U.S. Code » Title 33 » Chapter CHAPTER 26— WATER POLLUTION PREVENTION AND CONTROL › Subchapter SUBCHAPTER IV— PERMITS AND LICENSES

33 U.S.C. § 1341

Certification

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(a) Compliance with applicable requirements; application; procedures; license suspension(1) 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 the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. In the case of any such activity for which there is not an applicable effluent limitation or other limitation under sections 1311(b) and 1312 of this title, and there is not an applicable standard under sections 1316 and 1317 of this title, the State shall so certify, except that any such certification shall not be deemed to satisfy section 1371(c) of this title. Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems appropriate, procedures for public hearings in connection with specific applications. In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.(2) Upon receipt of such application and certification the licensing or permitting agency shall immediately notify the Administrator of such application and certification. Whenever such a discharge may affect, as determined by the Administrator, the quality of the waters of any other State, the Administrator within thirty days of the date of notice of application for such Federal license or permit shall so notify such other State, the licensing or permitting agency, and the applicant. If, within sixty days after receipt of such notification, such other State determines that such discharge will affect the quality of its waters so as to violate any water quality requirements in such State, and within such sixty-day period notifies the Administrator and the licensing or permitting agency in writing of its objection to the issuance of such license or permit and requests a public hearing on such objection, the licensing or permitting agency shall hold such a hearing. The Administrator shall at such hearing submit his evaluation and recommendations with respect to any such objection to the licensing or permitting agency. Such agency, based upon the recommendations of such State, the Administrator, and upon any additional evidence, if any, presented to the agency at the hearing, shall condition such license or permit in such manner as may be necessary to insure compliance with applicable water quality requirements. If the imposition of conditions cannot insure such compliance such agency shall not issue such license or permit.(3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the construction of any facility shall fulfill the requirements of this subsection with respect to certification in connection with any other Federal license or permit required for the operation of such facility unless, after notice to the certifying State, agency, or Administrator, as the case may be, which shall be given by the Federal agency to whom application is made for such operating license or permit, the State, or if appropriate, the interstate agency or the Administrator, notifies such agency within sixty days after receipt of such notice that there is no longer reasonable assurance that there will be compliance with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title because of changes since the construction license or permit certification was issued in (A) the construction or operation of the facility, (B) the characteristics of the waters into which such discharge is made, (C) the water quality criteria applicable to such waters or (D) applicable effluent limitations or other requirements. This paragraph shall be inapplicable in any case where the applicant for such operating license or permit has failed to provide the certifying State, or, if appropriate, the interstate agency or the Administrator, with notice of any proposed changes in the construction or operation of the facility with respect to which a construction license or permit has been granted, which changes may result in violation of section 1311, 1312, 1313, 1316, or 1317 of this title.(4) Prior to the initial operation of any federally licensed or permitted facility or activity which may result in any discharge into the navigable waters and with respect to which a certification has been obtained pursuant to paragraph (1) of this subsection, which facility or activity is not subject to a Federal operating license or permit, the licensee or permittee shall provide an opportunity for such certifying State, or, if appropriate, the interstate agency or the Administrator to review the manner in which the facility or activity shall be operated or conducted for the purposes of assuring that applicable effluent limitations or other limitations or other applicable water quality requirements will not be violated. Upon notification by the certifying State, or if appropriate, the interstate agency or the Administrator that the operation of any such federally licensed or permitted facility or activity will violate applicable effluent limitations or other limitations or other water quality requirements such Federal agency may, after public hearing, suspend such license or permit. If such license or permit is suspended, it shall remain suspended until notification is received from the certifying State, agency, or Administrator, as the case may be, that there is reasonable assurance that such facility or activity will not violate the applicable provisions of section 1311, 1312, 1313, 1316, or 1317 of this title.(5) Any Federal license or permit with respect to which a certification has been obtained under paragraph (1) of this subsection may be suspended or revoked by the Federal agency issuing such license or permit upon the entering of a judgment under this chapter that such facility or activity has been operated in violation of the applicable provisions of section 1311, 1312, 1313, 1316, or 1317 of this title.(6) Except with respect to a permit issued under section 1342 of this title, in any case where actual construction of a facility has been lawfully commenced prior to April 3, 1970, no certification shall be required under this subsection for a license or permit issued after April 3, 1970, to operate such facility, except that any such license or permit issued without certification shall terminate April 3, 1973, unless prior to such termination date the person having such license or permit submits to the Federal agency which issued such license or permit a certification and otherwise meets the requirements of this section.(b) Compliance with other provisions of law setting applicable water quality requirements

Nothing in this section shall be construed to limit the authority of any department or agency pursuant to any other provision of law to require compliance with any applicable water quality requirements. The Administrator shall, upon the request of any Federal department or agency, or State or interstate agency, or applicant, provide, for the purpose of this section, any relevant information on applicable effluent limitations, or other limitations, standards, regulations, or requirements, or water quality criteria, and shall, when requested by any such department or agency or State or interstate agency, or applicant, comment on any methods to comply with such limitations, standards, regulations, requirements, or criteria.

(c) Authority of Secretary of the Army to permit use of spoil disposal areas by Federal licensees or permittees

In order to implement the provisions of this section, the Secretary of the Army, acting through the Chief of Engineers, is authorized, if he deems it to be in the public interest, to permit the use of spoil disposal areas under his jurisdiction by Federal licensees or permittees, and to make an appropriate charge for such use. Moneys received from such licensees or permittees shall be deposited in the Treasury as miscellaneous receipts.

(d) Limitations and monitoring requirements of certification

Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.

(June 30, 1948, ch. 758, title IV, § 401, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 877; amended Pub. L. 95–217, §§ 61(b), 64, Dec. 27, 1977, 91 Stat. 1598, 1599.)Editorial NotesAmendments

1977—Subsec. (a). Pub. L. 95–217 inserted reference to section 1313 of this title in pars. (1), (3), (4), and (5), struck out par. (6) which provided that no Federal agency be deemed an applicant for purposes of this subsection, and redesignated par. (7) as (6).

Notes of Decisions
Cited in 376 cases (47 in the last 5 years), 1974–2026 · leading case: Pud No. 1 of Jefferson Cnty. v. Washington Dep't of Ecology, 511 U.S. 700 (1994).
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Pud No. 1 of Jefferson Cnty. v. Washington Dep't of Ecology, 511 U.S. 700 (1994). · cites it 22× “33 U. S. C. § 1341 . Specifically, § 401 requires an applicant for a federal license or permit to conduct any activity "which may result in any discharge into the navigable waters" to obtain from the State a certification "that any such discharge will comply with the applicable…”
S.D. Warren Co. v. Bd. of Env't Prot., 2005 ME 27 (Me. 2005). · cites it 13× “33 U.S.C.A. § 1341 (d). Warren asserts that the BEP’s order should be reviewed de novo without deference to its legal interpretations; that the BEP exceeded its authority when it found that certification was required under the CWA; and that the BEP exceeded its authority when it…”
Joseph M. Keating v. Fed. Energy Regulatory Comm'n, State of California, Ex Rel. California State Water Resources Control Bd., Intervenor, 927 F.2d 616 (D.C. Cir. 1991). · cites it 18× “See 33 U.S.C. § 1341 (a)(1) (1988). 1 Keating contends that he obtained the requisite certification from the State of California in the course of procuring an earlier permit with respect to the same project from the Army Corps of Engineers (“the Corps”); the state, however,…”
Port of Seattle v. Pollution Control Hearings Bd., 90 P.3d 659 (Wash. 2004). · cites it 6× “Before the Army Corps of Engineers may issue a permit to fill wetlands, the project proponent must obtain certification from the State, pursuant to § 401 of the Clean Water Act ( 33 U.S.C. § 1341 ), stating that there is reasonable assurance that the project will not violate…”
City of Shoreacres v. Texas Comm'n on Env't Quality, 166 S.W.3d 825 (Tex. App. 2005). · cites it 15× “See 33 U.S.C.A. § 1341 (a)(1) (West 2001); 16 U.”
Ohio Valley Env't Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009). · cites it 4× “First, a mine operator applying for a federal permit under the CWA must comply with CWA § 401, 33 U.S.C. § 1341 (2000), by providing the federal permitting agency with a certification from the proper state authority—in this case, WVDEP— stating that any discharge from the mine…”
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). · cites it 4× “33 U. S. C. § 1341 . As the District Court construed the FWPCA, the release of ordnance from aircraft or from ships into navigable waters is a discharge of pollutants, even though the EPA, which administers the Act, had not promulgated any regulations setting effluent levels or…”
Sierra Club v. State Water Control Bd., 898 F.3d 383 (4th Cir. 2018). · cites it 7× “33 U.S.C. § 1341 (a)(1). It provides that "[n]o license or permit shall be granted if certification has been denied by the State," but, if a state " fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after…”
Gunpowder Riverkeeper v. Fed. Energy Regulatory Comm'n, 807 F.3d 267 (D.C. Cir. 2015). · cites it 8× “33 U.S.C. § 1341 (a)(1). Following the Commission’s issuance of the conditional certificate here at issue, Gunpowder filed a petition for rehearing on the ground that when the certificate was issued Columbia had not received from the State of Maryland the certification required…”
Pub. Util. Dist. No. 1 v. Dep't of Ecology, 146 Wash. 2d 778 (Wash. 2002). · cites it 6× “The Board granted summary judgment in favor of Ecology, ruling, in relevant part, that (1) Ecology has authority to condition a water quality certification under § 401 ( 33 U.S.C. § 1341 ) on maintenance of specified instream flows where the applicant has existing water rights;…”
Alcoa Power Generating Inc. v. Fed. Energy Regulatory Comm'n, 643 F.3d 963 (D.C. Cir. 2011). · cites it 8× “” 33 U.S.C. § 1341 (a)(1). When a State administrative law judge stayed pending appeal the water certification issued by the State agency, Alcoa Power petitioned the Commission for a declaratory order that the certifying agency had waived its authority by not issuing a…”
Int'l Paper Co. v. Ouellette, 479 U.S. 481 (1987). · cites it 4× “33 U. S. C. § 1341 (a)(1). The CWA therefore establishes a regulatory "partnership" between the Federal Government and the source State.”
Show all 376 citing cases →
— 33 U.S.C. § 1341(a)(1) — 1 case
Am. Rivers, Inc., & the State of Vermont v. Fed. Energy Regulatory Comm'n, Green Mountain Power & Trout Unlimited, Intervenors, 129 F.3d 99 (2d Cir. 1997).
— 33 U.S.C. § 1341(b) — 1 case
Ohio v. United States Army Corps of Engineers, 259 F. Supp. 3d 732 (N.D. Ohio 2017).
— 33 U.S.C. § 1341(d) — 1 case
Morrisville Hydroelectric Proj Water Quality - Decision on the Merits (Vt. Super. Ct. 2018).
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