Wetlands and 401 Certification of 404 Permits
The Clean Water Act (CWA) Section 401 certification process is governed by the CWA §401 certification regulations the EPA promulgated in 1971. Passed by Congress in 1972, the federal CWA grants states and tribal governments the authority to review and approve, condition, or deny proposed projects, actions, and activities directly affecting waters of the United States.
Under CWA §401, federal agencies cannot issue a license or permit before DEC makes a determination on water quality certification request or waive our right to review. Any conditions that the certifying agency sets then become conditions of the federal permit or license.
Permitting Construction in Wetlands
Section 404 of the Clean Water Act (referred to as Section 404) established a permitting program to regulate any person, company, tribe, or government agency planning to work in waters of the United States (U.S.) or to discharge dredged or fill material into waters of the U.S. The regulated activities typically requiring a Section 404 permit include:
- Discharging dredged or fill material in waters of the U.S., including wetlands;
- Site improvement fill for residential, commercial, or recreational development;
- Construction of revetments, groins, breakwaters, levees, dams, dikes, and weirs; and
- Placement of riprap and fill material for roads, airports, or buildings.
Submit the CWA §401 pre-filing meeting request via EDMS with as much information as possible along with any attachments such as drawings and or maps will help with DEC's determination. DEC will review your request for a pre-filing meeting to determine whether a meeting is necessary. Note, DEC is not obligated to grant or respond to the pre-filing meeting request. The CWA §401 Pre-Filing Meeting form (PDF) contains the information that will be requested when submitting a §401 certification request and its purpose is to fulfil the prefiling meeting request per 40 CFR 121.4(7) - Include documentation that a pre-filing meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request.
All requests submitted after regular business hours will be considered received the next business day. If DEC determines if a pre-filing meeting is to be scheduled, the meeting will likely be conducted via teleconference. If you do not receive a response for scheduling a pre-filing meeting and at least 30 days have passed, you may submit the certification request to DEC if a CWA §401 is required for your project. DEC does charge a fee for CWA §401 certification requests based on acreage disturbed, see DEC's Permit Fees website.
Submit a CWA §401 Water Quality Certification Request via EDMS unless you have obtained prior approval from DEC to submit via other means. The CWA §401 Request for Certification (PDF) contains the information you will be requested via EDMS. You will be required to provide a copy of the federal agency permit or license application materials with your certification request. DEC does charge a fee for processing CWA §401 certifications, see Permit Fees website.
When you file a CWA §401 certification request, it is important that you receive a determination from the federal agency regarding the permitting avenue (individual permit) the federal agency will pursue and whether a §401 certification is required. For instance, the USACE's Nationwide, Regional Permits, and Letters of Permission (LOP's) have typically been previously certified and do not require an individual §401 certification. Therefore, it is important that you communicate with the federal agency prior to submitting a certification request to determine the permitting avenue/type of permit.
Roles of Various Federal and State Agencies and Local Governments
Section 404 of the Clean Water Act requires that any person, company, tribe, or government agency planning to work in waters of the U.S. must obtain a permit from the Army Corps of Engineers (Corps) before initiating any regulated activity. The Corps is the lead agency, in partnership with the U.S. Environmental Protection Agency (EPA), responsible for implementation of the 404 program in Alaska. Corps staff works with applicants to assist them in the permitting process. See the links below for specific information on the permit application and issuance process.
Section 401 of the Clean Water Act provides states with the legal authority to review an application or project that requires a federal license or permit (in this case a 404 permit) that might result in a discharge into a water of the U.S. The applicant must apply for and obtain a Certificate of Reasonable Assurance from the Alaska Department of Environmental Conservation (DEC) to conduct a regulated activity. DEC will review the project; coordinate with other state and federal agencies and local governments; review any public comments; and either approves, approves with conditions, waives, or denies the project based on compliance with the Clean Water Act, state water quality standards, and other applicable state laws. DEC charges a fee to develop the Certificate of Reasonable Assurance. See the above information regarding CWA §401 Certification Rule requirements for submitting a pre-filing meeting request and subsequent request for a CWA §401 Certificate, and below for more specific information.
The Corps is the lead agency, in partnership with the U.S. Environmental Protection Agency (EPA), in implementing the 404 wetlands program in Alaska. EPA works with the Corps to develop guidance and environmental criteria used in evaluating permit applications. EPA staff in Alaska review projects and has the authority to prohibit, deny, or restrict the use of any defined area as a disposal site. EPA enforces Clean Water Act Section 404 provisions.
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