Water Quality Certification

Under Section 401 of the Clean Water Act (CWA), the US Army Corps of Engineers (Corps) cannot issue a permit to conduct any activity that may result in a discharge into waters of the United States unless a Section 401 water quality certification (WQC) is granted, verifying compliance with water quality requirements, or WQC is waived.  States and authorized tribes, where the discharge would originate, are generally the certifying authority (CA) responsible for  making WQC decisions.  In cases where a state or tribe does not have authority, the U.S. Environmental Protection Agency (EPA) is the CA responsible for making WQC decisions.  (see 33 CFR 325.2 [Individual Permits] and 33 CFR 330.4(c) [Nationwide Permits]).

The CWA provides that certifying authorities (states, authorized tribes, and EPA) must act on a Section 401 certification request "within a reasonable period of time (which shall not to exceed one year) after receipt" of such a request. A certifying authority may waive certification expressly, or by failing or refusing to act within the established reasonable period of time. In making decisions to grant, grant with conditions, or deny certification requests, certifying authorities consider whether the federally-licensed or permitted activity will comply with applicable water quality standards, effluent limitations, new source performance standards, toxic pollutants restrictions and other appropriate water quality requirements of state or tribal law.

General WQC information and the current status of the 2020 CWA Section 401 rule update, along with access to the 1971 EPA regulations for Section 401 can  be found on the EPA’s CWA Section 401 Certification website.

WQC for the 16 Nationwide Permits (NWPs) Reissued/Issued in January of 2021

On January 13, 2021, the Corps published a final rule in the Federal Register (86 FR 2744) announcing the reissuance of 12 existing NWPs and four (4) new NWPs, as well as the reissuance of NWP general conditions and definitions with some modifications. These 16 NWPs include 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52, 55, 56, 57, 58 and went into effect on March 15, 2021 and will expire on March 14, 2026. 

Information regarding these NWPs can be accessed here.  The regional conditions for these NWPs and corresponding WQC decisions are provided at the following links:

Colorado

New Mexico

Texas

Navajo Nation

WQC for the 41 NWPs Reissued/Issued in December of 2021

On December 27, 2021, the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register (86 FR 73522) announcing the reissuance of 40 existing nationwide permits (NWPs) and one new NWP. These 41 NWPs will go into effect on February 25, 2022 and will expire on March 14, 2026. 

The WQC decisions for these NWPs remain the same as that for the previous 16 in Colorado, Texas, and on Navajo Nation.  Information regarding WQC decisions in New Mexico and on other tribal lands for these 41 NWPs is provided below. 

Information regarding these NWPs can be accessed here.  The regional conditions for these NWPs and corresponding WQC decisions are provided at the following links:

Colorado

New Mexico

Texas

Navajo Nation

WQC for 41 NWPs in New Mexico:

The New Mexico Environment Department (NMED), Surface Water Quality Bureau issued a conditional WQC for these 41 NWPs to ensure that activities conducted comply with state water quality standards (New Mexico Administrative Code [NMAC] 20.6.2 and 20.6.4), Water Quality Management Plan/Continuing Planning Process (WQMP/CPP), including Total Maximum Daily Loads (TMDLs), and Antidegradation Policy.  The regional conditions for these NWPs and corresponding WQC decisions, including NMED’s conditional WQC, are provided at the following link:

WQCs on Tribal lands:

Native American Tribes with water quality certifying authority from Environmental Protection Agency (EPA) have the responsibility to make WQC decisions on their lands. The appropriate EPA regional administrator retains the responsibility to make WQC decisions on tribal lands where the tribe does not have this authority from EPA.  EPA Region 8 and 9 provided the following WQC decisions on tribal lands under each region’s responsibility: Region 8 in ColoradoRegion 9 for allotted lands within the Navajo Nation.  In New Mexico EPA Region 6 granted WQC with no conditions for the Pueblos of Cochiti, Jemez, Santo Domingo, San Felipe, San Ildefonso, Zia, Zuni, the Mescalero Apache Tribe, and Jicarilla Apache Nation and in Texas for Ysleta del Sur. 

The following tribes located in the Albuquerque District have water quality certifying authority from EPA.  Links to tribal WQC decisions received by the Albuquerque District are provided below. WQC was waived for the Pueblos of Acoma, Nambe, Picuris, Pojoaque, Ohkay Owingeh, and Taos. 

Individual WQC For NWPs:

Applicants seeking verification for a regulated activity under a NWP that has been denied WQC by the CA or seeking authorization within the Section 401 jurisdiction of a CA whose WQC was not accepted by the Corps, MUST obtain an individual WQC or waiver thereof from the appropriate CA [33 CFR 330.4(c)]

Applicants should contact the appropriate CA for more information about how to apply for individual WQC.

For a list of contacts for tribes in the state of New Mexico please consult the Tribal POC list.