Minnesota 401 Water Quality Certification (14-MN-d)
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 (USACE). For more information on Section 404 permits, see:Clean Water Act Section 404 Permit Application Process:
401 Water Quality Certification Process
14-MN-d.1 – Joint Application Form
In order to obtain a 401 Certification, the developer must complete and submit a Joint Application Form for Activities Affecting Water Resources in Minnesota (Application) to the appropriate federal agency whom the developer aims to receive a permit or license from. The federal agency provides MPCA with a copy of the Application. If necessary, MPCA requests a copy of the Application directly from the developer. The Application must include:
- The developer’s information and contact information;
- Information about the site location;
- General project information;
- An Aquatic Resource Impact Summary; and
- Any additional applicable information such as:
- a request for a delineation review, wetland type determination, or jurisdictional determination;
- supporting information for an Application involving exemptions, no loss determinations, and activities not requiring mitigation;
- steps to avoid and minimize environmental impacts;
- replacement or compensatory mitigation information; and
- local road replacement program qualifications.
MPCA does not charge a fee to apply for or obtain a 401 Certification.
14-MN-d.2 to 14-MN-d.3 – Review Application Materials for Completeness
After receiving an Application, MPCA reviews the Application for administrative and technical completeness. If the Application is incomplete, MPCA asks the developer to provide additional information.
14-MN-d.4 to 14-MN-d.6 – Does the Project Require an Anti-degradation Assessment?
If the project requires an anti-degradation assessment, MPCA publishes public notice of the Application, after determining the Application is complete. Minn. Admin. R. §7001.1440(1).
The public notice must contain:
- The address and telephone number of the main MPCA office and the applicable MPCA regional office, and a statement that additional information may be obtained at these offices;
- The name and address of the developer, and if different, of the facility or activity that is the subject of the Application;
- A concise description of the proposed facility or activity;
- If applicable, a statement of the preliminary determination of MPCA to issue or deny the 401 Certification;
- The proposed duration of the 401 Certification;
- A statement that during the public comment period a person may submit comments to MPCA, and a statement of the dates on which the comment period commences and terminates; and
- A brief description of the MPCA procedures for reaching a final decision on the Application, and any other procedures by which the public may participate in MPCA’s consideration of the Application.
MPCA is not required to provide public notice of the Application if the federal agency provides public notice in accordance with public notice requirements of the state, unless the project requires an antidegredation assessment. Minn. Admin. R. §7001.1440(2).
The public can comment on the Application, and the comment period is determined by MPCA on a case-by-case basis after considering the scope, nature and potential impacts on water quality of the project. The comment period must be at least ten (10) days. Minn. Admin. R. §7001.1440(1).
14-MN-d.7 – Environmental Review
After receiving an Application, the state conducts an environmental review of the project. The Responsible Governmental Unit (RGU) conducts the environmental review. The RGU varies depending on the project, but can be the local unit of government, MPCA, or other state governmental entities. MPCA cannot issue a 401 Certification before the environmental review is complete. For more information, see:
State Environmental Review:
14-MN-d.8 to 14-MN-d.9 – Review Application for Approval
After receiving a complete Application, MPCA has 365 days to make a determination on the Application. Minn. Admin. R. §7001.1430. However, the MPCA’s policy is to make a decision within 150 days of posting the public notice. For larger, more complex projects, the review typically exceeds the 150-day deadline.
For a project to receive a 401 Certification, it must be in compliance with Minnesota’s Water Quality Standards: Minn. Admin. R. §7050 and Minn. Admin. R. §7052. MPCA will not approve a 401 Certification MPCA finds:
- The proposed project will not comply with all applicable state and federal pollution control statutes and rules administered by MPCA, or conditions of the 401 Certification;
- That the project has unresolved noncompliance with applicable state and federal pollution control statutes and rules administered by MPCA, or conditions of the 401 Certification, and that the developer will not resolve the noncompliance;
- That the developer failed to fully disclose all facts relevant to the proposed project or activity, or that the developer has submitted false or misleading information to MPCA;
- That the proposed project or activity endangers human health or the environment and that the danger cannot be removed by a modification of the conditions of the 401 Certification; or
- That the proposed project or activity will result in a discharge of a radiological, chemical or biological warfare agent.
MPAC can also voluntarily waive its authority to review the proposed project or impose conditions. MPCA is deemed to have waived its authority if MPAC does not make a determination on the Application within one (1) year of the public notice. Minn. Admin. R. §7001.1460.
Note: For projects with a relatively low risk to water quality that are approved through federal general permits (e.g. Section 404 general permits), an individual 401 Certification may not be required. MPCA has certified several general federal permits, meaning if the developer receives approval through a federal general permit, the 401 Certification is automatically issued on the issuance of the federal general permit. MPCA 401 Water Quality Certification Information.
14-MN-d.10 – 401 Water Quality Certification
When there is reasonable assurance that the project will comply with applicable water quality standards MPCA issues a 401 Certification for the project. All 401 Certifications issued by MPCA include:
- The name and address of the developer;
- A statement that MPCA has examined the Application and any other information furnished by the developer and bases its 401 Certification on an evaluation of this information that is relevant to water quality considerations;
- A statement that there is reasonable assurance that the activity will be conducted in a manner that will not violate applicable water quality standards; and
- The terms and conditions listed in Minn. Admin. R. §7001.0150(2) and Minn. Admin. R. §7001.0150(3).
Most 401 Certifications include conditions that must be followed in order to ensure water quality standards are met. The developer must comply with all conditions of the 401 Certification and accompanying federal license or permit. Common conditions include:
- Compensatory mitigation for the loss of wetlands or streams;
- Use of best management practices to prevent pollutant discharges; and
- Monitoring of wetlands or waters with associated reporting.
14-MN-d.11 – Appeal Decision (Optional)
Any person aggrieved by any final decision of MPCA with regard to the issuance, amendment or denial of a 401 Certification may obtain a judicial review of the decision. Minn. Stat. §115.05(11). In order to obtain a judicial review, the aggrieved party must file a petition for a writ of certiorari with the Court of Appeals and serve the petition on all parties to the contested case within thirty (30) days after the aggrieved party receives notice of the final decision and order of MPCA. Minn. Stat. §14.63.
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- Clean Water Act
- Minnesota – Minn. Stat. §§ 115.03 et seq., Powers and Duties
- Minnesota – Minn. Stat. §§ 115.05 et seq., Judicial Review
- Minnesota – Minn. Stat. §§ 14.63, Application
- Minnesota – Minn. Admin. Rules §§ 7001.0100 et seq., Preliminary Determination and Draft Permit
- Minnesota – Minn. Admin. Rules §§ 7001.0140 et seq., Final Determination
- Minnesota – Minn. Admin. Rules §§ 7001.0150 et seq., Terms and Conditions of Permits
- Minnesota – Minn. Admin. Rules §§ 7001.1430, Application Deadlines
- Minnesota – Minn. Admin. Rules §§ 7001.1440 et seq., Public Notice of Application and Preliminary Determination
- Minnesota – Minn. Admin. Rules §§ 7001.1450 et seq., Final Determination
- Minnesota – Minn. Admin. Rules §§ 7001.1460, Waiver
- Minnesota – Minn. Admin. Rules §§ 7001.1470 et seq., Terms and Conditions of Section 401 Certifications
- Minnesota – Minn. Admin. Rules §§ 7050 et seq., Waters of the State
- Minnesota – Minn. Admin. Rules §§ 7052 et seq., Lake Superior Basin Water Standards