Final §401 Water Quality Certification and Coastal Zone Management Consistency Determination Issued

On April 7, 2017, the Virginia Department of Environmental Quality (DEQ) released the final §401 Water Quality Certification (WQC) for the 2017 Nationwide Permits (NWPs). Several noteworthy changes have been made since the draft §401 WQC was issued on February 15, 2017 and are addressed in further detail below. Additionally, on April 5, 2017 DEQ issued the Virginia Coastal Zone Management (CZM) Program Consistency Determination for the 2017 NWPs and Regional Conditions. The associated 2017 NWPs took effect on March 19, 2017 and will expire on March 18, 2022.

Notable changes between the draft and the final §401 WQC conditions include:

NWP 3: Maintenance

  • Conditional certification provided that “the discharge: a) would not increase the capacity of an impoundment, or b) would reduce instream flows

NWP 23: Approved Categorical Exclusions

  • The draft §401 WQC indicated conditional certification would be granted provided that 1) the discharge does not include water withdrawals, such as the construction of an intake structure, weir or water diversion structure; however, this condition has since been removed in the final §401 WQC.

NWP 27: Aquatic Habitat Restoration, Enhancement, and Establishment Activities

  • The post-construction monitoring condition has been modified to note that the monitoring plan must be approved by DEQ.

NWP 39: Commercial and Institutional Developments

  • This NWP was previously suspended in Virginia.  However, §401 WQC now may be granted if the project cannot otherwise be authorized by a State Program General Permit (SPGP).  This may only be applicable in unique and rare circumstances for impacts to non-tidal waters associated with commercial or institutional developments.

NWP 42: Recreational Facilities

  • Clarified that compensation is required when permanent impacts exceed 0.10 acre and 300 linear feet.

Virginia Coastal Zone Management Program

On April 5, 2017, DEQ issued the Federal Consistency Determination for the Reissuance and Modification of the 2017 NWPs under the Virginia CZM Program. There are no notable changes associated with DEQ’s concurrence that the 2017 NWPs and Regional Conditions are consistent to the maximum extent practicable with the Virginia CZM Program. Therefore, the NWPs can now be used in the Coastal Zone Areas of Virginia.

If you have questions regarding how NWP expirations or modifications may affect your project, please contact WSSI staff listed below.


  • Christie Blevins, PWS, CESSWI, LEED AP

    Director - Regulatory

    Gainesville, VA