Section 401 Water Quality Certification

Water Quality Standards, Planning, Permits, & Certification

  1. Quality Standards
  2. Protection Planning
  3. Permits 404 & General
  4. Certification Process

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.