Under Section 401 of the CWA, an applicant for a federal license or permit to conduct any activity which may result in any discharge into the navigable waters of the United States must obtain a certification from the state in which the discharge originates (or will originate) that any such discharge will comply with certain water quality requirements of the CWA. 33 U.S.C. § 1341(a)(1). If the state fails or refuses to act on a request for certification within a reasonable period of time (not to exceed one year) after receipt of a request for certification, the state waives the certification requirement.Id. No federal license or permit may be granted until the certification has been obtained or waived. Id. If the state denies certification, Section 401 prohibits the issuance of the federal license or permit. Id.
Section 404 of the CWA authorizes the United States Army Corps of Engineers (USACE) to issue permits, after notice and opportunity for public hearing, for the discharge of dredged or fill material into waters of United States at specified disposal sites. 33 U.S.C. § 1344(a). Section 404 will apply to discharges of dredged or fill material into jurisdictional wetland areas or into streams, rivers, lakes, coastal waters or other water bodies or aquatic areas that qualify as waters of the United States. The USACE reviews applications for permits for the discharge of dredged or fill material in accordance with guidelines promulgated by the Administrator of the Environmental Protection Agency (EPA) under authority of Section 404(b)(1) of the CWA (see 40 C.F.R. Part 230). 33 C.F.R. § 323.6(a). The EPA Administrator may transfer the administration of the Section 404 permit program for discharges into certain waters to qualified states. 33 C.F.R. § 323.5.