Rule 93 Questions and Answers

Under the federal Clean Water Act, certain types of permits cannot be issued by federal agencies unless the state certifies that the permitted activities will comply with applicable water quality laws. The permits most commonly subject to this provision of federal law are dredge and fill permits issued by the Corps of Engineers and NPDES (National Pollutant Discharge Elimination System) permits issued by EPA.

The water quality certification is sometimes called a "401 Certification" because it is required under Section 401 of the Clean Water Act.

The appropriate federal agency will request certification.

Public notice of the request for certification must be given. The Commission has entered into agreements with EPA and the Corps of Engineers regarding joint notice. Therefore, when EPA issues notice of a draft NPDES permit, or when the Corps of Engineers issues notice of an application for a dredge and fill permit, the notice issued by the federal agency will also notify recipients that a request and certification has been filed with the Commission.

Public comments on the request for certification will be considered prior to taking final action. If there is sufficient public interest, a public meeting may be held to receive oral comment on a request for certification.

Certification will be issued within 15 days of the close of the public comment period, unless the federal agency grants an extension of time based on unusual circumstances.

Certification may be granted, denied, or granted with conditions. In some circumstances, certification may also be waived.

If certification is denied administratively, the operator may request a hearing. If the certification is granted administratively with conditions, but the operator disagrees with the conditions, the operator can request a hearing. A protestant cannot request a hearing on a water quality certification.