USACE Nationwide Permit Certification Actions

• Background
• Certification Actions
• Documents
• Definitions

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Background

This page provides a summary table of the EPA section 401 water quality certification actions for the 57 Nationwide Permits issued by the U.S. Army Corps of Engineers (USACE). These permits and certification actions will expire on March 14, 2026.

EPA Region 9 granted programmatic certification with conditions to 23 of the nationwide permits and denied certification to 9 of the nationwide permits. Project proponents will need to apply for an individual project certification for any nationwide permits that were denied programmatic certification. The remaining 25 nationwide permits either had 401 certification waived or a certification request was not made by the USACE for the permit. Certification letters and conditions as well as definitions are also provided on this page.

The following table includes a summary of Region 9 certification actions on the 57 Nationwide Permits issued by the USACE (note permit numbers 26 and 47 are not used). These permits and certification actions will expire on March 14, 2026.

Certification Actions

Documents

• EPA Letter to U.S. Army Corps of Engineers South Pacific Division (pdf) (431.49 KB, 2022)
  Programmatic Clean Water Act, Section 401 Certification of the Draft 2021 Nationwide Permits for Tribal Lands within the Region 9 coverage area of the U.S. Environmental Protection Agency.
• EPA Letter to U.S. Army Corps of Engineers South Pacific Division (pdf) (462.7 KB, 2020)
  Programmatic Clean Water Act, Section 401 Certification of the Draft 2020 Nationwide Permits for Tribal Lands within the Region 9 coverage area of the U.S. Environmental Protection Agency.

Definitions

• Deny
• Discharge
• Grant
• Grant with Conditions
• Waive

Deny

States and Tribes deny certification if the activity and discharge will not comply with the applicable sections of the CWA and appropriate requirements of state and Tribal law. The denial of §401 certification by a state or Tribe prohibits the federal agency from issuing the permit or license in question.

Discharge

Under the CWA §401 there does not have to be an actual discharge or a "discharge of a pollutant." The statute states that, "[a]ny…federal license or permit to conduct any activity … which may result in a discharge." Consequently, the discharge need not be a certainty, only that it "may" occur should the permit or license be granted. However, if no discharge may occur, no water quality certification is required. For example, when a RHA §10 permit is required for the hanging of power lines across a navigable river (RHA §10 water) without a potential discharge to the water, the Corps typically has not sought water quality certification.

In addition, the potential discharge does not need to involve an addition of pollutants. Section 401 certification can be triggered not only where there is discharge of a pollutant (such as would be authorized by §402 or §404 permits), but also where there is a discharge not involving addition of a pollutant, such as water released from the tailrace of a dam. As the U.S. Supreme Court has stated, "[w]hen it applies to water, 'discharge' commonly means a 'flowing or issuing out'" and an addition of a pollutant is not "fundamental to any discharge." A lower court has ruled that allowing more water to flow through a dam's turbines is a discharge for §401 purposes.

The third element required for §401 certification to apply is that the potential discharge must be into a water of the U.S. The term "waters of the U.S." is defined in EPA and Corps regulations and applies to all CWA programs. Note, however, that once §401 has been triggered due to a potential discharge into a water of the U.S., additional waters may become a consideration in the certification decision if it is an aquatic resource addressed by "other appropriate provisions of state [Tribal] law."

Grant

The granting of §401 water quality certification to an applicant for a federal license or permit signifies that the certifying authority has determined that the proposed activity and discharge will comply with water quality standards as well as the other identified provisions of the CWA and appropriate requirements of state or Tribal law.

In some circumstances, the provisions states, or Tribes would wish to see reflected in the permit or license can be achieved through early discussions with the applicants, rather than through formally conditioning the 401 certification. For example, incorporation of measures such as the use of Best Management Practices (BMPs) and practices needed for Total Maximum Daily Load (TMDL) implementation are often added to projects during this stage. BMPs can include such actions as using constructed wetlands or bioretention areas rather than retention ponds for catching nutrients and sediments.

Grant with Conditions

The certifying authority may include limitations or conditions in their certifications as necessary to ensure compliance with water quality standards and other provisions of the CWA and appropriate requirements of state or Tribal law.

Waive

A certifying authority may waive §401 certification, either explicitly, through notification to the applicant, or by the certification agency not taking action. If action is not taken on a certification request, "within a reasonable time (which shall not exceed one year)," the state or authorized Tribe has waived the requirement for certification. The amount of time allowed for action on a certification application is determined by the Federal agency issuing the license or permit, while the certifying agency determines what constitutes a "complete application" that starts the timeframe clock. However, the onus for applying for water quality certification lies with the permit or license applicant, and waiver cannot occur without a request for certification.