For discharges of dredged or fill material, contact the U.S. Army Corps of Engineers (USACE) – Wyoming Regulatory Office to determine whether the proposed discharge will impact a water of the United States and whether a CWA Section 404 Permit or Section 10 Permit is required. Proceed to Step 2.

For the construction, operation, or maintenance of any non-federal hydroelectric project, contact the Federal Energy Regulatory Commission (FERC) to determine whether a federal hydropower license is required. Proceed to Step 2.

If a CWA Section 404 permit is required by the USACE, determine whether the discharge can be authorized under a USACE Section 404 Nationwide, Regional General, or Individual Permit and proceed to Step 3. Note that if no Section 404 permit from the USACE is required, then no 401 Water Quality Certification is required from the WDEQ.

If a FERC hydropower license is required, proceed to Step 5.

If a USACE Section 10 permit is required, proceed to Step 5.

The WDEQ-WQD issues two types of 401 Water Quality Certifications for USACE Section 404 Permits – Categorical and Individual. Categorical 401 Water Quality Certifications provide a streamlined means for the WDEQ-WQD and the USACE to approve common activities that result in minimal impacts to surface waters. Individual 401 Water Quality Certifications are reserved for projects that are larger in scale, may result in more than minimal impacts to surface waters, occur on high-quality waters, or occur on waterbody segments that are currently not meeting Wyoming surface water quality standards.

Each USACE Section 404 Nationwide and Regional General Permit has been categorically granted or denied for 401 Water Quality Certification based on the WDEQ-WQD 401 Certification decisions for the 2021 and 2022 USACE Section 404 Nationwide Permits and the Wyoming Regional General Permits 9202-07, 8202-07, and 2302-01. Certification decisions fall into three categories: denial, waiver, and granting with conditions. A denial means the proposed discharge requires an Individual 401 Water Quality Certification, waiver means no 401 Water Quality Certification is required, and granting with conditions indicates the proposed discharge receives a Categorical 401 Water Quality Certification.

The 401 Water Quality Certification Condition and Decision Matrix summarizes the findings from the WDEQ-WQD’s 401 Water Quality Certification decision letters for every USACE Section 404 Nationwide, Regional General, and Individual Permit along with associated certification conditions for those projects where 401 Water Quality Certification has been categorically granted.

For projects that qualify for a Categorical 401 Water Quality Certification, proceed to Step 4. For projects that require Individual 401 Water Quality Certification, proceed to Step 5.

If 401 Water Quality Certification has been categorically granted, the USACE Section 404 permit will include the standard and any permit-specific certification conditions required by the WDEQ-WQD that are contained within the WDEQ-WQD’s 401 Certification decision letters provided in Step 3. It is the permittee’s responsibility to comply with all certification conditions to ensure compliance with applicable provisions of the CWA, Wyoming Statute, and Wyoming surface water quality standards. All certification conditions are enforceable. Upon granting of a categorical 401 Water Quality Certification, the USACE-Wyoming Regulatory Office will send a copy of the relevant WDEQ-WQD 401 Certification decision letter that will contain the certification conditions as well as the Section 404 verification to the permittee.

If 401 Water Quality Certification has been categorically denied, an individual 401 Water Quality Certification is required. Click on the appropriate federal permit for securing an individual 401 Water Quality Certification:

To secure an individual 401 Water Quality Certification for any USACE Section 404 Nationwide, Regional General, or Individual Permit, please follow the procedures below:

1. Pursuant to federal regulations at 40 CFR 121, the applicant must request a pre-filing meeting with the WDEQ-WQD 401 Certification Coordinator at least 30 days prior to submitting an Individual 401 Water Quality Certification Request Form. The request can be submitted to either eric.hargett@wyo.gov or deq.wqd401@wyo.gov. The WDEQ-WQD may waive or shorten this 30-day period on a case-by-case basis. Pre-filing meetings promote early coordination between the applicant and the WDEQ-WQD to ensure all required information is provided in the WDEQ Individual 401 Water Quality Certification Request Form and streamlines the review and processing of the certification request;
2. Following the pre-filing meeting, the applicant must complete the Individual 401 Water Quality Certification Request Form with all required attachments and submit this application package concurrently to the WDEQ-WQD at wqd401@wyo.gov and the USACE-Wyoming Regulatory Office at wyoming.reg@usace.army.mil;
3. Within 15 days from the date the WDEQ-WQD notifies the USACE-Wyoming Regulatory Office that a complete Individual 401 Water Quality Certification Request Form has been received, the USACE-Wyoming Regulatory Office will notify the WDEQ-WQD in writing as to: a) the date of receipt of a complete Individual 401 Water Quality Certification Request Form, b) the reasonable period of time for the WDEQ-WQD to act on the certification request (typically 30-45 days), c) the date upon which waiver of the certification will occur if there is no action on the certification request, d) the specific Section 404 permit(s) that covers the discharge, e) the DA permit number, and f) any other pertinent information;
4. The WDEQ-WQD will review the Individual 401 Water Quality Certification Request Form and all attachments and develop conditions for the Individual 401 Water Quality Certification to ensure the project’s discharge will comply with applicable provisions of the CWA, Wyoming Statute, and Wyoming Surface Water Quality Standards. Please note that additional information may be requested by the WDEQ-WQD during the review;
5. For discharges to Class 1 waters or those verified under a USACE Individual Permit, the request for Individual 401 Water Quality Certification is publicly noticed with a 14-day public comment period followed by a period to respond to comments. Substantive public comments may require WDEQ-WQD to request additional information from the applicant to determine whether an Individual 401 Water Quality Certification can be granted;
6. If certification is granted, an electronic copy of the signed Individual 401 Water Quality Certification is issued directly from the WDEQ-WQD to the permittee and the USACE-Wyoming Regulatory Office;
7. Pursuant to federal regulations at 40 CFR 121, within five days of receipt of the Individual 401 Water Quality Certification, the USACE-Wyoming Regulatory Office shall provide the certification to the U.S. Environmental Protection Agency Region 8 (USEPA-R8) office in Denver, Colorado. Within 30 days of receipt of the Individual 401 Water Quality Certification, the USEPA-R8 shall determine whether the discharge from the project may affect water quality in a neighboring jurisdiction (i.e., downstream state or tribe). Once the USACE-Wyoming Regulatory Office receives a ‘no effect’ finding from the USEPA-R8 within the 30-day period, the USACE-Wyoming Regulatory Office can issue Section 404 permit verification;
8. The conditions of the Individual 401 Water Quality Certification become part of the USACE Section 404 permit verification and are enforceable. It is the permittee’s responsibility to comply with all certification conditions to ensure compliance with applicable provisions of the CWA, Wyoming Statute, and Wyoming surface water quality standards. The USACE-Wyoming Regulatory Office will send the Section 404 verification along with a copy of the Individual 401 Water Quality Certification to the permittee.

To secure an individual 401 Water Quality Certification for any FERC hydropower license, please contact the WDEQ-WQD 401 Certification Coordinator at eric.hargett@wyo.gov or deq.wqd401@wyo.gov for details. For these types of activities, the WDEQ-WQD coordinates the Individual 401 Water Quality Certification of the proposed licensing or re-licensing of the hydropower facility with the applicant and other appropriate state, federal, and local partners. All proposed Individual 401 Water Quality Certifications for FERC hydropower licenses require a public notice with a 30-day public comment period. Applicants for an Individual 401 Water Quality Certification for FERC hydropower licenses are encouraged to initiate discussions with the WDEQ-WQD during the first stage of FERCs pre-filing consultation process. These early discussions are critical for coordinating with resource agencies, evaluating potential water quality impacts from the proposed project, and determining whether additional studies, corrective actions, and/or alternatives are necessary to ensure compliance with Wyoming surface water quality standards.

To secure an individual 401 Water Quality Certification for a USACE Section 10 Permit, please contact the WDEQ-WQD 401 Certification Coordinator at eric.hargett@wyo.gov or deq.wqd401@wyo.gov for details.