Element 4 - 401 Water Quality Certification

The Federal Clean Water Act requires the protection of waters of the United States, and under Section 401 of the Clean Water Act, direct authority is granted to each state or tribe to ensure local WQS are met when a federal action occurs. Under this authority federal permits or licenses are effective only when certified (or waived) by the certifying authority within which boundaries the applicable waters lay. This authority is expressed as a Water Quality Certification (WQC). Federal actions requiring a WQC include but are not limited to the following:

  • Clean Water Act Section 404 Department of the Army discharge of dredge and fill permits
  • U.S. Coast Guard permits
  • Federal Energy Regulatory Commission licenses
  • Nuclear Regulatory Commission licenses
  • NPDES permits
A WQC is the state’s approval of the project for the issued permit or license, and all WQCs in Missouri are issued by the department. The certification will contain conditions that assure that the water quality of the state’s waters is protected from the direct or indirect effects of the project as proposed. Although it is the intent of the department to certify each project, if it is determined that the project will negatively impact water quality, the department may deny the WQC.

Although Clean Water Act Section 404 Department of the Army discharge of dredge and fill permits are not the only federal action requiring WQC, they are by far the most abundant. These permits are issued by the U.S. Army Corp of Engineers (USACE) and reviewed for WQC by the department.

Proposed 404 permits, whether permitted by the USACE with a Nationwide Permit, Regional General Permit or individual permit are evaluated for avoidable adverse impacts to the environment. Nationwide Permits and Regional General Permits can cover many projects of similar activity with minimal to no impacts to the environment. The department can create a set of general and specific conditions that apply to these permits, select particular permits to which these conditions apply or choose general permits that require individual WQC. For these reasons most general permits are issued with a blanket WQC from the department unless conditions within the WQC are violated. General Permits are renewed on a five-year cycle. During renewal all General Permits, as well as any new activities, are evaluated across the nation or the region where they are appropriate, and states are given the opportunity to update the corresponding general and specific conditions for blanket WQCs.

Individual permits are necessary when the project cannot be conducted under the conditions of a general permit. Individual permits require a more extensive review of project information. Proposed projects are placed on public notice. During the public notice period, staff review the merits of each proposed project based on the limited information provided in the public notice, request additional information if needed, and review existing geospatial data. Figure 1 is an example of digital imagery reviewed by staff and used to determine the project location.

Ariel photo of land for 401 Certification Requests

Staff delineates the project area and reviews applicable data, such as stream and wetland locations, potential for additional wetlands, and proximity to impaired or sensitive waters. Figure 2 is an example of the data evaluated as part of this process. After reviewing all available information, staff send their comments to the USACE. All comments are evaluated by the USACE, and the applicant is given the opportunity to respond to the comments.

Map showing impacted area

Project purpose and need, as well as public interest factors, are evaluated against alternatives in order to minimize negative impacts to the environment. The USACE reviews WQC conditions, the certification requirements, any responses to comments and makes a permit decision. If a permit is issued the WQC becomes a part of the federal 404 permit for that project.

ArcGIS is often used when evaluating the appropriate location and possible threats to proposed compensatory mitigation for streams and wetlands. Wetland areas, stream lengths and proposed riparian buffer widths can be calculated using GIS tools, and aerial photographs can be georeferenced to provide additional detail and insight.

401 area screen shot

Figure 3 illustrates with a red polygon the area which is considered a wetland. Using the Measure Tool, staff can calculate the area within a polygon or length of a line (32.5 acres in this example). These calculations are needed when determining environmental impacts, calculating appropriate wetland or stream compensatory mitigation, and verifying completed or proposed work.

Staff are currently working on improvements to the 401 Certification Management System. Currently this is a web-based application that contains basic description and tracking information. When imagery or data are available latitude and longitude coordinates are entered for each proposed wetland/stream impact or mitigation new benefit area. A potential enhancement could link the locational data in the 401 Certification Management System to a geodatabase where aquatic resource impacts and mitigation areas are delineated and stored. The purpose would be to better track and enforce projects approved through the WQC process and provide information to the public and other regulatory agencies..

Contact Information
Water Protection Program, Operating Permits Section
401 Water Quality Certifications
Phone: 800-361-4827 or 573-522-4502
FAX: 573.522.9920
Email: wpsc401cert@dnr.mo.gov

Other Useful Web Links:
Missouri’s definitions for Classified Waters within the state’s WQS can be found in 10 CSR 20.7.031(1)(F).
Missouri’s general Water Quality Standards can be found in 10 CSR 20-7.031(3).
Numeric Water Quality Standards in Missouri can be found in 10 CSR 20-7.031(4)
List of Missouri waters with inorganic sediment, aquatic habitat alteration or unknown impairments
Information on mitigation requirements