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Section 401 Water Quality Certification

Introduction

IDEM regulates activities in lakes rivers and streams and wetlands to ensure that those activities maintain the chemical, physical, and biological integrity of these waters. Our nation's wetlands and waterways provide beautiful scenery, drinking water/groundwater recharge, and recreation value, along with many other benefits. They also provide raw materials for industry and medicine, hydroelectric power, a receptacle for wastewater, and a highway for commerce. While these uses provide great benefits to citizens, they can also alter and pollute our nation's waters and waterways. Federal permits or licenses are required to conduct many of these types of operations, including building and operating hydroelectric dams, discharging wastewater, altering flow paths, and placing fill materials into wetlands and waterways.

Who Needs a Section 401 Water Quality Certification?

When a project is planned in Indiana that will impact a wetland, stream, river, lake, or other Water of the U.S., the Indiana Department of Environmental Management (IDEM) must issue a Section 401 Water Quality Certification (401 WQC). A Section 401 WQC is a required component of a federal permit and must be issued before a federal permit or license can be granted.

The bulk of federal permits requiring Section 401 Water Quality Certification from IDEM are Section 404 Dredge and Fill Permits, which are issued by the U.S. Army Corps of Engineers (Corps). However, applicants for a license to operate a hydroelectric dam from the Federal Energy Regulatory Commission (FERC) must also receive Section 401 Water Quality Certification from IDEM.

What is Section 404 of the Clean Water Act?

Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged and fill material into Waters of the United States. The basic premise of the Corps' Section 404 Regulatory program is that dredged or fill material cannot be discharged into water if the nation's waters would be significantly degraded or if a feasible alternative exists that is less damaging to the aquatic environment. Dredge and fill activities are controlled by a permit process administered by the U.S. Army Corps of Engineers and overseen by the U.S. Environmental Protection Agency (U.S. EPA).

This means that any person or company planning to discharge fill materials to Indiana wetlands or other water bodies such as streams, rivers, and lakes by filling, excavating, open-trench cutting, or mechanical clearing, must receive Section 401 Water Quality Certification authorization from IDEM and must also apply for, and receive, a federal Section 404 Dredge and Fill Permit from the Corps.

What Are the Roles of IDEM and the Corps?

IDEM works closely with the U.S. Army Corps of Engineers and coordinates the permit application processes as much as possible. IDEM recommends that any potential applicant first contact the Corps to begin the application process and determine if the proposed project will impact Waters of the U.S. and to determine whether or not a federal permit is required.

Although both IDEM and the U.S. Army Corps of Engineers regulate impacts to wetlands and other Waters of the U.S., they have different authority and jurisdictions. This is why both IDEM and the Corps need to be contacted before any discharge to or activity in a wetland, stream, river, lake, or other Water of the U.S. occurs.

If the Corps of Engineers determines that a proposed project will require a Corps' Section 404 Dredge and Fill Permit, then the applicant must also apply for, and obtain, a Section 401 Water Quality Certification from IDEM. IDEM will review the proposed activities to determine if they will comply with Indiana law, including state water quality standards.

What About Isolated Wetlands?

Isolated wetlands (those wetlands not regulated under the federal Clean Water Act) are regulated under Indiana's State Isolated Wetlands law. Impacts to isolated wetlands require State Isolated Wetland Permits from IDEM. Again, because the federal government's jurisdiction is different than the state's, IDEM must be contacted to determine which, if any, state authorization(s) is/are needed before an applicant may legally discharge pollutants (including fill materials) to wetland, streams, rivers, lakes, and other Waters.

Update

On September 11, 2020, the U.S. EPA finalized an updated Section 401 Water Quality Certification (WQC) Rule (40 CFR Part 121) requiring that any request for 401 WQC contain seven to nine elements. Note: Additional information may be required for the agency to make a decision on the request. A key component is the Pre-filing Meeting Request which must be submitted a minimum of 30 days prior to submission of a Section 401 Water Quality Certification Request. IDEM has made a form with electronic submission (available on the IDEM Agency Forms page, Section 401 WQC Pre-Filing Meeting Request Form).

IDEM encourages you to read more about our Section 401 Water Quality Certification Program below and visit the Indiana State Regulated Wetlands Permitting Program.

Section 401 Water Quality Certification Program

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