WATER QUALITY PROGRAM (2026)

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WATER QUALITY PROGRAM

ENVIRONMENTAL PROGRAMS DEPARTMENT

THE SOUTHERN UTE INDIAN TRIBE

PO BOX 737, MS 84, IGNACIO, CO 81137

(970) 563 – 0135 ∙ (970) 563 – 0384 FAX

October 30, 2025

SENT VIA EMAIL: christina.l.schroeder@usace.army.mil

Christina Schroeder

Acting Chief, Regulatory Division

U.S. Army Corps of Engineers Albuquerque District

4101 Jefferson Plaza NE

Albuquerque, NM 87109-3435

Re:

2026 Nationwide Permits 401 Water Quality Certification (Request for Certification)

Dear Ms. Schroeder:

The Southern Ute Indian Tribe’s Environmental Programs Department (EPD) received a 401 certification

request from the U.S. Army Corps of Engineers (Army Corps) for 2026 Nationwide Permits (NWPs) on

June 18, 2025. A pre-filing meeting was requested on May 2, 2025, and held on May 28, 2025.

Actions on 401 Certification Request for Proposed 2026 NWPs

EPD takes the following water quality certification actions under Section 401 of the Clean Water Act on

the Army Corps’ proposed NWPs:

•

“After-the-Fact” NWPs: Permits determined to be applicable after a project or associated discharge

has occurred – Deny

NWPs where the District or Division Engineer has granted a waiver on limits – Deny

NWP# Title

Aids to Navigation

Structures in Artificial Canals

Maintenance

Fish and Wildlife Harvesting,

Enhancement, and Attraction

Devices and Activities

Certification Action

Waive

Certify with Conditions;

Deny when there is a trenching activity or when activities have

potential to discharge into perennial streams or special aquatic

sites including wetlands

Certify with Conditions;

Deny when there is a trenching activity or when activities require

a Pre-Construction Notice (PCN) or have potential to discharge

into perennial streams or special aquatic sites including wetlands

Certify with Conditions

Scientific Measurement

Devices

Survey Activities

Outfall Structures and

Associated Intake Structures

Oil and Gas Structures on the

Outer Continental Shelf

Structures in Fleeting and

Anchorage Areas

Mooring Buoys

Temporary Recreational

Structures

Oil or Natural Gas Pipeline

Activities

Bank Stabilization

Linear Transportation Projects

U.S. Coast Guard Approved

Bridges

Return Water from Upland

Contained Disposal Areas

Hydropower Projects

Minor Discharges

Minor Dredging

Response Operations for Oil or

Hazardous Substances

Surface Coal Mining Activities

Removal of Vessels

Approved Categorical

Exclusions

Indian Tribe or State

Administered Section 404

Programs

Structural Discharges

[Reserved]

Aquatic Habitat Restoration,

Establishment, and

Enhancement Activities

Modifications of Existing

Marinas

Residential Developments

Moist Soil Management for

Wildlife

Maintenance of Existing Flood

Control Facilities

Completed Enforcement

Actions

Certify with Conditions

Certify with Conditions;

Deny when there is a trenching activity or when activities have

potential to discharge into perennial streams or special aquatic

sites including wetlands

Deny

Waive

Deny

Waive

Deny

Certify with Conditions

Deny

Certify with Conditions

Deny

Certify with Conditions

N/A

Certify with Conditions

Waive

Deny

Certify with Conditions

Deny

Temporary Construction,

Access, and Dewatering

Cranberry Production

Activities

Maintenance Dredging of

Existing Basins

Boat Ramps

Emergency Watershed

Protection and Rehabilitation

Cleanup of Hazardous and

Toxic Waste

Commercial and Institutional

Developments

Agricultural Activities

Reshaping Existing Drainage

Ditches

Recreational Facilities

Stormwater Management

Facilities

Mining Activities

Repair of Uplands Damaged by

Discrete Events

Discharges in Ditches

[Reserved]

Commercial Shellfish

Mariculture Activities

Coal Remining Activities

Underground Coal Mining

Activities

Land-Based Renewable Energy

Generation Facilities

Water-Based Renewable

Energy Generation Pilot

Projects

Removal of Low-Head Dams

Living Shorelines

Seaweed Mariculture Activities

Finfish Mariculture Activities

Electric Utility Line and

Telecommunications Activities

Utility Line Activities for

Water and Other Substances

Water Reclamation and Reuse

Facilities

Activities to Improve Passage

of Fish and Other Aquatic

Organisms

Deny

Waive

Certify with Conditions

Waive

Certify with Conditions

Deny

Certify with Conditions

Deny

N/A

Waive

Deny

Waive

Deny

Certify with Conditions;

Deny when there is a trenching activity or when activities require

a Pre-Construction Notice (PCN) or have potential to discharge

into perennial streams or special aquatic sites including wetlands

Conditions of Certification

Included in Table 1 are the justifications and appropriate citations for each condition. This project must

also comply with the Tribe’s certification requirements, which apply to all certifications unless

specifically set forth otherwise in a certification decision. The Tribe’s certification requirements are

found in Section 4-106 of the 401 Certification Procedures, and a copy of the requirements is enclosed

with this certification.

In addition to the Tribe’s certification conditions, the project must be completed in accordance with

applicable NWPs and their General Conditions, as well as applicable Regional Conditions to Nationwide

Permits in the State of Colorado. Compliance with the terms and conditions of the Nationwide Permit,

the Best Management Practices (BMPs) within Tribe’s certification conditions, and the Tribe’s

certification requirements described below will provide reasonable assurances that the permitted

activities will be conducted in a manner which will not violate water quality standards and will address

the Tribe’s most significant water quality concerns. Projects for which EPD has elected to certify with

conditions will comply with water quality requirements as defined at 40 CFR 121.1(n), subject to the

following conditions pursuant to Section 401(d):

Condition 1: A copy of the Tribe’s 401 certification letter for NWPs shall be maintained on-site at all

times and available for inspection.

Condition 2: The project proponent shall provide EPD a written description of sediment and erosion

control BMPs and/or a site-specific Stormwater Pollution Prevention Plan (SWPPP) 10 days prior to

initiating construction. These measures shall be used to fully maintain and protect all existing water uses

throughout the duration of the project and prevent discharge of disturbed soil into the waterway from the

shoreline. All sediment and erosion control measures shall be in place prior to the onset of construction

or prior to work in a waterbody. These measures shall provide for implementation of BMPs during and

after construction including:

• A method statement that describes the phasing of sediment and erosion control measures

installation and construction activities to include:

o Timing (i.e., date estimates) of pre-construction preparation, BMP installation,

construction, and removal.

o The types and locations of sediment and erosion control features that shall be used

onsite, including sediment control fences, haybales, heavy mud mats, or other

structures. The project proponent shall actively maintain these features during

construction.

• Construction materials and equipment storage areas shall be at least 100 feet away from a

waterbody. If it is not possible to site the storage area 100 feet away, the project proponent

shall explain the additional measures that will be taken to ensure there is no sediment migration

into the waterway.

Condition 3: For projects with temporary impacts to aquatic resources, the project proponent shall

submit written description of site-specific aquatic resource restoration and monitoring measures to EPD

10 days prior to construction activities. The project proponent shall restore and monitor the site

consistent with the restoration and monitoring description. The described elements must include and/or

expand upon the details supplied in this project’s certification request:

• Pre-construction, the project proponent shall identify:

o Mitigation measures for disturbed aquatic resources and upland areas, where they are

adjacent to the aquatic resource, and restoration of disturbed riparian areas

o Species for restoration and techniques for planting. The project proponent shall use

identical native species or use salvaged plants removed during construction to the extent

practicable. Non-native and invasive species shall not be used for restoration activities.

o Monitoring success criteria such that species regrowth is functionally equivalent to the predisturbed site or achieves a 70% vegetative cover.

o Monitoring protocol for at least three growing seasons or until replanted areas meet

monitoring success criteria. The project proponent shall identify adaptive management

measures to reestablish aquatic resource functions and values if restoration of the site does

not meet monitoring success criteria.

• Post-construction, revegetation efforts shall occur in accordance with the restoration and

monitoring description and elements provided to EPD. Disturbed soil and vegetation shall be

restored to pre-disturbance reference conditions based on monitoring success criteria. Nursery

and seed stock shall be acquired from localized sources and stockpile weed-free topsoil shall

replace disturbed soil areas.

• Post-construction, the project proponent shall provide documentation of annual monitoring

efforts, including photographs. At a minimum, photographs shall be submitted before

construction and post-construction until the site meets monitoring success criteria. Monitoring

reports and photographs shall be submitted to EPD at wqs@southernute-nsn.gov, subject line:

CWA 401 Certification - NWPs - Restoration Monitoring.

Condition 4: When operating equipment or undertaking construction riparian areas or waterways:

• Prior to arriving on the project site and entering a waterway, all equipment shall be cleaned,

and the project proponent must provide to EPD evidence or certification of equipment

cleaning/decontamination outlined in Article 4-106(t) to avoid aquatic nuisance species

infestation. Remove all plants, animals, or mud and thoroughly wash equipment that have

come in contact with the water before leaving a lake or stream.

• All equipment shall be inspected daily and prior to entering any waterway, for oil, gas, diesel,

anti-freeze, hydraulic fluid, and other petroleum leaks. Before equipment is used on a project

and upon discovery of any fluid leaks, all fluid leaks must be repaired. If a fluid leak cannot be

repaired promptly, the equipment shall not be used on site and moved offsite within 24 hours.

• All contaminated areas shall be cleaned immediately, and contaminated soil removed from the

site or contained in enclosed containers. Containers shall be located no closer than 100 feet to a

waterbody or wetland. If it is not possible to site the storage area 100 feet away, the project

proponent shall explain additional measures in their sediment and erosion control BMPs.

• Containment booms and/or absorbent material shall be available onsite. In the case of spills,

containment booms and/or absorbent materials shall be employed immediately to prevent

discharges from reaching waters of the U.S. Any spills shall be reported to the Army Corps,

and EPD at wqs@southernute-nsn.gov within 24 hours.

Condition 5: Except as specified in the application, the project proponent shall not allow debris,

concrete, oil or petroleum, organic material, or other construction related materials or wastes to enter

into or be stored within 100 feet of where it may enter into waters of the U.S.

Condition 6: The project proponent shall notify EPD when construction activities are complete at

wqs@southernute-nsn.gov.

Conclusion

Thank you for your ongoing partnership in the implementation of the regulatory programs of the Clean

Water Act. If you have questions about this certification, please contact me or Geoff Hensgen, Water

Quality Program Manager at (970) 563-2805 or ghensgen@southernute-nsn.gov.

Sincerely,

Mitchell A.

Dorsk

Digitally signed by

Mitchell A. Dorsk

Date: 2025.10.30

14:57:45 -06'00'

Mitchell Dorsk

Southern Ute Indian Tribe

Water Quality and Remediation Division Head

P.O. Box 737 MS# 84

Ignacio, Colorado 81137

970-563-2272

mdorsk@southernute-nsn.gov

Enclosures:

1. Southern Ute Indian Tribe 401 Certification Requirements

2. Table 1: Supporting Information for Certification Conditions

CC:

Daniel Delgado, USACE, daniel.i.delgado@usace.army.mil

401 Notifications, USACE, SPA-RD-CO@usace.army.mil

Steven Crosson, USACE, steven.b.crosson@usace.army.mil

Matthew Montgomery, USACE, matthew.r.montgomery@usace.army.mil

Kiel Downing, USACE, kiel.g.downing@usace.army.mil

Estella Moore, USEPA, Moore.Estella@epa.gov

Jeffrey Ullman, USEPA, ullman.jeffrey@epa.gov

Southern Ute Indian Tribe (SUIT)

401 Water Quality Certification Requirements

SUIT Clean Water Act Section 401 Certification Procedures for Nationwide Permits, Regional

General Permits, and Individual Section 404 Permits Issued by the U.S. Army Corps of Engineers

Article 4-106. Certification Requirements

(1) The following requirements shall apply to all certifications unless specifically authorized by the 401

certification issued by the Department:

(a) A water quality certification shall require the project owner and operator to notify the Division

Head of all changes in the project subsequent to certification.

(b) A water quality certification shall not be transferable without the written approval of the

Division Head.

the construction activity or operation of the project is taking place for purposes of inspection of

compliance with BMPs and certification conditions.

(d) In the event of any changes in control or ownership of facilities where the construction activity

or operation of the project is taking place, the successor shall be notified in writing by their

predecessor of the existence of the BMPs and certification conditions. The permittee shall provide

a copy of such notification to the Division.

(e) If the permittee discovers that certification conditions are not being implemented as designed,

or are not operating or functioning as designed, or if there is an exceedance of water quality

standards despite compliance with the certification conditions by the permittee, the permittee shall

verbally notify the Division of such failure or exceedance within two working days of becoming

aware of the same. Within ten working days of such notification, the permittee shall provide to the

Division, in writing, the following:

i. In the case of the failure to comply with the certification conditions, a description of (i) the

nature of such failure, (ii) any reasons for such failure, (iii) the period of non-compliance, and

(iv) the measures to be taken to correct such failure to comply; and

ii. In the case of the exceedance of water quality criteria, (i) an explanation, to the extent

known after reasonable investigation, of the relationship between the project and the

exceedance, (ii) the identity of any other known contributions to the exceedance, and (iii) a

proposal to modify the certification conditions so as to remedy the contribution of the project

to the exceedance.

(f) Any anticipated change in discharge location, quantities, or composition associated with the

project must be reported to the Division by submission of a written notice by the permittee no less

than ten days before the change. If the change is determined to be significant, the permittee will be

notified within ten days, and the change will be acknowledged and approved or disapproved.

(g) Any diversion from or bypass of facilities necessary to maintain compliance with the terms and

conditions herein is prohibited, except (i) where unavoidable to prevent loss of life or severe

property damage, or (ii) where excessive storm drainage or runoff would damage any facilities

necessary for compliance with limitations and prohibitions herein. The Division shall be notified

immediately in writing of each such diversion or bypass.

(h) At least 5 days before commencement of a project in a watercourse, which the Division has

certified, or conditionally certified, the permittee shall notify the Division.

(i) Immediately upon discovery of any spill or other discharge to waters of the United States not

authorized by the applicable license or permit, the permittee shall notify the Division.

(j) Construction operations within watercourses and water bodies shall be restricted to only those

project areas specified in the federal license or permit.

(k) No construction equipment shall be operated below the existing water surface.

(l) Work should be carried out diligently and completed as soon as practicable. To the maximum

extent practicable, discharges of dredged or fill material shall be restricted to those periods when

impacts to designated uses are minimal.

(m) The project shall incorporate provisions for operation, maintenance, and replacement of BMPs

to assure compliance with the conditions identified in this section, and any other conditions placed

in the permit or certification. All such provisions shall be identified and complied with in an

operation and maintenance plan which will be retained by the project owner and available for

inspection within a reasonable timeframe upon request by any authorized representative of the

Division.

(n) The use of chemicals during construction and operation shall be in accordance with the

manufacturers’ specifications. There shall be no excess application and introduction of chemicals

into waters of the United States.

(o) All solids, sludges, dredged or stockpiled materials and all fuels, lubricants, or other toxic

materials shall be controlled in a manner so as to prevent such materials from entering waters of

the United States.

(p) All seed, mulching material and straw used in the project shall be certified weed-free.

(q) Discharges of dredged or fill material in excess of that necessary to complete the project are not

permitted.

(r) Discharges to waters of the United States not identified in the license or permit and not certified

in accordance therewith are not allowed.

(s) No discharge shall be allowed which causes non-attainment of federal or tribal narrative water

quality or biological criteria.

(t) Before any equipment touches the water, the project proponent must provide to the Division:

(i) a certification that (a) the equipment has not been used in waters with the possibility of

aquatic nuisance species infestation and (b) the equipment has been thoroughly decontaminated

using water that is heated to a temperature necessary to kill aquatic nuisance species,

(ii) evidence that the equipment has passed a Colorado Parks and Wildlife invasive species

inspection, or

(iii) a certification in a form that is acceptable to the Division, signed by a third-party

consultant, certifying that the equipment has undergone a waters of the United States-specific

preventative decontamination using water that is heated to a temperature necessary to kill

aquatic nuisance species.

(2) Best Management Practices.

(a) BMPs are required for all projects for which Division certification is issued except for section

402 permits. Project proponents must select and propose BMPs to the Division to be employed in

their project.

(b) All certification requests for certifications which require BMPs shall include a map of project

location, a site plan, and a listing of the selected BMPs chosen for the project. At a minimum, each

project must provide for the following:

i. Permanent erosion and sediment control measures that shall be installed at the earliest

practicable time consistent with good construction practices and that shall be maintained and

replaced as necessary throughout the life of the project.

ii. Temporary erosion and sediment control measures that shall be coordinated with permanent

measures to assure economical, effective, and continuous control throughout the construction

phase and during the operation of the project.

Table 1: Supporting Information for Certification Conditions

Numbered

Condition

Why the condition is necessary to assure the activity will

comply with water quality requirements

Citation that

authorizes the

condition

Condition

1, 6

This condition is necessary to ensure that construction site

operators are aware of and abide by Tribal 401 certification

conditions, Tribal Certification Requirements, Nationwide Permit

18 and its General Conditions, as well as applicable Regional

Conditions to Nationwide Permits in the State of Colorado.

SUIT 401

Certification

Requirements

4-106(1)(a)-(d)

Conditions

2, 4, 5

These conditions are necessary to ensure water quality is not

degraded by toxic pollutants in toxic amounts, raw materials, oil,

grease, gasoline, sediment, soil, or construction materials.

40 CFR

230.10(c);40

CFR 230.10(d);

40 CFR 230.71;

40 CFR 230.75;

SUIT 401

Procedures

Sections 4106(1)(e)-(g), 4106(1)(i), 4106(1)(o)-(s), 4106(2)(a)-(b)

Conditions

3, 4

These conditions are necessary to protect water quality because it

ensures that the project proponent is using planning and

construction practices that will maintain the aquatic resource

functions and values. Monitoring for at least three growing

seasons, or until replanted areas meet monitoring success criteria

will provide an adequate indication that the restoration effort is

able to demonstrate restoration is successful. This condition is

necessary to ensure minimization of adverse effects on plants and

animals and to preserve water quality benefits provided by

vegetation in riparian and wetland vegetation, including protecting

wildlife dependent on aquatic ecosystems. This condition is

necessary to sustain aquatic resource functions and value

characteristics (e.g., ensure minimization of potential adverse

impacts on the aquatic ecosystem that often occurs through the

placement and installation of hard armoring along streambanks),

to measure the progress of wetland revegetation, and to ensure that

non-native and invasive species do not become established.

Revegetation with natives and stockpiling of weed-free topsoil are

restoration techniques that minimize adverse impacts of potential

point source discharges. Revegetation, of areas denuded by the

discharge, with natives and stockpiling of weed-free topsoil are

40 CFR

230.10(d); 40

CFR 230.70; 40

CFR 230.75;

SUIT WQS

Sections 6.1.1,

6.1.3, 6.1.6, 6.1.8,

7.1, 7.2, 13.1;

SUIT 401

Procedures

Sections 4106(1)(e)-(g), 4106(1)(i), 4106(1)(o)-(t), 4106(2)(a)-(b)

restoration techniques that can be used to minimize adverse

impacts because riparian vegetation acts as buffer to reduce the

amount of sediment and pollutants that enter waterways. Native

vegetation, because it is adapted to local conditions (e.g., soil

types and temperature) provides this function most efficiently.

Native vegetation also protects the biological integrity of waters.

Condition 5 This condition is necessary to ensure water quality is not degraded

by oil, grease, gasoline, or other types of fluids used to operate

and maintain equipment used to complete the project. This

condition also helps protect the water quality and native biology of

the impacted waters by preventing the spread of invasive or

nuisance species.

40 CFR

230.10(c)-(d); 40

CFR 230.70; 40

CFR 230.71; 40

CFR 230.72; 40

CFR 230.74;

SUIT WQS

Sections 6.1.1,

6.1.2, 6.1.8, 7.1,

7.2, 13.1; SUIT

401 Procedures

Sections 4106(1)(e)-(g), 4106(1)(i), 4106(1)(o)-(s), 4106(2)(a)-(b)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.