Under Section 401 of the federal Clean Water Act (CWA), any applicant for a federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities which may result in any discharge into navigable waters, shall provide the licensing or permitting agency with a certification from the state where the discharge originates or will originate, that the discharge will meet state surface water quality standards. Surface waters include, but are not limited to rivers, lakes, ponds, and wetlands.
In New Hampshire, Section 401 Water Quality Certification is issued by the Department of Environmental Services (DES), Watershed Management Bureau. The US Army Corps of Engineers (ACOE) and the Federal Energy Regulatory Commission (FERC) are two primary federal agencies with permitting/licensing authority over wetland and water development projects. An applicant must contact these agencies to determine whether a federal permit or license is necessary for the project. If a federal permit is necessary, then the applicant must obtain a 401 Certification from DES.
The 401 Certification is a prerequisite for the issuance of the federal license or permit (e.g., ACOE wetlands permit or FERC license); these agencies will not issue the permit or license until DES issues the 401 Certification. Therefore, the 401 Certification is issued prior to the initiation of any work in or near a surface waterbody.
Projects that likely require a 401 Certificate include, but are not limited to, road construction or subsurface pipeline installation over or near surface waters, such as rivers and lakes; construction projects that require dredge or fill of a wetland; and hydroelectric power developments that require licensing.
Application Processing Fees: None
Estimated Application Process Time: 30-60 days for ACOE Programmatic General Permits; 30-180 days for Individual ACOE Section 404 Permits; 180-365 days for FERC licenses. Note: Times are based on "complete" application on file with DES.)
Transferability or Modification: Written notification by the applicant to DES regarding the proposed transfer of the 401 Certification, or modification of proposed construction or operation of the project. DES will determine whether to require a new or modified 401 Certification.
Renewal: Submittal of new application if the project has not been initiated within six years of issuance.
Federal Statute: CWA Title 33 US Code, Chapter 26, Subchapter IV
State statute: RSA 485-A:8 and RSA 485-A:13 (NH Water Pollution and Waste Disposal Act)
NH Code of Administrative Rules: Env-Wq 1700
Appeals body: Water Council
Additional information:
NHDES, Watershed Management Bureau, (603) 271-2457
NHDES, Public Information and Permitting Unit, (603) 271-2975
US Army Corps of Engineers, New England District, (800) 343-4789
US Department of Energy, FERC, Office of Energy Products, (202) 502-8700
NHDES Rivers Management and Protection Program, (603) 271-2457