Water Quality Certification
Under Section 401 of the Clean Water Act, certification of compliance with state or tribal water quality standards by the state water quality agency or tribal water quality certifying authority is required for any discharge of dredged and fill material into waters of the United States under Section 404 of the Clean Water Act. The Environmental Protection Agency (EPA) administers Section 401 water quality certification (WQC) for tribes that do not have water quality certifying authority. All Section 404 permits, individual or general, require Section 401 WQC.
WQC for Nationwide Permits (NWP) and Regional General Permits (RGP):
New Mexico:
The New Mexico Environment Department (NMED) issued conditional WQC for NWPs when the activity occurs in ephemeral streams. If the proposed project is located in a perennial or intermittent stream, wetland, or Outstanding National Resource Waters then the applicant must obtain Individual WQC. Applicants must submit a joint permit application form to the NMED for state Individual WQC and submit a PCN to the USACE.
WQC for NWPs on tribal lands where the tribe has water quality certifying authority is denied; therefore Individual WQC is required. Applicants must submit an application to the tribe for Individual WQC and a PCN to the USACE. The EPA issued conditional WQC for all current NWPs for tribes that do not have water quality certifying authority, where the activity would occur on those tribal lands. Additional information regarding WQC for NWPs in the Albuquerque District is available in the Water Quality Certification Information Summary.
The following tribes located in the Albuquerque District have water quality certifying authority:
- Pueblo of Acoma
- Pueblo of Isleta
- Pueblo of Nambe
- Picuris Pueblo
- Pueblo of Pojoaque
- Pueblo of Sandia
- Pueblo of San Juan
- Santa Clara Pueblo
- Taos Pueblo
- Pueblo of Tesuque
- Navajo Nation
Texas:
The Texas Commission on Environmental Quality (TCEQ) issued conditional WQC for all current NWPs. In the State of Texas, the USACE considers WQC for NWP 16 denied and will not modify NWP General Condition 20, Mitigation. Applicants must obtain Individual WQC from TCEQ and submit a PCN to the USACE for authorization under NWP 16.
The TCEQ has certified pursuant to Section 401 of the CWA and Title 30, Texas Administrative Code, Chapter 279, for the activities for which it is responsible, that activities conducted under RGPs available in the State of Texas would not result in a violation of established Texas Water Quality Standards provided the standard provisions and General Condition 33 in the RGPs are followed.
Colorado:
The State of Colorado has mandated by statute that Section 401 water quality certification is issued without conditions for all general permits.
WQC for Standard Individual Permits (IP):
New Mexico:
For all activities that require an IP, applicants must either submit an application to the NMED, to the tribes listed above, or to the EPA for tribes not listed above to obtain Individual WQC. Tribal or EPA Contact information regarding WQC in the Albuquerque District is available in the Water Quality Certification Information Summary.
Texas:
The TCEQ and the USACE have developed a tiered system of review for all IP applications based on project size and the area of waters in the state affected. Generally, for small projects (Tier I) that affect less than three acres of waters in the state, or less than 1,500 linear feet of streams, TCEQ has determined that incorporating certain best management practices and other requirements into the project will sufficiently protect water quality. Any project that does not qualify for a Tier I review or for which the applicant elects not to incorporate Tier I criteria or prefers to use alternatives will be considered a Tier II project. Tier II projects are subject to a certification review by TCEQ. Please note that completion of a questionnaire is not required in order for a Section 404 application to be considered administratively complete by the USACE, but is required for the TCEQ to process a request for WQC. If the project qualifies for Tier I, then the applicant must complete the required best management practices form and submit it to TCEQ. If the project does not qualify for Tier I; if the applicant can not follow the best management practices; or if the applicant chooses not to follow the Tier I requirements, then the applicant must complete and submit the 401 certification questionnaire and the alternatives analysis checklist to TCEQ. TCEQ has an online 401 Water Quality Certification Tracking System.
Colorado:
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