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SOUTH DAKOTA Department of
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Surface Water

Photograph of a creek in the Black Hills of South Dakota.

 

401 Certification

Section 401 of the federal Clean Water Act requires states to review projects and federal permits to ensure they will not impact the stream quality or violate our Surface Water Quality Standards. The South Dakota Department of Environment and Natural Resources conducts this review in South Dakota and issues a 401 certification.

South Dakota Department of Environment and Natural Resources 401 Certification Procedures

  1. The project proponent will request a pre-filing (pre-certification) meeting with SD DENR at least 30 days prior to submitting a certification request. This pre-filing meeting request may be in the form of an email, phone call, or written letter. Based on the size, complexity, and political scope of the project, DENR may either participate in the prefiling meeting or waive that request. SD DENR will send the project proponent this document to provide insight to the process which also contains the list of required information to ensure a complete application is received.
  2. The project proponent will submit a 401 Certification request to SD DENR. This request will be written, dated, and signed. The certification request must contain at a minimum the following information to be considered a complete application:
    1. Identify the project proponent and a point of contact; including names, addresses, phone numbers, and email addresses;
    2. Identify the proposed project;
    3. Identify the location and nature of any potential discharge that may result from the proposed project and the location of receiving waters;
    4. Include Maps and GIS files (only if specifically requested for large, complex projects)
    5. 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;
    6. 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;
    7. Include documentation that a prefiling meeting request was submitted to SD DENR at least 30 days prior to submitting the certification request (including the pre-filing meeting request date);
    8. Contain the following statement: "The project proponent hereby certifies that all information contained herein is true, accurate, and complete, and to the best of my knowledge and belief;" and
    9. Contain the following statement: "The project proponent hereby requests that the certifying authority review and take action on this 401 certification request within the applicable reasonable period time."
    If the project proponent submits the certification request in less than 30 days after sending the prefiling meeting, SD DENR may begin working on the 401 certification request, but the "reasonable period of time" established by the federal agency will start at the end of the 30 days.
  3. SD DENR will send confirmation receipt of certification request to project proponent.
  4. If the federal agency (Corps or FERC) does not publish a joint public notice with SD DENR, then SD DENR will provide a public notice. Refer to ARSD 74:51:01:64, 74:51:01:64.01 and 74:51:01:64.02 for notice requirements based on the type of permit/license that is requiring a 401 certification. The public notice must include the following:
    1. A brief description of the proposed activity and a summary of the application information required in the application;
    2. A period of time, at least 15 days from the date of mailing, within which interested parties may express their views concerning the permit application; and
    3. A statement that any person may request, in writing, within the comment period specified in the notice, that a public hearing pursuant to chapter 74:50:02 be held to consider the SD DENR 401 Water Quality Certification Revision 1 - November 13, 2020 application. Requests for public hearings must state the reasons for holding a public hearing.
  5. Within 15 days of receiving the certification request, the federal agency must establish:
    1. The date of receipt;
    2. The applicable reasonable period of time to act on the certification request; and
    3. The date upon which waiver will occur if the certifying authority fails or refuses to act. If the federal agency does not provide this information or set up predetermined due dates, SD DENR will complete the certification within a reasonable period of time but not to exceed one year of receiving the certification request.
  6. SD DENR will review the application and determine if water quality certification will be granted, denied, granted with conditions, or waived. The scope of the Clean Water Act (CWA) section 401 certification is limited to assuring that a discharge from a Federally licensed or permitted activity will comply with state laws and requirements under CWA sections 301, 302, 303, 306, & 307 for discharges into waters of the United States. All requirements listed below must be completed or the permit or condition may be waived by the federal agency.
    1. Granting 401 certification will be in writing AND include a statement the discharge will comply with water quality requirements
    2. A 401 certification with conditions will be in writing and will include:
      1. A statement explaining why the condition is necessary to assure that the discharge from the proposed project will comply with water quality requirements; and
      2. A citation to federal or state law that authorizes the condition.
    3. A 401 certification denial will be in writing and will include:
      1. The specific water quality requirements with which the discharge will not comply;
      2. A statement explaining why the discharge will not comply with the identified water quality requirements; and
      3. If the denial is due to insufficient information, the denial must describe the specific water quality data or information, if any, that would be needed to assure that the discharge from the proposed project will comply with water quality requirements. If the project proponent fails to provide SD DENR with any additionally requested data within the reasonable amount of time set, SD DENR may deny the certification.
    4. 401 certification may be waived:
      1. Expressively;
      2. By refusing or failing to act within the reasonable period of time; or
      3. By refusing or failing to comply with procedural requirements of Section 401 or 40 CFR 121;
  7. The Federal agency will review whether certification action was taken in accordance with procedural requirements. SD DENR conditions that met procedural guidelines will be incorporated in the federal license or permit.
  8. Concurrently (but after SD DENR 401 certification), EPA will determine in its discretion if the project may affect water quality in a neighboring jurisdiction. If it does, EPA will notify the SD DENR (as the certifying agency), federal agency, and neighboring jurisdiction (SD DENR could also be the neighboring jurisdiction to other state/tribal/EPA certifications). The neighboring jurisdiction will then have the opportunity to determine if the project would violate WQS, to SD DENR 401 Water Quality Certification Revision 1 - November 13, 2020 object to the issuance of the federal permit or license, and/or request a public hearing from the federal agency. If, after a public hearing, objection, or review of the neighboring jurisdiction's comments, the federal agency determines that a downstream impact may occur, it must condition or deny the permit/license.

Download South Dakota's Statewide Certification for National Permits as an Excel Spreadsheet..

For more information, contact Patrick Snyder at (605) 773-3351.

 

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