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Section 401
Water Quality Certification
Section 401 of the Clean Water Act provides the state authority to issue certification
that a proposed dredge and fill disposal activities will not violate applicable state
water quality standards. Part 230.10 (a)(5)(b) of the Guidelines states that no discharge
of dredged or fill material shall be permitted if it "causes or contributes, after
consideration of disposal site dilution and dispersion, to violations of any applicable
state quality standards". A Section 401 certification (or waiver) is required for any
discharge regulated under Section 404. The 401 certification is not a permit, per se, but
its denial has the same effect as a negative permit determination.
Procedures and requirements for 401 certification have considerable variation from
state to state. All states have water quality standards developed in accordance with
provisions of the Clean Water Act, reviewed and approved by the USEPA. However, only five
of the eight states have codified 401 requirements and these requirements are not subject
to the same review process as are water quality standards. In one case (Wisconsin), state
401 requirements include a general prohibition against open water disposal of dredged
material. Other states have administrative policies (not-codified) encouraging beneficial
use of dredged material. Some states issue Section 401 water quality certifications for a
disposal site that are valid until the site is not longer usable. Other states issue 401
certifications for a specific time period or number of dredging cycles.
The Great Lakes states have revised their water quality standards in accordance with
the Great Lakes Initiative (GLI). The GLI was developed by the USEPA, Great Lakes states,
tribes, environmental groups, industries, and municipalities in response to the Great
Lakes Water Quality Agreement, Great Lakes Toxics Substances Control Agreement, and Great
Lakes Critical Programs Act of 1990. The GLI establishes minimum basin-wide water quality
criteria to protect human health, aquatic health, and wildlife; a standard procedure for
protecting existing levels of water quality (antidegredation procedures), and;
implementation procedures for translating the criteria into enforceable limits on
pollutant discharges (see additional discussion in Appendix A). Great Lakes-specific water
quality standards adopted by states in conjunction with GLI procedures will be applied to
dredged material discharges to the Great Lakes through the Section 401 certification
process.
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