Draft §401 Water Quality Certification for Nationwide Permits Released
On February 15, 2017, Virginia Department of Environmental Quality (DEQ) released the draft §401 Water Quality Certification for the activities authorized by the 2017 Nationwide Permits for public comment. Comments are due by March 17, 2017, which means the final certification will likely not be issued until the week of March 20th. The 2017 Nationwide Permits were published in the Federal Register on January 6, 2017 and will take effect on March 19, 2017.
Significant changes to the §401 water quality certification conditions include:
NWP 3: Maintenance
- Conditional certification (previously unconditional) – provided that 1) the deviations from the original configuration or filled area do not change the character, scope, or size of the original design or DEQ-approved alternative design, 2) the discharge does not include changes to water withdrawal structures, increase the capacity of an impoundment, or alter instream flows, and 3) any compensatory mitigation meets the requirements in the Code of Virginia, Section 62.1-44.15:23 A through C.
NWP 12: Utility Line Activities
- In order to avoid issues from meeting the Erosion and Sediment (E&S) requirements for working in the dry, the condition has been clarified to not apply to water withdrawals or non-potable water transport except for hydrostatic testing authorized by a VPDES permit.
- Temporary diversions of surface water associated with “pump arounds” during the construction of utility crossings are specifically allowed to meet E&S requirements.
NWP 13: Bank Stabilization
- Conditional certification (previously unconditional) – provided that 1) the stabilization activities do not permanently impact more than 1,500 linear feet of any type of nontidal stream bed, regardless of any waiver decision made by the COE and 2) any compensatory mitigation meets the requirements in the Code of Virginia, Section 62.1-44.15:23 A through C.
NWP 23: Approved Categorical Exclusions
- Conditional certification (previously unconditional) – provided that 1) the discharge does not include water withdrawals, such as the construction of an intake structure, weir or water diversion structure, and 2) any compensatory mitigation meets the requirements in the Code of Virginia, Section 62.1-44.15:23 A through C.
NWP 27: Aquatic Habitat Restoration, Enhancement, and Establishment Activities – Additional Conditions:
- Post-construction monitoring shall be conducted and reports submitted at the as-built and post-construction monitoring years. If the monitoring schedule is not specified, a minimum of 5-years post-construction monitoring will be required.
- Pump around diversions during the construction of stream and wetland restoration projects are specifically allowed to meet E&S requirements.
- The condition regarding dam removal and associated dam limits was removed.
DEQ is granting unconditional certification to the two new NWPs: NWP 53 – Removal of Low-Head Dams and NWP 54 – Living Shorelines.
Comments on the proposed §401 water quality certification conditions are due by March 17, 2017 and should be sent to 629 East Main street, P.O. Box 1105, Richmond, 23218; ATTN: Steven Hardwick. Written comments should include the name, address, and telephone number of the writer, and shall contain a complete, concise statement of the factual basis for comments.
If you have questions regarding how NWP expirations or modifications may affect your project, please contact WSSI staff listed below.