September 18, 2020
TO: DEQ-DWR-Wetlands-Public Listserv
FROM: Paul Wojoski, 401 & Buffer Permitting Branch
Amy Chapman, 401 & Buffer Transportation Permitting Branch
RE: New Federal 401 Water Quality Certification Rule, Effective September 11, 2020
The purpose of this Public Notice is to notice procedural changes for submittal of 401 applications to the Division of Water Resources in order to comply with the revised Federal Clean Water Act Section 401 Certification Rule. This notice is available electronically at http://deq.nc.gov/about/divisions/water- resources/water-resources-permits/wastewater-branch/401-wetlands-buffer-permits/401-public- notices.
NEW PROCEDURES IN RESPONSE TO THE REVISED FEDERAL CLEAN WATER ACT SECTION 401 CERTIFICATION RULE EFFECTIVE SEPTEMBER 11, 2020
On September 11, 2020, a new Federal Clean Water Act Section 401 Certification Rule became effective. This rule stipulates specific requirements for all 401 Certification applications submitted to Certifying Agencies. As a Certifying Agency, the Division of Water Resources must adhere to the stipulations of this federal rule. The final federal rule can be viewed at https://www.epa.gov/sites/production/files/2020- 07/documents/clean_water_act_section_401_certification_rule.pdf
In accordance with 40 C.F.R. Section 121.4(a) “At least 30 days prior to submitting a certification request, the project proponent shall request a pre-filing meeting with the certifying agency”. In accordance with 40 C.F.R. Section 121.5(b)(7) and (c)(5), all certification requests shall include documentation that a pre-filing meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request. Please refer to the Final Federal Rule for more information.
The Division has developed an Online Submission Form: Pre-Filing Meeting Request for applicants to submit the required pre-filing meeting request. The form will provide confirmation receipt of submittal to the applicant.
Effective Immediately, all 401 applications received without documentation that a pre-filing meeting request was submitted at least 30 days prior will be denied as incomplete.