Section 401 Water Quality Certification

Public Notice 

DRAFT OF THE CLEAN WATER ACT SECTION 401 
Kansas Water Quality Certification for a Proposed Storm Drainage Improvement Project on a Tributary to Little Mill Creek. 

Applicant: City of Shawnee, Johnson County: DRAFT Clean Water Act Section 401 Water Quality Certification (PDF)

Project Description: “The applicant proposes to place fill material within waters of the United States for construction of a storm drainage improvement project. The project includes replacement of two culvert road crossings, the realignment of the stream at the 67th Street culvert, the construction of five sections of vertical retention walls on one or both banks, the installation of a grade control structure west of Cottonwood Drive, and the remainder of the area subject to grading and the installation of riprap rock protection along the toe of each bank. The purpose of the project, as stated by the applicant, is to reduce flooding and erosion concerns in the channel such that it can contain the flow from a 100-year storm event. Construction of the storm drainage improvement project would result in permanent fill along approximately 1,200 linear feet (lf) of stream, and the loss of approximately 50 lf of stream length.”

Persons wishing to comment on the referenced draft document must submit their comments in writing by email to the Kansas Department of Health and Environment by May 28, 2022, if they wish to have their comments considered in the formulation of final determinations for 401 regarding this public notice.

For more information, contact Scott Satterthwaite, Watershed Management Section, Bureau of Environmental Field Services at or email the KDHE NPS today.

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 states' water quality agency's statement pertaining to CWA Section 404 dredge and fill permit 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. It is also presumed that adhering to WQC conditions will minimize water quality complaints thus reducing field staff time for their response. Additionally, the Section 401 WQC conditions automatically become conditions of the Section 404 permit with enforcement being provided 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 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 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. Kansas Department of Agriculture stream and floodplains.

KDHE's Effort to Utilize Both USACE and KDA-DWR Permit Processes to Inform

In Kansas, the USACE and KDA-DWR copy each other on applications or notifications associated with their respective programs. The KDHE-WMS is diligent in also copying Section 401 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" is considered comments along with other ECA agency responses by KDA-DWR and not automatic conditions of their issued permit as is the Section 401 water quality certification.

The certifications for both 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 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

The Kansas Department of Health and Environment is forwarding the announcement below to KDHE website viewers. Please note, KDHE and the 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:

For more information on Section 404 Nationwide Permits.

The information below is still valid until the USACE publishes the final 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 the U.S. Army Corps of Engineers effective February 25, 2022 and expiring March 14, 2026. More information on nationwide permits.

State of Kansas, including Indian country - reissuance of Regional General Permit 40

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.

Public Notice

General Permit with Conditional Section 401 Water Quality Certification (PDF)

For more information, contact: KDHE-Bureau of Environmental Field Services- Email the Watershed Management Section or visit the staff directory.