Section 401 Water Quality Certification
Water Quality Standards, Planning, Permits, & Certification
Applicable Water Quality Standards
Clean Water Act (CWA) Section 401 Water Quality Certification: K.A.R. 28-16-28f(b)(1)
The Clean Water Act (CWA) Section 401 water quality certification (WQC) is the state water quality agency's statement pertaining to CWA Section 404 dredge and fill permits for activities proposed in the waters of the U.S., including wetlands, issued by the United States Army Corps of Engineers (USACE). This statement informs the applicant the proposed project could violate state water quality standards, yet, if the applicant adheres to the conditions within the WQC, water quality standard violations should not occur. It is also presumed that adhering to WQC conditions will minimize water quality complaints thus reducing field staff time for complaint investigation and response. Additionally, the Section 401 WQC conditions automatically become conditions of the Section 404 permit with enforcement being provided by the USACE. The intent of Section 404 is to ensure minimal impacts occur to aquatic resources in the Waters of the U.S.
The New Section 401 Rule
The Kansas Department of Health and Environment is forwarding the announcement below to KDHE website viewers. Please note, KDHE and U.S. Department of Army Corps of Engineers (USACE) will no longer have joint public notices on proposed project activities requiring a Clean Water Act (CWA) Section 404 Permit due to the new CWA Section 401 Water Quality Certification (WQC) Rule which went into effect on September 11, 2020.
Per special public notice announcement from the U.S. Department of Army Corps of Engineers dated September 30, 2020: "On July 12, 2020 the U.S. Environmental Protection Agency published the final Clean Water Action (CWA) Section 401 Certification Rule (rule) to update and clarify the substantive and procedural requirements for water quality certification (WQC) under CWA Section 401. One of the most visible changes resulting from the rule is the requirement for the project proponent to request WQC directly from the certifying agency. For additional information regarding how this may impact your application for a Department of the Army permit please visit: Regulatory Announcements or view the 401 Water Quality Certification Final Rule Effective September 11, 2020 (PDF) file."
Kansas Surface Water Quality Standards for Water Quality Certification: K.A.R. 28-16-28f(b)(4)
The Kansas Environmental Coordination Act requires the Kansas Department of Agriculture - Division of Water Resources (KDA-DWR) to seek comments from Kansas' environmental agencies before issuing permits to modify stream channel cross-sections, levee and dam construction, modification and repairs and flood plain fills. Kansas Department of Health and Environment-Bureau of Environmental Field Services-Watershed Management Section reviews, pursuant to KSA 82a-326(a)(4) and (b), associated permits to issue a "Kansas Surface Water Quality Standards for Water Quality Certification". The applicant is informed the project can avoid state water quality standard violations if the applicant adheres to the conditions within the WQC. It is also presumed that adhering to WQC conditions will minimize water quality complaints thus reducing field staff time for their response. The intent of permits issued by KDA-DWR is to ensure downstream users' water rights are not impaired by upstream users and flooding doesn't occur from activities in flood plains or rivers/streams. More information can be found at the Kansas Department of Agriculture stream and floodplains webpage.
Water Quality Protection Planning
Nationwide Section 404 Permits - Including General Permits
The information below is still valid until the U.S. Army Corps of Engineers (USACE) publishes the final Nationwide Permit (NWP) 404 in the Federal Register.
The Kansas Department of Health and Environment has issued the final section 401 Kansas conditional water quality certification for the final 2022 Clean Water Act section 404 nationwide permits issued by USACE effective February 25, 2022 and expiring March 14, 2026. More information can be found at nationwide permits. This site includes the programmatic Section 401 water quality certification issued by KDHE.
State of Kansas, including Indian country - reissuance of Regional General Permit 40 - Natural Resources Conservation Service Agriculture Conservation Practices: The U.S. Army Corps of Engineers, Kansas City District, has reissued GP-40, authorizing the discharge of dredged or fill material in waters of the United States within the State of Kansas in association with the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS) agricultural conservation practices. This regional general permit is reissued under the authority of Section 404 of the Clean Water Act (33 USC 1344).
Duration of the General Permit:
The GP-40 is in effect for a period of five years until April 3, 2023 unless it is specifically modified, suspended, or revoked prior to the expiration date.
Kansas Water Quality Certification Process
Pre-filing Meeting Request
As per the EPA's 2020 401 Water Quality Certification (WQC) rule (CFR 121 et seq.), a pre-filing meeting must be requested at least 30 days before filing the WQC request.
Required Clean Water Act Section 401 WQC Request Elements
As per the EPA's 2020 401 WQC rule (CFR 121 et seq.), the following elements must be included in a Section 401 WQC request:
- Identify the project proponent(s) and a point of contact.
- Identify the proposed project.
- Identify the applicable federal license or permit.
- Identify the location and nature of any potential discharge that may result from the proposed project and the location of receiving waters.
- Include a description of any methods and means proposed to monitor the discharge and the equipment or measures planned to treat, control, or manage the discharge.
- Include a list of all other federal, interstate, tribal, state, territorial, or local agency authorizations required for the proposed project, including all approvals or denials already received.
- Include documentation that a pre-filing meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request.
- Contain the following statement: “The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief.”
- Contain the following statement: “The project proponent hereby requests that the certifying authority review and take action on this CWA 401 certification request within the applicable reasonable period of time.”
Clean Water Act Section 401 WQC Timeline
KDHE will work with USACE to determine a reasonable period of time to complete the Section 401 WQC.
KDHE's Effort to Utilize Both USACE and KDA-DWR Permit Processes to Inform Applicants
In Kansas, USACE and KDA-DWR copy each other on applications or notifications associated with their respective programs. The KDHE Watershed Management Section is diligent in also copying Section 401 information to the USACE and KDA-DWR while also minimizing duplication for the same project.
However, the "Kansas Surface Water Quality Standards for Water Quality Certification" (K.A.R. 28-16-28(b)(4)) are considered by KDA-DWR to be comments along with other Environmental Coordination Act agency responses and not automatic conditions of their issued permit as is the Clean Water Act Section 401 water quality certification.
The certifications for both USACE Section 404 and KDA-DWR permits help assure the applicants and recipients of other agency authorization permits are aware of the following:
- Their project has the potential to violate water quality standards
- The designated uses (PDF) and applicable water quality standards of the impacted water
- To implement best management practices or water quality protection measures to help avoid water quality standard violations
- The consequences of water quality impacts occur and KDHE confirms a water quality standard violation and
- A variance may be available depending on the circumstances