Missouri 401 Water Quality Certification (14-MO-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-MO-d.1 – 401 Water Quality Certification Application
The developer must submit a 401 Water Quality Certification Application (“Application”) to MDNR. Missouri – Missouri Department of Natural Resources – 401 Water Quality Certification Website.
The developer may also submit to MDNR the U.S. Army Corps of Engineers – ENG Form 4345, which contains most of the information necessary for a 401 Application, and attach any additional necessary information. Missouri – Missouri Department of Natural Resources – 401 Water Quality Certification Website.
14-MO-d.2 to 14-MO-d.4 – Review Application Materials for Completeness
MDNR reviews the Application for completeness. If the Application is incomplete, MDNR denies the 401 WQC without prejudice. 10 C.S.R. 20-6.060(5). Generally, MDNR notifies USACE of what is missing from the Application, and USACE relays that information to the developer. The developer may then submit a complete 401 WQC Application to MDNR.
14-MO-d.5 – Issue Public Notice of Application
USACE issues joint public notice regarding the 401 Application on behalf of itself and MDNR. The public notice expresses MDNR’s intent to issue a 401 WQC for the proposed project, after the required public notice and resolution of any water quality issues raised during the comment period. 10 C.S.R. 20-6.060(3).
14-MO-d.6 to 14-MO-d.7 – Comment on Application
Members of the public may comment on the 401 Application. The public comment period may range between 15 and 30 days. 10 C.S.R. 20-6.060(3). After completion of the comment period, USACE forwards any comments received to MDNR for review and consideration. 10 C.S.R. 20-6.060(4).
14-MO-d.8 to 14-MO-d.10 – Review Public Comments
In reviewing the comments, MDNR takes into account both direct and indirect water quality effects. 10 C.S.R. 20-6.060(4).
If MDNR did not receive any negative public comments about the project during the public notice period and does not anticipate any adverse water quality problems, MDNR issues a 401 WQC to the developer. However, MDNR includes in this 401 WQC provisions that if adverse water quality problems occur during construction, MDNR may suspend the developer’s 401 WQC until these water quality problems are resolved. 10 C.S.R. 20-6.060(4)(A).
If members of the public raise objections to the project during the public notice period, MDNR and USACE attempt to resolve the objections through negotiations. 10 C.S.R. 20-6.060(4)(B). Typically, USACE handles most publicly raised objections, unless the objections raise water quality-specific objections, in which case MDNR attempts to resolve them.
14-MO-d.11 to 14-MO-d.12 – Hold Public Hearing
If members of the public express sufficient interest in the project, MDNR holds a public hearing.
If the public’s objections are resolved during negotiations and/or the public hearing, MDNR issues a 401 WQC to the developer. 10 C.S.R. 20-6.060(4)(B)1..
14-MO-d.13 to 14-MO-d.15 – Review Negative Public Comments
If the public’s objections are not resolved during negotiations and/or during the public hearing, MDNR reviews the negative comments. If MDNR determines that the negative comments are valid, MDNR either denies the 401 WQC or issues a 401 WQC with conditions that the developer must meet or actions the developer must perform to prevent or minimize water quality problems. 10 C.S.R. 20-6.060(4)(B)2.A..
If MDNR determines that the negative comments are invalid or their concern will not have a substantial negative effect upon water quality, MDNR issues the 401 WQC. 10 C.S.R. 20-6.060(4)(B)2.B..
14-MO-d.16 to 14-MO-d.17 – Certification Decision Letter
MDNR must issue or deny a 401 WQC within 60 days of receiving a complete Application. If MDNR does not act on the Application within 60 days of its receipt, the 401 WQC is deemed to have been waived for the project. However, this time period may be extended by mutual agreement between the developer and MDNR. 10 C.S.R. 20-6.060(5).
MDNR mails the developer a 401 WQC decision letter. At that time, MDNR also sends the developer a fee invoice with the required fees. Projects that require a Finding of No Significant Impact require a $150 fee. Projects that require an Environmental Impact Statement require a $1500 fee. 10 C.S.R. 20-6.011(2)(I). The developer must submit the required fee directly to MDNR. Missouri – Missouri Department of Natural Resources – 401 Water Quality Certification Website.
14-MO-d.18 – 401 Water Quality Certification
The 401 WQC is effective upon the developer’s signature and when MDNR receives the applicable fees. 10 C.S.R. 20-6.060(6).
14-MO-d.19 – Notify Relevant USACE District Office of 401 WQC
Upon receipt of the fee, MDNR notifies the appropriate USACE District Office that the 401 WQC is in effect and final. Missouri – Missouri Department of Natural Resources – 401 Water Quality Certification Website.
14-MO-d.20 – Appeal Decision (Optional)
The developer or another affected party may appeal the issuance, conditional issuance, or denial of a 401 WQC to the Missouri Clean Water Commission in accordance with Missouri – Mo. Rev. Stat. §§ 644.006 et seq., Missouri Clean Water Law.
Notice of appeal must be filed with the Commission within 30 days of the 401 WQC being issued or denied. 10 C.S.R. 20-6.060(7).
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