General
The 401 Certification review process considers all discharges associated with the construction or operation of the project, and also considers the potential impacts of the discharge to the designated uses of the surface water, such as the support of aquatic life. Construction-specific discharges and impacts, such as those associated with soil erosion, are often addressed through the DES Wetlands Bureau and Site Specific Program (Alteration of Terrain) permitting processes. Therefore, a copy of the DES Wetlands and Non-Site Specific Permit and the DES Alteration of Terrain Bureau Permit, if necessary, are required as part of the 401 Certification application package. Operation-specific discharges, such as those associated with post-construction runoff and river flows through and over dams, are also addressed through the 401 Certification process. Regardless of the specific discharge, the review process often includes consultation with other DES programs, such as the Rivers Management and Protection Program, and other state and federal resource agencies, such as the New Hampshire Fish and Game Department and the US Fish and Wildlife Service. The 401 Certification may include specific conditions relative to construction or operational requirements, as well as routine water quality monitoring and reporting to determine compliance with state surface water quality standards.
Review Process for Projects Requiring Individual ACOE Permits
Review Process for Activities Covered Under the NH Programmatic General Permit
In an effort to streamline the permitting process, ACOE can issue programmatic general permits, such as the New Hampshire State Programmatic General Permit (NH PGP), to states for activities that are expected to have minimal impact on the aquatic environment. The permits include criteria for eligible projects and expire five years after the effective date of the general permit. Since the NH PGP constitutes a federal permit, ACOE could not issue the NH PGP until DES issued a 401 Certification. On May 30, 2007, DES issued a 401 Certification 2007-003 for the NH PGP, which includes general provisions for protecting water quality. The most recent NH PGP was issued on July 2, 2007.
In New Hampshire, all DES Wetland permit applications are reviewed by the ACOE to determine whether an individual ACOE dredge and fill permit is needed or if the ACOE NH PGP applies. Most activities projects included under the NH PGP do not require a 401 Certification review, as water quality is addressed through 401 Certification 2007-003. However, DES can modify 401 Certification 2007-003, or revoke and issue a new 401 Certification for any project included under the NH PGP. A modified or new 401 Certification may include additional conditions if the conditions described in 401 Certification 2007-003 are not adequate to meet water quality standards. DES may also revoke 401 Certification 2007-003 for an activity included under the NH PGP and subsequently deny 401 Certification for such an activity if the activity, as proposed, will not meet water quality standards. Any intent by DES to modify or revoke 401 Certification 2007-003 for a specific DES Wetland permit application is discussed with the applicant. The applicant is subsequently informed of the need to submit additional information or a new 401 Certification application package.