Wisconsin 401 Water Quality Certification (14-WI-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 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. Wisconsin DNR issues 401 Certifications pursuant to Wis. Stat. §281.
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:
401 Water Quality Certification Process
14-WI-d.1 – 401 Water Quality Certification Application
The developer must submit a 401 Water Quality Certification Application (Application) to Wisconsin DNR. The Application must include:
- The name and address of the developer;
- A description of the facility or activity and of any discharge which may result from the activity or facility, including, but not limited to:
- the volume of discharge;
- the biological, chemical, thermal, and other characteristics of the discharge;
- a description of the existing physical environment at the site of the discharge;
- the size of the area affected;
- the location or locations at which the discharge may enter the waters of the state; and
- any environmental impact document information and photographs which have been provided to the licensing or permitting agency;
- A description of the function and operation of equipment, facilities, or activities to treat pollutants or other effluents that may be discharged;
- The date or dates when the activity will begin and end, and the date or dates on which the discharge will take place;
- A description of the methods being used or proposed to monitor the quality and characteristics of the discharge and the operation of equipment, facilities, or activities employed in the treatment or control of pollutants or other effluents;
- Information sufficient to determine whether the proposed activity is water dependent; and
- A description of practicable alternatives to the proposed activity and a description of the investigation conducted to determine the viability of such alternatives, including alternative locations, construction design and methods, and operations.
14-WI-d.2 to 14-WI-d.3 – Review Application Materials for Completeness
After receiving an Application, Wisconsin DNR reviews the Application for administrative and technical completeness. Wisconsin DNR must determine if the Application is complete no more than 30 days after receiving the Application. If the Application is incomplete, Wisconsin DNR notifies the developer of the specific deficiencies in the Application. Wis. Admin. Code §NR 299.03(2).
14-WI-d.4 to 14-WI-d.5 – Review Application for Preliminary Approval
After determining the Application is complete, Wisconsin DNR has 120 days to make a preliminary determination to grant, deny or waive the Certification. Wis. Admin. Code §NR 299.05(1). Wisconsin DNR makes a determination by reviewing the proposed project and making a determination whether Wisconsin DNR has reasonable assurance that the project will:
- Result in any discharge; and
- Comply with the following water standards:
- effluent limitations adopted under Wis. Stat. §283.13 and 33 U.S.C. §1311;
- water based related effluent limitations adopted under Wis. Stat. §283.13(5) and 33 U.S.C. §1312;
- water quality standards adopted under Wis. Stat. §281.15 and 33 U.S.C. §1313;
- standards of performance adopted under Wis. Stat. §283.19 and 33 U.S.C. §1316;
- toxic and pretreatment effluent standards adopted under Wis. Stat. §283.21 and 33 U.S.C. §1317;
- public interest and public rights standards, related to water quality, set forth in Wis. Stat. §281.15; and
- any other appropriate requirements of state and federal law as provided in Wis. Stat. §281.17(10), Wis. Stat. §281.36 and 33 U.S.C. §1341(d).
14-WI-d.6 – Provide Notice of Wisconsin DNR’s Preliminary Approval
If Wisconsin DNR approves, or conditionally approves the Application, the developer must provide public notice of Wisconsin DNR’s preliminary decision in accordance with Wis. Stat. §985. The notice must contain:
- The developer’s name and address;
- A description of the proposed project and its location;
- A statement of Wisconsin DNR’s preliminary determination;
- A statement notifying the public of the opportunity to request a hearing on the matter; and
- A statement that unless a written request for hearing is filed with Wisconsin DNR within 30 days after publication of the decision, Wisconsin DNR’s decision will become final without public hearing at the end of the 30-day period.
14-WI-d.7 to 14-WI-d.9 – Submit Request for Contested Case Hearing (Optional)
Any person who has a substantial interest that may be affected by Wisconsin DNR’s decision may submit a written request, within 30 days of the public notice, to have a contested case hearing on the issue. The request must include a written statement giving specific reasons why the proposed activity violates the standards under Wis. Admin. Code §NR 299.04(1)(b) and provide specific information explaining why the person’s interests are adversely affected by Wisconsin DNR’s determination. Wisconsin DNR may request additional information from the person requesting the hearing. After considering hearing requests, Wisconsin DNR determines if a contested case hearing should be held. Wis. Admin. Code §NR 299.05(5).
14-WI-d.10 to 14-WI-d.11 – Provide Notice of Contested Case Hearing (If Applicable)
If Wisconsin DNR decides to hold a hearing, Wisconsin DNR provides notice at least ten (10) days before the hearing in accordance with Wis. Stat. §227.17. After providing appropriate notice, Wisconsin DNR conducts the hearing pursuant to Wis. Stat. §227.18.
14-WI-d.12 to 14-WI-d.13 – Review Application for Final Approval
At the end of the hearing, Wisconsin DNR makes a final determination to grant, deny or waive approval of the 401 Certification. Wisconsin DNR’s written decision must include:
- The name and address of the developer;
- A statement that Wisconsin DNR has made its decision about compliance with related state water quality standards enumerated in Wis. Admin. Code §NR 299.04(1) and denies, grants, grants conditionally or waives the 401 Certification consistent with that decision;
- If Wisconsin DNR decides to waive the 401 Certification, the decision must include:
- a statement explaining the determination that no discharge will result from the activity or that the activity does not fall within the purview of Wisconsin DNR’s authority;
- a statement advising the licensing or permitting agency and the developer if the activity proposed requires authorization under requirements of state law administered by Wisconsin DNR which are not related to water quality; and
- where applicable, specific recommendations to the federal permitting authority and the developer for avoidance of waters of the state;
- If Wisconsin DNR decides to grant or conditionally grant the 401 Certification, the decision must include:
- a statement that there is a reasonable assurance the activity will be conducted in a manner which will comply with the standards enumerated in Wis. Admin. Code §NR 299.04;
- if appropriate, a statement of conditions which Wisconsin DNR deems necessary with respect to the discharge including necessary monitoring requirements; and
- a statement advising the licensing or permitting agency and the developer if the activity proposed may require additional authorization under requirements of state law administered by Wisconsin DNR which are not related to water quality;
- If Wisconsin DNR decides to deny the 401 Certification, the decision must include a statement explaining why Wisconsin DNR does not have reasonable assurance that the discharge will comply with the standards enumerated Wis. Admin. Code §NR 299.04, and a description the standards of concern; and
- Any other information that Wisconsin DNR determines to be appropriate.
14-WI-d.14 – 401 Water Quality Certification
If Wisconsin DNR grants or conditionally grants the 401 Certification, Wisconsin DNR issues a 401 Certification to the developer subject to any conditions determined by Wisconsin DNR. If Wisconsin DNR’s preliminary decision was to grant or conditionally grant the 401 Certification, and a public hearing is not necessary, Wisconsin DNR’s preliminary decision becomes final after the 30 day notice period. Wis. Admin. Code §NR 299.05(7)(a).
14-WI-d.15 – Appeal Decision (Optional)
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- Clean Water Act
- 33 U.S. Code §§ 1311 et seq., Effluent Limitations
- 33 U.S. Code §§ 1312 et seq., Water Quality Related Effluent Limitations
- 33 U.S. Code §§ 1313 et seq., Water Quality Standards and Implementation Plans
- 33 U.S. Code §§ 1316 et seq., National Standards of Performance
- 33 U.S. Code §§ 1317 et seq., Toxic and Pretreatment Effluent Standards
- 33 U.S. Code §§ 1341 et seq., Certification
- Wisconsin – Wis. Stat. §§ 281 et seq., Water and Sewage
- Wisconsin – Wis. Stat. §§ 283 et seq., Pollution Discharge Elimination
- Wisconsin – Wis. Stat. §§ 227 et seq., Administrative Procedure and Review
- Wisconsin – Wis. Stat. §§ 985 et seq., Publication of Legal Notices, Public Newspapers, Fees
- Wisconsin – Wis. Admin. Code §§ NR 299 et seq., Water Quality Certification