The Planning Unit administers the Section 401 Water Quality Certification Program in accordance with Section 401 of the Clean Water Act. This program evaluates applications for federal permits and licenses that involve a discharge to waters of the state and determines whether the proposed activity complies with Title 117 – Nebraska Surface Water Quality Standards. If the activity is likely to violate the standards, conditions for complying with the standards will be issued with the certification, or certification will be denied. The U.S. Army Corps of Engineers Section 404 Dredge and Fill Permits and Federal Energy Regulatory Commission licenses are examples of federal regulatory programs that require State Water Quality Certification before federal permits or licenses can be issued.
Section 401 Water Quality Certification
On January 9, 2001 the U.S. Supreme Court issued a decision in the matter of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178. The court decision eliminated the Corp’s regulatory jurisdiction over isolated, non-navigable intrastate waters where the only link to interstate commerce was the use of the waters by migratory birds. Therefore no permit or other authorization by the Corps of Engineers is required for projects that might impact waters meeting those criteria.
Waters of the state are still under the authority of the Department of Environmental Quality because isolated wetlands are included in Title 117 – Nebraska Surface Water Quality Standards. Although the department has no permitting mechanism to authorize projects in advance of their implementation, procedures have been developed to assist project proponents who wish to avoid violating state water quality standards and potential enforcement actions. To maintain consistency between how NDEQ treats projects involving wetlands impacted by the court ruling and those proposed for jurisdictional wetlands, a series of checklists was developed. The checklists enable project proponents to know what information they must provide, and allow NDEQ to deliver timely and consistent decisions on these wetlands. They also enable documentation of the decision-making process for each project. Project proponents are encouraged to contact NDEQ before implementing their project so that the plans can be discussed in light of Title 117 requirements.
Nebraska Department of Environmental Quality
1200 "N" Street, Suite 400
P.O. Box 98922
Lincoln, Nebraska 68509