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Illinois 401 Water Quality Certification (14-IL-d)

Information current as of 2019
In Illinois, a person (developer) may need a 401 Water Quality Certification or waiver from the Illinois Environmental Protection Agency (Illinois EPA) for projects that require a Federal Energy Regulatory Commission or a US Army Corps of Engineers approval and may result in any discharge into the navigable waters of the U.S.


Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers, subject to a federal license or permit (e.g., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.), to obtain a 401 Certification or waiver if the project may result in any discharge into the navigable waters of the U.S. Under Section 401(a)(1) of the CWA (33 U.S.C. § 1341), states have the authority to review and approve, condition, waive, or deny a 401 Certification.

In addition to projects requiring a 401 Certification for a Federal Energy Regulatory Commission license, a 401 Certifiction is required for projects triggered by a CWA Section 404 permit from the US Army Corps of Engineers (USACE). For more information on Section 404 permits, see:

Clean Water Act Section 404 Permit Application Process:
14-FD-a



401 Water Quality Certification Process

14-IL-d.1 – Contact Illinois EPA Water Quality Standards Unit (Optional)

In order to expedite the 401 Certification process, Illinois EPA recommends the developer contact Illinois EPA’s Water Quality Standards Unit to discuss the anti-degradation requirements, before submitting an application. Illinois EPA Joint Application Form Instructions.

14-IL-d.2 – 401 Water Quality Certification Application

The developer must submit a Illinois EPA Joint Application Form (Application) to Illinois EPA. 35 ILAC §395.201. The developer also must submit a copy of the Application to the Illinois Department of Natural Resources and USACE. The Application is a joint Application for Illinois EPA and USACE so that allows a developer to simultaneously apply for a 401 Certification as well as a 404 permit. The Application must include:

  • The developer’s name, address and phone number;
  • The names and mailing addresses of adjoining property owners, lessees, etc., whose property adjoins the project site (for notification purposes);
  • A description of the project (including an relevant drawings);
  • The project’s location;
  • The purpose of the project;
  • The type of discharge and the reason for the discharge;
  • A description of proposed avoidance, minimization and compensation mechanisms;
  • The proposed dates of the project; and
  • Relevant information about approvals or denials from other agencies.

Illinois EPA Joint Application Form Instructions.

Additionally, for obtaining 401 Certifications, the developer must submit a complete anti-degradation assessment along with the Application. The assessment must include:

  • An assessment of the alternatives to the proposed project that will result in a reduced pollutant load to the water body, no load increase or minimal environmental degradation. Alternatives that result in no discharge to the water body and changes in the location of the activity must be addressed in the submittal. The assessment of alternatives must consider all technically and economically reasonable measures to avoid or minimize the pollutant loading;
  • If a pollutant load increase or environmental degradation cannot be avoided (e.g. wetlands are filled), a complete mitigation plan must be provided or reasons provided why mitigation is not proposed;
  • Identification and characterization (e.g., the current physical, biological and chemical conditions) of the water body affected by the proposed project and the water body’s existing uses, including a wetland delineation report and drainage area (in acres) of the impacted water bodies at the downstream limits of the project area;
  • The quantity of the pollutant load increase to the water body. Increases in pollutant loading must be protective of all existing uses of the impacted water body;
  • The potential impacts of the proposed project on the water body. The proposed activity must be conducted in a manner that water quality standards are not violated; and
  • The purpose and anticipated benefits of the proposed project, including benefits for the developer as well as benefits to the community at large.

Illinois EPA Joint Application Form Instructions.

The developer must submit a fee along with the Application to Illinois EPA. The fee is either $350 or 1% of the gross value of the proposed project, whichever is greater, but cannot exceed $10,000. 415 ILCS §5/12.6(b). Illinois EPA notifies the developer of the fee amount during Illinois EPA’s review of the Application. 415 ILCS §5/12.6(c).

14-IL-d.3 to 14-IL-d.4 – Review Application Materials for Completeness

After receiving an Application, Illinois EPA reviews the Application materials for administrative and technical completeness. If the Application is incomplete, Illinois EPA notifies the developer of the deficiencies and requests additional information. Illinois EPA Joint Application Form Instructions.

14-IL-d.5 to 14-IL-d.6 – Provide Public Notice

After the developer submits the Application, Illinois EPA provides public notice of the Application. The notice must include:

  • The name and business address of the developer;
  • The location of the discharge;
  • The name of the receiving water;
  • The nature of the facility;
  • The nature of the discharge;
  • The type of federal license or permit requested by the developer; and
  • The name, address and telephone number of the person within Illinois EPA to whom comments or inquires should be direct, and where the Application may be examined.

35 ILAC §395.202.

The public can then comment on the Application, and request a public hearing. Illinois EPA Joint Application Form Instructions.

14-IL-d.7 to 14-IL-d.9 – Does Illinois EPA Decide to Hold a Public Hearing?

After the public has a chance to comment on the Application, Illinois EPA determines whether to hold a public hearing on the Application. In determining whether to hold a public hearing, Illinois EPA considers:

  • Evidence of interest as demonstrated by comments and requests for a hearing received from members of the public;
  • Evidence that a cause and effect relationship exists between the proposed activities and the concerns of the public; and
  • Expectation that a public hearing will provide information useful to Illinois EPA for making its determination on the 401 Certification request.

35 ILAC §395.206(b).

If Illinois EPA decides to hold a public hearing, Illinois EPA provides notice of the hearing to the developer. Illinois EPA also publishes notice of the hearing in at least one newspaper of general circulation in the county where the discharge will originate at least thirty (30) day before holding the hearing. 35 ILAC §395.206(c). The notice must include:

  • The name and business address of the developer;
  • The location of the discharge;
  • The name of the receiving water;
  • The nature of the facility;
  • The nature of the discharge;
  • The type of federal license or permit requested by the developer;
  • The time and location of the hearing;
  • The purpose of the hearing;
  • A concise statement of the issues that will be considered at the hearing; and
  • A brief description of the procedures that will be followed at the hearing.

35 ILAC §395.206(d).

After Illinois EPA provides proper notice, Illinois EPA holds the public hearing in the county where the discharge will originate, or at some other convenient location. At the hearing, interested persons may provide Illinois EPA with information concerning the proposed project. 35 ILAC §395.206(a).


14-IL-d.10 to 14-IL-d.11 – Review Application for Approval

After determining the Application is complete, Illinois EPA reviews the Application for approval. Illinois EPA evaluates all available information about the project in making a decision. 35 ILAC §395.207. The developer’s proposal must not violate Illinois’ Water Quality Standards in order for the project to be approved by Illinois EPA. Illinois EPA Joint Application Form Instructions. Additionally, the project must not violate other applicable regulations of the Illinois Pollution Control Board, applicable sections of the Clean Water Act, or interfere with existing water uses. 35 ILAC §395.401).

After reviewing the Application, Illinois EPA may choose to approve, deny or waive the certification.

14-IL-d.12 – 401 Water Quality Certification

If Illinois EPA approves the project, Illinois EPA issues a 401 Certification to the developer. The developer must comply with all terms and conditions of the 401 Certification. If Illinois EPA waives certification of the activity, the developer may continue the project without receiving a 401 Certification.

14-IL-d.13 – Appeal Decision (Optional)

Illinois EPA’s decision to issue, waive or deny a 401 Certification can be appealed to the Illinois Pollution Control Board.


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Edit Illinois Environmental Protection Agency
Facility Evaluation Unit Manager DanabbazabbaHeacock@illinoisabbazabbagov