Under Section 401 of the federal Clean Water Act, states and tribes can review and approve, condition, or deny all Federal permits or licenses that might result in a discharge to State or Tribal waters, including wetlands. The major Federal licenses and permits subject to Section 401 are Section 402 and 404 permits (in non-delegated states), Federal Energy Regulatory Commission hydropower licenses, and Rivers and Harbors Act Section 9 and 10 permits. States and tribes may choose to waive their Section 401 certification authority.
States and Tribes make their decisions to deny, certify, or condition permits or licenses primarily by ensuring the activity will comply with state water quality standards. In addition, states and tribes look at whether the activity will violate effluent limitations, new source performance standards, toxic pollutants, and other water resource requirements of state/tribal law or regulation. The Section 401 review allows for better consideration of state-specific concerns.
Current fee rules became effective February 15, 2002, and require that fees be submitted with completed applications for certification. As noted on page 17-2573 of the fee rules (http://www.deq.mt.gov/dir/legal/Chapters/CH30-02.pdf) the §401 certification review fee is a minimum of $400.00, or 1% of the gross value of the proposed project, not to exceed $20,000.00. Appropriate review fees along with documentation of the gross value of any proposed project needs to be submitted with any 401 application. The check should be made payable to the Water Protection Bureau, DEQ and on the memo section of the check, a notation indicating the name of the proposed project and that it is for a §401 Water Quality Certification review.
Every five years, the U.S. Army Corps of Engineers reissues Nationwide Permits which authorize specific activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. States and authorized tribes review the Nationwide Permits and issue Programmatic Water Quality Certifications on the same five year cycle. The Montana Department of Environmental Quality’s Water Quality Certification for the 2017 Nationwide Permits can be found here: Army Corps
Example of 401 Water Quality Certification
DEQ Staff Contact
Water Protection Bureau
Water Quality Division
Montana Dept. of Environmental Quality
1520 East Sixth Avenue
Helena, Montana 59620
Montana Statute and Rule
- Statute: Montana Water Quality Act
Federal Statute and Regulation