C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER D—WATER PROGRAMS › PART 121—STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL LICENSE OR PERMIT › Subpart A—General

40 C.F.R. § 121.7

Certification decisions

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(a) A certifying authority may act on a request for certification in one of four ways: grant certification, grant certification with conditions, deny certification, or expressly waive certification.

(b) A certifying authority shall act on a request for certification within the scope of certification and within the reasonable period of time.

(c) A grant of certification shall be in writing and should include the following:

(1) Identification of the decision as a grant of certification;

(2) Identification of the applicable Federal license or permit;

(3) A statement that the activity will comply with water quality requirements; and

(4) An indication that the certifying authority complied with its public notice procedures established pursuant to Clean Water Act section 401(a)(1).

(d) A grant of certification with conditions shall be in writing and should include the following:

(1) Identification of the decision as a grant of certification with conditions;

(2) Identification of the applicable Federal license or permit;

(3) A statement explaining why each of the included conditions is necessary to assure that the activity will comply with water quality requirements; and

(4) An indication that the certifying authority complied with its public notice procedures established pursuant to Clean Water Act section 401(a)(1).

(e) A denial of certification shall be in writing and should include the following:

(1) Identification of the decision as a denial of certification;

(2) Identification of the applicable Federal license or permit;

(3) A statement explaining why the certifying authority cannot certify that the activity will comply with water quality requirements, including but not limited to a description of any missing water quality-related information if the denial is based on insufficient information; and

(4) An indication that the certifying authority complied with its public notice procedures established pursuant to Clean Water Act section 401(a)(1).

(f) An express waiver shall be in writing and should include the following:

(1) Identification of the decision as an express waiver of certification;

(2) Identification of the applicable Federal license or permit;

(3) A statement that the certifying authority expressly waives its authority to act on the request for certification; and

(4) An indication that the certifying authority complied with its public notice procedures established pursuant to Clean Water Act section 401(a)(1).

(g) If the certifying authority determines that no water quality requirements are applicable to the activity, the certifying authority shall grant certification.

Notes of Decisions
Cited in 4 cases (4 in the last 5 years), 2023–2026 · leading case: Sierra Club v. West Virginia DEP, 64 F.4th 487 (4th Cir. 2023).
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Sierra Club v. West Virginia DEP, 64 F.4th 487 (4th Cir. 2023). “2 (a)(3) (2019); see also 40 C.F.R. § 121.7 (c) (2020) (requiring that a certifying authority “determine[] that a the discharge from the proposed project will comply with water quality 20 USCA4 Appeal: 22-1008 Doc: 92 Filed: 04/03/2023 Pg: 21 of 34 requirements” to grant Section…”
Brookfield White Pine Hydro LLC v. FERC (D.C. Cir. 2024). · cites it 2× “42,210 , 42,286 (July 13, 2020) (“2020 Rule”) (codified at 40 C.F.R. § 121.7 (e)(1) (2020)). 1 If the denial fails to include these requirements, the regulation deems the state’s certification authority “waived.”
Louisiana v. Env't Prot. Agency (W.D. La. 2024). “40 C.F.R. § 121.7 (2020). Lastly, the 2020 Rule applied its regulatory changes to the § 401 certification process on a prospective basis on its effective date, meaning that it did not apply to pending certification requests.”
Sierra Club v. North Carolina Dep't of Env't Quality (4th Cir. 2026). “” 40 C.F.R. § 121.7 (c)(3). Additionally, North Carolina’s regulations require NCDEQ to “evaluate if the proposed activity .”
40 C.F.R. § 121.7(e)(1): 1 case
Brookfield White Pine Hydro LLC v. FERC (D.C. Cir. 2024). “42,210 , 42,286 (July 13, 2020) (“2020 Rule”) (codified at 40 C.F.R. § 121.7 (e)(1) (2020)). 1 If the denial fails to include these requirements, the regulation deems the state’s certification authority “waived.”
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