On March 28, 2018, the U.S. Environmental Protection Agency approved the Southern Ute Indian Tribe’s application to be treated in a similar manner as a state for purposes of the Clean Water Act section 401 water quality certification program. At the direction and with the support of the Southern Ute Indian Tribal Council, the Environmental Programs Department developed section 401 water quality certification procedures for tribal waters located on Tribal Trust Lands.
Under Clean Water Act section 401, a federal agency cannot issue a permit or license for an activity that may cause a discharge to waters of the United States until the state or tribe where the discharge would originate has granted or waived Clean Water Act section 401 certification. With this authority, the Tribe can deny, certify, waive, or condition permits or licenses based in part on the proposed project’s compliance with the Tribe’s EPA-approved water quality standards. Clean Water Act section 401 certification authority, therefore, is an important tool for protecting water quality, although it is limited in scope and application to situations involving federally permitted or licensed activities that may cause a discharge to a water of the United States.
For projects located on Tribal Trust Lands, the 401 certifying authority is the Tribe’s Environmental Programs Department. For projects located within the exterior boundary of the reservation but not located on Tribal Trust Lands, The Environmental Protection Agency is the 401 certifying authority.
The Tribe’s proposed 401 water quality certification procedures:
- Delegate authority to the Division to act on behalf of the Tribe in exercising the Tribe’s Clean Water Act section 401 certification authority;
- Establish an application process through the Division that requires the applicant to reimburse the Tribe for the costs of application review;
- Establish a process for applications to be reviewed both internally within the tribal organization (through a proposed project notification process) and through a public review and comment process;
- Set forth the factors that will be considered in reviewing applications (e.g., compliance with water quality standards);
- Describe the decision-making process and the possible decisions (e.g., grant, grant with conditions, deny, or waive);
- List the general requirements that will apply to all of the Tribe’s Clean Water Act section 401 certifications; and
- Provide for judicial review in the Tribal Court of any Clean Water Act section 401 certification decisions by the Environmental Programs Department.
Section 401 Certification Procedures
401 Certification Documents
Visit the EPD Public Comments and Notices page.
401 Certification Staff
General 401 Certification Email Address
Mandy Eskelson, Water Quality & Remediation Division Head
Mark Hutson, Environmental Programs Director