Public Notice 2022-04-20 (401 Program) Reinstated Federal Requirements for 401 Water Quality Certifications

April 20, 2022

TO:        DEQ-DWR-Wetlands-Public Listserv

FROM:    Paul Wojoski, 401 & Buffer Permitting Branch
             Amy Chapman, 401 & Buffer Transportation Permitting

RE:         Notification of Reinstated Federal Requirements for 401 Water Quality Certifications 

The purpose of this Public Notice is to notice procedural changes for submittal of 401 applications to the Division of Water Resources (“DWR”) in order to comply with the reinstated 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.

ADDITIONAL REQUIREMENTS FOR 401 CERTIFICATION APPLICATIONS AS A RESULT OF THE REINSTATEMENT OF THE TRUMP ADMINISTRATION’S 
CLEAN WATER ACT SECTION 401 CERTIFICATION RULE

On April 6, 2022, the United States Supreme Court issued an order staying a lower court’s vacatur of the Trump Administration’s 2020 "Clean Water Act Section 401 Certification Rule" (“Federal Rule”). As a result of the United States Supreme Court order, the Trump Administration’s Federal Rule has sprung back into effect.  

The Trump Administration’s Federal Rule imposes additional procedural requirements on applicants for 401 Certifications and on DWR’s processing of those applications.  One requirement is that 401 applicants must request a pre-filing meeting request at least 30 days prior to submitting their 401 application. [40 C.F.R. §121.4] In turn, the Federal Rule requires that applicants include documentation of their pre-filing meeting request in their 401 Certification application.  [40 C.F.R §121.1; 40 C.F.R. §121.5].  Please refer to the Federal Rule for more information.

The Division has developed a Pre-Filing Meeting Request email address: 401PreFile@ncdenr.gov to accept the federally required pre-filing meeting request.  The email address will provide confirmation receipt of submittal to the applicant.  

Per 40 CFR §121 and §121.5, a 401 Certification application that does not include the required pre-filing meeting request documentation does not constitute a “certification request.”  As a result of the reinstatement of the Trump Administration’s Federal Rule, all 401 applications received after April 6, 2022 that do not have documentation that a pre-filing meeting request was submitted at least 30 days prior to submittal of a 401 Certification application will be returned as incomplete.