that do not meet the conditions specific to the Nationwide permit must contact EPA for individual project certification according to the above procedure. (Preconstruction Notifications (PCNs) and additional information required in the programmatic Nationwide Permit certifications should be sent to [email protected].

More information on the 2021/2022 Corps Nationwide Permits can be found here at the U.S. Army Corps of Engineers Headquarters website.

CWA Section 401(a)(2)Neighboring Jurisdiction Determinations for all 401 Water Quality Certifications

Clean Water Act (CWA) section 401(a)(2) requires federal licensing and permitting agencies to notify EPA when they receive a license or permit application to conduct any activity which may result in any discharge into the navigable waters and a water quality certification for that license or permit from the state in which the discharge originates. 33 U.S.C. 1341(a)(2). EPA then has 30 days to review that notice to determine if the discharge “may affect…the quality of the waters of any other state” or Tribe with “treatment in a manner as a state” (TAS) status. This is referred to as a neighboring jurisdiction determination. If the discharge “may affect” a neighboring jurisdiction, EPA is required to notify the other state or Tribe, the federal licensing or permitting agency, and the project proponent. 33 U.S.C. 1341(a)(2). The other jurisdictions are then provided an opportunity to submit their views and objections about the proposed license or permit and associated §401 certification. They may also request that the federal permitting or licensing agency hold a hearing at which, “the [EPA] Administrator shall … submit his evaluation and recommendations with respect to any such objection to the licensing or permitting agency.” The Federal agency must develop measures to address the downstream jurisdictions’ concerns, the agency may develop its own measures and does not need to adopt the downstream state or Tribe’s specific recommendations without modification, as it would were they from the §401 certifying agency. If the Federal agency “cannot ensure compliance” with the other state or Tribe’s water quality requirements, it “shall not issue such license or permit.”

Federal licensing and permit agencies must notify EPA within 5 days of receiving a permit/license application and the related water quality certification.

All materials should be submitted to [email protected] with subject line "401 Determination of Effects on Neighboring Jurisdictions (project name, city, state, federal agency file number)".

Emails should also include:

  • Federal agency point of contact with email and telephone number
  • A copy of the 401 certification
  • Federal agency permit or license application

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Last updated on October 24, 2024