Applying for §401 Water Quality Certification

Applicants for a §401 Water Quality Certification (WQC) shall comply with the process outlined in 401 KAR 9:010 and submit DOW Form 7116: Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification.

The final 2023 Clean Water Act §401 Water Quality Certification Improvement Rule: 2023 Rule requires the applicant to comply with federal regulation 40 CFR Part 121: State Certification of Activities Requiring a Federal License or Permit. This federal rule requires two additional submissions included with the application:

The instructions below explain how to complete the Pre-Filing Meeting Request and request for certification steps for the Division of Water.

Illustration of Application Process Overview (steps are also written out on the page below)

Some activities impacting 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? 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 mailing to:
Kentucky Division of Water
Water Quality Certification Section
300 Sower Blvd, 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 avoid confusion and delays, the Division of Water provides the following guidelines to assist applicants in meeting these federal requirements pursuant to 40 CFR 121. To meet federal requirements, applicants must submit a Pre-Filing Meeting Request at least 30 days before submitting a request for certification.

A pre-filing meeting can be requested via email to 401WQC@ky.gov using the optional template. 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.

Step 2 – Additional Information Requests

The Division will review the submitted application. If information is insufficient or unclear, the applicant will receive a notice of deficiencies and a deadline for responding.

A WQC application fee may also be required, pursuant to 401 KAR 9:010.

Before moving to Step 3, applicants must ensure that:

Any Pre-Filing Meeting Request was submitted at least 30 days prior; and
The application is complete and ready for public notice.

Step 3 – Public Notice & Certification Request

WQC Public Notices are accessible on the Department for Environmental Protection (DEP) Pending Approvals Search Page.

Once the application is complete, DOW will post the application 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.

Important: This notice does not indicate the Division's intent to approve or deny a certification; it is only a notice that the application is being considered for Individual Certification. A final decision is made after the public notice period closes and final supervisory review are completed.

*Note: The 30 day public notice on the DEP webpage is separate from other public notice periods (e.g., DOW Floodplain Management section, U.S. Army Corps of Engineers).

Request for Certification

To avoid confusion and delays, the Division of Water provides the following guidelines to assist applicants in meeting these federal requirements. To meet federal requirements, applicants seeking an Individual §401 Water Quality Certification shall submit a request for certification at least thirty (30) days after submitting a pre-filing meeting request. A request for certification can be emailed to 401WQC@ky.gov or by mail:

Kentucky Division of Water
Water Quality Certification Section
300 Sower Blvd, 3rd Floor
Frankfort, KY 40601

Please submit the request for certification to both the Division of Water and the U.S. Army Corps of Engineers:

U.S. Army Corps of Engineers

*Please use your specific project manager's contact information, if known.

The Division will review the request for certification 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.

Water Quality Certification

Water Quality Certificationmain page Forms and Guidelines General WQCof Nationwide Permits WQC for Coal Mining

Resources

Wetlands Monitoring and Assessment Special Use Waters Kentucky Permits and Certifications Related Agencies

Contact Us

Call (502) 564-3410

Email 401WQC@ky.gov

Applying for §401 Water Quality Certification