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Please feel free to eat and get comfortable during

the Lunch and Learn

Floodplains by Design

Lunch & Learn

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Section 401 Water Quality Certifications

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June 1, 2023

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Hearing from You and Group Tips and Tricks

If you have comments, questions, or even just frustrations with the permitting process you’d like to share, please submit them here and the backbone team will integrate them into our efforts to help bring more ease into permitting processes.

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See slides 35 to comment or to provide any Tips and Tricks you may have!

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Agenda:

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  • 12:00 - 12:05 - Welcome and Introductions

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  • 12:05 - 12:25 - Loree’ Randall and Erin Hanlon Brown, Department of Ecology

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  • 12:25-12:45 - Ecology discussion with Joshua Fleischmann, Whatcom County Public Works

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  • 12:45 - 12:55 - Discussion

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  • 12:55-1:00 - Closure and next steps

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  • 1:00 - 1:30 Informal post Lunch and Learn chat

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Today’s Speakers:

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  • Loree’ Randall - is the Section Manager for Ecology’s federal permit team! In addition to being the Section Manager Loree’ is the Section 401 and CZM federal consistency policy lead. As the lead Loree’ works with the statewide Team reviewing projects and provides guidance and directions regarding the implementation of Section 401 and CZM federal consistency. Loree’ also takes on the review and coordination of large complex projects as needed.

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  • Erin Hanlon Brown - is a CZM and federal permit manager and the agency liaison for the Nationwide Permit Program. In addition to project review, much of Erin’s work is focused on ensuring smooth implementation of procedures and federal rule changes for the team and our customers.

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  • Joshua Fleischmann – Natural Resources Specialist with the River & Flood Division of Whatcom County Public Works. He helps implement the National Flood Insurance Program as well as acting as the agent/applicant for Whatcom County River & Flood capital projects subject to the regulatory jurisdiction of local, State and Federal agencies.

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Water Quality Certification Efficiencies

Loree’ Randall and Erin Hanlon Brown

June 1, 2023

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Ecology Programs

  • Air Quality
  • Environmental Assessment
  • Hazardous Waste and Toxics Reduction
  • Nuclear Waste
  • Shorelands and Environmental Assistance
  • Solid Waste Management
  • Spill Prevention, Preparedness, and Response
  • Toxics Cleanup
  • Water Quality
  • Water Resources

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Also:

  • Office of Chehalis Basin
  • Office of Columbia River
  • Office of Equity & Environmental Justice

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Ecology Regional Offices

  • Northwest
    • Shoreline
    • Bellingham (field)
  • Southwest
    • Lacey
    • Vancouver (field)
  • Central
    • Union Gap
    • Richland (Nuclear Waste)
  • Eastern
    • Spokane
    • Walla Walla (field)

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Clean Water Act Section 401

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Clean Water Act

Section 401

Section 401 of the Clean Water Act gives states and authorized tribes the authority to grant, deny, or waive certification of proposed federal licenses or permits that may discharge into waters of the United States.

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Implementing Section 401 in Washington

  • Ecology is the certifying authority responsible for review and issuance of Section 401 Water Quality Certifications.
  • Thirteen tribes with Treatment as a State (TAS) have approved 401 programs.
  • US Environmental Protection Agency (EPA) is the certifying authority on lands with exclusive federal jurisdiction and tribal trust lands where the tribe does not have TAS.

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Clean Water Act Section 401 & Federal Actions

  • Under Section 401 of the Clean Water Act, federal agencies cannot issue a license or permit before Ecology makes decision on Water Quality Certification (WQC) request or waives the right to review.

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  • Any conditions of the WQC become conditions of the federal permit or license.

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Federal licenses & permits that can trigger WQC

US Coast Guard – Section 9 Bridge Permits

    • Bridge or causeway across navigable waterway (includes temporary structures)

Federal Energy Regulatory Commission (FERC) License

    • Transmission of electricity, natural gas, oil
    • Liquefied natural gas terminals
    • Hydropower, marine hydrokinetic energy

US Army Corps of Engineers - Section 404 & Section 10 Permits

    • Dredge, fill, excavation or grading with discharge
    • Structures in navigable waters.

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Coordination with �US Army Corps of Engineers

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Dept. of Army PERMITTING CONSIDERATIONS

Department of the Army Permitting Process Considerations

Required Coordination and Approval

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Less Complex

Moderately Complex

Complex

Agency

Section 401 Water Quality Certification/

CZMA

Meets general certification for Nationwide Permit

Meets NWP but needs Individual 401 (120 days for non-CZM counties and 180 days for CZM counties)

USACE Standard Individual Permit and Individual 401 (Public Notice and 1 year from valid WQC request)

Ecology

Section 7 Endangered Species Act (ESA)

No ESA species present

FPRP or Limit 8

Requires individual ESA consultation (6-months to 1-year+)

NMFS and USFWS

Section 106 National Historic Preservation Act (NHPA)

No native ground disturbed - no potential to effect Cultural Resources/ Historic Properties

No effect to historic properties (30–45-day consultation with DAHP/Tribes)

Affect historic properties - requires MOA, MOU (1-year+)

DAHP & Tribes

Tribal Coordination/

Consultation

No tribal concerns

Minor design comments/minor cultural resource issues

Substantive cultural resource impacts or tribal concerns

Tribes

Section 408

No federally authorized projects in project area

No effect

408 - affects fed project

USACE Nav/Levee/ Real Estate Teams

Pre-Application Meeting

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Coordination with the Corps for IPs

  • Individual Section 404 permits from the Corps always require an individual WQC.
    • 30-day Joint Public Notice (JPN)

Or

    • 21-day Ecology public notice

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  • Individual Section 10 permits may require an individual WQC if Ecology determines that the project has a Section 401 discharge.

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Coordination with the Corps for Nationwide Permits (NWP)

For NWPs there is early coordination between the Corps and Ecology to determine if an individual WQC is required or if the project meets our programmatic WQC decision.

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Corps NWP Program

  • Authorizes similar activities that are minimally impacting.
  • Typically renewed every 5 years.
  • Current NWPs expire in March 2026.

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Ecology’s NWP Decisions

Ecology issues a programmatic decision on the NWP program for Section 401 WQC and CZM federal consistency.

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    • For projects or activities to meet our programmatic decision they must meet both the state general and state nationwide specific conditions.
    • Generally, individual CZM is required if an individual WQC is required.
    • WQC for NWPs are granted, granted with conditions or denied.

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Ecology State General Conditions

  • In water construction activities.
  • Projects or activities discharging to impaired waters.
  • Aquatic resources requiring special protection.
  • Loss of more than 300 linear feet of streambed.
  • Temporary fills.
  • Mitigation.
  • Stormwater pollution prevention.
  • Application.

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Example of NWP Specific Condition for NWP 27WPs

Ecology 401 Certification – Granted with conditions, provided individual WQC review is not required per Ecology’s state general conditions.

    • Ecology WQC review is required if the project or activity is in a known contaminated or cleanup site to determine if an individual WQC is required or the project meets the programmatic WQC for this NWP.
    • Ecology individual WQC is required for projects or activities authorized under this NWP if:
      • The project or activity directly impacts 1/2 acre or more of tidal waters; or
      • The project or activity affects 1/2 acre or more of wetlands; or
      • The project or activity is a mitigation bank or an advance mitigation site.

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CZM Consistency – Concur with Conditions.

    • A CZM Federal Consistency Decision is required for projects or activities under this NWP if a State 401 Water Quality Certification is required.

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EPA Rule Requirements

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EPA Section 401 Rule Requirements

  • Operating under the 2020 EPA Rule.
  • Pre-filing meeting request must be submitted to Ecology 30 days prior to WQC request.
  • Specific requirements for a valid WQC request outlined in 401 request form.

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When do I need to meet the rule requirements?

If an individual WQC is required, submit:

    • Pre-filing meeting request
    • WQC request and required information 30-days after pre-file.

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Request for Section 401 WQC

Required for all projects:

  • WQC Request Form
  • Proof of pre-filing 30-days prior
  • Completed, signed, dated JARPA
  • State Environmental Policy Act (SEPA)
  • Project drawings
  • Best Management Practices (BMPs) and construction methodology
  • Water Quality Monitoring Plan

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Request for Section 401 WQC

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May be required:

  • Erosion and sediment control for upland work addressing stormwater during construction and long-term
  • Wetland delineation and rating information
  • Mitigation
  • Dredging plan and suitability determination
  • Dewatering plan.

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Coastal Zone Management

Act

Federal Consistency

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Coastal Zone Management Act (CZMA) Federal Consistency

CZMA authorizes states with approved Coastal Zone Management Programs to review federal agency actions.

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  • Require federal license/permit, or
  • Are undertaken by a federal agency, or
  • Use federal funding.

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Washington’s CZM Program applies in all areas of the 15 coastal counties.

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Federal Consistency Review

Washington’s CZMP includes enforceable policies within the following state authorities:

    • State Shoreline Management Act — Chapter 90.58 RCW & implementing WACs (including Guidelines)
    • State Water Pollution Control Act—Chapter 90.48 RCW & implementing WACs
    • State Clean Air Act—Chapter 70.94 RCW & implementing WACs
    • State Ocean Resources Management Act — Chapter 43.143 RCW & Ocean Management Guidelines (WAC 173-26-360)
    • State Marine Spatial Plan for Washington’s Pacific Coast

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CZM Review Process

  • Not all projects require an individual CZM decision.

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  • For example: NWPs that meet Ecology’s programmatic decision.

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  • For projects that require an individual WQC in a CZM county — individual CZM is required.

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  • Submit certification of consistency form & supporting documentation to the Corps at NWS-PermitApp@usace.army.mil
  • Corps will forward the form to Ecology.
  • Ecology issues a 21-day public comment period
  • Ecology has 6 months to issue decision - concur, concur with conditions, or object
    • However, the project proponent and Ecology can agree to “stay” the time as needed.

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Thank you

Loree’ Randall – 360-485-2796

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Erin Hanlon Brown – 360-280-1037

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CANADA

BELLINGHAM

SAN JUAN ISLANDS

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Cougar Creek Project

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Discussion

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Thoughts?

Please share your comments, questions or concerns here. If you’d like to be included in follow-up, please leave your name and contact information.

Clarify on the pre-filing request form that quantified information is not necessary at this stage.

Submit pre-filing form to ecyrefedpermits@ecy.wa.gov address as this is the only address that starts the 30-day clock.

LInk to the Ecology 401 Certification Website: https://ecology.wa.gov/Regulations-Permits/Permits-certifications/401-Water-quality-certification

Submit pre-filing request form even if you don’t know if you need to as it starts the 30 day timeline and there is no downside if it is not needed.

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Upcoming Lunch and Learns

July 6: WA Department of Archaeology and Historic Preservation (DAHP)

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NO AUGUST LUNCH AND LEARN!