§401 Water Quality Certification

Samantha VogelerWater Quality Certification SectionDivision of WaterKentucky Dept. for Environmental Protection

September 2019 1

Why do we care about clean water?

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Cuyahoga River Fire

Protect and manage our waters

Source: https://fw.ky.gov/Fish/Documents/FishingGuide.pdf

Source: KY State Parks

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Healthy Streams = Healthy Communities

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Clean Water Act (CWA)

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• Maintain the chemical, physical and biological integrity of the Nation’s waters.

• US EPA administers all of the CWA expect for:• Section 404 - Permits for dredge or fill material;

administered by U.S. Army Corps of Engineers.

• Section 401 - Water Quality Certification; administered by Kentucky Division of Water.

§401 Water Quality Certification (WQC)

Clean Water Act Section 401(a)(1):

Any applicant for a Federal license or permit to conduct any activity…

which may result in any discharge into navigable waters,

shall obtain a certification from the state…stating that the discharge willcomply with applicable CWA and state provisions.

“certification from the state” = Water Quality Certification (WQC) from the Kentucky Division of Water

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Kentucky Revised Statue (KRS) 224.16-050(2)Title 401 of the Kentucky Administrative Regulations (KAR) Chapter 9 and Chapter 10

“Any applicant for a Federal license or permit…”

• Federal Energy Regulatory Commission (FERC) hydropowerlicenses

• Rivers and Harbors Act §9 and §10 permits for activities that have a potential discharge in navigable waters issued by the USACE.

• Clean Water Act §404 permits for discharge of dredged or fill material issued by the USACE

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Marriage of 404 & 401

• Section 401 WQC is the state oversight of a federal permit

• KY must issue a 401 WQC in order for a federal permits to be valid.

• If there is no Federal Permit, there is no 401 Certification

Clean Water Act Section 401(a)(1):

Any applicant for a Federal license or permit to conduct any activity…

which may result in any discharge into navigable waters,

shall obtain a certification from the state…stating that the discharge willcomply with applicable CWA and state provisions.

Regulated Waters

Source: USACE, http://www.nww.usace.army.mil/portals/28/docs/regulatory/JDs/Corps%20Jurisdiction%20Fresh%20Waterbody.jpg

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Regulated Waters: Streams• Perennial: defined bed and bank, connection to groundwater, and continuous flow

• Intermittent: defined bed and bank, connection to groundwater, and seasonal flow

• Ephemeral: defined bed and bank, with flow dependent on rainfall.

Many jurisdictional streams/wetlands are not marked on maps.

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Regulated Waters: WetlandsMany jurisdictional streams/wetlands are not marked on maps.

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Regulated WatersMany jurisdictional streams/wetlands are not marked on maps.

Activities that require a WQC

Stream bank stabilization

Wetland fill

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Boat Ramp

In-stream basin

Utility Line

Dredging

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USACE Permits & KY DOW Certifications

• USACE issues Nationwide Permits (NWP) and Individual Permits (IP)

• DOW issues General Certification and Individual Certification

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USACE Permits & KY DOW Certifications

• DOW General Certification for NWPs:

1. Certified with Conditions = General Certification with Conditions

2. Certified as Written = General Certification

3. Deny = Individual Certification required

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NWP: General Certification with ConditionsCommon conditions:

• Impacts less than ½ acre of wetlands and 300 linear feet of stream

• Sediment and erosion control installed & maintained

• Activity cannot be in a Special Use Water• Outstanding State Resource Waters• Cold Water Aquatic Habitat• Exceptional Waters

To look up Special Use Waters, go to watermaps.ky.gov

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General Certification with ConditionsNWP #12 Utility Line Backfill and Bedding

• Crossing of surface waters by utility lines.

• Does not authorize the installation of utility lines in a linear manner with the stream channel/below the top of bank

• Impact limitations• < 50 linear feet• < 300 linear feet total• < ½ acre of wetland total

Source: Guide for

Working in

Kentucky Stream

Channels &

Wetlands, KY

Division of

Compliance

Assistance,

http://dca.ky.gov/D

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2011.pdf

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General Certification with ConditionsNWP #13 Bank Stabilization

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General Certification of NWP #13Bank Stabilization

Bio-engineering:• Sloped banks• Live staking• Root wads

Source: Watershed Friendly Stream

Maintenance FAQ 2017, Division of Water

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General Certification with Conditions NWP #14 Linear Transportation Projects

• Bridges and low-water crossings

• Culvert installation

• Impact < 300 linear feet of stream

• Maintain natural flow

• Temporary and permanent structures

This is a conceptual drawing. The number and size of pipes and other details will vary depending on specific site conditions. Source: Guidelines for Low Water Crossing, Division of Water

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Other Common General Certifications with Conditions

General WQC NWP 36

General WQC NWP 39General WQC NWP 3

General WQC NWP 29

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NWP: Certified as writtenDOW must “certify” the NWPs every 5 years when the USACE reissues the NWPs:

1. Certified with Conditions = General Certification with Conditions

2. Certified as Written = General Certification3. Denied = Individual Certification required

The NWP #40 for

Agricultural Activities

is Certified as Written

Source: https://eec.ky.gov/Natural-Resources/Conservation/Pages/Agriculture-Water-

Quality-Act.aspx

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NWP: DeniedDOW must “certify” the NWPs every 5 years when the USACE reissues the NWPs:

1. Certified with Conditions = General Certification with Conditions

2. Certified as Written = General Certification3. Denied = Individual Certification required

The NWP #44 for

non-coal Mining Activities is

Denied General Certification

Source: https://www.uky.edu/KGS/minerals/im_limestone.php

August 2019 24

Individual WQC• DOW denies certification of the NWP

• example: NWP #44 for non-coal Mining Activities

• Activity does not meet the conditions of the General Certifications• Special use waters• Exceeds the General Certification impact limits• Type of activity excluded from coverage by the General Certification

• Activity requires an Individual §404 permit or §10 permit from the USACE

Source: https://eec.ky.gov/Nature-

Preserves/biodiversity/Pages/Zoology-Program.aspx

Federally Threatened Blackside Dace

Sediment & Erosion Control

• Install and maintain Best Management Practices (BMPs)

• Photos show examples of not having adequate controls in place or not maintaining controls.

Photo Source: https://lincoln.ne.gov/city/pworks/watershed/water-

quality.htm

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Applying for a WQC• When to apply? Early

• Apply online, by email, or mail

• Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification

• The application is reviewed by the DOW Water Quality Certification and the DOW Floodplain Management Section

• Contact the U.S. Army Corps of Engineers regarding the CWA §404 permit requirements, including Nationwide Permits, for your project.

Contact KY DOW Water Quality Certification SectionPhone 502-564-3410; Email 401WQC@ky.gov

eec.ky.gov

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• Submit the Application for Stream Construction and/or Water Quality Certification to the Division of Water

• Does the proposed project qualify for a General Certification of a NWP?

• Yes: ✓ Review the NWP & General Certification conditions✓ Obtain any other required local, state, and federal permits✓ Proceed with the project in accordance with the

submitted plans and the NWP/ General Certification conditions

• No: Project requires an Individual Certification

Contact KY DOW Water Quality Certification SectionPhone 502-564-3410; Email 401WQC@ky.gov

eec.ky.gov

Application Process

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1) Submit the Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification to the Division of Water

2) Pre-certification site visit3) Complete application is placed on a 30 day Public

Notice issued by DOW4) Water Quality Certification fee paid, if required5) Water Quality Certification issued

Read your certification

6) WQC conditions may include construction notification and submission of as-built and/or monitoring reports to the WQC Section

Timeline: Goal is complete the certification within 120 days (401 KAR 9:020)

Individual WQC Application Process

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Compensatory Mitigation

• Compensation for loss of the aquatic resource and functions

• Compensatory mitigation may be required by the USACE for projects that exceed impact thresholds. • Mitigation bank• In-Lieu Fee program• Permittee-responsible mitigation

• See the USACE Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS) website for additional information.

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Review• A WQC is required for certain federal permits for

activities that may result in a discharge into a jurisdictional water.

• A WQC is required when discharging fill material into streams or wetlands.

• Projects may qualify for a Nationwide Permit from the USACE and a corresponding General Certification from the Division of Water.✓Review the NWP and General Certification conditions

• Projects that do not qualify for a Nationwide Permit and/or General Certification require an Individual Certification from the Division of Water.

Sediment & Erosion Control

https://eec.ky.gov/Environmental-Protection/Water/PermitCert/WQ401Cert/Pages/WQ-Certification-Forms.aspx

• Best Management Practices• General Certifications• Stream Restoration• Suggested Riparian Vegetation• Stream Maintenance FAQ and Guidelines

Resources

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https://eec.ky.gov/Environmental-Protection/Water/PermitCert/WQ401Cert/Pages/WQ-Certification-Forms.aspx

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KY Division of Water, Water Quality Certification SectionPhone: 502-564-3410

Email: 401WQC@ky.goveec.ky.gov