The Clean Water Act aims to protect water quality in the United States. Increased surface runoff from development has the potential to cause significant changes in aquatic ecosystems. Discharges of runoff may carry pollutants such as eroded soil, oil, metals, and pesticides that adversely affect oceans, streams, wetlands, lakes, and groundwater.
Section 401 of the CWA specifically addresses the discharge of pollutants by ensuring compliance with effluent limitations, new source performance standards, toxic pollutant limitations and other appropriate requirements of law or regulation. Section 401 water quality certifications are issued by state water pollution control agencies. This authority is delegated directly from the U.S. Congress to the states, and allows each state to establish policies to ensure that approved activities will meet applicable water quality standards.
When you apply for a Section 404 permit from the Corps, you are required to obtain Section 401 water quality certification from the appropriate state agency. On tribal lands, Native American tribes or the Environmental Protection Agency have Section 401 certification authority. In most cases, Section 401 certification is conducted at the same time as the Corps’ review. The Section 401 certification can cover both the construction and operation of the proposed project. Conditions of the Section 401 certification become conditions of the permit issued by the Corps.
Do I need to include anything with my application?
In order to receive Section 401 certification, certain activities permitted by the Corps may also require the development and implementation of a stormwater management plan, mitigation plan, operation and maintenance plan, and/or restoration plan. The applicant is responsible for submitting application materials to the responsible state agency, Native American tribe or the EPA.
Is there a streamlined Section 401 process for projects with minimal impacts?
Some of the Corps’ nationwide and/or regional permits may already have Section 401 certification, or your state may have pre-certified categories of projects that meet certain criteria. Projects that are not pre-certified will require you to apply to the state for individual Section 401 certification.