Best Practices for EPA’s Implementation of Clean Water Act Section 401(a)(2)

Best Practices for EPA's Implementation of Clean Water Act Section 401(a)(2)

DISCLAIMER: This internal document includes suggested best practices for EPA's implementation of
section 401(a)(2) of the Clean Water Act. This internal document does not provide guidance for states
or tribes when they are the certifying authorities under section 401. This internal document is not a
regulation, nor does it change or substitute for any applicable regulations. Thus, it does not impose
legally binding requirements on the EPA, states, tribes, other federal agencies or the regulated
community. This internal document neither alters legal rights or obligations nor changes or creates
law. In the event of a conflict between the discussion in this internal document and any statute or
regulation, this internal document would not be controlling.

L BACKGROUND

Clean Water Act (CWA) section 401(a)(2) requires federal licensing and permitting agencies to
immediately notify EPA when they receive a license or permit application to conduct any activity which
may result in any discharge into the navigable waters and a water quality certification for that license or
permit from the state in which the discharge originates. 33 U.S.C. 1341(a)(2). If, within thirty days of the
date of that notice, EPA in its discretion determines that the discharge "may affect. . . the quality of the
waters of any other State,1 EPA is required to notify such other State (also referred to in this document
as a "neighboring jurisdiction"), the licensing or permitting agency, and the applicant. Id.

The neighboring jurisdiction then has sixty days from receiving EPA's notification to determine whether
the certified discharge "will affect" the quality of its waters so as to violate any of its water quality
requirements, notify EPA and the licensing or permitting agency in writing of its objection to the
issuance of the license or permit, and request a public hearing on its objection. Id. If requested, the
federal licensing or permitting agency must hold a public hearing on the neighboring jurisdiction's
objection. Id. At the hearing, EPA is required to submit its evaluation and recommendations concerning
the objection. Id. The federal licensing or permitting agency, based upon the recommendations of the
neighboring jurisdiction, EPA, and any additional evidence presented at the hearing, shall condition the
license or permit as necessary to ensure compliance with applicable water quality requirements. If the
imposition of such conditions cannot ensure compliance, the federal licensing or permitting agency shall
not issue the license or permit. Id.

M. SUGGESTED BEST PRACTICES FOR EPA'S IMPLEMENTATION OF SECTION 401(a)(2)

Federal Licensing / Permitting Agency Notification to EPA

1. Process: Clean Water Act section 401(a)(2) requires that the federal licensing or permitting
agency, upon receipt of a section 401 water quality certification and related license or permit
application, immediately notify the EPA Administrator of such certification and application.
Under EPA's CWA Section 401 Certification Rule, "immediately" means within 5 days of
receiving the certification. 40 CFR 121.12(a). EPA expects that federal licensing or permitting
agencies will provide notice of state or tribal certifications, even if the project itself does not
have an associated "permit application." For example, some general permits or federal projects
authorized under CWA section 404 or the Rivers and Harbors Act may not require a "permit

1 "Any other State" can be a state or a tribe with 'Treatment in a Manner as a State" (TAS) status under CWA
section 518(e). Amendments to the CWA after section 401 was enacted provide that tribes can seek TAS. As a
result, when section 401(a)(2) uses the word "state" or "states," this includes tribes with TAS status for section
401. Tribes with TAS for section 401 are also referred to as "authorized tribes."

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application" to be processed, but the Army Corps' regulations nonetheless require receipt of a
water quality certification before it may issue the permit. As a general matter, notice provided
by the federal agency that precedes completion of a certification action would not, by itself, be
sufficient to satisfy the licensing or permitting agency's statutory and regulatory requirement to
provide notice to EPA. In cases where federal agency regulations suggest otherwise, EPA should
work with the federal agency to update its regulations to be consistent with the statute and the
final rule and, in the meantime, adopt a mutually acceptable notification process. EPA lacks
authority to compel another federal agency to act in a manner inconsistent with that agency's
regulations.

2.	Regional Email Box: Each EPA Region's 401 and 402 programs are responsible for maintaining
an electronic mailbox to receive CWA section 401(a)(2) notifications from federal licensing and
permitting agencies for proposed projects within the EPA Region's geographic boundaries. To
facilitate the email notification process, EPA will maintain on its website, and provide to federal
licensing or permitting agencies, a list of the states and tribes within the geographic boundaries
of their respective EPA Regions and a contact list of EPA regional personnel. EPA Headquarters
will retain access to the EPA regional email boxes in order to gather data on the CWA section
401(a)(2) process.

3.	Local Agreements: To help streamline the notification process, consistent with the CWA, an EPA
Region and a federal licensing or permitting agency may choose to develop a local agreement
with procedures that address how they intend to process CWA section 401(a)(2) notifications.
Local agreements may be used to establish the mechanism for providing notifications between
agencies (e.g., email, website notification) and the types of information the federal licensing or
permitting agency will provide EPA with its notification. For example, a local agreement could
indicate that the EPA Region agrees to receive notification of water quality certifications in the
form of an email with a brief summary of the certified project (such as type of license or permit,
project name and type, location). A local agreement could also provide for regular meetings
between agencies, for example, on a monthly or quarterly basis, to discuss proposed projects or
license or permit applications that may require certification. If a local agreement is developed
with field offices of other federal licensing or permitting agencies, the EPA Region should ensure
that the local agreement is consistent with CWA section 401(a)(2) and the CWA Section 401
Certification Rule, and provide the draft agreement to EPA Office of Water's Office of Wetlands,
Oceans and Watersheds for Headquarters review and concurrence.

EPA's CWA Section 401(a)(2) Review Process for Certifications

1. "May Affect" Determination: CWA section 401(a)(2) provides that EPA has thirty days after
receipt of notification from the federal licensing or permitting agency to exercise its discretion
to evaluate whether the certified activity "may affect" the quality of the waters in another state.
If the EPA Region evaluates a certified project and determines that the water quality of a
neighboring jurisdiction may be affected, EPA must notify the potentially affected jurisdiction,
the federal licensing or permitting agency, and the project proponent. A template "may affect"
letter is enclosed with this memorandum as Attachment A. EPA need not wait the full thirty days
to provide such notice but may notify the required parties any time after it has determined the
discharge may affect the neighboring jurisdiction. If EPA does not provide this notice within

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thirty days of receiving notification from the federal licensing or permitting agency, the federal
agency may proceed with processing the license or permit. EPA may also notify the licensing or
permitting agency any time after receipt of notification that EPA will not issue a "may affect"
notification to a neighboring jurisdiction. The federal license or permit should not be issued until
the section 401(a)(2) process is completed.

Based on past experience with CWA section 401(a)(2), EPA does not anticipate that most federal
agency 401(a)(2) notifications will involve discharges that may affect the quality of the waters of
a neighboring jurisdiction. However, the following screening process for EPA Regions to apply
upon receipt of a section 401(a)(2) notice may help ensure consistent implementation of Section
401(a)(2).

2. Screening Process: EPA Regions should focus primarily on the location of the discharge with
respect to any neighboring jurisdiction and whether the discharge "may affect" the water
quality of that jurisdiction. In making that assessment, EPA Regions should consider the water
quality requirements of that neighboring jurisdiction.

a.	Location of the Discharge and Proximity to Other Jurisdictions: EPA Regions should
ask whether the jurisdictional water into which the project would discharge, or a
downstream jurisdictional tributary, flows through multiple jurisdictions (such as the
Mississippi River or the Columbia River). If the answer is "yes," the Region should
consider the distance between the discharge location and the nearest downstream
state or authorized tribal border. Finally, the Region should consider whether the
discharge may affect the quality of the neighboring jurisdiction's water quality. For
example, does the discharge cause or contribute to water quality degradation or
impact or impair the designated use(s) of another state's water(s)?

b.	Neighboring Jurisdiction Water Quality Requirements: EPA Regions should ask
whether the potentially affected neighboring jurisdictions have different water
quality requirements, including water quality standards, than the state or
authorized tribe that issued the certification for the federal license or permit, and
whether these requirements are more or less stringent? For example, could the
neighboring jurisdiction's designated uses for the portion of the waterway within its
border be impaired by the certified discharge? Is the portion of the waterway within
the neighboring jurisdiction's border included on that state's CWA section 303(d)
impaired waters list, or is there a TMDL established for a segment in the neighboring
jurisdiction?

Any decision by an EPA Region to issue a "may affect" determination must be supported by data
or documentation that demonstrates the certified discharge may, in fact, have an effect on the
quality of the waters of a neighboring jurisdiction.

Neighboring Jurisdiction Response to a CWA Section 401(a)(2) Notice

1. Neighboring Jurisdiction's Role: If EPA has exercised its discretion and made a "may affect"
determination, the neighboring jurisdiction has sixty days after receipt of EPA's "may affect"
notice to consider whether the certified discharge "will affect" the quality of its waters so as to
violate any of that state's water quality requirements. If the neighboring jurisdiction determines
that the certified discharge "will affect" such waters, it must notify EPA and the federal licensing

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or permitting agency in writing, within the sixty-day window, of its objection to the issuance of
such license or permit and request a public hearing on such objection.

2. Hearing Request: If the neighboring jurisdiction requests a hearing on its objection, the federal
licensing or permitting agency must hold the hearing. CWA section 401(a)(2) requires EPA to
submit at the hearing an "evaluation and recommendations with respect to any such objection
to the licensing or permitting agency." Based on the recommendations of the neighboring
jurisdiction, EPA's evaluation and recommendations, and any additional evidence presented at
the hearing, the federal licensing or permitting agency must condition the license or permit "in
such manner as may be necessary to insure compliance with applicable water quality
requirements." Id.

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ATTACHMENT A

"May Affect" Notification Template: The following "may affect" notification template is based on the
requirements of section 401(a)(2), EPA's 401 Rule, and language used in past regional CWA section
401(a)(2) "may affect" notification letters. It is important that the letter clearly indicate that the EPA
Regional Administrator, or his/her delegate, has, in this specific instance, chosen to exercise EPA's
discretionary authority to evaluate a particular certified project and, having made a "may affect"
determination, is notifying a neighboring state or authorized tribe (i.e., a tribe with TAS for CWA section
401) of the potential for the certified discharge to affect the quality of its waters. As explained above,
EPA is not required to evaluate every certification issued by a state or authorized tribe about which it
receives section 401(a)(2) notice, and EPA is not required to make "may affect" determinations.
Importantly, EPA's "may affect" notification is not a determination that the certified project "will affect"
the quality of the waters in neighboring jurisdictions but only that there "may" be such effect. If EPA
sends a "may affect" notification, it is then the neighboring jurisdiction's role to evaluate whether the
certified project "will affect" the quality of its waters so as to violate any water quality requirements in
that state.

On [Date], the U.S. Environmental Protection Agency (EPA) Region [1-10] received notice from
[Name of federal licensing or permitting agency] of the following application for a federal license
or permit and water quality certification under Clean Water Act (CWA) § 401(a). The
certification was issued by [Name of certifying state or tribe] for a proposed [Type of license or
permit, such as CWA § 404 Individual Permit] to be issued by the [Name of federal licensing or
permitting agency reviewing the license/permit application] for [Applicant Name] project
located in [county and state or tribal reservation name]. Following receipt of such notice, EPA
has exercised its discretionary authority under CWA § 401(a)(2) to review that project and is
notifying you that EPA has determined that a discharge associated with this proposed project
may affect the quality of waters within your jurisdiction, potentially including [Name of the
water(s)].

To assist in your evaluation of the potential impacts of this project on the quality of your waters,
I am attaching relevant documents that EPA has received regarding the project. Pursuant to
CWA § 401(a)(2), if you determine that the discharge associated with this certified project "will
affect" the quality of your waters so as to violate any of your water quality requirements, you
may, within sixty days after receipt of this notification, notify [Name of federal licensing or
permitting agency, with address] and EPA in writing that you object to the issuance of the
license or permit, and request that the [Name of federal licensing or permitting agency] hold a
public hearing on your objection.

If you have any questions about this project or notification, EPA's "may affect" determination, or
your rights and obligations under CWA section 401(a)(2), please contact [Name, address, phone
number of EPA Regional POC.]

[Signature of Delegated Authority]

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