Mississippi 401 Water Quality Certification (14-MS-d)
MDEQ Section 401-404 Explained; Miss. Code §49-17-28. 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-MS-d.1 – Contact MDEQ (Optional)
Developers are encouraged to contact MDEQ prior to submitting an application to a federal agency. Miss. Admin. Code §11-6-1.3.2(A).
14-MS-d.2 – Submit Appropriate Information to Federal Agency
The developer must submit the information necessary to obtain the federal permit to the appropriate federal agency. This information is necessary to obtain the federal permit as well as the 401 Certification.
14-MS-d.3 – Provide Public Notice of Federal Application
After receiving information from the developer, the federal agency publishes notice of the developer’s application for the federal permit or license. This notice serves as the developer’s application (Application) to MDEQ for a 401 Certification. Miss. Admin. Code §11-6-1.3.2(A).
14-MS-d.4 to 14-MS-d.6 – Review Application Materials for Completeness
After the federal agency publishes public notice, MDEQ reviews the Application for completeness. For MDEQ to deem the Application complete, the Application must contain at minimum:
- The name, address, phone number and principal place of business of the developer;
- A complete description of the proposed activity, including:
- the location;
- adjacent water bodies;
- the purpose and intent of the project; and
- maps, drawings and plans;
- A description of all proposed discharges and other activities associated with the proposed project;
- A description of the composition, source, and quantity of any material to be dredged or used as fill and a description of the area that will be impacted;
- The method of dredging or filling and specific plans for disposal and control of dredge soils; and
- The names and addresses of adjacent property owner.
If MDEQ does not have sufficient information, the developer may need to furnish additional information. Miss. Admin. Code §11-6-1.3.2(B).
14-MS-d.7 to 14-MS-d.8 – Provide Public Notice of 401 Certification Application
Public notice of all 401 Certification Applications is required. Public notice is typically provided in the form of a joint public notice by the federal agency and MDEQ. Miss. Admin. Code §11-6-1.3.3(A)(1). The developer, at the developer’s own expense, may also provide public notice. In this case, the developer must publish the notice in a newspaper that has general circulation in the area where the proposed project is located. Miss. Admin. Code §11-6-1.3.3(A)(2).
The public notice must provide a reasonable period of time, normally thirty (30) days, for the public to submit their comments and information concerning the Application to MDEQ. Miss. Admin. Code §11-6-1.3.3(A)(3). Any person commenting may request a public hearing. Requests for a public hearing must be in writing addressed to MDEQ and state the issues requiring a hearing. Miss. Admin. Code §11-6-1.3.3(B)(1).
14-MS-d.9 to 14-MS-d.11 – Does MDEQ Decide to Hold a Public Hearing?
After receiving comments, MDEQ determines whether to hold a public hearing on the Application. Typically, if the public doesn’t submit comments, MDEQ doesn’t hold a public hearing. MDEQ holds a public hearing if MDEQ determines such a hearing may be useful in reaching a decision on the Application. Miss. Admin. Code §11-6-1.3.3(B)(2).
If MDEQ decides to hold a public hearing, the hearing must be held within thirty (30) days of MDEQ making its decision and notifying the developer of its decision. Miss. Admin. Code §11-6-1.3.3(B)(2). The public hearing is reported by a court reporter. Miss. Admin. Code §11-6-1.3.3(B)(3).
14-MS-d.12 to 14-MS-d.13 – Review Application for Approval
After holding a public hearing, if necessary, MDEQ reviews the Application for approval. In reviewing the Application, MDEQ considers the following factors:
- Feasible project alternatives;
- Mitigation proposed/provided by the developer;
- Initial and secondary impacts on all existing and all classified uses of the waters of the state;
- The degree of compliance of the proposed activity with the State of Mississippi Water Quality Criteria for Intrastate, Interstate, and Coastal Waters;
- The degree of physical, chemical, and biological impacts on waters of the state;
- The effect on circulation patterns and water movement on waters of the state;
- The degree of alteration to the aquatic ecosystem;
- The degree of consistency with approved water quality management plans adopted by MDEQ;
- Stormwater management;
- The developer’s history of compliance;
- Any other factors deemed necessary by MDEQ to protect water quality; and
- Depending on the activities associated with the project, compliance with the relevant criteria in Miss. Admin. Code §11-6-1.3.4(C).
After reviewing the relevant factors, MDEQ approves, denies, or waives certification of the Application. Unless MDEQ is assured that appropriate measures will be taken to eliminate unreasonable degradation and irreparable harm to waters of the state, MDEQ will deny the Application if MDEQ determines any of the following:
- The proposed activity permanently alters the aquatic ecosystem such that water quality criteria are violated and/or it no longer supports its existing or classified uses;
- There is a feasible alternative to the activity that reduces adverse consequences on water quality and classified or existing uses of waters of the state;
- The proposed activity adversely impacts waters containing state or federally recognized threatened or endangered species;
- The proposed activity adversely impacts a special or unique aquatic habitat, such as National or State Wild and Scenic Rivers and/or State Outstanding Resource Waters;
- The proposed activity in conjunction with other activities may result in adverse cumulative impacts;
- Nonpoint source/stormwater management practices necessary to protect water quality have not been proposed;
- A denial of wastewater permits and/or approvals by the state with regard to the proposed activity; or
- The proposed activity results in significant environmental impacts that may adversely impact water quality.
14-MS-d.14 – 401 Water Quality Certification
If MDEQ approves the Application, MDEQ issues a 401 Certification to the developer (if MDEQ waives certification, the developer can continue the project without a 401 Certification). All 401 Certifications issued by MDEQ must set forth any effluent limitations, other limitations, and monitoring requirements necessary to assure that the developer complies with applicable effluent and other limitations. Any conditions to the 401 Certification become conditions to the federal license or permit. Miss. Admin. Code §11-6-1.3.5(A). MDEQ may conduct inspections of the project site to determine if the developer is in compliance with the 401 Certification conditions. Miss. Admin. Code §11-6-1.3.5(C).
14-MS-d.15 – Appeal Decision (Optional)
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