Clean Water Act Section 401 Water Quality Certifications
What's new?
What activities require a Section 401 water quality certification?
According to the federal Clean Water Act (CWA), anyone who conducts activities involving dredge and fill of waters of the U.S. must obtain from the state a Section 401 water quality certification to ensure the project will comply with state water quality standards. The 401 certification becomes a condition of Federal permits including Coast Guard Section 10 permits, Federal Energy Regulatory Commission 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.
How long does it take to receive a 401 water quality certification?
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 individual projects regulated by federal general permits. Annually, 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.
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.
Helpful hints
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. For projects regulated through USACOE General Permits, the MPCA certifies the permit and all projects covered by the permit are pre-certified. The USACOE also issues about 50 individual permits annually. The MPCA turnaround time for 401 certification is about 90 days for individual permits. We also typically provide feedback on application information with 30 days.
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. For these projects there is no special need for additional conversation with MPCA regarding 401 certification. These projects are either pre-certified through the general permit or are individual permits which are waived.
However, every year there about 10 projects which potentially threaten water quality and are the focus of the MPCA’s 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.
If a project applicant has a project involving one of these 3 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 appropriate Local Unit of Government (LUG) or 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.
The public notice is sent to the MPCA, U.S. EPA, the U.S. Fish and Wildlife Service, Minnesota Department of Natural Resources and others on the mailing list. The public may comment directly to the Corps on any aspect of the project during the comment period. The public may also comment directly to the MPCA on any water quality issue.
If the MPCA grants a 401 water quality certification, the Corps will complete the public interest review before granting or denying the Section 404 permit. Any conditions required to meet water quality standards included in the Section 401 water quality certification become conditions of the Section 404 permit. If the MPCA denies the Section 401 water quality certification, the Corps must then deny the Section 404 permit.
More Information
For more information, contact:
Jim Brist
Resource Management and Assistance Division
520 Lafayette Road North
St. Paul, MN 55155
Phone: 651-757-2245
Fax: 651-297-8676
jim.brist@state.mn.us
