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North Dakota 401 Water Quality Certification (14-ND-d)

In North Dakota, a developer needs a 401 Water Quality Certification or waiver from theNorth Dakota Department of Health (NDDoH) 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 (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-ND-d.1 – 401 Water Quality Certification Application

The developer must complete and submit a 401 Water Quality Certification Application (Application) to NDDoH. Alternatively, the developer may submit an application for a different state permit, that initiates a Section 401 review by NDDoH.

14-ND-d.2 to 14-ND-d.3 – Review Application Materials for Completeness

After receiving an Application, NDDoH reviews the Application for administrative and technical completeness. If the Application is incomplete, NDDoH requests additional information from the developer.

14-ND-d.4 to 14-ND-d.5 – Provide Public Notice

After determining the Application is complete, NDDoH provides notice of the Application to the public. NDDoH determines the contents and methods of providing the notice on a case-by-case basis. After NDDoH provides notice, the public is allowed to comment on the Application. ND Admin. Code. §33-16-02.1 Appendix IV.

14-ND-d.6 to 14-ND-d.7 – Review Application for Approval

After receiving comments, NDDoH reviews the Application, comments included, and decides whether or not to issue a 401 Certification. NDDoH will not issues a 401 Certification if NDDoH determines that issuing the 401 Certification would result in a violation of the state’s Water Quality Standards.

14-ND-d.8 – 401 Water Quality Certification

If NDDoH approves the Application, NDDoH issues a 401 Certification to the developer.

14-ND-d.9 – Appeal Decision (Optional)

Any person claiming to be aggrieved or adversely affected by actions taken by NDDoH has a right to petition NDDoH for relief pursuant to N.D.C.C. §61-28-07. N.D.A.C. §33-16-01-28.


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Edit North Dakota Department of Health
Water Quality Special Projects Contact 701-328-5268 pwax@ndabbazabbagov