401 Water Quality Certification
Under Section 401 of the federal Clean Water Act (CWA) and 40 CFR Part 121, any applicant for a federal license or permit to conduct an activity that may result in a discharge of a pollutant into a water of the United States must obtain a 401 Water Quality Certification from the state certifying authority that ensures the discharge will comply with applicable provisions of the CWA and state surface water quality standards.
In Wyoming, 401 Water Quality Certifications are required for discharges that need coverage under federal 1) U.S. Army Corps of Engineers 404 dredged and fill permits and 2) Federal Energy Regulatory Commission (FERC) hydropower licenses.
The federal license or permit cannot be issued until the 401 Water Quality Certification has been granted or waived by the state certifying authority. All conditions of the 401 Water Quality Certification become conditions of the federal permit or license.
The Wyoming Department of Environmental Quality-Water Quality Division (WDEQ-WQD) is the certifying authority responsible for issuing 401 Water Quality Certifications within the State of Wyoming (excluding the Wind River Reservation) for the following types of federal permits or licenses that authorize discharges to waters of the United States:
CWA Section 404 establishes a program to regulate the discharge of dredged or fill materials into waters of the United States. The USACE Wyoming Regulatory Office is responsible for issuing 404 Dredge and Fill Permits in Wyoming. Common activities that typically require a 404 Dredge and Fill permit include but are not limited to:
- Placement of fill in a wetland or other water
- Dredging or excavating bodies of water
- Stream bank stabilization or alteration
- Stream channel enhancement or restoration
- Construction of a bridge, road, utility or pipeline crossing over a waterbody
- Dredging or excavating potentially contaminated sediments
- Construction of any type of permanent or temporary dam, causeway, levee or other related structure
- Construction of a pond, wetland, detention basin or related feature
- Dock/ramp construction
The federal Rivers and Harbors Act of 1899 requires authorization from the USACE (via a Section 10 permit) for the dredging or disposal of dredged materials, excavation, filling, re-channelization or any other modification of a jurisdictional Section 10 water of the United States. Flaming Gorge Reservoir is the only Section 10 water in Wyoming. The USACE Wyoming Regulatory Office is responsible for issuing Section 10 permits in Wyoming.
Under Section 23(b)(1) of the Federal Power Act, a license from the Federal Energy Regulatory Commission (FERC) is required to construct, operate, and maintain a non-federal hydroelectric project that is or would: (a) be located on a water of the United States; (b) occupy public lands or reservations of the United States; (c) utilize surplus water or water power from a federal dam; or (d) be located on a body of water over which Congress has Commerce Clause jurisdiction, project construction occurred on or after August 26, 1935, and the project affects the interests of interstate or foreign commerce.