Clean Water Act Section 401 Water Quality Certifications
- DRAFT Regional General Permit RGP-2 — Agricultural Tiling
- Draft — 401 Certification for Regional General Permit 003
Role of Section 401 water quality certification
The 401 certification is part of a larger water quality protection effort that is an integral part of the Federal Clean Water Act. In Minnesota, other agencies also play a role in water quality protection, they include, the Minnesota Department of Natural Resources (DNR), the Minnesota Board of Soil and Water Resources (BWSR), and local government agencies.
The MPCA fills a unique niche in protecting water quality standards through the 401 Certification Process by protecting water quality through state water quality standards. For more information, see the water quality standards page.
What activities require a Section 401 water quality certification?
Section 401 of the Clean Water Act requires any applicant for a federal license or permit to conduct an activity that may result in a discharge of a pollutant into waters of the United States to obtain a certification from the State in which the discharge originates that the discharge complies the applicable water quality standards. The 401 certification becomes a condition of Federal permits including Coast Guard Section 10 permits, Federal Energy Regulatory Commission (FERC) permits and U.S. Army Corps of Engineers (Corps) Section 404 permits.
For example, if someone proposes to place dredged or fill material into navigable waters of the U.S., including wetlands, they must obtain a Section 404 permit from the U.S. Army Corps of Engineers and a Section 401 water quality certification from the Minnesota Pollution Control Agency (MPCA). The Section 404 Corps permit is by far the most common federal permit issued in Minnesota that requires a Section 401 determination from the MPCA.
The vast majority of 401 activities involve projects with relatively low risk to water quality. These are regulated by federal 404 general permits and related 401 certifications The MPCA certifies these general permits and no individual 401 certification is required for projects regulated by federal general permits. About 2,000 projects are authorized annually through general permits. The turnaround time for a 401 certification for a general permit is zero days because the activity has been pre-certified.
However, activities representing more significant risk to water quality are regulated through individual permits. About 50 Individual Permits are issued annually. The average turnaround time for MPCA certification of individual permits is about 90 days. Typically, higher risks projects include:
- Mining operations
- Dam removal
- Large Bridges
- Large pipeline and transmission lines
The MPCA is committed to meeting turnaround time goals set by the Governor and Legislature. Every effort is made to quickly review applications and provide feedback regarding missing information and make a final determination as soon as possible and well within established goals.
The MPCA is committed to providing both fast and value-added 401 certifications. Although the MPCA does not consider 401 Certifications to be a permit, we have agreed to follow the Governor’s Executive Order regarding turnaround times... The MPCA turnaround time for 401 certification is about 90 days for Individual Permits. The MPCA also typically provides feedback on application information within 30-days, after the receipt of the Wetland Application.
The MPCA recognizes that project applicants must work with a number of units of government to secure overall approval to proceed. With this in mind, we focus our reviews on the intended legal purpose of our certification; compliance with water quality standards. For many projects, risk to water quality is low. These projects are either pre-certified through the general permit or are individual permits which are waived.
However, every year there several projects which potentially threaten water quality and are the focus of the MPCA’s 401 Certification water quality protection efforts. Examples of projects of this nature include:
- Large amounts of wetland filling which alter the hydrology and biology of a watershed and increase the likelihood of damaging water quality. If these projects also involve wetland replacement outside the watershed or water basin, they are especially of concern.
- Direct filling of significant areas of lakes or streams in a manner that affects water quality.
- Projects impacting waters designated by rule as outstanding resource value waters as defined in Minn.R.7050.0180 or any cold water designated stream or lake.
If a project applicant has a project involving one of these 4 scenarios, we advise calling MPCA early in your project planning to discuss water quality issues and keep your project moving forward. Resolving issues early will prevent problems and possible project delays.
How do I apply for a Section 404 permit and a Section 401 certification?
Contact the U.S. Army Corps of Engineers (Corps) for a Combined Project Application form. Filling out the form will define the type and scope of your specific project. The applicant submits the proposed project location and details of information to satisfy the federal requirements and state water quality requirements to the Corps. If an individual permit is warranted, the Corps incorporates this information into a public notice that announces the official receipt of the application describes the project. The Corps public notice also serves as the public notice for the MPCA Section 401 water quality certification. If the project proposal qualifies for a Corps General Permit or Letter of Permission (GP/LOP) which the MPCA has pre-certified, no further certification action by the MPCA is required.
For more information, contact:
Resource Management and Assistance Division
520 Lafayette Road North
St. Paul, MN 55155