Division of Water Issues Certifications for Nationwide Permits

Every five years, the United States Army Corps’ of Engineers (USACE) issues a series of general Nationwide Permits (NWPs) to authorize federally permitted activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.

These general permits are used for smaller projects that are determined to cause minimal environmental impacts. The current Nationwide Permits expired on March 18, 2017. The USACE issued and finalized new NWPs on January 6, 2017 that went into effect on March 19, 2017.

The new NWPs will expire on March 18, 2022. Federal regulation 33 CFR §330.4(c) states that “401 water quality certification pursuant to section 401 of the Clean Water Act, or waiver thereof, is required prior to the issuance or reissuance of NWPs authorizing activities which may result in a discharge into waters of the United States”.

In response, the Division of Water (DOW) issued corresponding general certifications to these NWPs.

The Water Quality Certification Section (WQC) at the Kentucky Division of Water (DOW) issues water quality certifications (WQCs) in accordance with Section 401 of the Clean Water Act (CWA).  The 401 Section of the CWA authorizes states and tribes to certify that the USACE 404 and Section 10 permits will comply with applicable water quality standards.

The commonwealth of Kentucky has three options with all the NWPs.

One option is to certify as is, meaning that the conditions that need to be met for DOW’s 401 WQC program are the same as the USACE’s NWPs.

Another option is to certify the NWPs with conditions, meaning that the commonwealth of Kentucky has additional conditions to qualify for the NWP and/or criteria that must be met, on top of the conditions listed by the USACE NWP.

The final option is to deny a NWP. This means that an individual 401 WQC will be required for all projects under that NWP.

Limited changes were made to Division’s NWPs. Those changes are listed below:

  • NWP 12 Utility Line Backfill and Bedding, NWP 14 Linear Transportation Projects, and NWP 37 Emergency Watershed Protection and Rehabilitation had conditions that were modified for clarity, but that do not change the purpose or applicability of the condition.
  • NWP 12 Utility Line Backfill and Bedding and NWP 14 Linear Transportation Projects were modified to include a condition stating that “crossings must be constructed in a manner that does not impede natural water flow”, in order to prevent stream obstruction and impoundment.
  • NWP 23 Approved Categorical Exclusions was modified to include language to clarify what can qualify for this permit, as well as, adding a condition that the project must not impact more than ½ acre of wetland to be consistent with other NWPs. We also added language from the USACE’s NWP 23 to clarify what projects may be included.
  • One condition was added to the General Conditions for the State of KY:
    • Projects requiring in-stream stormwater detention/retention basins shall require individual water quality certifications in order to align with KPDES requirements.

You can see the full listing of all 54 of the USACE’s NWPs at the link below.

http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/2017_NWP_FinalDD/

All the corresponding DOW NWP’s can be found at the link below:

http://water.ky.gov/permitting/Pages/CertificationNationwidePermits.aspx

If you have any questions or concerns about these NWPs or the 401 WQC process in general, please feel free to contact Stephanie Hayes, Water Quality Certification Section supervisor at 502-782-6970.

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