Applicants for a §401 Water Quality Certification (WQC) shall comply with the process outlined in
401 KAR 9:010. Applicants shall submit DOW Form 7116: Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification
Effective April 6, 2022: Due to the reinstatement of the
2020 Clean Water Act Section 401 Rule by the U.S. Supreme Court, the process for receiving a §401 Water Quality Certification has changed significantly.
In addition to submitting the state DOW Form 7116, the applicant is required to comply with federal regulation
40 CFR Part 121: STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL LICENSE OR PERMIT which requires the applicant to submit a
Pre-Filing Meeting Request and a
Certification Request. Instructions and requirements for requesting a Pre-Filing Meeting Request and Certification Request to the Kentucky Division of Water are outlined below.
Some activities imapcting streams and wetlands may qualify for General Certification or require Individual Certification from the Division of Water, pursuant to KRS 224.16-050.
Activities that qualify for General Certification:
Projects with minimal proposed effect on jurisdictional surface waters may be authorized under General Permits issued by a federal agency; however, these also require a state WQC. The U.S. Army Corps of Engineers (USACE) issues General Permits, also known as “Nationwide Permits" (NWPs), for specific activities. Each NWP has a corresponding Water Quality Certification status from the Division of Water.
The Division of Water may authorize a NWP under a General Certification, a General Certification with Conditions, or may require an Individual Certification. General Certifications may include impact thresholds and specific conditions for the proposed activity. See Information regarding
General Certifications.
If the proposed activity qualifies for coverage under both the USACE Nationwide Permit and the corresponding General Certification by the Division, the work can be conducted in accordance with the certification conditions. If the project does not meet all of the conditions and/or exceeds the thresholds of the General Certification, then it does not qualify for the General Certification and the proposed activity requires Individual Certification.
Activities that require Individual Certification:
Proposed activities that require Individual Certification are typically larger scale projects that do not meet all of the conditions and/ or exceed the thresholds of the General Certification. Applicants seeking an Individual Certification must submit an 'Application for Permit to Construction Across or Along a Stream and/or Water Quality Certification', 'Pre-Filing Meeting Request', and a 'Certification Request' to the Division of Water. An application fee may also be require, pursuant to 401 KAR 9:020 .
Individual Certification Application Process:
Have Questions? How to Contact Us.
If you have §401 Water Quality Certification program questions during initial project development, please contact the Division of Water by email at 401WQC@ky.gov or by phone at (502) 564-3410.
Step 1 – Submit an Application & Pre-Filing Meeting Request
Applicants seeking an Individual §401 Water Quality Certification shall submit the Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification (DOW Form 7116) by email to: DOWFloodplain@ky.gov.
Or by using eForms:
Or by mailing to:
Kentucky Division of Water
Water Quality Certification Section
300 Sower Boulevard, 3rd Floor
Frankfort, KY 40601.
This form is a dual application that will be reviewed by both the WQC Section and the Floodplain Management Section.
To comply with Federal Regulation of the 2020 Clean Water Act Section 401 Rule, applicants seeking an Individual §401 Water Quality Certification shall submit a
Pre-Filing Meeting Request Form 2022.docx.
Pursuant to 40 CFR 121.4 , an applicant seeking a certification shall request a Pre-Filing Meeting at least thirty (30) days prior to submitting a
Certification Request Form 2022.docx (see Step 3 directions below). The Pre-Filing Meeting can be requested via email to
401WQC@ky.gov using the optional Pre-Filing Meeing Request Form. The Division will review the Pre-Filing Meeting Request and provide any necessary direction to the applicant. A site visit may be scheduled at this time.
• Note: A physical or virtual meeting is not required to be held for a Pre-Filing Meeting Request submittal.
Step 2 –Additional Information Requests
The Division will conduct a technical review of the information provided on the application form. If the information is insufficient, the Division will notify the applicant of deficiencies and a timeframe within which the applicant must respond.
A WQC application fee may also be required, pursuant to 401 KAR 9:020 .
To comply with 40 CFR 121.4 , applicants seeking an Individual §401 Water Quality Certification shall submit a Pre-Filing Meeing Request Form at least thirty (30) days prior to submitting a
Certification Request. Please ensure enough time has passed before submitting the Certification Request under Step 3 below.
Step 3 – Public Notice & Certification Request
WQC Public Notices are accessible on the Department for Environmental Protection (DEP) Pending Approvals Search Page .
Once complete information is received, the application will be posted on the DEP website for a thirty (30) day public comment period. The public notice will also be emailed to persons on the DOW Public Notice Distribution List. This notice does not indicate the Division's intent to issue or deny a certification; it is only a notice that the application is being considered for Individual Certification. Individual Certification decisions are made after the public notice period and final supervisory review are completed.
*Note: The 30 day public notice on the DEP webpage is initiated by the DOW WQC section staff. This public notice period is independent from other public notice periods (e.g. DOW Floodplain Management section, U.S. Army Corps of Engineers).
The Certification Request must be submitted to both the Division of Water and the U.S. Army Corps of Engineers:
1.
Kentucky Division of Water, WQC Section by email to:
401WQC@ky.gov
or by mailing to:
Kentucky Division of Water
Water Quality Certification Section
300 Sower Blvd, 3rd Floor
Frankfort, KY 40601
AND
1. U.S. Army Corps of Engineers
*Please use your specific project manager's contact information, if known.
a.
Louisville District
b.
Nashville District
c. Memphis District
The Division will review the Certification Request and provide any necessary direction to the applicant.
What are my rights and responsibilities after the certification is issued?
The certification holder is responsible for obtaining any federal and state permits required for the activity, and has the right to proceed with certified activities after all applicable permits have been obtained. The certification holder is responsible for complying with conditions and requirements established in the certification. These requirements and conditions are specific to the activity and may include periodic monitoring and inspections by the certification holder.
What are the Division's rights and responsibilities after the certification is issued?
The Division of Water has the responsibility to ensure the discharge will not violate Kentucky water quality standards. In exercising public trust over state waters, the Division must take all prudent steps to protect them for future use, so that the water resources of Kentucky can be used and enjoyed to the fullest extent.
How can I obtain Water Quality Certification for surface coal mining operations?
The Department for Natural Resources reviews Water Quality Certification applications associated with activities related to surface coal mining operations. Examples include, but are not limited to, surface coal mining operations, improvements to local roads for the purposes of hauling coal, restoration of abandoned mine lands, and off-site stream or wetland restoration activities intended solely to offset impacts resulting from surface coal mining activities. Visit the Department for Natural Resources website for further information on this process.