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Indiana 401 Water Quality Certification (14-IN-d)

In Indiana, a developer needs a 401 Water Quality Certification or waiver from the Indiana Department of Environmental Management ("IDEM") 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 Certification is required for projects triggered by a CWA Section 404 permit from the US Army Corps of Engineers. 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-IN-d.1 – Hold Pre-Application Meeting (Optional)

Developers are encouraged to hold a pre-application meeting with IDEM Section 401 staff to review the proposed project plans and discuss permit requirements, potential problems, timeframes, and to discuss ways to minimize environmental impacts of the proposed project. Indiana Department of Environmental Management – 401 Water Quality Certification, Early Coordination Webpage.


14-IN-d.2 – Application for Authorization to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the State (Form 51821)

The developer must apply for a site-specific Individual Section 401 Water Quality Certification (“Individual Certification”). Although there is a Regional General Permit (“RGP”) process, hydropower projects generally do not meet the terms and conditions of the RGP.

To apply for a Individual Certification, the developer must submit a complete Application for Authorization to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the State (Form 51821) (“Individual Application”) to IDEM. The Individual Application must include, at minimum, the following:

  • The developer’s name, address, and contact information;
  • A description of the project and project location;
  • A description of the project’s purpose;
  • A description of the mitigation plan; and
  • A list of the names and addresses of landowners adjacent to the property on which the proposed project is located and those persons potentially affected by the proposed project.

Indiana Department of Environmental Management - Application for Authorization to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the State (Form 51821).

14-IN-d.3 to 14-IN-d.5 – Review Individual Application Materials for Completeness

IDEM reviews the Individual application materials for technical and administrative completeness. If there are any deficiencies noted on the Individual Application, IDEM staff sends a Letter of Deficiency (LOD) to the developer and the agent noted on the Application. In the interest of time, IDEM staff may send a LOD email to both the developer and agent instead of a LOD sent through U.S. Mail. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage.

14-IN-d.6 to 14-IN-d.7 – Provide Public Notice of the Individual Application

IDEM must provide notice of the Individual Application. IDEM generally provides notice to adjacent landowners, various regulatory agencies, and those who have requested notice. In addition, IDEM posts all public notices electronically on IDEM’s website. Public notice must include a description of the proposed project, information about the public comment period, and how to request a public hearing on the Application. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage.

Any interested person may submit written comments to IDEM, within twenty-one (21) days from published notice, concerning the proposed project’s impacts to water quality. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage.

14-IN-d.8 to 14-IN-d.9 – Request Public Hearing (Optional)

In addition to submitting comments, any interested party may also request a public hearing on the Individual Application. If there is significant public interest in the Application or if substantial questions or new information pertaining to water quality issues are raised, then IDEM may hold a public hearing. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage. If IDEM holds a public hearing, IDEM conducts the hearing in accordance to Indiana Code – I.C. §§4-21.5 et seq.,

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

IDEM must make a decision within 120 days from receipt of a complete Individual Application. IDEM must consider the public comments and public hearing (if applicable) when making a decision on the Individual Application. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage.

IDEM has the authority to deny an application for provided that IDEM support the denial with a written statement of reasons. Similarly, IDEM may deny a section 401 Water Quality Certification under 33 U.S.C. § 1341(a)(1).

IDEM must deny an Individual Application if the application is deficient, if the activities are unnecessary, or if the proposed compensatory mitigation is determined to be insufficient to offset the effects of the activity. Indiana Department of Environmental Management NonRule Policy Document – Water -011-NPD.

14-IN-d.12 – Provide Public Notice of the Application Decision

IDEM must provide written notice of the Application decision via certified mail pursuant to I.C. § 4-21.5-3-4(a)-(b). Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage. If IDEM denies the Individual Application, the notice must include reasons for the denial.

14-IN-d.13 – Individual Section 401 Water Quality Certification

A developer may not proceed with their project until he or she has received a Section 401 Water Quality Certification (or other authorization) from IDEM. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage.

IDEM reserves the right to condition the Individual Certification. Typical “special conditions” include minimization of impacts, compensatory mitigation for wetland and stream impacts, monitoring requirements for required compensatory wetland and/or stream mitigation, establishment of buffer zones around waterbodies, prohibitions on work during certain periods of the year, the implementation of stormwater management measures, including erosion control and sediment control measures, and additional monitoring or water quality studies. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage.

Section 401(d) of the CWA requires states to lay out, in the certification approval, any limitations or requirements necessary to ensure that the applicant (developer) complies with all appropriate requirements of state law. These conditions laid out by IDEM as part of the Section 401 Water Quality Certification approval also become conditions of the federal permit. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage.

The Individual Certification is generally effective eighteen (18) days from the mailing of the decision notice. Indiana Department of Environmental Management – 401 Water Quality Certification, Frequently Asked Questions Webpage.

14-IN-d.14 – Appeal Decision (If Applicable)

Any interested party may appeal Individual Certification decision within eighteen (18) days of the mailing date of the decision notice. Indiana Code – I.C. §§4-21.5 et seq.,


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