The purpose of the Water Quality Certification (WQC) program is to protect surface water quality and uses (such as swimming and aquatic life) by ensuring compliance with State surface water quality standards. Examples of surface waters include lakes, ponds, rivers, streams, wetlands and tidal waters. The WQC program is authorized by NH RSA 485-A:12, III and IV. Water Quality Certification for federal National Pollutant Discharge Elimination System (NPDES) permits are administered by the DES Wastewater Engineering Bureau. All other WQCs are administered by the DES Watershed Management Bureau. Water Quality Certifications typically include enforceable conditions, including monitoring requirements, to ensure compliance with surface water quality standards.
There are two situations where Water Quality Certification is required. The first includes projects that require certification under Section 401 of the federal Clean Water Act (CWA). According to Section 401, any applicant for a federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities that may result in any discharge into navigable waters, shall provide the licensing or permitting agency with a certification from the state where the discharge originates or will originate, that the discharge will meet state surface water quality standards. It is important to note that the WQC must be written to ensure that both the construction (if applicable) and operation of the facility will comply with state surface water quality standards.
Examples of projects that require Water Quality Certification under section 401 of the CWA include activities that require a CWA Section 404 permit from the U.S. Army Corps of Engineers (ACOE) for the discharge of dredged or fill material in navigable waters, hydropower projects requiring a Federal Energy Regulatory Commission (FERC) license, and discharges of wastewater and/or stormwater that require a U.S. Environmental Protection Agency NPDES permit.
There are two types of Section 404 ACOE permits: an individual permit and the New Hampshire Programmatic General Permit (PGP). Projects determined by the Army Corps of Engineers to require an individual Section 404 permit must file an application with and receive a Water Quality Certification from the DES Watershed Management Bureau. The PGP is a general permit, which is issued every five years. Prior to issuance, DES issues a 401 Water Quality Certification for the PGP. In general, the conditions in the PGP 401 WQC require all eligible projects to meet New Hampshire surface water quality standards. Since PGP projects are already covered by the PGP 401 WQC, most applicants do not need to do anything more with regards to obtaining 401 Water Quality Certification approval. However, it is important to realize that after notice and opportunity for hearing, DES may modify the PGP 401 WQC for any Programmatic General Permit project to include more specific conditions to ensure compliance with surface water quality standards. DES will notify applicants in advance if their project requires modification of the PGP 401 WQC.
The second situation includes projects that do not require a Water Quality Certification under Section 401 of the CWA, but involve the direct surface water withdrawal or diversion of surface water that require registration under RSA 488:3, and were not in active operation as of July 7, 2009. According to RSA 488:3, registration is required when the cumulative amount of withdrawal or discharge is more than 20,000 gallons of water per day, averaged over any seven-day period, or more than 600,000 gallons of water over any 30-day period.”
For all projects requiring Water Quality Certification (except those applying for an NPDES permit), applicants must submit a complete Water Quality Certification application to the DES Watershed Management Bureau. For projects requiring an NPDES permit, a separate Water Quality Certification application is not needed since information included in the NPDES permit request, the NPDES fact sheet, and the final permit prepared by EPA, is typically sufficient to process the Water Quality Certification.
After a complete application is received, the review process for Water Quality Certifications (excluding those for NPDES permits) often includes consultation with other DES programs, such as the Rivers Management and Protection Program, and other state and federal resource agencies, such as the New Hampshire Fish and Game Department and the US Fish and Wildlife Service. A draft of the WQC (or justification for denial) is then prepared and issued (in most cases) for a minimum 30 day public comment period. At the end of the public comment period, DES then issues a final Water Quality Certification (or denial) and response to comments. After the State issues a 401 Water Quality Certification, the conditions of the certification become enforceable conditions of the underlying federal license or permit. The federal agency does not issue its own Water Quality Certification. The 401 WQC can be enforced by either the state under RSA 485-A:12,III or by the federal agency as mandatory requirements of the federal permit or license under its own regulatory authority. The state water quality certificate issued under RSA 485-A:12,IV, is solely a state permit and is enforceable by the State. Appeals of water quality certification are made to the NH Water Council within 30 days of decision.
If the entity responsible for complying with a Water Quality Certification changes, the full legal name and mailing address of the entity responsible for complying with the Water Quality Certification, as well as the name, mailing address, phone number and email of the main point of contact should be provided to DES by the new responsible party within 30 days of when the change occurred. In addition, documentation should be provided showing that the new responsible party has legal rights to conduct the activity on the property.